Chapter III: On the Impediments of Matrimony

891. An impediment of marriage in general is everything which stands in the way of marriage being contracted licitly or validly. Hence impediments are of a twofold kind: (a) prohibiting, or impeding, which forbid that marriage be contracted licitly, but do not stand in the way of its validity; (b) diriment, or invalidating, which forbid that marriage be entered not only licitly, but also validly. Therefore they are called diriment, not because they dissolve a valid marriage, but because they bring it about that it is not contracted validly from the beginning.

892. That the Church has the right of establishing prohibiting impediments is certainly inferred from the fact that it can also decree diriment ones, as was proved above, n. 814. Now in the Church there enjoy this power both the Roman Pontiff and a general Council, in whom resides full power of enacting laws, and indeed exclusively for the baptized, so that Bishops cannot establish impediments by way of law¹. Yet they can, for a particular case, for a time, for a just cause, prohibit some marriage, and punish with severe penalties those violating this interdiction². - Besides, from the Code, c. 1041, "a custom introducing a new impediment or contrary to existing impediments is reprobated."

¹ Code, c. 1038, § 2.

² Code, c. 1039.

By the old law there were several impediments of this kind, which have now departed from the court³.

³ Such were catechism, that is, the impediment which was contracted by him who answered for the infant, when the ceremonies of baptism were supplied, in almost the same manner as a sponsor today contracts the impediment of spiritual relationship, as will be set forth below; and certain graver crimes, namely incest, spouse-killing, killing of a priest, killing of an infant; an attempted marriage with a nun, abduction of another's betrothed woman, conferral of baptism on one's own offspring outside a case of necessity, public penance. Cf. Clericati, Decis. 37 de Sacr. Matrim., n. 19 sq., Ballerini P., n. 534 sq., ed. 3; Feije, n. 548; Gasparri, n. 433. - On the origin and historical evolution of the various impediments of marriage see J. Freisen, Geschichte des canonischen Eherechts bis zum Verfall der Glossenliteratur, Tübingen, 1888; a summary of which is to be found ap. Canoniste, 1890, p. 433; 1891, p. 214; 1892, pp. 268, 344, 407, 459, 584, 705; 1893, p. 65; 1895, pp. 409, 667, etc.; Esmein, op. cit., t. I, p. 203-402.

Today, since espousals are no longer a prohibiting impediment, there are three, besides the prohibition of the Church, of which we shall treat: vow, mixed religion, and legal relationship.

893. The prohibition of the Church, which is not enumerated by the Code among impediments properly so called², is a prohibition, made by a legitimate superior for a grave cause, against contracting some determinate marriage. Therefore it is distinguished from a general law by which it is forbidden that nuptials be entered with some class of persons.

¹ Reiffenstuel, Schmalzgr., De Angelis, Santi, and other Canonists, lib. IV, tit. 16; St. Alphonsus, n. 982; Ball. P., n. 535, 538, ed. 3; Carrière, II, n. 916-917; Feije, n. 549-551; Noldin, n. 64.

² Impediments properly so called are those which render a person unable to contract marriage.

Now the legitimate superior in the case is: (a) the Supreme Pontiff, who can prohibit some marriage and even "add an invalidating clause"³ in the universal Church, either by himself, or through another, for example through the Roman Congregations; (b) the Bishop for his own diocese; (c) the pastor himself also, but not by an act properly judicial, because of defect of jurisdiction in the external forum: namely, he can deny his assistance to some marriage, when he judges that the nuptials cannot be entered because of a grave cause.

³ Code, c. 1039, § 2.

894. The causes on account of which nuptials can justly be forbidden are chiefly three, namely: (a) a founded suspicion of a hidden impediment, whether prohibiting or especially diriment; thus the Roman Congregations sometimes add this clause to a sentence in a matrimonial case when there is doubt concerning the impotence of either party: Vetito transitu ad alias nuptias, inconsulta S. C.; (b) fear lest the right of a third party be harmed, for example while a lawsuit concerning the value of a prior marriage or espousals is pending, a fortiori if valid espousals were contracted and not dissolved; (c) scandal, or some other grave damage to be avoided.

He sins gravely who contracts marriage against this prohibition of the Church; unless nevertheless the prohibition is made for a light cause and for a time, or when it is certainly established to the betrothed that the reason for the interdiction no longer subsists: for then the sin is only venial.

895. Not every vow prohibits marriage, but only a vow which is opposed to the celebration or use of marriage. Now a fivefold vow renders marriage illicit: 1° the vow of perfect chastity; 2° the vow of virginity; 3° the vow of not marrying; 4° the vow of receiving sacred orders; 5° the vow of entering religion: concerning these one must speak separately.

¹ St. Thomas, Supplem., q. 53, a. 1; Sanchez, lib. IX, disp. 33-34; St. Alphonsus, n. 986-987; Carrière, n. 925-935; Baller. P., n. 561-566, ed. 3; Feije, n. 559-565; Lehmk., n. 719-723; Génicot, n. 512-513; Gasparri, n. 434-441.

896. 1° On the simple vow of perfect chastity. Here there is question of a simple vow, not of a solemn one, which not only prohibits, but invalidates marriage, as will be said below. Now, whether it is emitted privately, or in a religious Congregation, it consists in a promise made to God perpetually and absolutely to abstain from every venereal delectation, whether external or internal.

(A) He who emitted such a vow regularly contracts marriage illicitly; for either he intends to consummate the marriage, and therefore to violate the vow; or at least he exposes himself to the danger of violating the vow, since, when the other spouse asks, he is held to render the debt. It was said regularly, so that the exceedingly rare case may be excepted in which each party intends to preserve virginity in marriage.

(B) But when marriage has been entered, (a) the one vowing cannot without sin ask for the debt, since this is directly against the vow; but he can and must render it as often as he is held to this by conjugal obligation. Hence, if the other spouse has lost the right of asking, because for example adultery was committed, neither can ask or render. - Therefore it is expedient to seek dispensation from the vow as soon as possible, lest the one vowing remain in perpetual danger of sinning.

(b) If the other spouse dies, the one vowing cannot fly to second nuptials, unless he has obtained dispensation from his vow. Generally dispensation is given only for entering marriage once, so that a new one is required for entering other nuptials.

N. B. If someone has emitted a temporary vow of chastity, he cannot enter nuptials except after the vow has expired; if he marries before, the same must be said as concerning him who is bound by a vow of perpetual chastity, as long as the prescribed time has not elapsed.

897. 2° On the vow of virginity. Most often one vowing virginity intends nothing other than perfect chastity: in which case the principles set forth above are to be applied. But taken strictly, a vow of virginity consists in the promise of abstaining from that first carnal work by which virginity is lost, or from voluntary effusion of seed for the man, and for the woman from intercourse or other acts by which the virginal seal is culpably broken. - In practice, however, he who vows virginity commonly intends either chastity or celibacy: wherefore his intention is to be explored cautiously.

These things being posited, (a) a vow of virginity is gravely harmed by the first consummated act by which virginity is lost; (b) after the first sin of this kind, marriage is licit, since the vow has now become impossible; (c) but he who after the vow has remained a virgin sins gravely by entering marriage, as one who exposes himself to grave danger of acting against the vow; except the case in which both contracting parties have promised virginity, as above; (d) when marriage has been contracted, he cannot ask for the debt as long as he has preserved the integrity of the flesh¹; but, once virginity has been lost, he can licitly render and ask for the debt, since the fulfillment of the vow has now become impossible; (e) when the consort has died, if he has remained a virgin, he is still bound by the vow; otherwise, he can pass to new nuptials.

¹ Thus indeed objectively speaking: for not a few are ignorant of this, and indeed sin by marrying, but not by asking for the debt.

898. 3° On the vow of not marrying, or of celibacy. (a) This vow directly consists in the promise of not contracting marriage; therefore he sins gravely who marries with such a vow; (b) but when marriage has been entered, he can consummate it, since this is not opposed to this vow; (c) but when the conjugal bond has been dissolved, the vow revives and impedes second nuptials.

899. 4° On the vow of receiving sacred orders. (a) This vow renders marriage illicit, since a married man can no longer receive sacred orders, unless perhaps he intends, before consummation of the marriage, to enter and profess Religion; but in this case he deceives his wife; (b) when marriage has been entered, he is held to seek the consent of the spouse so that he can receive orders, after those things required by law have been posited; if consent is denied, now he can render and ask for the debt, since he did not directly vow chastity, and besides the vow of receiving orders has become impossible; (c) if the wife dies, or loses the right of asking for the debt (for example by vow or adultery), now the obligation of the vow revives, unless dispensation has been obtained.

900. 5° On the vow of entering Religion. Here there is question of the vow of entering Religion with solemn vows, or a Congregation with simple vows: for each renders nuptials illicit. (a) The one vowing cannot licitly marry, since thus he exposes himself to the danger of breaking the vow or of deceiving the other spouse; (b) by the first consummation of the marriage he sins gravely, because he renders the fulfillment of the vow impossible¹; but, once the marriage has been consummated, he can licitly render and ask for the debt, since he did not vow chastity, and besides entrance into Religion is impossible; (c) but when freedom has been recovered, because, for example, the spouse has died, or has lost the right of asking, or consents that the one vowing enter Religion, he is held to do this, unless dispensation is obtained, or the matter is morally impossible.

¹ Yet some do not advert that they sin by consummating marriage, because by marrying they already intended to have intercourse; they indeed sinned by marrying, but, judging the marriage to be valid, they do not think that marital intercourse is a sin.

901. To be noted. Most often it is expedient to seek dispensation from these vows. By common law, from can. 1309, before Matrimony only the Pontiff can dispense from the vow of perfect and perpetual chastity or of entering Religion properly so called; hence Bishops cannot dispense from the same by ordinary law, unless there is danger in delay.

After marriage has been contracted, the Bishop dispenses for asking the debt: (a) if there is question of a non-reserved vow (can. 1313); (b) if of an urgent case even in a reserved vow (can. 81); (c) likewise concerning a reserved vow by force of the faculties ordinarily granted by the S. Penitentiary. (Cf. de Smet, De Sponsalibus et Matrimonio, ed. 3, I, n. 231).

Besides, by force of Indults, they often receive broader faculties; thus in the United States of America they have the power "of dispensing for a reasonable cause in simple vows of chastity and religion"²; which in many dioceses they impart to all confessors.

² Ap. Putzer, n. 106-107, where this faculty is accurately explained.

902. Mixed marriages, understood in the broad sense, are those which are entered between a Catholic and a non-Catholic, whether baptized or not. But in the strict sense, the impediment of mixed religion, as it is distinguished from the impediment of disparity of cult, is that which exists between two baptized persons, of whom one is Catholic, the other heretical or schismatic; marriage indeed it renders illicit, but not invalid. We shall speak: 1° on the illicitness of mixed marriages; 2° on dispensation from this impediment; 3° on the manner of celebrating them.

¹ Roskovany, De Matrimoniis mixtis; Feije, De Matrim. mixtis, Louvain, 1877; id., De Impedimentis, n. 566-574; Mazzei, De Matrim. personarum diversae religionis, Rome, 1771; Carrière, n. 753-765; Baller. P., n. 1084-1113; Gasparri, n. 442-472; Rosset, III, n. 1734-1769; De Becker, p. 258-267; Wernz, n. 573-590; Ullathorne, An Instruction on Mixed Marriages; Lambing, Mixed Marriages, 1876.

1° On the Illicitness of Mixed Marriages

903. Principle: Mixed marriages, entered without dispensation, are gravely illicit. This is certain.

(A) In Scripture we already find the foundations of this prohibition. (a) For it carefully prohibits association with heretics: "A heretical man after a first and second correction avoid"²; "If anyone comes to you, and does not bring this doctrine, do not receive him into the house, nor say Ave to him. For he who says Ave to him communicates in his evil works."³ Now he who contracts marriage with a heretic not only says ave to him, but has intimate and permanent association with him. (b) Besides, Paul being witness⁴, Christian marriage is the symbol of the perfect union of Christ with the Church: women ought to be subject to their husbands as to the Lord, and husbands to love their wives as Christ loved the Church and handed Himself over for her; but if husband and wife are not of the same faith, their union is very imperfect, since it is not a union of minds in the same faith, nor in the same hope or charity; therefore it represents the union of Christ and the Church only very imperfectly and remotely.

² Titus, III, 10.

³ II John, I, 10-11.

⁴ Ephesians, V, 22-32.

904. (B) Councils and Roman Pontiffs not only in a general way strictly prohibited and severely condemned association with heretics, but also especially marriages with them. Thus the Council of Elvira (A.D. 305) decreed¹: "Heretics, if they are unwilling to transfer themselves to the Catholic Church, Catholic girls are not to be given even to them: but it was pleasing to give them neither to Jews nor to heretics; because there can be no association of the faithful person with the unbeliever." Many other Councils, both particular and general, established the same.

¹ Can. 16, ap. Labbe, Concilia, I, p. 973. The Council of Laodicea established the same (around A.D. 364), can. 10, 31, ap. Labbe, I, p. 1510-1511.

Nor did the Supreme Pontiffs hold otherwise. Urban VIII, December 30, 1624, declared that "marriages of Catholics with heretics must be altogether fled"²; Clement XI³, June 25, 1706, prohibited the same, "unless the good of the whole Republic demands this"; Benedict XIV, November 4, 1741, calls them detestable marriages, which Holy Mother Church perpetually condemned and interdicted, and he greatly praises the zeal of those Prelates who strive by more severe penalties to deter Catholics from these sacrilegious bonds; Clement XIII, November 16, 1763, writes that from conjugal unions of this kind a great disaster is brought upon the Church; Pius VIII, March 25, 1830, declares that the Church abhors marriages of this kind, which bring with them no little deformity and spiritual danger; Gregory XVI, April 30, 1841, says: "She herself has always held such nuptials as illicit and plainly pernicious, both because of the criminal communion in divine things, and because of the impending danger of perversion for the Catholic spouse, and the depraved institution of offspring." Leo XIII confirms their doctrine, writing in the Constitution Arcanum: "That such conjugal unions are chiefly to be abhorred is most clearly seen from this, that they furnish occasion for forbidden association and communication in sacred things, create danger for the religion of the Catholic spouse, are an impediment to the good education of children, and very often impel minds to become accustomed to holding all religions in equal account, with the distinction between true and false removed." All these things have been gravely sanctioned by the Code: "Everywhere the Church most severely prohibits that marriage be entered between two baptized persons, of whom one is Catholic, but the other enrolled in a heretical or schismatic sect: but if there is danger of perversion of the Catholic spouse and of the offspring, the union is forbidden even by divine law itself."⁴

² Apud Rosset, n. 1739.

³ Ibid.

⁴ Code, c. 1060.

905. (C) Theological reason⁵. (a) Mixed marriages harm the intimate union and happiness of spouses. There ought to be an intimate union between spouses, and true concord of minds; the husband ought to love the wife as Christ loved the Church, and the woman to obey the man as the Lord. But this intimate union and friendship can scarcely exist where unity of faith is lacking; for friendship receives or makes equals, or in other words demands that friends feel the same and wish the same; now where faith is diverse, there will be discrepancy of minds not only in religious matters, but also in many historical or ethical questions which are indivisibly connected with religion, especially in those which concern the education of offspring. Thence frequent dissensions arise, which disturb the peace of the family.

⁵ Here it is worthwhile to note that by the same arguments it can be shown how full of dangers are conjugal unions entered between Catholic girls and men who are irreligious.

This posited, the perfect happiness of spouses cannot exist. For true beatitude is enjoyed when they pray together, attend the same divine offices in church, receive the same sacraments, are made participants of the same divine banquet, provoke one another to the practice of the same virtues, are strengthened by the same hope, are united by the same charity. But these things are impossible when the spouses are not of the same faith: for then either each prays separately, or one or the other acts against conscience by exercising acts of religion which inwardly he does not approve. - Besides, since, from the things said, each differs in many things, mutual diffidence steals into their souls, and mutual love grows cold, without which nevertheless there is no true conjugal happiness.

906. (b) Marriages of this kind are very dangerous to the Catholic party as regards faith, and sometimes as regards morals. First of all, to enter nuptials with heretics is a communication in divine things, insofar as the Catholic party administers the sacrament to the heretic, and conversely. Besides, a Catholic, often associating with the heretic and his family, can easily be imbued with not a few errors, and conceive doubts concerning certain truths of faith, or at least blush over some acts of religion, especially since it not rarely happens that the ignorance and simplicity of Catholics are mocked. The danger becomes greater when, notwithstanding the promises made at the time of the nuptials, the husband prohibits the Catholic wife from attending Mass and other divine offices; nor is it less when a heretical woman by perfidious persuasion gradually turns the man away from the practice of religion; for, as Bellarmine rightly writes¹: "Such indeed is the nature of women, that it is much easier for them to draw men into error, than for men to lead them to truth." The danger of indifferentism also is very great: for when in the same family there are found persons cultivating a different religion, and frequent and intimate relations are had among them, the persuasion easily arises that the various forms of religions are worthy of the same estimation. - Nor are dangers lacking as regards morals; for since the abuse of marriage very greatly prevails among Protestants, as is established from their own testimony¹, the Catholic wife can more easily be drawn by a heretical husband to illicit acts.

¹ Letter among the familiar letters 35, ap. Ball. P., n. 1093.

¹ Cf. Sinclair, The Crowning sin of the Age, Boston, 1892, p. 16 sq.; Pomeroy, The Ethics of Marriage, New York, 1895, ch. III; Storer, Is it I? Boston, 1868, p. 104-112.

907. (c) Often the dangers are greater for the children who are born from marriages of this kind. Sometimes the non-Catholic party stands in the way of their Catholic education. Even when they are instructed in a Catholic manner, they easily slip into indifferentism: for they see that the same religion is not cultivated by the parents, and thence they are prone to infer that it matters not much what religion is observed; for if the parents themselves do not think the same concerning religion, who can be certain concerning the absolute truth of religion? Are not all religions of equal value? - Not rarely the heretical party mocks certain Catholic dogmas or practices, and thus excites doubts in the minds of the children. - Besides, if the mother is heretical, she can scarcely instill the sense of true piety into the hearts of the children; if the father is Protestant, the children, even when imbued by the mother with Catholic principles, when they grow up, are too prone to embrace the errors of the father, or even more often to bid farewell to every religion.

This indeed is established by lamentable experience; for although mixed marriages do not always obtain unhappy outcomes, but sometimes produce good effects, either by drawing the non-Catholic party to the true faith, or by removing prejudices; nevertheless more often greater evils than goods arise from them, especially as regards the offspring². For from a computation recently made in the United States of America, sixty-six young people per cent, born from these marriages, cultivate no religion; while, when both parents are Catholic, only eight per cent bid farewell to religion¹.

² Cf. Americ. Eccles. Review, vol. I, 1889, p. 61-74; vol. II, 1891, p. 9-23.

¹ That reckoning was instituted by the Protestants themselves; cf. Association Men, New York, November 1901; Literary Digest, January 4, 1902, p. 17.

908. Corollaries. (A) Catholics who, without dispensation, enter marriage with heretics sin gravely. Nor does custom even of the longest time render it licit, as the Holy See declared many times, especially the Holy Office², January 3, 1871: "Wherefore although, as you affirm, the opinion has long since grown up there, that mixed nuptials can licitly be entered without dispensation of the Holy See, nevertheless this opinion, notwithstanding any custom whatever, cannot be tolerated." - This is true even if in the case the danger of perversion is absent; for there are other dangers, and besides, even when the natural precept ceases, the positive precept of the Church remains, founded on the presumption of danger.

² Ap. Collect. P. F., n. 1434.

Hence, when they have contracted without dispensation, they ought to have recourse to the Bishop, so that they may satisfy for the violation of the law and promise to employ the necessary cautions for removing the danger of perversion from themselves and their offspring³. These cautions are to be exacted even at the point of death⁴.

³ Thus S. Office, March 12, 1881, ap. Collect. P. F., n. 1440.

⁴ S. Office, March 18, 1901, ap. Acta S. Sedis, XXXI, p. 52.

909. (B) Pastors sin gravely when they assist even passively at marriages of this kind, because they cooperate in the sin of the contracting parties; thus the S. C. of the Council⁵ decreed: "Catholic pastors cannot be present at the celebration of these marriages. For it is shameful for them to be witnesses of so great a crime, and by some rite or by their presence to confirm a sacrilegious marriage."

⁵ Ap. Roskovany, II, p. 102; Gasparri, n. 446.

Yet passive assistance of the pastor is tolerated by the Holy See in certain regions: (a) if it is required by civil law under grave penalties; (b) as often as a mixed marriage cannot be impeded without graver damage, and besides it seems to be expedient for the utility of the Church and the common good if it is contracted before the pastor rather than before a non-Catholic minister, to whom the parties would easily flee⁶. - Moreover in these cases the pastor should have recourse to the Bishop, and the Bishop himself to the Holy See, if there is time and there is question of places for which this declaration was not given.

⁶ Thus from the Letter of Gregory XVI, April 30, 1841, to the Bishops of Hungary, ap. Collect. P. F., n. 1428, p. 522.

910. (C) Pastors ought with all their strength, by exhortations, persuasions, and also rebukes, to try that marriages of this kind not be entered. This is clear from the Code, c. 1064: "Let Pastors, as much as they can, deter from mixed nuptials."

To the matter the Third Plenary Council of Baltimore says, n. 133: "To attain this end, however, these things especially conduce: (a) the frequent instruction of pastors by which the faithful are taught concerning the prohibition of the Church against mixed marriages." - This instruction indeed ought to be given at an opportune time, that is, before the Catholic party has been captivated by love toward the non-Catholic party; therefore in the sacred tribunal, when the confessor knows that the penitent rather often frequents non-Catholics, - before Sodalities of young people, where it is established that amorous dealings are had with heretics, - before parents, so that they themselves may watch over adolescent offspring.

(b) "The uniform practice of the same pastors in occurring cases, of impeding with all their strength, by exhortations, persuasions, and also rebukes, that marriages of this kind be entered." This cannot be efficacious unless priests deter younger persons from excessive frequenting of Protestants; and therefore furnish occasions to Catholic youth for coming together, and for devoting themselves to honorable recreation, with certain parents or persons of mature age and proved virtue present: for unless Catholic adolescents come together, they will go to the gatherings and associations of heretics.

(c) "An accurate examination concerning the canonical and grave causes which are required for a dispensation to be granted upon this impediment of mixed communion." Wherefore pastors should not always and easily acquiesce to those seeking dispensation; but they should inquire concerning the canonical causes, and not immediately believe whatever those about to marry say, but accurately investigate the matter.

911. (D) "After mixed nuptials have been celebrated, let pastors know that they are burdened by a grave charge of conscience to watch that the conditions promised by the spouses be observed and obtain effect."¹ For unless pastors do this, and therefore sometimes visit families of this kind, often those promises will fall into oblivion, and the religious education of children will be little attended to. - Likewise, according to the Holy Office², since in this most grave matter nothing is to be left to the judgment of the priest alone, priests should as soon as possible make the Bishop more certain concerning any mixed marriage to be contracted, with all the circumstances of things, places, and persons most accurately reported.

¹ Thus S. C. de Prop. Fide to the Archbishop of Baltimore, June 25, 1884, ap. Collect. P. F., n. 1442; Code, c. 1064, n. 3.

² Instruction to the Bishops of the East, December 15, 1888, n. 13, ap. Collect. P. F., n. 1444.

2° On Dispensation from the Impediment of Mixed Religion

912. On the faculty of dispensing. Nevertheless, when these marriages cannot be prevented, or when in some particular case it is foreseen that greater goods than evils will come from them, or at least that the dangers will be sufficiently removed, the Supreme Pontiff is accustomed to dispense from the impediment of mixed religion, for a just cause. He indeed alone can do this by his own authority, since here there is question of a general law; but sometimes he grants the faculty of dispensing to Bishops, especially in those regions where many heretics are found¹.

¹ Thus in the United States of America, Bishops enjoy the faculty "of dispensing with their subjects upon the impeding impediment of mixed religion, provided that provision has been made for all the conditions prescribed by the Church." If, however, there is another impediment, for example of consanguinity or affinity, they cannot dispense unless they have an Indult of cumulating and at the same time the faculty of dispensing upon this other impediment. Besides, they enjoy the power "of dispensing in mixed marriages already contracted, not likewise to be contracted, upon the degrees of consanguinity and affinity, upon which they have already obtained apostolic faculty for Catholics, insofar as the Catholic party, with absolution first given from the guilt of incest and censures, can contract marriage anew duly and legitimately with the non-Catholic party, and of declaring legitimate the offspring received and to be received, provided that provision has been made for the conditions prescribed by the Church." - Formerly the prior faculty could not be exercised as regards Italians concerning whom it was not established that they had wholly abandoned Italian domicile; but that restriction was removed by a decree of the Holy Office, May 4, 1887. Cf. Putzer, n. 217; Zitelli, Dispens., p. 94.

A mixed marriage contracted with dispensation, and with the due cautions to be set forth below, becomes legitimate, nor can it be called sacrilegious.

913. On the conditions necessary for dispensation. (A) A grave and canonical cause is required, without which it cannot be permitted that the faithful expose themselves to grave dangers of faith and morals. Now this cause can be (a) any reason tending to the public good, for example if it can probably be hoped that the heretical family, or at least the non-Catholic party about to marry, will embrace the true faith; if Catholics are few and mixed marriages can contribute to removing the prejudices of heretics; if otherwise great scandals would arise; if mixed marriage is the only means that children, born from another marriage, be instructed in the Catholic religion; (b) also a reason of the private good of the contracting parties, provided that, after all circumstances have been carefully inspected, it can be foreseen that greater goods than evils will come from this marriage; which especially occurs when the Catholic party excels in faith, virtue, prudence, and fortitude.

(B) Besides, certain cautions are prescribed¹. The non-Catholic party must promise (a) that he or she will leave full liberty to the Catholic spouse for the exercise of his or her religion; (b) that all offspring of each sex will be instructed in the Catholic religion, even if it should happen that the Catholic consort is snatched away by premature death². - But the Catholic party is held to strive, according to the laws of charity and prudence, to promote the conversion of the other party.

¹ Code, c. 1061, § 1, n. 2.

² In certain regions, as in Prussia, it is provided by civil law that children of each sex be educated in the religion of the father, or at least according to his judgment, and at the same time it is forbidden to priests to exact any promise concerning offspring to be religiously instructed; which is opposed to canonical law. Then indeed it is tolerated that pastors assist at mixed marriages entered without these cautions; but they must do nothing which may seem to approve nuptials of this kind, nor mingle with them prayers or religious rites. Thus Pius VIII, March 25, 1830, ap. Collect. P. F., n. 1426.

In the Code, c. 1061, it is established that promises of this kind must regularly be made in writing. If this cannot be obtained, it suffices that they be made so seriously that the Bishop has moral certitude that they will be faithfully fulfilled; but when, because of various circumstances, such certitude cannot be acquired, he can by right require that the promises be confirmed by oath³. Sometimes it is also expedient that they be made in writing and be preserved in the parochial archive⁴, so that at an opportune time they can be shown to those whom the matter concerns.

³ Thus the Holy Office, February 17, 1875, ap. Collect. P. F., n. 1437.

⁴ Which is prescribed in some dioceses, for example in Trent (Statutes, n. 144); in Wilmington (Excerpta, n. 167); in Baltimore for a non-Catholic man, but not for a woman (Statutes, n. 61).

3° On the Manner of Celebrating Mixed Marriages

914. (A) Even when dispensation has been granted, and the necessary cautions exhibited, by common law the pastor can offer only the assistance necessary for validity, avoiding all those things which savor of a religious rite. Therefore the priest, with the witnesses, outside the church, without sacred vestments, should ask for and receive the mutual consent of the parties⁵, and afterwards inscribe the marriage in the book.

⁵ Code, c. 1064, n. 4.

In certain places it is permitted that nuptials be entered in the sacristy or in a private chapel¹, and that the priest question the parties concerning consent and declare them united in marriage; likewise the blessing of the ring and a brief allocution can be permitted with the consent of the Bishop².

¹ Thus S. Office, January 17, 1877, ap. Wernz, n. 588.

² Thus S. Office, January 17, 1877, ap. Gasparri, n. 463; cf. Collect. P. F., n. 1443; Statuts Synodaux de Paris, n. 482.

Besides, where grave inconveniences are feared from assistance of this kind, the Bishop can permit more active assistance³, with certain religious rites, the celebration of Mass and therefore the nuptial blessing always excluded⁴: according to the decree of the Holy Office, January 17, 1872, not only in this case is the Mass for bridegroom and bride prohibited, but also any Mass which could be held as the complement of the ceremony of marriage.⁵ - Hence in all these things the pastor will faithfully follow the Statutes and precepts of the Bishop.⁶

³ On the question whether it is expedient or not to offer active assistance to mixed marriages, cf. Amer. Eccles. Review, VIII, 1893, p. 172-179; 354, 364.

⁴ Instruct. Antonelli, November 15, 1858, ap. Collect. P. F., n. 1450; Code, c. 1102.

⁵ S. Office, January 17, 1872, ap. Gasparri, n. 463.

⁶ In the United States of America, the manner of assisting at mixed marriages is described in the Excerpta, ed. 8, p. 242-247: "First the priest should question the man concerning consent in this manner: 'N. N., wilt thou take N. N. here present for thy lawful wife?' - The bridegroom responds: 'I will.' - Then the woman: 'N. N., wilt thou take N. N. here present for thy lawful husband?' - The bride responds: 'I will.' - Then with right hands joined to one another, they give mutual faith to themselves by the following formula, the bridegroom first saying: 'I, N. N., take thee,' etc., as above (n. 885, note 1). - When these things have been carried out, the priest shall say: 'By the authority committed to me, I pronounce you united in the bonds of matrimony.' - Then the bridegroom will place the ring on the ring finger of the left hand of the bride, saying: 'With this ring I thee wed, and I plight unto thee my troth.' - After these things, the priest should address the spouses with the words added in the Appendix, or similar words..."

915. (B) The spouses cannot either before or after the marriage entered before the pastor approach a non-Catholic minister, unless he acts the part of a civil magistrate, and the law prescribes this for obtaining the civil effects of marriage. Now he acts the part of a civil magistrate when he receives and addresses the spouses not in a temple, but in a hall, and without sacred vestments⁷.

⁷ Code, c. 1063.

The Catholic party who enters marriage before a non-Catholic minister, as one assigned to sacred things, sins gravely, insofar as he or she communicates in sacred things with a heretic and furnishes scandal; and incurs excommunication reserved to the Ordinary⁸. - Hence "if the pastor certainly knows that the betrothed are about to violate or have already violated this law, let him not assist at their marriage, unless from most grave causes, scandal being removed and the Ordinary first consulted."¹ But if he does not certainly know that they are about to go to the heretical minister, he can be silent concerning the law of the Church, when he foresees that the admonition will not be profitable, for avoiding greater evils².

⁸ Code, c. 2319, § 1, n. 1.

¹ Code, c. 1063, § 2.

² Thus S. Office, December 12, 1886, to the Bishops of the East, ap. Collect., n. 1444 (9).

(C) On this occasion it was also asked whether it is licit for a Catholic priest to act as a civil minister in the celebration of the marriage of two heretics; now the Holy Office responded³, December 20, 1837: "Although an intervention of this kind is not so reprobated that it could never be licit, nevertheless commonly it is to be dissuaded." Yet most recently the Prefect of the S. C. de Prop. Fide wrote to the Archbishop of New Orleans, January 26, 1895, that this is licit, because in this case the priest is as an authorizable witness⁴.

³ Collect. P. F., n. 1523; cf. n. 1523, ad 3.

⁴ Ap. De Becker, p. 267.

N. B. - "The faithful are also to be deterred from contracting marriage with those who notoriously have cast off the Catholic faith, even if they have not passed to a non-Catholic sect, or who are enrolled in societies condemned by the Church. Let the pastor not assist at the aforesaid nuptials unless the Ordinary has been consulted, who, after inspecting all the circumstances of the matter, can permit him to be present at the marriage, provided that a grave cause urges and according to his own prudent judgment the Ordinary judges that sufficient provision has been made for the Catholic education of all offspring and for removing the danger of perversion of the other spouse."

"If a public sinner or one notoriously bound by censure shall first have refused to approach sacramental confession or to be reconciled with the Church, let the pastor not assist at his marriage, unless a grave cause urges, concerning which, if it can be done, he should consult the Ordinary."

916. Formerly many difficulties were raised concerning legal relationship, whether or not it was an impediment, and in what degree. The Code, c. 1059, hands down the principle of solution, decreeing that in this matter civil law is to be followed, so that in regions where, by civil relationship, nuptials are rendered illicit, by canonical law marriage is likewise illicit, or a prohibiting impediment, and indeed in the same degree and manner: "In those regions where by civil law legal relationship, arising from adoption, renders nuptials illicit, by canonical law also, marriage is illicit."

Therefore the civil legislation concerning this matter must be carefully inspected. In Gaul legal adoption is held as a prohibiting impediment¹.

¹ "Marriage is prohibited: between the adopter, the adopted, and his descendants; between the adoptive children of the same individual; between the adopted and the children, whether legitimate or natural, who could be born to the adopter; between the adopted and the spouse of the adopter; and reciprocally between the adopter and the spouse of the adopted." (Cod. civ., a. 348.)

Division.

² Sanchez, lib. VII, disp. 1-6; St. Alphonsus, n. 978-981 and n. 1008; Carriere, n. 508-627; Feije, n. 73-104; De Angelis, l. IV, t. I, n. 15-17; Lehmkuhl, n. 726-731; Gasparri, n. 244 sq.; De Becker, p. 49-53; Haine, q. 94-100; Rosset, n. 1246; Genicot, n. 465-477; Noldin, n. 58-61.

The nature and division of diriment impediments.

Who can establish them?

Who are subject to them?

What causes excuse from them?

1° The Nature and Division of Diriment Impediments.

917. Nature. (A) A diriment impediment is of such a nature that it renders marriage invalid: "A diriment impediment both gravely prohibits marriage from being contracted, and prevents it from being validly contracted" (Code, c. 1036, § 2).

(B) A diriment impediment directly affects the contract and indirectly the sacrament. For indeed the Church cannot directly touch the substance of a sacrament, that is, change what Christ Himself instituted as essential in the sacraments; therefore, granted that valid consent is the matter and form of the sacrament of Matrimony, she cannot bring it about that Christians who validly consent do not contract valid nuptials. But she can determine and prescribe the conditions required in order that matrimonial consent be valid, with attention to the public good; for that is valid in the spiritual order which the State can furnish in temporal matters; now the State can prescribe, on account of the public good, certain conditions for completing civil contracts, and if these are omitted, the contract will be invalid; which it has in fact done in relation to purchase-sale, testaments, and other matters of this kind. Therefore likewise the Church can determine the conditions without which matrimonial consent will not be valid.

Moreover, by directly touching the contract, the Church indirectly touches the sacrament; for since the matter and form of the sacrament is matrimonial consent itself, as often as the contract is invalid, so often the sacrament is invalid. Nor in this is the matter and form of the sacrament changed, which always consists in a valid contract; but the conditions necessary for the validity of the contract are changed. This is made clear by comparison: if someone chemically dissolves baptismal water, by that very fact he indirectly invalidates the baptism administered with it, without, however, changing the substance of the sacrament; so the Church, by her power dissolving matrimonial consent, or rather preventing this consent from being validly given, does not change the substance of matrimony.

918. (C) But the end for which a diriment impediment is established is, in a general way, that marriage be entered rightly and worthily for the good of the contracting parties and of society; and therefore that the evils and disadvantages which would destroy or diminish the sanctity and honorableness of marriage be efficaciously averted. Hence certain impediments are instituted: (a) on account of the physical or spiritual good of the spouses, such as consanguinity, especially in the first degrees, affinity, or crime; (b) others, however, on account of the public good of both societies, civil and ecclesiastical; for example, relationship and affinity in remote degrees, so that young persons, contracting outside blood relatives and affines, may unite by a common bond families otherwise separated; (c) others finally on account of the good of religion and of the sacrament, such as order, vow, bond.

919. Division. (A) Fifteen diriment impediments are generally enumerated, and they are contained in these verses:

Error, condition, vow, relationship, crime¹,

¹ But a threefold relationship is distinguished: natural, spiritual, and legal; likewise the impediment of crime is threefold, as will be said below; hence nineteen impediments are acknowledged by some. Of these diriment impediments, thirteen are diriment impediments properly so called. Cf. Code, can. 1067 sq.

Disparity of worship, force, order, bond, honesty,

Age, affinity, if clandestine and impotent,

If the woman has been abducted and not restored in a safe place.

(B) By reason of the authority from which they take their origin, impediments are: (a) of natural law, if they have been instituted by God as author of nature, for example error, impotence, and consanguinity in the first degree of the direct line; (b) of positive divine law, when they have been established by positive divine law, as is the bond; (c) of ecclesiastical law, when they have been established by the authority of the Church, such as order, vow, disparity of worship, etc.

(C) By reason of extension, impediments are (a) absolute, when they dirimently impede marriage with any person whatever, for example vow, order, bond; (b) relative, when they invalidate nuptials only with certain persons, for example relationship, affinity, crime, etc.

(D) By reason of the end for which they were instituted, impediments are: (a) of private right, which are established on account of the private good of the contracting parties, so that to them alone belongs the right and duty of impugning the marriage; there are four: error, condition, fear, impotence, to which some, such as Lehmkuhl (n. 732), add the bond; (b) of public right, which are established on account of the common good, or on account of the sanctity of Christian Matrimony, so that the right and duty of impugning the marriage belongs not only to the contracting parties, but also directly to the ecclesiastical judge and indirectly to any person who has known of such an impediment; such are age, order, vow, and the rest except the five enumerated above (Code, c. 1971).

(E) By reason of the manner in which they are known, impediments are public or occult, according as they can be proved in the external forum or not, as will be explained below, where Dispensations are treated (Code, c. 1037).

920. (F) But in the logical order, which we shall follow, they can be reduced to three heads: (a) impediments which affect consent: age and amentia, error, condition, force and fear; (b) those which affect the capacity of the contracting parties, either absolutely: impotence, bond, vow, and order; or relatively: relationship, affinity, public honesty, disparity of worship, abduction, and crime; (c) those which regard the form of the contract, namely clandestinity¹.

¹ St. Thomas (Supplement, q. L, single article) thus logically and philosophically expounds the order of the impediments existing in his time: "For marriage can be impeded either on the part of the marriage contract, or on the part of those contracting. If in the first way, since the marriage contract is made by voluntary consent, which is taken away by ignorance and by violence, there will be two impediments of marriage, namely force, that is, coercion, and error on the part of ignorance. And therefore concerning these two impediments the Master made his determination where the cause of marriage was being treated (Sent. IV, dist. 29 and 30). But now he treats impediments which are taken on the part of the persons contracting, which are distinguished thus. For someone can be impeded from contracting marriage either simply, or with respect to some person. If simply, so that he can contract marriage with no one, this cannot be except because he is impeded from the matrimonial act. And this happens in two ways: first, because he cannot in fact, either because he cannot at all, and thus the impediment of impotence for coition is posited; or because he cannot freely, and thus the impediment of the condition of slavery is posited; secondly, because he cannot licitly, and this insofar as he is obliged to continence, which happens in two ways: either because he is obliged by reason of an office received, and thus there is the impediment of order; or by reason of a vow emitted, and thus vow impedes. But if someone is impeded from marriage not simply, but with respect to some person, either this is on account of an obligation to another person, as he who is joined in one marriage cannot be joined to another, and thus there is the bond of marriage; or because proportion to another person is lacking, and this on account of three things: first indeed on account of too great a distance from her, and thus there is disparity of worship; secondly, on account of too great nearness, and thus a threefold impediment is posited, namely relationship, then affinity, because it imports the nearness of two persons by reason of a third person joined by marriage, and the justice of public honesty, in which there is the nearness of two persons by reason of a third person joined by betrothals; thirdly, on account of an undue conjunction with her first made, and thus the crime of adultery previously committed with her impedes."

2° Who Can Establish Diriment Impediments?

921. It has already been proved above, n. 814, that the Church, and indeed she alone, has the right of establishing among the baptized impediments diriment of marriage; but the question is who in the Church enjoys this power.

(A) The Supreme Pontiff and general Councils certainly can establish impediments of this kind, since they possess supreme authority over the universal Church. And this they can furnish either by way of a universal law, or by way of a particular precept¹.

¹ Code, c. 1038.

(B) "A custom introducing a new impediment or contrary to existing impediments is reprobated."²

² Code, c. 1041.

(C) But a Bishop and particular Councils today lack the power of establishing impediments, although formerly they exercised it. The reason is that this is a major cause, which the Supreme Pontiff has reserved to himself, and deservedly; for if any Bishop were able to establish impediments for his own diocese, there would now be the greatest confusion in a matter of grave moment.

3° Who Are Subject to Diriment Impediments?

922. (A) It is certain that all, even heretics and infidels, are bound by impediments of natural law and positive divine law, such as consanguinity in the first degree of the direct line, the bond, etc.; for divine law, even merely positive law, binds all subjects of God.

It is likewise certain that infidels are not directly touched by merely ecclesiastical impediments, since the Church does not judge those who are outside, and therefore does not make laws for them. Yet infidels are indirectly touched by these when, namely, they wish to contract with the faithful, who themselves are bound by the ecclesiastical bond; for for the nullity of marriage it suffices that one of the betrothed be incapable of contracting (Code, c. 1036).

923. (B) But it is disputed whether heretics, schismatics, and apostates who were validly baptized are subject to merely ecclesiastical impediments.

(a) Formerly not a few theologians and canonists, such as Laymann and Schmalzgrueber¹, denied this. For although, they said, the Church has the power of binding even rebellious children, in fact she does not wish to bind those who are members of a Society entirely separated from the Church, and who are born, but do not become, heretics. For it is not credible that she would wish to press laws whose observance is impossible, and from which the greatest harms necessarily arise; but ecclesiastical laws diriment of marriage cannot be observed by heretics, since they are unknown by most, and are not held as obligatory by those who know them; besides, if heretics are bound by these laws, many marriages will be invalid: which indeed is a very great evil.

¹ Laymann, l. V, tr. X, p. 2, c. 4, n. 7; Schmalzgr., lib. I, tit. 1, n. 379-380.

924. (b) Nevertheless, according to present-day canonists, the affirmative opinion must wholly be held, on account of the decisions of the Church. - An exception, however, is admitted with regard to schismatics dwelling in the East, who now through long centuries have had their own particular laws concerning this matter, while the Roman Pontiffs were silent.

1. For Benedict XIV several times declared, whether implicitly or explicitly, that heretics are bound by canonical impediments. In the Constitution Matrimonia, November 4, 1741, he established that marriages contracted, without the Tridentine form, between heretics or between a heretical and a Catholic party in Belgium and Holland were valid, provided nevertheless that no other canonical impediment stood in the way; therefore they are invalid if such an impediment stood in the way. Likewise in the Constitution Singulari nobis, February 9, 1749, to the Cardinal of York, he declares that a marriage between a Hebrew and a heretical woman is invalid, because "it is established, he says, that heretics indeed are repelled from the unity of the Church, and are deprived of all those goods which those living in the Church enjoy, yet they are not freed from her authority and laws."

2. This is also clear from the manner of acting of the Roman Congregations. For, when spouses entangled in an ecclesiastical impediment are converted from heresy or schism, the Apostolic See sanates their marriages in the root; moreover it grants special faculties to Bishops with regard to converted heretics, for example, the faculty of dispensing in marriages contracted with converted heretics in the simple and mixed second degree, that is, in the second mixed with the third or fourth; therefore it supposes that nuptials entered with a canonical impediment are invalid.

3. In reality, impediments of this kind, if you except clandestinity (concerning whose extension it will be said below), had already been promulgated when the modern sects of heretics were born, and therefore they had the force of law where heresy now is widespread; besides, nothing proves that the Church afterward wished to exempt heretics from these laws, but, on the contrary, the documents already brought forward rather prove the contrary. And deservedly so; for otherwise the Church would seem to favor rebellious children. - Besides, the Code exempts non-Catholics only from observing the Catholic form of marriage (Code, c. 1099).

Nor should it be said that the greatest inconveniences arise from this; for often present-day heretics in good faith are excused from sin when they contract marriage with a canonical impediment; if they are deprived of sacramental grace, they can receive other graces, and, since they entered the nuptials in good faith, the offspring is legitimate.

4° What Causes Excuse from Diriment Impediments?

925. (A) Even invincible ignorance does not excuse from a diriment impediment, because from the Code, c. 16, "no ignorance of invalidating or inhabilitating laws excuses from them, unless something else is expressly stated." This, moreover, the Holy Office openly declared in the Instruction to the Vicar Apostolic of Siam¹, July 4, 1855: "It must also be noted, with regard to diriment impediments, that invincible ignorance or good faith is not sufficient for marriage to be validly contracted. Although sometimes (which, however, must rarely be believed in practice) that ignorance and good faith can avail to excuse from sin, nevertheless it can never effect that a marriage is valid which has been entered with a diriment obstacle."

¹ Ap. Collect. Paris., n. 950, p. 427.

926. (B) Nor, regularly, does grave harm to the contracting parties, or the impossibility of obtaining a dispensation, excuse from impediments to be incurred; for invalidating laws, which are made on account of the public good, do not cease on account of some private good. This is confirmed from the response of the Holy Office to the Vicar Apostolic of Japan², March 11, 1868; for it had been explained that Japanese Christians, during a century-long persecution, had in good faith contracted marriages with impediments of ecclesiastical law; now it was answered that those who were persevering in good faith were not to be disturbed; but that others were held to renew consent, or, if this were impossible, petition should be made for a dispensation in the root; from which it is inferred that these marriages were held by the Holy Office as invalid.

² Ap. Collect. P. F., n. 1226.

It is said regularly, because if someone in this case had altogether to abstain from marriage, - because, for example, the case concerns a Catholic woman who lives in a region where all young men are pagans, - the impediment ceases, since the natural right of marrying prevails over ecclesiastical law.

927. Corollary: Is it licit to contract with a doubtful impediment? According to all, first the matter must be seriously investigated; but if, after diligent examination, doubt remains, a distinction must be made:

(A) If there is question of an impediment of natural or divine law, for example of consanguinity, of the bond, he who enters nuptials with such a doubt sins gravely; for here there is question of the validity of the sacrament, and indeed of a defect which the Church cannot supply; therefore here it is not licit, before the fact, to follow a probable opinion; and he who acts thus voluntarily and without necessity exposes himself to the danger of violating chastity.

Nevertheless, "if the impediment of impotence is doubtful, whether by a doubt of law or by a doubt of fact, marriage is not to be impeded."¹

¹ Code, c. 1068, § 2.

(B) If the impediment is of ecclesiastical law, a distinction must likewise be made: (a) in a doubt of law, whether the law exists, it is licit to contract, because the Church supplies, that is, gives the faculty of marrying, if perhaps this does not exist; for from the Code, "laws, even invalidating and inhabilitating laws, do not urge in a doubt of law."² Therefore in practice a doubtful ecclesiastical impediment by a doubt of law is no impediment.

² Code, c. 15.

(b) In a doubt of fact, whether, for example, between A and B there is a prohibited degree of consanguinity or affinity, it is not licit to contract, but a dispensation must be obtained ad cautelam; for from the Code "in a doubt of fact the Ordinary can dispense in these, provided the case concerns laws in which the Roman Pontiff is accustomed to dispense."³ Otherwise the marriage is exposed to the danger of nullity without sufficient reason, since it is easy to obtain a dispensation from the Ordinary. After the fact, one must stand for the validity of the marriage until the contrary is proved (Code, c. 1014).

³ Code, c. 85.

¹ Decret., lib. V, tit. 39, cap. 44.

There are four: amentia and age, error, condition, force and fear.

I. On Amentia and Age.

928. 1° On amentia². (A) Perpetual and absolute amentia by natural law dirimently impedes marriage; for, from what was said above (n. 692), for the validity of marriage there is required a free and therefore rational consent, of which those perpetually and absolutely demented are wholly incapable. - But if the amentia is not perpetual, and marriage was entered at a time when each spouse was of sound mind, it is not dissolved by subsequent amentia.

² Decret., lib. IV, tit. I, cap. 24; St. Thomas, 4 Sentent., dist. XXXIV, q. I, a. 4; Sanchez, lib. I, disp. 8, n. 82-24; Schmalzgr., lib. IV, t. I, n. 14-17; Carriere, n. 827; Gasparri, II, n. 779-781.

(B) Those, however, who have lucid intervals do indeed validly contract during the time when they enjoy the use of reason; but regularly they are to be turned away from marriage, on account of the evils which follow from it and the difficulty of rightly educating the offspring. It is said regularly, because these marriages can be permitted on account of a grave cause, for example to repair the honor of a girl, to ratify a civil union, or to legitimate offspring; yet this generally should not be done without consulting the Bishop.

If it is doubted whether the marriage was contracted during a time of amentia or during a lucid interval, it is generally presumed to have been entered during the time of amentia, and therefore to be invalid, because lucid intervals occur by accident, and therefore must be proved.

(C) The demented, or monomaniacs, who are insane concerning one or another matter, and in other things possess reason, more probably are capable of marriage, provided they understand the rights and duties of wedlock; but they are to be turned away from marriage, insofar as it can be done, on account of the inconveniences to which the other party and the offspring to be born will be subject³.

³ Generally civil laws hold such marriages as invalid.

929. (D) Fools or stupid persons, if they possess sufficient discretion, so that they understand the rights and burdens of marriage, can validly contract; but, since they are more easily deceived, it is also more easily proved that their consent was vitiated by error.

(E) Deaf-mutes, rightly instructed, are capable of marrying. But if they are not capable of sinning gravely, neither are they judged capable of contracting.

Those, however, who from birth have been at the same time deaf, mute, and blind, are generally incapable of marriage, unless nevertheless they have been instructed by a special method¹.

¹ For some of these have in reality been instructed, as is seen in Dickens, American Notes, ch. III, where it is described how Laura Bridgman, a girl deprived of all the senses except touch, was excellently educated; cf. Amer. Supplement to Encyclop. Britannica, under the word Bridgman; another example is seen in La Quinzaine, Dec. 1902.

(F) The drunk, who for the time truly lack the use of reason, and also those sleeping, even sleepwalkers, cannot enter marriage during the time of drunkenness or sleep.

But if the marriage is made through a procurator, it is validly contracted even in the case in which the mandator is drunk or sleeping at the time of the nuptials, provided that he enjoyed the use of reason when he gave the mandate.

930. 2° On age². (A) General rule: By canonical law a marriage entered before the required age is invalid, that is, before the completed sixteenth year for the man, and likewise before the completed fourteenth year for the woman³.

² Decret., lib. IV, tit. 2, de Desponsat. impuberum; Reiffenstuel, Schmalzgr., De Angelis, Santi, and other Canonists on this title; St. Alphonsus, n. 1065-1067; Carriere, n. 900-904; Feije, n. 531-537; Gasparri, n. 491-509; Lehmk., n. 748; Mansella, p. 21-25.

³ Code, c. 1067. - Puberty exists at the completed twelfth year for females, at the completed fourteenth year for males, from can. 88, § 2; but, according to recent law, the age of puberty is no longer the canonical age for contracting marriage.

(a) The reason of the law is that before this age that perfect discretion which is desired for understanding the duties of marriage is presumed to be lacking; and, moreover, it is altogether fitting that nuptials not be permitted to young persons before a more mature age renders them capable of rightly sustaining all the burdens of marriage.

(b) But as soon as the aforesaid age is completed, the marriage is valid of itself, even if perhaps the immediate power of generating were still lacking; for by the law of nature, for the validity of marriage the remote power of generating suffices, provided there is also present discretion of mind from another source: and this is presumed at the canonical age, unless by contrary indications it is proved to be lacking.

(c) A marriage null on account of defect of age is not validated by the mere attainment of age; rather it is necessary that consent be renewed after the canonical age has been attained.

931. (B) Note. More probably a marriage entered before that age is not valid, even if malice supplies age, that is, if there is present at the same time the immediate power of generating and sufficient discretion for understanding the duties of wedlock; in which case the old law decreed that marriage was valid, because marriage of the impubes was declared invalid for this reason, that they were presumed incapable of contracting; but a presumption yielded to truth.

Therefore, before a marriage of impubes was permitted, two aforesaid conditions had to be proved; but concerning these it was not the pastor himself who had to judge, but the Ordinary or the Pontiff. (a) The power of generating could be proved either from copulation already had, - or from menstruation in the female, or from the emission of semen in the male, or from inspection of the bodies carried out by a physician. (b) But due discretion of mind was discerned from a questioning of the impubes made separately, by inquiring from each whether he or she wished to marry, whether he or she knew the nature, burdens, and properties of marriage; whether he or she was induced to marriage spontaneously, or by force, fear, flatteries, or promises.

We said that exception now more probably does not hold, since can. 1067 decrees simply that marriage before the fixed age cannot validly be entered, in no way alluding to the old exception very well known to all. Silence in so grave a matter seems to us a change of the old discipline.

932. (C) The impediment of age, as it was explained, is only of ecclesiastical law. Natural law indeed invalidates marriages which are contracted without sufficient discretion, but not those which are entered by impubes who already understand the duties of wedlock. Hence (a) among the non-baptized, posited maturity of judgment, marriage entered before puberty is valid: which is practical, not indeed in our regions, but in many Catholic missions of India and of the Chinese empire, where marriages are frequently entered among impubes.

(b) The Church is able to dispense from this impediment as soon as sufficient discretion is present; but a dispensation is very rarely granted, only on account of a most grave cause, for example the reconciliation of two nations or families, and under the condition that the contracting parties not cohabit before they have arrived at a marriageable age.

933. (D) Things to be noted for practice. Although marriage is valid as soon as puberty is reached, it is not expedient to contract immediately; but it is fitting to wait for a more mature age, lest by too premature a use of marriage the strength of the spouses be exhausted and a weak offspring be generated; lest likewise the spouses lack that prudence which is desired for the right education of offspring. Besides, the time of nuptials ought not to be deferred too long, lest perhaps the morals of the young persons be corrupted. In this matter attention must be paid to the various customs and conditions of places: in warmer places maturity is acquired sooner, in colder places later (Code, c. 1067).

II. On the Impediment of Error.

Error invalidating marriage can be threefold: 1° concerning the nature or essential property of marriage; 2° error concerning the person; 3° error concerning the qualities of the person.

¹ St. Thomas, Suppl., q. 51; Reiffenst., l. IV, t. I, n. 342-350; Schmalzgr., l. IV, t. I, n. 433-461; Sanchez, lib. VII, disp. 18; St. Alphonsus, n. 1009-1016; Carriere, n. 631-634; Ball. P., n. 601-610, ed. 3; Feije, n. 105-118; Gasparri, II, 782-793.

1° Error Concerning the Nature or Essential Property of Marriage.

934. (A) He invalidly contracts marriage who so errs concerning the very nature of marriage that he positively does not wish to hand over the right over his own body, when, namely, he thinks marriage is a certain friendly society, but not a union for generating children; for then matrimonial consent is lacking, since the intention of giving the right over his own body is lacking.

Nevertheless it is not required that those about to marry know that offspring is generated through copulation, but it suffices that they know that marriage is contracted for having offspring, and that some right over the body is mutually given (can. 1081, § 2). Moreover, error of this kind is not presumed in those who have reached puberty².

² Thus in the Code, can. 1082: "In order that matrimonial consent can be had, it is necessary that the contracting parties at least not be ignorant that marriage is a permanent society between man and woman for procreating children. - This ignorance is not presumed after puberty."

(B) Likewise error invalidates the sacrament when it is so concerned with an essential property of marriage, unity, indissolubility, or sacramentality, that such a property is positively excluded: then there is not only error, but a condition contrary to the essence of the contract is placed. But if this property is not excluded, and there is the intention of contracting according to the manner of others, the nuptials are valid.

935. 2° Error concerning the person exists when someone, wishing to contract with one woman, for example Magdalene, marries another, for example Mary.

Error concerning the person, whether vincible or invincible, whether antecedent or concomitant, by natural law dirimently impedes marriage, unless the intention of the contracting party is to marry the present person, whoever she may be¹.

¹ "Error concerning the person renders marriage invalid" (Code, c. 1083).

For marriage is a contract with a determined person, and the person herself is truly the object of the contract, and therefore pertains to its substance: but he who errs concerning the person, and marries Mary, whom he thinks to be Magdalene, does not consent to the person with whom he contracts, but to another, and therefore the consent is vitiated. Thus when Jacob married Leah, thinking her to be Rachel, the marriage was null, although afterwards he ratified it by new consent.

The exception is likewise understood; for, if someone wishes to marry the woman present, whoever she may be, he truly consents to the present person, although he erroneously supposes her to be Cecilia, while in reality she is Agnes.

936. 3° Error concerning the qualities or fortune of the person of itself does not invalidate marriage. For matrimonial consent of itself is terminated upon the person herself; and, although her qualities render consent readier and fuller, nevertheless they do not determine it; and therefore consent exists even if these qualities are lacking. - Therefore he validly contracts who marries a person whom he thinks to be noble, rich, a virgin, while in reality she is common, poor, corrupted².

² "Error concerning a quality of a person, even if it gives cause to the contract, invalidates marriage only: 1° if error of quality redounds to error of person; 2° if a free person contracts marriage with a person whom he thinks free, while instead that person is a slave by servitude properly so called."

It was said of itself, because by accident error concerning qualities or fortune invalidates marriage in a threefold case:

(a) If someone thinks the other party is free, while she is a slave, as will be explained below.

(b) If consent is given under an explicit condition of that quality, for example, I wish to marry Mary, provided she is noble, as is clear from what was said where conditional consent was treated, n. 699.

(c) If error of quality redounds to error of person; which happens when the quality is so determinative of the person that the contracting party does not wish to marry except a person endowed with such a quality; for example Titius wishes to contract with the firstborn daughter of Peter, unknown to him; in fact he marries Rosa, who falsely says that she is Peter's firstborn; the contract is invalid, since in reality the consent of Titius is bound to the quality of firstborn daughter of Peter, which in the case is lacking¹.

¹ Bangen, II, 18, illustrates the matter by an example. Count A wished to marry the only daughter of Count B, unknown to him; in fact he contracted with a chambermaid of this daughter, who pretended that she was the daughter of Count B: the contract is invalid.

Therefore from what has been said it is clear that error in these various cases invalidates nuptials by natural law, and therefore is an indispensable impediment.

III. On the Impediment of Servile Condition.

937. 1° This impediment exists when a free man marries a person of servile condition, thinking her to be free. - But if he has known this servile condition, and nevertheless has wished to accept her, the nuptials are valid. Hence this impediment is reduced to error. Therefore marriage between two slaves can be valid.

² Decretal., lib. IV, tit. 9, de conjugio servorum; St. Thomas, Supplem., q. 52; Reiffenst., Schmalzgr., and other Canonists on tit. 9, lib. IV; Sanchez, lib. VII, disp. 19; St. Alphonsus, 1017-1023; Carriere, II, n. 636-638; Ball. P., n. 611-619, ed. 3; Feije, n. 119-124.

Slavery, of which there is question, is slavery properly so called, not however the condition of those who voluntarily bind themselves to the service of others. And since slavery now does not exist among Christian nations, this impediment does not pertain to practice except in the Missions.

2° This impediment much more probably is only of ecclesiastical law, because the error on which it is founded is concerned only with the qualities of the person; therefore it does not bind infidels. But the Church deservedly established it, because the servile condition, although it does not exclude the essential goods of marriage, nevertheless is opposed to them, insofar as a slave cannot, against the master's will, live with the spouse, nor rightly educate the offspring.

IV. On the Impediment of Force and Fear.

938. 1° Notion. Force and fear are judged to be one impediment: force is physical coercion, while fear arises from moral coercion: each harms the perfect liberty of consent.

³ St. Thomas, Supplem., q. 47, a. 1-4; Sanchez, lib. IV; Reiffenst., lib. IV, tit. I, n. 325-341; Schmalzgr., ibid., n. 384-432; St. Alphonsus, n. 1045-1047; Carriere, n. 766-785; Ball. P., n. 737-762, ed. 3; Feije, n. 125-144; Mansella, p. 12-16; Gasparri, n. 805-826; Genicot, n. 490.

(a) Force invalidates marriage by natural law, when it is such that it cannot be resisted; for example, if someone physically compels Sempronia to express exteriorly, by a sign of the head, matrimonial consent, interior consent is lacking, and therefore by natural law the marriage is invalid. Sometimes, however, force is taken for moral coercion, and then it does not differ from fear.

(b) Fear is "a trepidation of mind by reason of a present or future danger." It is twofold by reason of intensity: grave or light, according as the trepidation of mind greatly disturbs the mind or not; generally a grave evil induces grave trepidation, especially when it is apprehended as imminent. It is grave absolutely when the evil is such that it can seriously disturb even a steadfast man; relatively, when an imminent evil, with attention to all the circumstances of sex, age, and disposition, can gravely disturb the person of whom there is question.

939. 2° Conditions required that fear invalidate marriage. By canonical law four conditions are required: fear relatively grave, - inflicted by an extrinsic and free cause, - unjustly, - for extorting consent (Code, c. 1087).

(A) Fear grave relative to the person contracting; hence in individual cases the judge must explore whether or not the fear caused grave trepidation of mind.

Now fear is judged grave when these two things concur at the same time: an evil grave relative to the person of whom there is question, and persuasion that it is imminent. (a) The evil must be grave relative to the person contracting. There are certain evils which by law are held as grave for all, such as death, mutilation, bodily tortures, exile, incarceration, loss of liberty, loss of all temporal goods or of a notable part of them, loss of a great profit to which one has a right, infamy of law or of fact, threat of defilement, unjust excommunication, and other evils of this kind which threaten not only the person himself or herself, but also his or her parents, blood relatives, affines, or domestics. All these are presumed grave even relative to that person, unless, with attention to his or her disposition, the contrary is clear; thus the threat of jail for a few days moves very little a most ruined man already detained many times in jail; temporary enclosure in a monastery terrifies very little a girl who loves solitude. - Moreover there are other evils which, although light in themselves, are grave relative to the age, sex, or disposition of the person; hence the judge, in judging the gravity of fear, will attend especially to three things: to the person who threatens, whether he is irascible, violent, and possesses great authority; to the person into whom fear is cast, whether he or she is fearful, trembling; to the threats themselves, whether they are of such a nature that they greatly affect the person.

(b) Moreover a grave evil must be apprehended as imminent; for if it is remote, or can easily be guarded against, whether by one's own effort or by the help of friends; or if the person threatening cannot, or at least is not accustomed to, put threats into execution, fear is not judged grave, since it is easily despised.

Hence also reverential fear, by which someone fears the indignation of parents or of a master, although blows and threats are absent, is sometimes held grave, especially if such indignation is lasting. But in the external forum it is not presumed grave, unless quarrels, threats, or at least importunate and most urgent prayers¹ have been added.

¹ Concerning this see the case of the Prince of Monaco, ap. Acta S. Sedis, XII, p. 403-422; and other cases ap. Acta, XI, p. 338-347; XXXII, p. 727-745; XXXIII, p. 130-160; from which it is clear that fear is not easily proved in the external forum.

In doubt, however, whether the fear was grave or light, it is judged to be light, because a matrimonial cause is favorable, and in doubt one must stand for the validity of marriage². Besides, if the fear had been grave in the internal forum, the marriage can be validated by afterwards giving free consent.

² Code, c. 1014.

940. (B) Fear inflicted by an extrinsic and free cause, but not by an intrinsic or necessary cause; hence a marriage entered from fear of hell is valid, so that someone may consult his conscience, - or from fear of death or disease, for example if someone has learned from a physician that the use of marriage is necessary for him to preserve health. For in these and similar cases, the contracting party is impelled to nuptials not by another, but by himself, insofar as he understands that it is consonant with reason to choose marriage in order to avoid a greater evil.

941. (C) Inflicted unjustly; now it is such, if the evil which another threatens is not proportioned to the offense. For if fear is inflicted justly, by threatening a just penalty, the liberty of consent, even if destroyed, is justly destroyed, and it is fitting that he who is worthy of penalty be deprived of liberty. "He brings fear upon himself" (D'Annibale).

(a) Thus nuptials are valid if a competent judge, the order of law having been observed, by threat of jail compels a defiler to marry the woman whom he knew by force³; likewise if someone, after betrothals contracted with a girl, or after copulation obtained under the promise of nuptials, is compelled under penalty of excommunication to marry the same girl; or if a young man, caught fornicating with a girl, is induced by the father, under threat of accusation before the judge, to contract with her.

³ A law of this kind in fact exists in many States of America; when the case occurs, the priest should carefully explore the will of the young man; for there are some who simulate consent, in order to escape jail, without the intention of marrying; they should seriously be admonished that this is sacrilege, and that they are held either to abstain from nuptials or to give consent seriously. Cf. Amer. Eccles. Review, XVIII, 1898, p. 530.

(b) On the contrary, marriage is null if a father says to a defiler: unless you marry my daughter, I will kill you (because he does not have the right of killing); if a judge, according to the acts and proofs, compels a young man to contract with a girl, because he is thought guilty of seduction, while in reality he is innocent; or if in some other unjust way, from fear of jail, loss of office, etc., someone is compelled to marry.

(c) When fear is inflicted justly in itself, but not as to the manner, because, namely, the order of law was not observed, it is disputed whether the nuptials are valid; more probably it is affirmed, because then the injury is done rather to the law than to the injured person.

942. (D) Fear inflicted for extorting consent, "from which (fear), in order that one may free oneself, one is compelled to choose marriage" with such a person (can. 1087).

(a) Marriage is certainly invalid when fear is inflicted either by the other contracting party or by a third person, directly in order to marriage; for example, if Caius says to Martha: unless you marry me, I will kill you; or if Titius says to Martha: unless you marry Caius, I will kill you; for in each case the innocent person is compelled to choose marriage, and there is for him no other way of freeing himself.

(b) But if fear is brought in on account of another motive, for example, if a father threatens death to a defiler in vengeance for the offense, and the latter promises to marry the violated girl, more probably the nuptials are valid; nevertheless, since some probably contradict this, the matter remains doubtful in practice. - Likewise marriage is doubtful if it is entered from fear of a grave evil unjustly brought upon one for an end different from marriage; for example, if a sick woman contracts with a physician, or with the physician's son, because she fears that otherwise the physician will refuse to care for her, provided nevertheless he is not held to this by justice; for if he were held by justice, and were unwilling to care for her except under the condition of marriage, the nuptials would be invalid.

N. B. In all doubtful cases, judgment must be made by a judge in the external forum, and therefore his sentence must be awaited.

943. 3° By what law does fear dirimently impede marriage? (A) If the trepidation of mind so removes the use of liberty that there is not sufficient liberty for mortal sin, it invalidates marriage by natural law, because the consent is not free.

(B) But if, even under fear, the will enjoys that liberty which suffices for mortal sin, as often happens, it is disputed; (a) some, with St. Thomas, affirm that the impediment proceeds from natural law, because marriage is the bond of perpetual love, for which full and perfect consent is required, the more so because the contract once entered is indissoluble; (b) many with Sanchez hold that it is only of ecclesiastical law, because liberty from such fear is diminished, but not taken away. - Whatever the case may be, in practice the Church is not accustomed to dispense in it, but wishes that consent be renewed, or that the marriage be dissolved.

944. Corollary. If the impediment of fear is public, the marriage is not revalidated by cohabitation and carnal copulation¹; but it is necessary that consent be renewed, and indeed before the pastor and witnesses. But if the impediment is occult, it can be revalidated by copulation freely had and by consent, without solemnities, provided the solemnities had previously been observed.

¹ Thus from Trent, sess. XXIV, cap. 9 de Reformat. matrim.

945. N. B. Parents, masters, magistrates, and others compelling to marriage sin gravely, and can be punished by the Bishop. But the excommunication formerly laid against masters and magistrates who compel subjects or others so that they do not freely contract marriage no longer has force.

There are four: impotence (concerning which in the Supplement); bond, vow, and order.

I. On the Impediment of Bond.

946. 1° Notion. The bond, of which there is question, is the matrimonial bond arisen from other nuptials and not yet dissolved. This impediment dirimently impedes a subsequent marriage by divine law, since, from what has been said, polygamy is prohibited by divine law.

² Decretal., lib. IV, tit. 4 de Sponsa duorum; Sanchez, lib. VII, disp. 80; Schmalzgr., l. IV, tit. 4, n. 1-28; St. Alphonsus, n. 1060; Carriere, n. 804-808; Feije, n. 438-447; Ball. P., n. 765, ed. 3; Mansella, p. 97-124; Gasparri, n. 625-634; Lehmk., n. 740-742; Genicot, n. 492-493. - The Code, c. 1069, establishes concerning this impediment: "He invalidly attempts marriage who is held by the bond of a prior marriage, - although not consummated, saving the privilege of faith. - Although the prior marriage be invalid or dissolved from any cause whatever, it is not therefore licit to contract another before the nullity or dissolution of the prior marriage has legitimately and certainly been established."

Hence even infidels are bound by it, and, when they are converted to the faith, they can retain only one wife: this ought regularly to be the first legitimate wife; but, since in certain regions it is impossible to find the first, the convert can remain with the baptized wife as with the legitimate wife, although she is not the first. Moreover, the converted spouse, when he cannot find and interpellate the infidel party, is permitted to enter other nuptials, which are valid, even if afterwards it has become known that the other party had been converted to the true faith at the time of the second marriage. Whether this is done by force of the Pauline privilege, or by the power conceded to the Roman Pontiff of dissolving a marriage contracted in infidelity and not consummated after baptism, is disputed, as was explained above, n. 733.

But as regards the faithful, this impediment is indispensable when it arises from a ratified and consummated marriage.

947. 2° On the proofs required for entering a new marriage. He who has entered a first marriage cannot contract another unless the former has first been dissolved. Now this can be dissolved in four ways: by the Pauline privilege, concerning which above (n. 729); - by dispensation of the Supreme Pontiff, or by religious profession, when the marriage was not consummated (above, n. 742): in which case there must be exhibited an authentic testimony of the dispensation granted by the Supreme Pontiff, or of the religious profession of the other party, with juridical proof of the non-consummation of the marriage; - by authentic declaration of the invalidity of the first marriage; - or finally by the death of the other spouse; concerning these two latter modes a few things are to be noted.

(A) In order that the prior marriage be authentically declared invalid, regularly there must be a double judicial sentence favoring nullity, from the Constitution of Benedict XIV Dei miseratione and from cc. 1986-1987. Nevertheless, from cc. 1990-1992, a marriage can be declared null by the Ordinary, with the intervention, however, of the defender of the matrimonial bond, without need of a second sentence, and without the solemnities established in the Constitution Dei Miseratione: (a) when there is question of the impediment of disparity of worship, and it is evidently clear that one party is baptized and that the other was not baptized; (b) when there is question of the impediment of bond, and it is certainly clear that the first spouse is legitimate and still living; (c) when there is question of consanguinity and affinity, or also of spiritual relationship, or of the impediment of order or of a solemn vow of chastity; provided from a certain and authentic document it is evidently clear that impediments of this kind exist, concerning which there had not been a dispensation by the authority of the Church¹. Likewise, if the form prescribed in can. 1094 was not observed where it had to be observed, no judicial process is required, nor the intervention of the defender of the bond, but the case is to be resolved by the Ordinary, or by the pastor, after consulting the Ordinary (Pont. Commiss., October 16, 1919).

¹ Ap. Collect. P. F., n. 1575.

948. (B) In the case of the death of the first spouse, moral certitude concerning his or her death is required, so that he sins gravely who contracts a new marriage without such certitude, even if in fact the prior spouse had died.

² Ap. Acta S. Sedis, XXXIII, p. 756-758.

But for obtaining this certitude, the mere absence of the spouse for many years does not suffice, unless other positive indications are added. Hence, according to the Instruction of the Holy Office³, May 13, 1868, this method is to be followed: (a) first, an authentic document of death should diligently be sought from the registers of the parish or hospital or military service, or, if it cannot be had from ecclesiastical authority, from the civil Government of the place in which the person died. (b) If such a document cannot be had, witnesses should be heard, at least two, sworn, worthy of faith, who depose concerning their own fact, who knew the deceased, and who are concordant among themselves as to the place and cause of death and other substantial circumstances. (c) Sometimes one witness is admitted, provided he is immediate, above every exception, and his deposition is supported by other grave supports; or, if extrinsic supports are lacking, his testimony is in every part congruous and probable. (d) If there are no eyewitnesses, the testimony of those can be accepted who, otherwise worthy of faith, testify that they heard of the death of the spouse from others at a non-suspect time, provided their statements correspond to the other circumstances occurring in the case. (e) If not even one witness is found such as above, proof of death must cautiously be investigated from conjectures, presumptions, indications, and any adjuncts whatsoever, which can be had from relatives, friends, neighbors, and acquaintances of each spouse⁴.

³ Ap. Acta S. Sedis, VI, p. 436-441; Gasparri, t. II, p. 523.

⁴ Concerning these read the cited Instruction, or Feije, n. 444. - Thus, from the decree of the Holy Office, July 20, 1898 (ap. Acta S. Sedis, XXXI, p. 252), faculty was granted to Italian Bishops of conceding a document of liberty to the wives of soldiers who had fought at Adwa in Africa, and of whom no memory remained, notwithstanding investigations made by the Government.

Nor, if there is need, is an investigation through public newspapers to be passed over, after all necessary indications of the person have been given to their director, unless prudence has prohibited this. But a new marriage is not to be permitted unless the greatest probability, or moral certitude, is obtained.

Therefore, in practice, the pastor can assist at new nuptials, no permission of the Ordinary having been sought, provided that it is morally certain concerning the death of the prior spouse. But if the matter is doubtful, let him have recourse to the Bishop, who himself, when the matter seems complex, should set forth the case to the Holy See.

949. 3° On the manner of acting after the second marriage has been entered. (A) If someone in fact has entered second nuptials with a probable and serious doubt concerning the death of the prior spouse, he is indeed held to render the debt to the other spouse, who is in good faith, but he cannot ask for it, because he is equated to a possessor in bad faith. If, however, the doubt was light, and, after inquiry has been made, no probable indication has been found that the prior spouse survived, it is licit to render and to ask for the debt, because then there is had the greatest probability, which is equivalent to moral certitude.

(B) If both spouses contracted in good faith, and doubt afterwards supervenes, the matter must diligently be investigated; but, if, after inquiry has been made, doubt remains, it is licit for the one doubting to ask for and render the debt; for since he is a possessor in good faith, he is not to be deprived of his right until it is morally certain that the possession is unjust¹.

¹ Thus it can be inferred from the response of the Holy Office, March 22, 1865, ad 2um, ap. Collect. Paris., n. 973, and from the Instruction of the S. C. Prop. F., 1792, ibid., n. 971.

(C) If finally it is morally certain that the prior spouse is still living, the second marriage is null, and therefore must be dissolved; and one must return to the prior spouse. - Nevertheless the offspring, begotten from the second marriage, is held as legitimate, on account of the good faith of the parents.

II. On the Impediment of Vow.

950. 1° Notion. There are two vows which render marriage not only illicit, but also invalid: -

¹ St. Thomas, Supplem., q. 53, a. 2; Decretal., l. IV, t. 6, Qui clerici vel voventes matrimonium contrahere possunt; Canonists on this title; Sanchez, lib. VII, disp. 25-26; St. Alphonsus, n. 1024-1026; Carriere, n. 640-663; Ball. P., n. 620-623, ed. 3; Feije, n. 514-530; Gasparri, n. 564-576.

(A) A solemn vow of perfect chastity validly emitted in a religious Order approved as solemn: "If anyone shall say that clerics constituted in sacred orders, or regulars solemnly professed in chastity, can contract Matrimony, and that the contract is valid... let him be anathema."² (a) That vow must be solemn, not simple, and therefore simple vows, which are emitted in religious Orders after the novitiate, to last for three years, do not dirimently impede marriage. (b) It must be emitted in a religious Order approved as solemn; in antiquity there were no Orders except of this kind; but today there are many Congregations, especially of women, in which only simple vows are emitted, which indeed prohibit marriage (above, n. 895), but do not invalidate it. (c) It must be valid, that is, freely emitted, and with those things which by law must be observed for the validity of religious profession having been observed.

² Trent, sess. XXIV, can. 9.

(B) The simple vows of scholastics and coadjutors of the Society of Jesus, emitted after a two-year novitiate, by force of a special privilege conceded by Gregory XIII³; nevertheless the General can dispense from them.

³ Constit. Ascendente Domino, May 25, 1584. This privilege is not extended to other Orders. Note, however, that the simple vows of the Jesuits do not dissolve a ratified marriage contracted before.

The Code, c. 1073, has sanctioned both thus: "Likewise religious who have professed solemn vows, or simple vows to which by a special precept of the Apostolic See the force of invalidating nuptials has been added, invalidly attempt marriage."

951. 2° Penalties against Regulars attempting marriage. Regulars or Nuns presuming to contract marriage after a solemn vow of chastity, even merely civilly, and also all those presuming to contract marriage with any one of the aforesaid persons¹, incur excommunication latae sententiae simply reserved to the Apostolic See. Nevertheless, since it is said "presuming," ignorance even crass or supine² excuses from this censure.

¹ Thus Code, c. 2388.

² Code, c. 2229.

952. 3° By what law does a solemn vow dirimently impede marriage? Today it is commonly handed down, against a few ancient Canonists, that a solemn vow does not dirimently impede marriage by natural law, but only by ecclesiastical law. For (a) a simple vow does not invalidate marriage; but the very solemnity of the vow certainly arises from ecclesiastical law, not from natural law. (b) Besides, from history it is clear that this impediment was successively introduced into the Church; thus in the time of Gregory the Great, it was provided that monks deserters from the rule should be brought back to the monastery even unwilling; at the beginning of the twelfth century, it was decreed in Lateran Council I that their marriages should be invalid; and in Lateran II, 1139, the same was declared with regard to the marriages of nuns³. (c) Finally the Church sometimes dispenses in this impediment; thus Pius VII dispensed with many solemnly professed monks and nuns, for revalidating marriages sacrilegiously entered during the French disturbance.

³ Cf. De Angelis, lib. IV, tit. 6, n. 6; Esmein, I, p. 269-283.

Only the Pontiff can dispense from a solemn vow of chastity. But the Code concedes to Ordinaries the faculty of dispensing concerning impediments even public ones of ecclesiastical law (except the sacred order of the Presbyterate and affinity of the direct line from a consummated marriage), and therefore also concerning a solemn vow of chastity, when danger of death urges, scandal having been removed⁴.

⁴ Code, c. 1043.

III. On the Impediment of Order.

953. 1° Notion and existence. A sacred or major order, validly and freely received, dirimently impedes subsequent marriage, at least in the Latin Church. Thus from Trent cited above (n. 950)⁶.

⁵ St. Thomas, Supplem., q. 53, a. 3-4; Decretal., l. IV, tit. 6, Qui clerici vel voventes matrim. contrahere possunt; Canonists on this title; Sanchez, lib. VII, disp. 27-31; St. Alphonsus, 1058-1059; Carriere, n. 787-802; Ball. P., n. 763; Feije, n. 504-513; Gasparri, n. 577-595.

⁶ "Clerics constituted in sacred orders invalidly attempt marriage" (Code, c. 1072).

But a law of this kind is much more ancient than the Council of Trent. For since Christ and the Apostles, both by words and by examples, had praised continence, from the first times of the Church many clerics preserved virginity, married men were gradually removed from the clerical state, or, after sacred orders had been received, lived separated from their wives; and thus, gradually and imperceptibly, the law of celibacy was introduced by custom, and sacred order was held as a diriment impediment. And deservedly so; for, as is set forth more fully in the Treatise On the Various Obligations of States, it is altogether fitting that major clerics abstain from marriage, both because the state of continence undertaken for God is more perfect than the matrimonial state, and because those cultivating virginity can devote themselves wholly and all their powers to the service of God and the salvation of souls, since they are not entangled in domestic cares. - According to St. Thomas, marriage of clerics among Latins is dirimently impeded not only by force of order, but also from the vow of continence annexed to sacred orders¹.

¹ Supplem., q. 53, a. 3. - In reality Boniface VIII (cap. unic. de Voto, in 6°) says: "We have judged that it must be declared that only that vow ought to be called solemn, as regards dirimently impeding marriage contracted afterwards, which shall have been solemnized by the reception of sacred order, or by profession"...

954. It is said (a) sacred order, that is, in the Latin Church², the subdiaconate and the other higher orders. Hence minor clerics can validly marry, but by marrying a wife they fall from the clerical state and lose the principal clerical privileges.

² Among some Eastern Churches, the subdiaconate is numbered among the minor orders, but everywhere the diaconate is held as a sacred order. Cf. Gasparri, n. 591.

(b) At least in the Latin Church; for, although among the Maronites and Italo-Greeks sacred order dirimently impedes subsequent marriage, it is disputed whether the same must be said with relation to all Orientals. The affirmative opinion seems more probable. Hence if any schismatics, after marriage contracted after sacred ordination, are converted, they must indeed be punished, because they married contrary to the canons, but the question concerning the validity of their marriage must be referred to the Holy See.

(c) Sacred order dirimently impedes a subsequent marriage, but not one contracted before, even if only ratified, but only prohibits its use in the Latin Church; among Orientals, clerics in sacred orders, with bishops excepted, can use a marriage previously validly contracted.

(d) Order freely received: for, if someone unwillingly receives order, the ordination is invalid, nor does it produce any obligation; if under grave fear, the ordination is valid, but he can be reduced to the lay state, coercion and defect of ratihabition having been legitimately proved, by sentence of the judge, without any obligations of celibacy and canonical hours, as is clear from the Code, can. 214. But coercion and defect of ratihabition must be proved according to the norm of can. 1993-1998.

955. 2° By what law does it dirimently impede marriage? By ecclesiastical law only; for divine law, although praising virginity, nevertheless did not prescribe it to the ministers of the Church. Hence the Supreme Pontiff, and indeed he alone, can dispense from this impediment; yet he is not accustomed to do this except for a most grave cause: for example, for the public good; thus Casimir, a deacon and Cluniac monk, having been made king of Poland, obtained from Benedict IX a dispensation that he could marry a wife; - or for avoiding greater inconveniences, as was done at the time of the French disturbance with regard to clerics who had entered nuptials civilly¹. - Moreover, the Code concedes to Ordinaries the faculty of dispensing with deacons and subdeacons, but not priests, in the article of death, so that they can validly and licitly contract marriage, for consulting conscience and, if the case requires, for the legitimation of offspring².

¹ Nevertheless Pius VII did not wish to revalidate the marriage of Talleyrand, Bishop of Autun. In reality dispensation is granted rarely to subdeacons and deacons, very rarely to priests, never to Bishops. Whenever it is granted, it is enjoined that the cleric reduced to the lay state can in no way exercise the orders received; but the obligation of the breviary is commuted into other good works.

² Code, c. 1043.

956. 3° Penalties enacted against violators of this law. Clerics constituted in sacred orders who presume to contract marriage, and likewise persons presuming to contract with them, incur excommunication latae sententiae simply reserved to the Apostolic See, as was said above (n. 951) concerning Regulars.

Six impediments of this kind are given: relationship, affinity, public honesty, disparity of worship, abduction, and crime. Relationship, however, is threefold: natural, or consanguinity, which arises from carnal generation; spiritual, which arises from regeneration through baptism; legal, which arises from adoption: concerning these, separate things must be said.

I. On the Impediment of Consanguinity.

957. 1° Notion. (A) Consanguinity (unity of blood) is the nearness of persons descending from the same stock, or progenitor; or more fully, the bond existing between persons of whom one descends from another, or who both descend from the same, as from a common and proximate stock, through carnal generation.

¹ St. Thomas, Supplem., q. 54; Decretal., l. IV, t. 14, De consanguinitate et affinitate; Canonists on this title; Sanchez, l. VII, disp. 50-53; St. Alphonsus, n. 1029-1030; Carriere, n. 664-677; Ball. P., n. 654-665, ed. 3; Feije, n. 347-369; Konings, n. 1580-1585; Scavini, III, n. 781, and annotation, n. 889-891; Noldin, n. 96-103; Gasparri, n. 662-684; Mansella, p. 32-41; Deshayes, Nouvelle Methode pratique pour la recherche des empechements de Consanguinite, Paris, 1898.

(B) It is explained. (a) Consanguinity exists both between persons of whom one descends from another, whether immediately, as a daughter from a father, or mediately, as a granddaughter from a grandfather; and between persons who descend from a common stock, although not one from another, as a brother and sister, who arise from the same father, a male cousin and a female cousin, from the same grandfather.

(b) The common stock can be either the father or the mother; nor is it required for consanguinity that both descend from the same father and mother.

(c) Nevertheless it is required that the stock be proximate, not altogether remote; for the force of the stock becomes weaker in proportion as it is derived through more generations; and therefore, if the stock is very remote, the persons flowing from it are no longer consanguineous except in a broad sense.

(d) Carnal generation, whether licit or illicit, is as it were the foundation of this consanguinity, and the medium by which common blood is transmitted; hence consanguinity is twofold: legitimate and illegitimate.

958. (C) Therefore three things must be distinguished in consanguinity: stock, line, degree. (a) The stock is the person (whether father or mother) from whom, as from a root, blood relatives take their origin: thus brothers have their father as a common stock.

(b) Line is the series of persons who arise from the same stock. It is twofold: direct and collateral; the former is the series of persons of whom one descends from another, and therefore includes ascendants, such as father, grandfather, great-grandfather, etc., and descendants, namely son, grandson, great-grandson, etc. See the genealogical tree. - The collateral, or oblique or transverse line is the series of persons who descend from the same stock, but not one from another; for example brother and sister, male cousin and female cousin, etc. This line is equal when the blood relatives are equally distant from the common stock, as brother and sister, male cousin and female cousin; but unequal, when one is more and the other less distant from the common stock, for example maternal uncle and niece.

(c) Degree is the measure of distance between consanguineous persons and the common stock from which they take origin; thus brother and sister are in the first degree of collateral consanguinity, because they are distant by one degree from the common stock.

959. 2° On the computation of degrees. The mode of computing these degrees is not the same in canonical law as in Roman civil law or in most modern civil laws¹. We hand down the canonical method, which is also called Teutonic, or Germanic, because the Church received it from the Germans.

¹ In the direct line canonical and civil law agree; but in the collateral line there is a great difference; for, according to Roman law, there are as many degrees as there are generations on each side, so brother and sister, by civil law, are in the second degree; brother and niece from a sister are in the third, brother and the daughter of a niece in the fourth, etc. Cf. Gasparri, n. 664.

(A) In the direct line, there are as many degrees as generations, or in other words there are as many degrees as persons, the stock alone being removed; thus father and daughter are in the first degree, grandfather and granddaughter in the second degree, great-grandfather and great-granddaughter in the third degree, etc.

(B) In the equal collateral line, persons are distant from one another by that degree by which they are distant from the common stock, or there are as many degrees as persons in one line, the stock being removed; for example, brother and sister (in the diagram Mary and John) are in the first degree; their children (Paul and Anna) in the second; their grandchildren (Rosa and Mark) in the third; and their great-grandchildren (Titus and Teresa), in the fourth; as is shown in the following diagram:

Diagram:

Petrus
├─ Maria
│  └─ Paulus
│     └─ Rosa
│        └─ Titus
└─ Joannes
   └─ Anna
      └─ Marcus
         └─ Teresia

960. (C) In the unequal collateral line, persons are distant from one another by that degree by which the more remote of them is distant from the common stock, or there are as many degrees as persons in the longer line, the stock being removed; thus in the preceding diagram John and Rosa are in the third degree, because the more remote person, namely Rosa, is distant by three generations from Peter, the common stock; Paul and Teresa are in the fourth degree, because Teresa is distant by four degrees from Peter. - Nevertheless, according to the style of the Chancery, sometimes it is necessary, when a dispensation is sought, to express also the nearer degree; which is thus explained: John and Rosa are blood relatives in the third degree mixed with the first¹, or in the third touching the first of the unequal collateral line; Paul and Teresa are blood relatives in the fourth degree mixed with the second, or in the fourth touching the second, etc.

¹ Here it is worth the trouble to note that the clause "in a simple and mixed degree," which is frequently found in faculties of the Holy See, is used in a threefold sense. More often it designates, as in our case, some degree of consanguinity mixed with some more remote degree. But sometimes by simple degree the numerical multiplicity of the same impediment is excluded, while by mixed degree a multiple impediment from the same head is understood. Finally, simple degree sometimes excludes the concurrence of impediments distinct in species, while mixed signifies that in the case there are several impediments distinct in species. - Therefore the sense must be determined from the context.

961. So that the degrees of consanguinity may be more easily understood, we here subjoin the tree of consanguinity, and the names of blood relatives up to the fourth degree.

(a) In the middle of the direct line is found the letter N., which represents the person whose relationship is being sought; above N. in the direct line are found his ascendants, and below his descendants, if there are any; since there can be several, we use the plural number, for example grandfathers, grandmothers, sons, daughters, etc. From the direct line the oblique or collateral lines are deduced: on the right side, in which the sisters are placed, are placed female blood relatives and males joined through the female sex; on the left side, in which the brothers are placed, are placed male blood relatives and females joined through the male sex. The numbers 1, 2, 3, 4 express the degree of consanguinity between N. and the persons placed in the cells.

(b) When the nearness of two persons is investigated, the name of one must be written in cell N., and afterwards inquiry must be made in what cell the other person is found; for example, if she is the daughter of his sister, her name must be written in the cell beneath the sister (see the tree); and thus it will easily be clear that they are blood relatives in the second degree touching the first.

(c) Where the lines are joined, there the common stock is had; thus in the aforesaid case the lines are joined in cell 1 of the direct line¹, above N.

¹ The numbers 1, 2, 3, 4 indicate the degree of consanguinity between N. and the various persons set forth in the diagram.

(d) If the person concerning whom it is doubted whether he or she is joined with N. is not found in one of the cells of the tree, it is inferred from this that he or she is not consanguineous within the fourth degree; for all persons joined with N. in the fourth degree are found there.

Tree of Consanguinity:

Direct line:
4 Abavi / Abaviae
3 Proavi / Proaviae
2 Avi / Aviae
1 Pater / Mater
N
1 Filii / Filiae
2 Nepotes / Neptes
3 Pronepotes / Proneptes
4 Abnepotes / Abneptes

Paternal collateral line:
1 Fratres / Sorores
2 Patrui / Amitae; Fratrum filii / Fratrum filiae
3 Patrui magni / Amitae magnae; Fratrum nepotes / neptes; Sobrini / Sobrinae
4 Propatrui / Proamitae; Fratrum pronepotes / proneptes; Sobrinorum filii / filiae; Abnepotes / Abneptes

Maternal collateral line:
1 Fratres / Sorores
2 Avunculi / Materterae; Sororum filii / filiae
3 Avunculi magni / Materterae magnae; Sororum nepotes / neptes; Sobrini / Sobrinae
4 Proavunculi / Promaterterae; Sororum pronepotes / proneptes; Sobrinorum filii / filiae; Abnepotes / Abneptes

962. Names of blood relatives up to the fourth degree.

963. 3° On the extension of the impediment of consanguinity. (A) The extension of this impediment was diverse according to diverse times: in the first centuries of the Church the impediment was in force in the first degree touching the second, namely between paternal uncle or maternal uncle and niece, between paternal aunt or maternal aunt and nephew, but not in the equal second; as the fourth century was passing, the impediment between first cousins began to be established; afterwards between second cousins; then up to the seventh civil degree; finally up to the seventh canonical degree; which indeed was established especially for joining, by the matrimonial bond, and therefore by the bond of charity, families or peoples separated from one another. Yet, since the prohibition of marriage extended so widely was liable to many difficulties, and rendered not a few marriages invalid, on account of the difficulty of knowing remote degrees, Lateran Council IV limited this impediment to the fourth degree inclusive in the collateral line¹.

¹ Cf. Esmein, I, p. 336-356.

(B) Consanguinity, licit or illicit, in the direct line dirimently impedes marriage to infinity; but in the collateral line formerly it dirimently impeded up to the fourth degree inclusive; but from the Code, c. 1076, it dirimently impedes up to the third degree, and indeed in such a way that the impediment is multiplied only as many times as the common stock is multiplied.

964. (C) If you look to merely natural law, (a) consanguinity in the first degree of the direct line (between father and daughter, mother and son) certainly dirimently impedes marriage by natural law; this is clear from the natural horror which even pagans and barbarians are accustomed to show for such a union; and also from the opposition between the reverence due to parents and the equality which ought to exist between spouses: "It is disordered, says St. Thomas (l. c.), that a daughter be joined to her father by marriage as an associate for the sake of generating and educating offspring, whom it is fitting in all things to be subject to the father, as proceeding from him... there is more derogation from the reverence which is due to parents if a son takes his mother as wife, than if a father takes his daughter, since a wife ought in some way to be subject to her husband."

(b) Probably also by natural law consanguinity in the direct line dirimently impedes marriage to infinity: for the same reason as above, with due proportion, extends to the remaining ascendants and descendants. - Whatever the case may be, in practice the Church never dispenses in this line.

965. (c) In the collateral line, more probably by secondary natural law marriage in the first degree, that is, between brother and sister, is prohibited, if not dirimently impeded; because even the Gentiles commonly abhor it, and in reality it seems opposed to the moral sense. - Yet because it is opposed only to secondary natural law, God could dispense in this, especially at the beginning of the human race, with regard to the sons and daughters of the first parents.

But the Church is not accustomed to dispense; indeed, according to many¹, she never dispenses in the first degree of the collateral line. Hence, if Gentiles converted to the faith had married a brother or sister and at the same time wished to cohabit, the case would have to be referred to the Holy See.

¹ Lehmk., n. 756; Santi, tit. 14, n. 12, thence conclude that a brother and sister who contracted marriage before baptism are to be separated; on the contrary Sanchez, l. VII, d. 52, n. 12, and Giovine, I, § 20, n. 1, think they can be left in the former marriage.

But the other degrees of the collateral line do not dirimently impede marriage by natural law, but only by ecclesiastical law; hence in them the Church can and is accustomed to dispense, not only on account of public but also on account of private utility, which nevertheless must be greater in the nearer degrees, as will be explained below, where Dispensations are treated.

966. 4° On the reason for the impediment of consanguinity. There is especially a threefold reason on account of which this impediment was established: (a) the social good, so that families and cities not only foreign, but also otherwise disassociated, may be bound by the bond of marriage; this reason indeed especially held good in the Middle Ages, when hostility was often in force not only between nations mutually, but also between cities and towns; for then it was especially expedient that citizens of one town should contract with citizens of another city, so that enmities might more easily be extinguished. Today indeed the social condition is not the same; nevertheless a law of this kind favors the diffusion of friendship.

(b) The moral good; for, if blood relatives could easily marry among themselves, frequent occasion would be given for indulging concupiscence; since, on the one hand, blood relatives often live under the same roof, sit at the same table, and frequently visit one another; on the other hand, sins are more easily committed among those with whom the hope of contracting marriage in the future is fostered; hence it is very expedient that, the hope of marriage having been removed, carnal love among blood relatives be restrained.

(c) Also the physical good of offspring: for experience makes clear that marriages among blood relatives, unless both are free from every bodily defect and flourish in strength and youth, are either little fruitful, or from them often arise children deaf or mute, or idiots, or blind, or deformed, or laboring under nervous disease. For if two spouses, troubled by the same defects and morbid tendencies, together contribute to the generation of offspring, defects of this kind will generally be doubled in the offspring; while spouses arisen from diverse families exercise influence upon each other in such a way that the healthier part supplies the weakened powers of the other; hence the improvement and perfection of offspring is obtained much more efficaciously by avoiding unions, especially frequent ones, among members of the same family¹.

¹ According to Doctor Bemis, ten per cent of deaf-mutes, fifteen per cent of idiots, and five per cent of the blind who are found in public hospitals in the United States of America were born from first-cousin parents. From 757 marriages between first cousins, there were 256 from which deaf-mutes, blind, and idiots were procreated. (Ap. Cooke, Satan in Society, p. 182-183). According to Lefebvre (Les Mariages consanguins, ap. Rev. des Quest. Scientif., I, 1877, p. 240, 249), from 460 marriages between first cousins there were born 1959 children, of whom 9 were deaf-mutes, 36 idiots; which proportion is much greater than for marriages among those who are not blood relatives. Cf. Charazain, Du Mariage entre consanguins considere comme cause de degenerescence organique et particul. de surdo-mutite congenitale, Montpellier, 1859; Allen, Marriages of the Deaf in America, 1898.

967. 5° On multiple consanguinity. Consanguinity can be multiple, arising either from one or from several stocks; and it is necessary to understand this rightly, since each bond of this kind constitutes an impediment that must necessarily be expressed for obtaining a valid dispensation.

(A) Under the old law, the first cause of multiplicity was when someone had offspring from a person consanguineous to himself; for although there is one common stock, the persons about to marry descend by a double way from this common stock: which sufficed for a double impediment.

Diagram:

Petrus
├─ Lucas
│  └─ Maria
│     └─ Jacobus
│        └─ Rosa
├─ Marcus
│  └─ Michael
│     └─ Flavia
│        └─ Aloysius
└─ Joannes
   └─ Anna
      └─ Thomas
         └─ Aloysius

Thomas and Flavia are indicated as spouses.

In this diagram Peter is the common stock, from whom all the others descend. We suppose that Thomas married Flavia, his second cousin, and from her begot Aloysius. This being posited, Aloysius and Rosa were blood relatives in the double unequal fourth, because both descend from the common stock Peter, and are distant from him by four generations; and one of them, Aloysius, descends from Peter by a double way, namely through Thomas and Flavia. For in the old legislation impediments could be multiplied from the same stock, while in the new legislation the impediment of marriage is multiplied only as many times as the common stock is multiplied.

968. (B) The second cause is when persons consanguineous among themselves procreated offspring from persons consanguineous among themselves, for example when two brothers arisen from one stock marry two sisters from another stock, and from them generate offspring.

Diagram:

Paulus (first stock)
└─ Petrus (second stock)
   ├─ Marcus + Maria
   │  └─ Bertha
   │     └─ Jacobus
   │        └─ Michael
   └─ Lucas + Anna
      └─ Matthaeus
         └─ Flavia
            └─ Sophia

As appears from this stemma, two brothers, Marcus and Lucas, from the stock Peter, contract marriage with two sisters, Mary and Anna, from the stock Paul; hence Bertha and Matthew are blood relatives in the double equal second, because each descends both from Peter and from Paul, and each is distant by two generations from each stock; Jacob and Flavia are in the double equal third, because each is distant by three generations from each stock: which impediment still holds today; formerly Michael and Sophia were bound by the double equal fourth.

969. (C) The third cause is when someone has offspring from several persons consanguineous among themselves, for example when someone successively contracts with two sisters or first cousins and from them generates offspring.

Diagram:

Bernardus (first stock)
├─ Agatha + Petrus
│  └─ Albertus
│     └─ Jacobus
│        └─ Catharina
└─ Agnes + Petrus
   └─ Maria
      └─ Laura
         └─ Lucius

Petrus is marked as the second stock.

In this diagram Peter successively marries Agatha and Agnes, two sisters arisen from Bernard: from the former he begot Albert, from the latter he begot Mary, etc. Wherefore Jacob and Laura are blood relatives in the equal third from the stock Bernard, and at the same time in the equal second from the stock Peter; Catherine and Lucius are in the equal fourth from the stock Bernard, and in the equal third from the stock Peter. - But today the impediment of the fourth degree is no longer computed.

Hence the twofold difference between the old and the new legislation must be carefully noted: 1° in the old, marriage in the collateral line is invalid up to the fourth degree inclusive, while in the new, up to the third inclusive; 2° in the old, impediments could be multiplied from the same stock, while in the new, the impediment of marriage is multiplied only as many times as the common stock is multiplied.

970. Corollary: On the manner of finding the degrees of consanguinity.

(A) When there is one common stock, and it is known, a descending genealogical tree is easily made by writing the name of the common stock at the top of the page, and beneath it the names of persons descending from this side and that until the spouses are reached, as in the preceding diagrams. This being posited, the degrees are easily computed according to the rules set forth above.

971. (B) But the difficulty increases when multiple consanguinity is present and the persons about to marry know only in a confused way that they are blood relatives, without being able to indicate the various common stocks.

(a) First, a double ascending genealogical tree must be drawn, one for the bridegroom and the other for the bride; namely in the first cell is written the name of the bridegroom, - afterwards the name of his father and mother, - then the name of the grandfathers and grandmothers on the father's side and on the mother's side, and so on up to the third degree from the new law, up to the fourth from the old law. This indeed is done both from the declarations of the spouses and from the registers, by writing names and surnames, so that errors may more easily be avoided.

(b) Then a comparison should be made between each genealogical tree, and with a special sign, for example the same letter A, B, C..., the persons common to each tree should be marked: for there are as many stocks as there are common persons. Nevertheless two spouses, who are the cause of relationship, are not to be counted as a double stock: for they form only one and the same stock.

(c) Afterwards the computation of impediments and degrees is made. Now there are as many impediments as there are common stocks. Formerly, before Pentecost 1918, several impediments sometimes arose from the same stock: if from the persons about to marry one ascends to the common stock by a double or triple way, or, in other words, if a double or triple line can be drawn from one spouse to the other through the common stock, there is a double or triple impediment. The general rule was that there are as many distinct impediments as there are diverse ways of going from the bridegroom to the bride, by a continuous line, through the common stock. That diverse ways be present, it was enough that diversity be present in one of the links by which the spouses were connected. - In computing bonds and degrees, attention was paid only to the nearer stock; but, if the nearer stock consisted of two parents who were consanguineous among themselves, one had to ascend to the more remote stock from which those parents themselves arose, provided it was within the fourth degree; for example, if two spouses, Lucas and Sophia, were bound in the second degree, because they descended from grandparents Henry and Julia, who themselves were first cousins, as being grandchildren of Peter, a double stock was given: one nearer (Henry-Julia), and the other more remote, namely Peter; and thus there were three impediments: one in the second degree from the stock Henry-Julia, two in the fourth degree from the stock Peter, because by a double way (through Julia and through Henry) one ascended from the spouses to Peter¹, or, in other words, a double line could be drawn from Lucas to Sophia through the stock Peter. But from the Code this case cannot occur, because the impediment in the collateral line is not extended beyond the third degree.

¹ Thus from the decree of the Holy Office, March 11, 1896, ap. Deshayes, Nouvelle Methode, p. 37-48.

(d) Finally, after the various stocks have been found and the degrees computed, it is expedient to make a descending genealogical tree, so that it may be better clear whether an error has been committed or not; for thus the degrees are more easily computed and the genealogy of the spouses is more clearly exhibited.

We subjoin here a genealogical tree of the bridegroom and the bride, according to the ascending method, p. 610.²

² This stemma is taken, with a few changes, from the above-praised work of Deshayes, Nouvelle Methode, where the method which is called symbolic is explained, and which will greatly profit especially those who frequently have to delineate a genealogical tree.

Ascending genealogical tree of the bridegroom and bride:

Sponsus: Henricus Dubois
Parents: Julius Dubois + Maria Guerin

Line through Julius Dubois:
- Josephus Dubois + Aloysia Guerin
  - Stephanus Dubois + Lucia Guerin
    - Marcellus Dubois + Josephina Dugue
    - Robertus Guerin
  - Paulus Guerin + Anna Martin
    - Rob. Guerin
    - Felix Martin

Line through Maria Guerin:
- Petrus Guerin + Clara Dubois
  - Paulus Guerin + Prud. Boucher
    - Rob. Guerin
  - Stephanus Dubois + Lucia Guerin
    - Marcellus Dubois + Josephina Dugue
    - Rob. Guerin

Sponsa: Julia Guerin
Parents: Franc. Guerin + Adel. Guerin

Line through Franc. Guerin:
- Petrus Guerin + Anna Guerin
  - Paulus Guerin + Prud. Boucher
    - Robert. Guerin
  - Anatol. Guerin + Bertha Dubois
    - Robert. Guerin
    - Marcel. Dubois + Josepha Dugue

Line through Adel. Guerin:
- Alphons. Guerin + Desid. Guerin
  - Anatol. Guerin + Bertha Dubois
    - Robert. Guerin
    - Marcel. Dubois + Josepha Dugue
  - Paulus Guerin + Zoe Martin
    - Robert Guerin
    - Felix Martin

972. In this double stemma we have marked with the same letter A, B, C, D, E the persons who are common to the genealogy of the bridegroom and the bride, and from this it is immediately clear that there are five common stocks, namely A Peter Guerin, B Paul Guerin, C Marcel Dubois, D Robert Guerin, E Felix Martin. For computing the impediments, moreover, inquiry had to be made under the old law by how many ways Henry Dubois and Julia Guerin descend from these various stocks. - This indeed could be done from this stemma, since all the ways by which one ascends from the spouses to the stocks are carefully noted there. The degrees likewise are clearly shown by the numbers (1) (2) (3) (4). - But this is also better perceived in the descending tree or genealogy, which we delineate below.

Descending genealogy:

D Robertus Guerin
├─ Lucia Guerin
│  ├─ Jos. Dubois -> Jul. Dubois -> Henr. Dub.
│  └─ Clara Dub. -> Maria Guer. -> Henr. Dub.
├─ B Paulus Guerin
│  ├─ Aloysia Guerin -> Julius Dubois -> Henr. Dubois
│  ├─ A Petrus Guerin
│  │  ├─ Maria Guer. -> Henr. Dub.
│  │  └─ Fr. Guer. -> Julia Guer.
│  └─ Desida Guerin -> Adel. Guerin -> Julia Guerin
└─ Anatol. Guerin
   ├─ Anna Guerin -> Franc. Guerin -> Julia Guerin
   └─ Alph. Guerin -> Adel. Guerin -> Julia Guerin

C Marcellus Dubois
├─ Stephanus Dubois
│  ├─ Jos. Dubois -> Jul. Dubois -> Henr. Dubois
│  └─ Clara Dubois -> Maria Guerin -> Henr. Dubois
└─ Bertha Dubois
   ├─ Alphons. Guerin -> Adel. Guerin -> Julia Guerin
   └─ Anna Guerin -> Franc. Guerin -> Julia Guerin

E Felix Martin
├─ Anna Martin -> Aloysia Guerin -> Julius Dubois -> Henr. Dubois
└─ Zoe Martin -> Desida Martin -> Adel. Martin -> Julia Guerin

973. From this it is clear that Henry Dubois and Julia Guerin were bound by 21 impediments according to the old law: -

From the common stock A, Peter Guerin, the persons about to marry are in the equal second, since both descend from a grandfather = 1.

From the common stock B, Paul Guerin, there were three impediments in the equal third, because the spouses descend from the great-grandfather by a triple way; or, in other words, a triple line can be drawn from one spouse to the other through the common stock = 3; but now there is one impediment in the equal third, because there is one common stock.

From the common stock D, Robert Guerin, there were twelve impediments in the equal fourth, since by twelve ways one could ascend from the spouses to the great-great-grandfather Robert Guerin = 12¹. Now no impediment.

¹ The first way is this: H. Dubois, Jul. Dubois, Jos. Dubois, Lucia Guerin, ROBERT GUERIN, from whom we descend to Paul Guerin, Peter Guerin, Fr. Guerin, Julia Guerin.

Second: H. Dubois, Maria Guerin, Clara Dubois, Lucia Guerin, ROB. GUERIN, Paul Guerin, Fr. Guerin, Julia Guerin.

Third: the same as the first, except that from Paul Guerin we pass to Desidam Guerin, Adel. Guerin, Julia Guerin.

Fourth: the same as the second, except that from Paul Guerin we likewise pass to Desidam Guerin, etc.

Fifth: the same as the first, except that from Rob. Guerin we pass to Anatol. Guerin, Anna Guerin, Fr. Guerin, Jul. Guerin.

Sixth: the same as the second, except that from Rob. Guerin we pass to Anatol. Guerin, etc.

Seventh: the same as the fifth, except that from Anatol. Guerin we pass to Alph. Guerin, Adel. Guerin, Jul. Guerin.

Eighth: the same as the sixth, except that from Anat. Guerin we pass to Alph. Guerin, etc.

Ninth: H. Dubois, Jul. Dubois, Aloysia Guerin, Paul Guerin, ROB. GUERIN, Anat. Guerin, Anna Guerin, Fr. Guerin, Jul. Guerin.

Tenth: the same as the ninth, except that from Anat. we descend to Alph. Guerin, etc.

Eleventh: H. Dubois, Maria Guerin, Peter Guerin, Paul Guerin, ROB. GUERIN, Anat. Guerin, Anna Guerin, Fr. Guerin, Jul. Guerin.

Twelfth: the same as the eleventh, except that from Anat. Guerin we descend to Alph. Guerin, etc.

From the common stock C, Marcel Dubois, there were counted four impediments in the equal fourth, since the spouses descend by four ways from the same great-great-grandfather Marcel Dubois = 4. Now no impediment.

Finally from the stock E, Felix Martin, there was one impediment in the equal fourth, since both spouses descend by one way only from the same Felix Martin = 1. Now no impediment.

II. On Spiritual Relationship.

974. 1° Notion. (A) The impediment of spiritual relationship is a certain nearness of persons arising from Baptism. For since in Baptism we are spiritually born, those who concur for this sacrament, as the minister and sponsors, are held as spiritual fathers of the baptized person.

² St. Thomas, Supplementum, q. 56; Decretals, lib. IV, tit. 11, De cognatione spirituali; Canonists on this title; Sanchez, lib. VII, disp. 54-62; St. Alphonsus, n. 1028 and n. 149; Carriere, n. 678-700; Ball. P., n. 642-653, ed. 3; Feije, n. 409-427; Gasparri, n. 733-750.

(B) This impediment already existed in the time of Emperor Justinian, who enumerates it in the catalogue of civil laws, and very probably it was introduced by custom. In the old law there were three species of this relationship: paternity, co-paternity, and fraternity; and the limits of this impediment were broader than under the present law¹.

¹ Concerning this see, besides the authors cited, Esmein, I, p. 362-374.

975. (C) But Trent, seeing that from this multitude of prohibitions marriages were very often contracted invalidly, abrogated fraternity and limited paternity and co-paternity, so that the impediment of spiritual relationship was in force only:

(a) between the baptizing one and the baptized one, provided the baptizing one is not an infidel;

(b) between the baptizing one and the parents of the baptized;

(c) between the sponsors and the baptized;

(d) between the sponsors and the parents of the baptized².

² Hence, after Trent, a godfather and godmother do not contract this relationship between themselves, nor with the one baptizing or confirming.

The same had been decreed concerning the sacrament of Confirmation. This was comprised in these words:

The baptizing one, the baptized one, and the parents of the baptized;
The lifting one, the lifted one, and the parents of the lifted.

From the Code, the impediment of spiritual relationship is in force only: (a) between the baptizing one and the baptized one; (b) between the sponsors and the baptized³.

³ Code, cc. 1079 and 768.

976. 2° Conditions for incurring the impediment. (A) It is required that Baptism be validly conferred; for relationship is founded upon spiritual generation, and therefore where there is no regeneration, there is no impediment.

(a) Hence, if only the ceremonies of Baptism are supplied, the relationship is not contracted. (Code, can. 762, § 2).

(b) If Baptism is conferred under condition, "neither the sponsor who was present at the prior Baptism, nor he who was present at the later one, contracts spiritual relationship, unless the same sponsor was employed in each Baptism" (can. 763, § 2). - Does the baptizing one contract it? It is doubted.

(c) If Baptism, with the permission of the Bishop, is conferred at home, with the solemnities, as ought to be done, it is certain that the impediment arises from it.

If Baptism is conferred in a private manner, in a case of necessity and without the solemnities, the impediment is certainly contracted between the baptizing one and the baptized, and much more probably also between the sponsors and the baptized. Certainly it is not incurred by those who hold the infant without the intention of fulfilling the office of sponsor; but if they truly intend to undertake the office of sponsor, the S. C. of the Council decreed, not only in a particular case but also in a general manner, on March 5, 1678, that it is incurred¹. This sort of decree seems to be quite openly confirmed from canon 762, § 2, of the Code, where it is read: "Even in private Baptism a sponsor, if he can easily be had, is to be employed; if he was not present, he is to be employed in supplying the ceremonies of Baptism, but in this case he contracts no spiritual relationship."

¹ Ap. Gasparri, n. 738. The responses of theologians who were consulted concerning this matter may be read ap. Analecta Juris Pontif., ser. VIII, fasc. 72, p. 1708 sq.

(B) It is required that the minister and sponsors be baptized; otherwise they are not subject to the laws of the Church, nor do they incur this impediment, which is merely ecclesiastical.

977. (C) As regards sponsors, in order that they incur the impediment, they must be validly sponsors, namely:

² Cf. Lehmk., n. 758; Marc, n. 2022.

(a) enjoy the use of reason; (b) physically touch the baptized: for this, however, it is not required that they receive the infant into their own hands, but it suffices that they place their fingers upon his shoulders, or in some other way physically touch him at the time when he is baptized³; (c) have the intention of undertaking the office of sponsor, but not necessarily of incurring the impediment; hence relationship is not contracted by him who receives the infant only materially, for the sake of greater convenience; hence also, if someone exercises the office of sponsor through a proxy, the mandator, but not the proxy, incurs the impediment, as the S. C. of the Council has declared several times⁴; (d) be designated by the one to be baptized himself, or by his parents or guardians, or, these being lacking, by the minister; (e) not be the father or mother or spouse of the one to be baptized; (f) not belong to any heretical or schismatic sect, nor by condemnatory or declaratory sentence be excommunicated or infamous by infamy of law or excluded from legitimate acts, nor be among clerics deposed or degraded⁵.

³ Thus the S. C. de Prop. Fide, January 21, 1856, ap. Gasparri, n. 744.

⁴ Thus, for example, June 11, 1881, ap. Acta S. Sedis, XIV, p. 411-417.

⁵ Code, c. 765.

978. Corollary. Hence, with Trent admonishing, before the pastor proceeds to confer Baptism, he ought diligently to inquire who, or which persons, have been chosen by the parents as sponsors; and to admit only them, namely not more than one godfather and one godmother, lest the impediments be multiplied; and to teach them what relationship they have contracted, lest they be able to be excused by ignorance.

979. 3° On dispensation in this impediment. Since this impediment is of ecclesiastical law only, the Church is always able to dispense in it; but much more with difficulty between the baptizing one and the baptized¹.

¹ Cf. Canoniste Contemporain, March 1903, p. 160.

980. 4° Difference between the new and the old law. (a) Formerly the impediment arose not only from Baptism, but also from Confirmation; now only from Baptism.

(b) Formerly there was also an impediment: 1) between the baptizing one and the parents of the baptized; 2) between the sponsors and the parents of the baptized or confirmed.

III. On the Impediment of Legal Relationship.

981. 1° Notion. (a) Legal relationship is the nearness of persons arising from adoption which is made according to civil laws. Now adoption is a legitimate act by which a person foreign to the family is assumed as a son.

² St. Thomas, Supplementum, q. 57; Decretals, lib. IV, tit. 12, De cognatione legali; Canonists on this title; Sanchez, lib. VII, disp. 63; St. Alphonsus, n. 1027; Carriere, n. 701-704; Ball. P., n. 624-641, ed. 3; Feije, n. 428-437; D'Annibale, I, n. 65; Heiss, § 39; Gasparri, n. 751-766; Esmein, I, p. 357-362.

982. (b) This relationship took its origin from civil law; it was introduced especially so that those who do not have offspring by nature might be able, in a legal manner, to obtain adoptive children.

Now in Roman law adoption was twofold: (a) perfect, which is called adrogatio, by which a foreign person and one of his own right, by rescript of the prince, passed into the power and family of the adopter, so that he became a necessary heir just as legitimate sons; (b) imperfect, or simple, by which a foreign person, remaining under the power of his father or grandfather, by the authority of a judge was assumed as a son or grandson of the adopter, without, however, passing into his family and becoming a necessary heir.

Now "Those who by civil law are considered incapable of entering marriage with one another on account of legal relationship arising from adoption cannot, by force of canon law, validly contract with one another."³

³ Code, c. 1080.

983. 2° Extension. Hence it appears that the question concerning an impediment of this kind, formerly very complex, today has been placed in a clear state. For each people, the Church decrees that from legal adoption there arises a canonical diriment impediment for all who by civil law are considered incapable of entering marriage with one another because of adoption; but a merely prohibiting impediment where civil law so decrees the matter. Moreover the canonical impediment has the same extension as the civil one. In practice, therefore, recourse must be had to the civil Code of each nation.

In France, from adoption there certainly arises a prohibiting impediment: "Marriage is prohibited: between the adopter, the adopted, and his descendants; between the adoptive children of the same individual; between the adopted and the children, whether legitimate or natural, who might afterward come to the adopter; between the adopted and the spouse of the adopter; and reciprocally between the adopter and the spouse of the adopted" (Cod. civ., 348). It is not, however, a diriment impediment, according to the common opinion of jurists. In Italy, Spain, Poland, Croatia, and Slavonia the impediment is held as diriment.

The reason for this impediment is that it is altogether fitting to exclude from marriage persons who dwell in the same family, lest otherwise they fall into danger of fornication, as was said above concerning consanguinity. Besides this, between the adopter and the adopted there is a special obligation of reverence, which can scarcely be reconciled with conjugal equality.

984. 3° Dispensation. Since this impediment is of ecclesiastical law only, the Church can dispense in it.

IV. On the Impediment of Affinity.

985. 1° Notion and origin. (A) Affinity is the nearness which someone has with the blood relatives of that person with whom he has contracted a valid marriage, whether ratified only, or ratified and consummated².

¹ St. Thomas, Supplementum, q. 55; Decretals, lib. IV, tit. 14, De consanguinitate et affinitate; Canonists on this title; Sanchez, lib. VII, disp. 64-67; St. Alphonsus, n. 1068-1078; Carriere, n. 828-949; Ball. P., n. 782-799, ed. 3; Feije, n. 370-383; Gasparri, n. 685-704; Genicot, n. 480-482; Rosset, n. 1912-1982.

² Code, c. 97, §§ 1 and 2.

(B) The impediment of affinity was instituted by the Church after the likeness of those prohibitions which are found in the Old Law³. First indeed marriages were forbidden between a man and the sister of his deceased wife; afterwards also between him and the first cousin of his deceased wife; then affinity was successively extended to other degrees, up to the seventh, just as consanguinity itself. Indeed, before the Fourth Lateran Council, there were three species of affinity, and affinity begot affinity; but the Lateran Council abrogated two species of affinity, and restricted the third species to the fourth degree¹. But Trent limited illicit affinity to the second degree; from the Code, there is now no illicit affinity.

³ Levit., XVIII, 8-18: thus in v. 14 it is said: "Thou shalt not uncover the nakedness of thy father, nor approach to his wife, who is joined to thee by affinity."

¹ Concerning the historical evolution of this impediment, one may read Esmein, t. I, p. 374-383.

986. 2° Extension of affinity. (A) By the new law, affinity dirimently impedes marriage in the direct line in every degree; in the collateral line up to the second degree inclusive².

² Code, c. 1077.

987. (B) So that the nature of this impediment may be better understood, it must be noted that it is incurred by the man alone with the blood relatives of the woman with whom he contracted marriage, and by the woman alone with the blood relatives of the man whom she married; but by no means by the blood relatives of the man with the blood relatives of the woman: for affinity does not beget affinity. Hence two brothers can marry two sisters; a father and son can marry a mother and daughter³.

³ Code, c. 97, § 2.

(C) "Affinity is computed in such a way that those who are blood relatives of the man are affines of the woman in the same line and degree, and vice versa."⁴ This will be better understood from the following tree.

⁴ Code, c. 97, § 3.

Diagram: Degrees of Affinity.

Center: Man - Wife

Direct ascending line:
Man's blood relatives: father (1), grandfather (2), great-grandfather (3), great-great-grandfather (4).
Wife's blood relatives: mother (1), grandmother (2), great-grandmother (3), great-great-grandmother (4).

Direct descending line:
Man's blood relatives: son (1), grandson (2), great-grandson (3), great-great-grandson (4).
Wife's blood relatives: daughter (1), granddaughter (2), great-granddaughter (3), great-great-granddaughter (4).

Collateral line on the man's side:
brothers (1); father's brother (2); father's brother's son (2); father's brother's grandson (3); father's brother's great-grandson (4);
father's paternal uncle (3); his son (3); his grandson (4);
great-uncle (4); his son (4);
brother's sons (2); brother's grandsons (3); brother's great-grandsons (4).

Collateral line on the wife's side:
sisters (1); mother's sister (2); mother's sister's daughter (2); mother's sister's granddaughter (3); mother's sister's great-granddaughter (4);
mother's maternal aunt (3); her daughter (3); her granddaughter (4);
great-aunt (4); her daughter (4);
sister's daughters (2); sister's granddaughters (3); sister's great-granddaughters (4).

(a) On the right side are found the blood relatives of the wife, and on the left side the blood relatives of the man. Now the wife is affine to all the blood relatives of the man in the same degree in which these are blood relatives of the man; on the other hand, the man is affine to all the blood relatives of the wife in the same degree in which these are blood relatives of the wife; for example, the man, after his wife has died, cannot marry her mother, grandmother, sister, first cousin, etc.; the wife, after her husband has died, cannot contract with his father, grandfather, brother, male cousin, etc.

(b) But the blood relatives of the man, for example his father, grandfather, paternal uncle, brother, etc., can marry the blood relatives of the wife, for example her mother, grandmother, maternal aunt, sister, etc.

988. (E) Names of affines:

989. 3° On multiple affinity. "The impediment of affinity is multiplied: 1) as often as the impediment of consanguinity from which it proceeds is multiplied; 2) by marriage repeated successively with a blood relative of the deceased spouse."¹ Thus, from the first head, a wife is three times affine to him who is three times blood-related to the husband; but from the second, a woman who successively contracts marriage with two men blood-related among themselves is twice affine to the other blood relatives.

¹ Code, c. 1077, § 2.

990. Sometimes affinity and consanguinity also exist at the same time between those about to marry; thus, for example, Peter marries Catherine, blood-related to him in the second degree; after his wife has died, he wishes to contract with Gertrude, his wife's sister; there are two impediments in the case, of affinity in the first collateral degree and of consanguinity in the second collateral degree.

991. 4° By what law does affinity dirimently impede marriage? Affinity, even in the first degree of the direct line, more probably arises from merely ecclesiastical law. Hence it is not an impediment for infidels, even if they afterwards receive Baptism. For canon 97 of the Code establishes that affinity arises from marriage whether ratified, or ratified and consummated; but, according to c. 1015 of the Code, a valid marriage of baptized persons is called ratified. - But the impediment is incurred from a valid marriage between a baptized party and an infidel², the ecclesiastical law directly reaching the faithful party and indirectly the infidel.

² "Although the impediment has itself from one party only, nevertheless it renders the marriage either illicit or invalid." (Code, c. 1036, § 3).

992. 5° On dispensation from affinity. (a) As regards the direct line, the Church very rarely dispenses in the first degree³, rarely in the other degrees.

³ A case of a dispensation of this kind may be found in Le Canoniste contemporain, November 1912, p. 659.

(b) In the degrees of the collateral line, not excepting the first⁴, the Church "now shows herself not difficult in granting a dispensation."⁵

⁴ The matter was formerly much disputed on the occasion of the dispensation granted by Julius II to Henry VIII.

⁵ Desmet, n. 306. - Up to now, if someone wished to marry a person whose mother he had carnally known, a dispensation was not granted except under the condition: "Provided, however, that intercourse with the mother did not precede the birth of the daughter." The inconvenience which was thus guarded against is now removed, at least in part, through the new impediment of public honesty, concerning which below.

993. 6° On the difference between the old and the new law. Formerly affinity was defined as the nearness which someone contracted with the blood relatives of that person with whom he had had perfect carnal intercourse; thence a distinction was made between licit and illicit affinity; affinity from licit intercourse dirimently impeded marriage in the direct line to infinity, according to the more probable opinion; up to the fourth degree inclusive in the collateral line; but affinity from illicit intercourse dirimently impeded marriage up to the second degree inclusive in each line.

V. On the Impediment of Public Honesty.

994. 1° Notion from the Code. (A) The impediment of public honesty arises from an invalid marriage, whether consummated or not, and from public or notorious concubinage; and it dirimently impedes nuptials in the first and second degree of the direct line between the man and the blood relatives of the woman, and vice versa². Thus if Titius publicly lived in concubinage with Lucia, the mother of Sophia, by that very fact he contracted the impediment of public honesty with Sophia. It is called public honesty because honesty of morals demands that illicit unions not be multiplied, from which there arises a certain quasi-affinity.

¹ St. Thomas, q. 55, a. 4; Decretals, lib. IV, tit. 2, cc. 3, 4, 8; tit. IV, De sponsa duorum; Canonists on this title IV; Sanchez, lib. VII, disp. 68-70; St. Alphonsus, n. 1061-1064; Carriere, n. 809-826; Ball. P., n. 760-776, ed. 3; Gasparri, n. 705-732; Feije, n. 384-408; Noldin, n. 106-107.

² Code, c. 1078.

995. (B) Traces of this impediment are found in Roman law, which acknowledged quasi-affinity between the betrothed woman of the father and the son, the betrothed woman of the son and the father, the mother of the betrothed woman and the betrothed man³. At what time public honesty was held as a canonical impediment is not certain; for the canons in the Decree of Gratian⁴ which suppose its remote antiquity are apocryphal; more probably it was in force not long before the twelfth century. - Before Trent, public honesty, whether arisen from betrothals or from marriage, was extended to the fourth degree, and arose from invalid betrothals, provided they were not invalid by defect of consent. But Trent established that the impediment would not arise in future from invalid betrothals, and from valid ones not beyond the first degree; but it changed nothing as regards public honesty arisen from ratified marriage⁵.

³ L. 12 § 1 and 2, l. 14 ff. De ritu nuptiarum.

⁴ Decret. Grat., c. 11, 14 and 15, c. 2, q. 2.

⁵ Thus decreed St. Pius V, Const. Ad Romanum, July 1, 1568.

Hence up to Pentecost of the year 1918, the impediment of public honesty was the nearness of persons arising both from valid betrothals and from ratified and non-consummated marriage.

996. 2° Extension of this impediment, from the old law. (A) Public honesty arising from valid betrothals dirimently impeded marriage between the betrothed man and the blood relatives of the betrothed woman, and vice versa, up to the first degree; therefore the betrothed man would have contracted invalidly with the mother, sister, or daughter of his betrothed; but validly with all other blood relatives of the betrothed woman. This was true even if the betrothals had been legitimately dissolved; for an impediment once contracted does not cease except by dispensation.

It did not, however, arise from invalid betrothals, by whatever reason they had been invalid; nor from conditioned betrothals, except when the condition had been fulfilled.

997. (B) Public honesty from ratified marriage dirimently impeded nuptials up to the fourth degree inclusive, even if it had arisen from an invalid marriage, provided the invalidity had not been from defect of consent; for when consent was lacking, the foundation of the impediment was lacking, namely the joining of souls.

998. 3° On the multiple impediment of public honesty, in the old law. (a) This impediment was multiplied from several betrothals or non-consummated marriages. Let there be, for example, three sisters, Rosa, Martha, Lucia; if Titius had contracted betrothals with Rosa, and afterwards, having obtained a dispensation, marriage with Martha, without consummating it, he was bound by a double impediment of public honesty with regard to Lucia; if nevertheless he had married Lucia, having likewise obtained a dispensation without consummating the marriage, he labored under a triple impediment of public honesty with regard to Sempronia, the mother of the three sisters.

999. 4° On dispensation from this impediment. Since this impediment is of merely ecclesiastical law, the Church dispenses in it, but with caution, namely by taking care lest someone join his own offspring to himself in marriage; namely, if illicit and occult intercourse preceded the birth of the woman to be married, concerning whom it can be doubted whether she is the daughter or sister of the other party, can. 1076, § 3, must be applied: "Marriage is never to be permitted if there exists any doubt whether the parties are blood relatives in some degree of the direct line or in the first degree of the collateral line."¹

¹ Commission for interpreting the Code, June 2-3, 1918.

VI. On the Impediment of Disparity of Cult.

1000. 1° Notion and origin. (A) Disparity of cult is a diriment impediment between one baptized in the Catholic Church or converted to the same from heresy or schism², and one not baptized, even a catechumen; and thus it is distinguished from mixed religion, which is a prohibiting impediment between a Catholic and a non-Catholic validly baptized. - In our days, not only among pagans, but also in the great cities of Catholic regions, an impediment of this kind can be found, because not a few adults have never been baptized.

¹ St. Thomas, q. 59, a. 1; Decret. Gratiani, c. XXVII, q. 1; Benedict XIV, Const. Singulari nobis, February 9, 1749; Canonists, lib. IV, on tit. I or tit. VI; Sanchez, lib. VII, disp. 74; St. Alphonsus, n. 1044; Carriere, n. 747-752; Ball. P., n. 699-710, ed. 3; Feije, n. 459-470; Gasparri, n. 596-624.

² Code, c. 1070, § 1.

It must be carefully noted that in the case it is not a question of any baptized person whatever, even in heresy, as formerly, but of a person baptized in the Catholic Church or converted to the Catholic Church from heresy or schism. And the impediment is present even if the person baptized in the Catholic Church afterwards adhered to heresy or schism, or, having converted to the Church, again relapsed into heresy.

1001. (B) This impediment, considered as diriment, is of ecclesiastical law. In Scripture indeed the nuptials of the faithful with infidels were in some way prohibited: "Bear not the yoke with infidels³; for what participation has justice with iniquity? or what fellowship has light with darkness?"; but that prohibition did not dirimently impede such a marriage, since elsewhere it is supposed valid⁴. The Fathers and Councils likewise condemned nuptials of this kind, especially because in the Old Testament it was forbidden to the Jews to marry infidel women; but for many centuries they held them as valid; and most holy women contracted with infidels, as Cecilia with Valerian, Monica with Patricius, Clotildis with Clovis, without the Church condemning them. Gradually, however, from the dangers which flow from nuptials of this kind, the practice prevailed in various parts of the Church of holding them as null; this practice in the course of time became universal; and thus this impediment, insofar as it is diriment, was introduced by custom, and already from the beginning of the twelfth century was received everywhere; wherefore today it is in force even in those regions where the faith is first propagated¹.

³ II Cor., VI.

⁴ I Cor., VII, 12-16.

¹ The historical evolution of this impediment may be read ap. Esmein, t. I, p. 219 sq.; Watkins, Holy Matrimony, p. 446 sq. - The reason why such a marriage is prohibited is explained thus by St. Thomas, l. c.: "The principal good of marriage is offspring to be educated for the worship of God. But since education is commonly done by father and mother, each according to his own faith intends to educate the offspring for the worship of God. And therefore if they are of diverse faith, the intention of one will be contrary to the intention of the other." Hence the reasons set forth above concerning mixed marriages, n. 905-907, also hold good, and often a fortiori.

1002. 2° When is it incurred? It is certainly incurred when it is morally certain that one party has been validly baptized, and the other either in no way or invalidly baptized. But in a case of doubt concerning Baptism, an investigation indeed ought to be made, according to the Instruction of the Holy Office of August 1, 1883, but, if the doubt remains, this rule is to be held: "If the party at the time of the contracted marriage was commonly considered as baptized, or his Baptism was doubtful, one must stand, according to the norm of c. 1014², for the value of the marriage until it is certainly proved that one party was baptized, and the other not baptized."³

² Canon 1014 has itself thus: "Marriage enjoys the favor of law; wherefore in doubt one must stand for the value of the marriage until the contrary is proved."

³ Code, c. 1070, § 2.

1003. 3° On dispensation from this impediment. (A) Only the Roman Pontiff is able to dispense in this impediment by his proper power; but others only through an indult, which is granted in places where there are many infidels.

(B) The conditions required that the dispensation be granted are: (a) that there be absent insult to the Creator, that is, danger to faith or morals for the Catholic party and his offspring; hence the infidel must promise that he will leave full liberty to the Catholic party as regards the exercise of his religion, and that all the offspring will be instructed in the Catholic religion; (b) that the faithful party, according to his powers, take care for the conversion of the infidel, by prayers, good example, and especially by rightly fulfilling the duties of conjugal life; (c) that grave causes be present, which are left to the prudent judgment of the one dispensing, such as, for example, the salvation of the souls of those who have already lived for a long time in such a marriage, or who can scarcely be restrained from contracting it. - A dispensation knowingly granted without grave cause by the Roman Pontiff is illicit, but valid; by a delegate, however, it is not only illicit, but also invalid.

VII. On the Impediment of Abduction.

1004. 1° Origin and notion. (A) The impediment of abduction, insofar as it is universal and diriment, was instituted by Trent. But, already from the earliest centuries, the crime of abduction had been prohibited. (a) By Roman civil law it was punished with most grave penalties, and marriage between the abductor and the abducted woman was forbidden as a penalty of abduction.

¹ Decret. Gratiani, c. XXVII, q. 2; c. XXXVI, q. 1-2; Decretals, lib. V, tit. 17; Trent, sess. XXIV, cap. 6 de Reformat. Matrim.; Reiffenst., lib. IV, tit. 1, n. 372-379; Sanchez, lib. VII, disp. 12-13; St. Alphonsus, n. 1106-1108; Carriere, n. 905-914; Ball. P., n. 692-698, ed. 3; Feije, n. 145-187; De Angelis, lib. IV, tit. 1, n. 20; Gasparri, n. 537-563; De Becker, p. 67-73.

(b) By ecclesiastical law the discipline was not always the same; according to the ancient canons, the abductor was punished with excommunication and other penalties, and was prohibited forever from marrying the abducted woman; indeed in certain provinces such a marriage was considered invalid. But by the new law of the Decretals, the girl could consent to marriage, even when she remained under the power of the abductor; and if the consent was truly free, the nuptials were regarded as valid².

² Cf. Esmein, I, p. 391-393; II, p. 250-255.

(c) But Trent, wishing better to provide for the liberty of marriages, decreed that there is no marriage between the abductor and the abducted woman as long as she remains in the power of the abductor, even if she has freely consented; and it punished the crime of abduction with various penalties³: "The Holy Synod decrees that between the abductor and the abducted woman, as long as she remains in the power of the abductor, no marriage can subsist. But if the abducted woman, separated from the abductor and placed in a safe and free place, has consented to have him as husband, let the abductor have her as wife; and nevertheless the abductor himself and all those who furnish counsel, aid, and favor to him are by the law itself excommunicated, and perpetually infamous, and incapable of all dignities, and if they are clerics, let them fall from their own grade. Moreover let the abductor be bound, whether he has married the abducted woman or has not married her, to dower the abducted woman becomingly, at the judgment of the judge."

³ Sess. XXIV, cap. 6 de Reform. Matrim.

(B) Hence abduction can be defined: the violent carrying away of some person from place to place, where she is detained under the power of the abductor, for the sake of entering marriage¹. This impediment is distinguished from fear; for, even when fear ceases, the marriage is invalid as long as the abducted woman remains under the power of the abductor. Nor is it a penal impediment, for marriage can be celebrated validly and licitly as soon as the woman is withdrawn from the power of the abductor; therefore it is an impediment sui generis, by force of which the abductor is rendered incapable of contracting with the abducted woman, as long as she is retained under his power.

¹ Code, c. 1074: "§ 1. Between a man as abductor and a woman abducted with marriage in view, as long as she remains in the power of the abductor, no marriage can subsist. - § 2. But if the abducted woman, separated from the abductor and placed in a safe and free place, has consented to have him as husband, the impediment ceases."

1005. 2° Conditions required that abduction dirimently impede marriage. (A) That there be an abduction of a woman, but not of a man. This is certain from can. 1074, § 1, by which the impediment is established only between a man as abductor and a woman, and odious things are to be restricted; hence if a fainthearted young man were abducted by an over-powerful woman, the marriage would be held as valid, provided the young man consented freely. - Now it makes no difference whether the woman who is abducted is a virgin or corrupted, honorable or a prostitute; for the words of the Code are altogether general. - Nevertheless, if the woman is ruined in morals, she is presumed to have been abducted for the sake of satisfying lust, not for the sake of marriage; but the presumption would yield to the truth.

1006. (B) That there be a true carrying away from place to place; that is, that the woman be transferred from the place in which she was safe into a morally different place, in which she is less safe, although not far distant. - Now it makes no difference whether the abductor carries away the woman by himself, or through others, provided he himself gave the mandate; but if someone, thinking that he will do something pleasing to a friend, transfers a certain girl into his own house, so that this friend can more easily marry her, the nuptials are valid, because the friend did not mandate the abduction. - Moreover the mandataries who abduct the woman in the name of the principal agent do not contract the impediment with her, unless they afterwards detain her (from § 3).

1007. (C) That the carrying away be violent, that is, with the woman unwilling. It is considered violent: (a) if it is done by force or grave fear unjustly inflicted; (b) by fraud or deceit, for example through hypnotic suggestion, which takes away liberty. - But it is not violent if a girl, whether of her own right or not, freely flees with a man, so that she may avoid the opposition of parents or others; if she is not of her own right, the nuptials indeed can be illicit, on account of the dissent of the parents, but they will be valid. Likewise, if the woman at first indeed was unwilling, but then, drawn by persuasions and flatteries, follows the man with marriage in view, there is indeed an abduction of seduction, but not a violent abduction; yet in the external forum it must be proved that she truly consented to the flight; otherwise the prior dissent is presumed to have persevered.

But if a consenting woman is carried away into another place, not because she herself intends marriage, but on account of another motive; and the abductor, who was thinking about marriage although he had said nothing about it, detains her there and proposes nuptials to her, much more probably the impediment is present; because she is deceitfully carried away by the abductor¹. "As regards the nullity of marriage, violent retention of the woman is held equal to abduction, namely when a man violently detains a woman with marriage in view in a place where she dwells or to which she freely came."²

¹ For understanding the matter better, see the cases resolved by the S. C. of the Council, ap. Gasparri, n. 554-556.

² Code, c. 1074, § 3.

When valid betrothals have been contracted, it is controverted whether he who abducts his unwilling betrothed incurs the impediment of abduction. (a) If she has a just cause for withdrawing or delaying, according to all, the impediment is incurred, because her liberty is unjustly and violently harmed; (b) if she does not have a just cause, much more probably it is also incurred, because the betrothed woman cannot be forced by private violence to keep her betrothal pledge.

1008. (D) That the carrying away be done with a view to entering marriage, since the impediment was established for preserving the liberty of matrimonial consent. Hence if a woman is carried away to take money from her, or to satisfy lust, or for another end, the impediment does not arise. But in the external forum abduction is presumed to be done for the sake of marriage, unless the contrary is proved. Besides this, if the woman is first abducted for the sake of lust, but afterwards is detained unwillingly with a view to entering marriage, the impediment is now present, because detention in the case is equated with violent carrying away.

1009. (E) That the abductor detain the woman under his own power, as is clear from Trent and the Code. Therefore when the girl has been separated from the abductor and placed in a safe and free place, the impediment ceases without any dispensation; thus it is, for example, if she is restored to her own home, or placed in the house of a friend or parent of the woman herself, who is not a favorer of the abductor. But the impediment endures if the woman remains in the same house into which she had been transferred, although she could flee; or if she is placed in the house of a friend or parent of the abductor, especially if someone watches over her by mandate of the man; for then she is not placed in a safe and free place.

1010. N. B. The Church generally does not dispense in this impediment¹. - Let the abductor "be held by the law itself as excluded from legitimate ecclesiastical acts, and moreover be punished with other penalties according to the gravity of the fault."²

¹ Formerly the Church never dispensed; but in the Instruction to the Albanian Bishops, February 15, 1901, ap. Acta S. Sedis (XXXIII, p. 547-549), the Holy Office declared that, on account of the peculiar circumstances prevailing in Albania, nothing prevents a dispensation from being granted, if it is clear concerning the truly free consent of the abducted woman and if sufficient motives for dispensing are present; but, lest this be done easily, each case must altogether be submitted to the judgment of the Holy See.

² Code, c. 2353.

VIII. On the Impediment of Crime.

1011. 1° Notion and origin. (A) Not all crimes dirimently impede marriage, but certain more odious ones committed in relation to marriage, namely: (a) killing of a spouse perpetrated by mutual conspiracy with the intention of contracting marriage between themselves; (b) adultery committed with the other party, with a promise of marriage or attempted marriage; (c) adultery with killing of a spouse perpetrated by one party only⁴. - The reason why crimes of this kind render subsequent nuptials invalid is threefold: (a) because otherwise, under hope of contracting marriage with accomplices, occasion would be given to spouses for perpetrating these crimes, especially the killing of a spouse, which is so unworthily opposed to conjugal love and fidelity; (b) as a penalty for the crime committed; (c) because such nuptials would be publicly dishonorable and scandalous.

³ Decret. Gratiani, Caus. XXXI, q. 1; Decretals, lib. IV, tit. 7, De eo qui duxit in matrimonium quam polluit per adulterium; Canonists on this title; Sanchez, lib. VII, disp. 78-79; St. Alphonsus, n. 1031-1043; Carriere, II, n. 709-746; Ball. P., n. 666-691, ed. 3; Feije, n. 448-458; Mansella, p. 155-162; Gasparri, n. 641-660; De Becker, p. 162-173; Konings, n. 1594-1596; Noldin, n. 110-124.

⁴ Code, c. 1075.

(B) By ancient Roman law nuptials between accomplices in adultery were prohibited, even after the prior marriage had been dissolved; afterwards, in the time of Justinian, they were declared null. Canon law received this law, and St. Leo established: "Let no one take in marriage her whom he previously polluted by adultery"; but it is not certain that adultery as a diriment impediment was universally accepted, especially in the Western Church, before the ninth century; in the time of Gratian, already a twofold species of crime dirimently impeding marriage was acknowledged; finally, in the time of Gregory IX, the threefold impediment of crime set forth above was universally established.

1012. 2° On killing of a spouse perpetrated by mutual conspiracy. Four conditions are required that the impediment from this head be incurred:

(A) Mutual conspiracy between the accomplices for the killing of the spouse of one or other of them; this exists if one party induces the other to the crime by counsel, prayers, or approval; or if each cooperates either physically, for example by supplying poison, or morally, by corrupting a physician so that he may bring on death or not prevent it. Hence it is not enough that one party plans death while the other is unaware, even if the latter afterwards approved the killing; nor is the silence of the other enough, unless by other supports the silence can be held as consent and truly influences the crime.

(B) That the conspiracy be done from the intention of entering marriage with the accomplice¹, at least on one side; therefore, if it is done for another end, for example hatred, revenge, cupidity, or so that life may be lived more freely, or for more easily marrying another person, the impediment is not incurred.

¹ Concerning this intention the Code is silent.

It was said: at least on one side; because some theologians require this intention from each party; but more probably this is not necessary, provided that the intention of one is externally manifested; for example, if sufficient signs of intention preceded the killing, suppose gifts, familiarities, love letters, and similar things between those who wish to contract; otherwise if the intention remained altogether internal, because the Church cannot punish a homicide done from such an intention if no indication concerning it has preceded. Thus St. Alphonsus, n. 1034.

(C) That death follow by the work of one or other, whether physical or moral, but not from a fortuitous case, or from the fault of another person; hence, if after a non-mortal wound has been inflicted death follows through the inexperience or negligence of the physician, the impediment is not incurred; otherwise, if the physician, by the counsel or mandate of one or other accomplice, has been negligent by design.

(D) That the marriage was valid at the time of the killing; otherwise there will not be killing of a spouse, but homicide; nor is it enough that it was putative; on the other hand it is not necessary that it had been consummated.

1013. 3° On adultery with promise or attempted marriage. Three conditions are required:

(A) True adultery, formal on each side, consummated.

(a) True, insofar as a valid marriage and one still persevering ought to exist at least on the part of one adulterer; hence, if the marriage is invalid, although putative, or if the other spouse is already dead, although his death remains unknown, the impediment is not contracted, because objectively adultery is not committed, but only fornication.

(b) Formal on each side, insofar as each must know that the other is married; nor is it enough that each knows himself to be married, if this is unknown by the other accomplice. Now it is not necessary that both be married, nor therefore that both know each to be married; but it suffices that the conjugal state of one is known to each.

(c) Consummated, that is, of itself apt for generation.

(B) Promise or attempted marriage, made before the death of the innocent spouse. Now this promise ought to be:

(a) true and accepted, and therefore externally manifested, and probably mutual; (b) in order to entering marriage with the accomplice after the death of the spouse; for if marriage to be entered while the other spouse is still living is promised, where polygamy is permitted by civil law, the impediment is not contracted, because the reason for the impediment ceases, which is lest the promise furnish occasion for killing the other spouse; (c) absolute; hence a conditioned promise does not suffice, unless this has passed into an absolute one by fulfillment of the condition before the death of the spouse; (d) not revoked before the adultery; if it is revoked after the adultery has been committed, the impediment already contracted does not cease; (e) probably made with knowledge of the bond; hence if the promise is made at a time when the bond of the accomplice is unknown, and afterwards adultery is committed once the bond is known, the impediment is doubtful, and therefore in practice none.

Attempted marriage, or civil marriage, takes the place of a promise; hence those who, after a marriage validly entered, obtain a civil divorce and, while the former spouse is living, contract and consummate another marriage, incur the impediment of crime; and therefore, after the former spouse has died, they cannot revalidate the marriage without dispensation¹.

¹ Thus, according to De Angelis, lib. IV, t. IV, n. 11, the S. Penitentiary was accustomed to respond; cf. Gasparri, t. I, n. 738, ed. 3.

(C) The promise of marriage must be made and the adultery committed during the same marriage; namely, if Peter successively has two wives, and while one is living, for example Bertha, he promises to marry Catherine, but afterwards marries Martha, and while she is living commits adultery with Catherine, there is no diriment impediment between Peter and Catherine, provided the same promise of marriage is not renewed; for the promise previously made is considered revoked by the nuptials celebrated with Martha.

Moreover, it makes no difference whether the promise precedes, accompanies, or follows the adultery, or by how much time it is distant from the adultery, provided these two things are done during the same marriage.

1014. 4° On killing of a spouse with adultery. Three conditions are required for contracting this impediment:

(A) True adultery, formal on both sides, consummated, as above, committed before the homicide; for if it is committed after the death of the spouse, it is no longer adultery.

(B) Homicide perpetrated by one, with the intention of entering marriage with the accomplice, externally manifested, although the other does not know that the homicide is to be perpetrated, or even contradicts it. Hence in this case mutual conspiracy is not required, nor a promise. But the intention of entering marriage is presumed in the external forum, unless the contrary is clear from the circumstances. - It is likewise necessary that death in fact follow by the work or machination of one of the adulterers.

(C) That each thing, namely adultery and killing of a spouse, be committed while the same marriage stands.

1015. 5° On the multiple impediment of crime. The impediment of crime can be multiplied both by reason of the delict and by reason of marriage:

(A) By reason of the delict: (a) when the impediment arises from homicide alone, the impediment is double if each spouse is married and each from conspiracy kills his own spouse; (b) when it arises from adultery alone, a double impediment is incurred if both adulterers are married and both know this; (c) when it arises from homicide with adultery, the impediment is double if each adulterer is married and each kills his own spouse, even without conspiracy; (d) when adultery and homicide separately have their proper conditions, according to what was set forth above, each is likewise an impediment.

(B) By reason of marriage, namely when several marriages have successively been entered, and during each marriage, one or several of the aforesaid crimes have been perpetrated; for example, if Titius successively entered a threefold marriage with Mary, Bertha, and Rosa, and while each marriage stands, carnally knows Caia with a promise of marriage, there is now a threefold impediment; if besides this he kills Rosa, so that he may marry Caia, a fourth impediment arises, etc. - But impediments are not multiplied if adultery is committed several times with the same person while the same marriage stands.

1016. 6° On dispensation in this impediment. (A) Since this impediment is of ecclesiastical law only, infidels do not incur it, and therefore they do not need a dispensation when they are converted. But if the crime is committed by a faithful party with an infidel party, the impediment is present, directly affecting the faithful party and indirectly the infidel.

(B) The Church is always able to dispense in this impediment; but she dispenses with very great difficulty when the killing of a spouse was perpetrated by mutual conspiracy, or by one party only together with formal adultery, especially if the crime is public, on account of the scandal which would follow from it; but a dispensation is granted more easily for adultery with attempted marriage, at least on account of grave reasons; more easily also in the case of adultery with the mere promise of marriage.

(C) The Code, can. 1053, establishes that for the future a dispensation from the impediment arising from adultery with promise or attempted marriage, if any is needed, is considered granted through a dispensation concerning a ratified and non-consummated marriage, or through permission of passage to other nuptials.

(D) It was disputed whether ignorance excused from this impediment. Most denied it; for this impediment is more an incapacity than a penalty; now an incapacity is incurred even by those who are ignorant of it. Yet a few, probably before the promulgation of the Code, affirmed it¹; for this impediment is a penalty, and indeed medicinal, for deterring men from perpetrating a crime of this kind; and therefore it is not incurred by those who are ignorant.

¹ Krimer, In Decretal., lib. IV, n. 1001; Ball. P., n. 683-690; Gasparri, n. 858.

Today, however, from can. 16 of the Code, this opinion lacks all probability: "No ignorance of invalidating or incapacitating laws excuses from them, unless something else is expressly said." Moreover something else concerning this matter is said in no canon of the Code.

Note. Usually those about to marry do not think about manifesting this impediment; hence, if the confessor has founded suspicions about its existence, he ought discreetly to question the penitent; for example, if a maidservant wishes to marry her recently widowed master, it can be asked whether a promise of marriage preceded, and when, while the wife was living? whether, besides the promise, there were dishonorable conversations, etc.

Notion. From the Tridentine law, namely the decree Tametsi, in order that marriage be valid, a certain solemnity is required which consists in the presence of the pastor and of at least two witnesses. Hence a marriage is called solemn which is contracted according to the form of law; on the contrary, clandestine, which is contracted outside the form of law. Since, however, the Tridentine form was notably changed by the decree Ne temere³ and by the Code, we shall speak: 1° of the Tridentine form; 2° of the form of the new law.

² For the ancient discipline: Decret. Gratiani, C. XXX, q. 5; Decretals, lib. IV, tit. 3, de Clandestina Desponsatione; Trent, sess. XXIV, cap. 1 de reformat. Matrim.; Sanchez, lib. III; St. Alphonsus, n. 1078-1094; Gasparri, n. 871-999; Deshayes, Questions sur le Mariage, q. 91-150. - For the form of the new law: De Smet, ed. 3, n. 103-150; Vlaming, ed. 3, n. 561-609; Fourneret, p. 140 sq.

³ Which began to be in force on April 19, 1908, for the whole world, except the empire of China, in which it is in force from April 11, 1909. - Hence marriages entered before this time must be judged according to the discipline of the decree Tametsi.

I. On the Tridentine Form.

Trent had established this law: "Those who shall attempt to contract marriage otherwise than in the presence of the pastor, or of another priest with the permission of the same pastor or of the Ordinary, and of two or three witnesses, the holy Synod renders altogether incapable of so contracting: and it decrees that contracts of this kind are invalid and null, just as by the present decree it makes them invalid and annuls them."

Yet lest that decree (which is called Tametsi, because it begins with this word) should affect heretics, who were not going to receive it, the Council willed that the decree not have the force of law except after thirty days from the first publication in each parish; for thus an opportunity was furnished to heretics, who formed separate communities, of evading the law.

Concerning that discipline, now antiquated, we shall hand down only a few things, nevertheless necessary to know for judging the validity of marriages entered before April 19, 1908; if perhaps more difficult cases occur, let the authors cited above be consulted.

1017. 1° On the places in which this decree was in force. (A) From what has been said, the decree was not in force except where it had been promulgated, at least implicitly through immemorial observance.

Hence marriages entered without the Tridentine form were valid: in England, Scotland, several districts of Switzerland, Denmark, Sweden, Norway, the regions of Europe and Asia under Turkish and Persian rule, the Vicariate of Sutchuen, Abyssinia, the island of Madagascar. - The matter remained doubtful for almost the whole of Wallachia, Bulgaria, Syria, the island of Cyprus, Malabar, the Cape of Good Hope, and Upper Canada.

(B) From the constant interpretation of the Roman Congregations, the aforesaid law also bound baptized non-Catholics wherever it had been promulgated.

Nevertheless the places were to be excepted for which the Benedictine declaration¹ was given or to which it was extended. Since there had long been dispute concerning the validity of marriages of heretics in Holland, from the fact that very many Catholics there had fallen away from the Catholic faith, Benedict XIV, wishing to put an end to the dispute, declared and established that clandestine marriages in Holland, whether entered between heretics or between heretics and Catholics, or to be entered in the future, were to be held as valid, provided no other impediment stood in the way. This declaration was afterwards extended to the places which follow:

¹ Constit. Matrimonia, November 4, 1741.

The Federated Orders of Belgium, the whole Empire of Germany from April 15, 1906, Constantinople and its suburbs, Pondicherry, Coromandel, Malabar, Bombay, Canada, the Island of the Most Holy Trinity, the dioceses of the United States of America, except the province of Santa Fe.

(C) Moreover mixed marriages were valid not only in the aforesaid regions, but also where derogation had been made from the Tridentine decree with respect to mixed marriages; these are: Hungary, Ireland, the Russian Empire and the part of Poland subject to it, Georgia.

1018. 2° On the subject of the Tridentine law. Principle: The law of clandestinity was at once local and personal.

(A) Insofar as it was local, it directly affected the territory in which it had been promulgated, and indirectly all who were staying there, or were traveling through the territory, even if they had no domicile or quasi-domicile there.

(B) Insofar as it was personal, it directly bound subjects, so that they could not validly contract in an exempt territory (where the law was not in force), if they went to this territory in fraud of the law, that is, for the purpose of marrying, without the intention of acquiring there a domicile or quasi-domicile.

(C) But when those about to marry dwelt in diverse places, a marriage celebrated without the Tridentine form was valid in a place where Tametsi was not in force, if one of the betrothed had there his domicile or quasi-domicile; for the privilege of one was communicated to the other.

1019. 3° On the solemnities required by the Tridentine law. - Two things were required: 1° the presence of the proper pastor, or Ordinary, or delegate; 2° the presence of witnesses.

1° On the presence of the pastor. (A) Who is the proper pastor? It is twofold: the pastor of the domicile or quasi-domicile of either of the contracting parties, that is, either of the bridegroom or of the bride; hence the pastor of one is the pastor of each with respect to marriage.

1020. (a) For domicile two things were required at the same time: habitation in the parish where marriage is contracted, and the intention of remaining there perpetually for a notable part of the year. Domicile was acquired as soon as habitation began with the intention of remaining externally manifested; nor was it lost by a long absence, provided there was the intention of returning.

1021. (b) For quasi-domicile two things likewise were required: habitation in the parish, and the intention of remaining there for the greater part of the year or at least for six months. Hence one could have a domicile in one parish, and a quasi-domicile in another.

1022. (c) Vagi, who have neither domicile nor quasi-domicile, can validly and licitly contract before the pastor of the place where they actually dwell; indeed probably, according to some, before any pastor.

1023. (B) Who came under the name of pastor with respect to marriage? All who have care of souls in a parish, with the general permission of administering the sacraments, although they are not pastors in the strict sense, namely:

(a) Not only irremovable pastors, but also removable ones; (b) rectors, or administrators of a vacant parish; (c) pro-pastors, vice-curates, for example, vicars of an absent pastor, or of a pastor present but infirm or worn out by old age, or of a suspended pastor, etc.; or cooperating vicars enjoying full authority of administering all the sacraments; but not those vicars who are deputed to help the pastor in those things which he will commit to them.

(d) Not only the proper pastor, but also the Ordinary of the diocese validly assists at marriages, that is, the Bishop; the Vicar General; or the Capitular Vicar, the see being vacant; the Roman Pontiff for the whole Church; the Apostolic Legate for his own territory.

1024. (C) On delegation for marriage. Not only the pastor, but one delegated by the pastor or Ordinary could validly assist at marriage.

The delegate could subdelegate another priest, if this power had been expressly committed to him, or if he had been delegated for the universality of matrimonial causes, or by the Supreme Pontiff even for a particular case.

1025. (D) What sort of presence of the pastor or delegate was required? There was required and sufficed for validity a moral presence, which the office of an authorized witness requires.

Hence if the pastor had rightly been warned beforehand, no special address was necessary, but it sufficed that he hear the contracting parties. Nor was it required that he had been expressly called to assist at the marriage; whether he was present by chance, or called under some other pretext, it sufficed that he understand what was being done.

Nevertheless a merely physical presence did not suffice, since the pastor ought to notice, as a witness, those things which are being done; hence one unaware, drunk, sleeping, insane, or hypnotized did not validly assist.

The pastor and witnesses had to assist at the marriage together.

1026. 2° On witnesses. Since Trent requires no special qualities in witnesses, those which natural law demands suffice. Therefore all those are qualified who, enjoying the use of reason, can know the fact and give testimony concerning it.

II. On the Form of the New Law.

1027. 1° Extension of the law. (A) The decree Ne temere and the Code have now been promulgated for the whole world. But they do not reach, at least directly, Orientals, who, from immemorial custom and with can. 1 approving, are not subject to disciplinary laws unless they are included by express declaration.

1028. (B) But in the Latin Church, can. 1099 declares who are subject to this law, namely:

(a) All baptized in the Catholic Church, when they contract among themselves, even if afterwards they have fallen away from the faith; - that is, all who by Baptism itself are freely enrolled in the Catholic Church, if adults are in question; with parents consenting, if little children are in question; but not those who are baptized by a heretical or schismatic minister by the will of the parents, even if the parents were Catholic; nor, at least more probably, the children of non-Catholics who, with the parents unaware and unwilling, were baptized by a Catholic maidservant. But the doubtfully baptized, with respect to marriage, are presumed validly baptized.

(b) All also who have been converted from heresy or schism and already baptized; but not the children of converts, unless they themselves also embrace the Catholic faith. - This holds good even if afterwards they fall away from the faith, because it is not fitting that this defection profit them.

(c) All likewise the aforesaid Catholics or converts, when they contract with non-Catholics, even after a dispensation has been obtained from the impediment of mixed religion or disparity of cult¹. Likewise Catholics who contract with Orientals. - Thus the discipline is reformed by which an immune party communicated his immunity to the other, while on the contrary today the bound party communicates his bond to the other.

¹ By the Constitution Provida (January 18, 1906), Pius X had exempted any mixed marriages to be contracted in Germany from the decree Ne temere. But that exemption is to be considered abrogated according to the mind of can. 6, 1° (Pontifical Commission, December 9, 1917).

(d) But non-Catholics, whether baptized or not baptized, are by no means subject to the law of clandestinity when they contract among themselves; therefore under this head the marriages of non-Catholics will not be invalid, which, as regards form, are subject only to natural and civil law. But if a baptized non-Catholic party contracts with an infidel, the marriage will be null from the impediment of disparity of cult, which has by no means been removed (above, n. 924).

1029. 2° Form to be observed in ordinary cases. - The matter must be examined both as regards validity and as regards liceity.

(A) For validity. "Only those marriages are valid which are contracted before the pastor, or the local Ordinary, or a priest delegated by either, and at least two witnesses..." (can. 1094); all these things must be weighed carefully.

(a) Pastor is to be understood in the sense of can. 451, that is, not only he who presides over a canonically erected parish, but also a quasi-pastor, who rules a quasi-parish, and all parochial vicars who are endowed with full parochial power. Now these are: 1. the actual vicar, or curate, who administers a parish united to a chapter or moral person (can. 471); 2. the vicar-economus, who rules a vacant parish (can. 472, 473); 3. the substitute vicar, who supplies for an absent pastor (can. 474); 4. the assistant vicar, who is given to an infirm pastor, if nevertheless he supplies for him in all things (can. 475). - But the cooperating vicar, who is given on account of the multitude of the people, can in no way be called endowed with full parochial power, according to the mind of can. 451, § 2, 2°, and therefore he cannot assist at marriages by his own right; but he can, as will be said below, as a delegate.

(b) Ordinary is anyone who has ordinary jurisdiction or jurisdiction equivalent to ordinary jurisdiction in the external forum, for example, a Bishop in his own diocese and his vicars general, the Capitular Vicar when the see is vacant, an Abbot nullius, etc. (can. 198).

(c) Delegate. - Those who can assist by their own right can delegate (can. 1095, § 2), and therefore all whom we have just enumerated, but only for marriages to be entered within the boundaries of their territory.

This delegation can be given in any manner, by writing, word, or sign, but expressly, and a presumed delegation does not suffice.

It must be given to a determinate priest for a determinate marriage; otherwise it is invalid. Therefore a delegation given for any priest whom those about to marry might choose would not be valid, nor one given for all marriages perhaps occurring (can. 1096).

Nevertheless a general delegation given to a cooperating vicar for the parish to which he is assigned is valid, as is the custom for the first vicar in the parishes of the diocese of Paris. Indeed, from can. 476, § 6, we think that the cooperating vicar has a general delegation by law, unless something else is expressly provided in the letters of the Ordinary or from the determination of the pastor himself¹.

¹ In this matter it is necessary to remember that the Church supplies jurisdiction both in doubt of law and in common error (can. 209), which must also be applied to the pastor and the Ordinary.

But the delegate can subdelegate according to the general rules fixed by law (can. 199), namely: 1. if he has received permission from the one delegating; 2. if he has been delegated for the universality of causes, and therefore, in our interpretation, the cooperating vicar could subdelegate even without a special concession.

(d) Witnesses must be at least two. Since no special qualities are demanded in them, all those are qualified who, enjoying the use of reason, can know the fact and give testimony concerning it, whether they are of age or not of age, faithful or infidels, seculars or regulars.

These are the persons who must assist at marriage; moreover the Code commands that the assistance be done according to certain rules which we explain (can. 1095, 1096).

1030. (e) The Ordinary or pastor validly assists only from the day of possession obtained or of office begun, up to the day of their cessation from office; these two moments are determined thus for the pastor:

1. From can. 1444, the pastor acquires right over subjects when he is placed in possession of his parish according to the law or custom of the diocese - "unless for a just cause the Ordinary has expressly dispensed him in writing from that manner or rite: in which case this dispensation takes the place of possession taken."

2. The pastor loses jurisdiction in the case of transfer "when he canonically takes possession of another office," unless something else has been prescribed (can. 194), and in the case of resignation, when it has been accepted and the acceptance notified (can. 190).

3. Those assist invalidly who are by sentence excommunicated, interdicted, or suspended from office, or declared such.

(f) The competent pastor and Ordinary are the pastor and Ordinary of the place (of the parish and diocese respectively) within whose boundaries the contract is entered; hence from now on, otherwise than under the Tridentine discipline, a pastor outside the parish and an Ordinary outside the diocese cannot validly assist at the marriage even of subjects; and on the contrary, in his own territory he validly assists at the marriage even of outsiders. - The same must certainly be said if they assist not by themselves but through a delegate.

(g) As regards the manner of assisting, it is necessary that, "constrained neither by force nor by grave fear, they ask and receive the consent of the contracting parties"; therefore, otherwise than under the old discipline, marriages contracted before the pastor silent and unwilling, or deceitfully and unexpectedly (par surprise), would be invalid. But the fear which a legitimate threat of recourse to the superior produces, if the pastor does not wish to join the betrothed, would not invalidate the marriage.

1031. (B) For liceity the following things are to be observed (can. 1097):

(a) Before the Ordinary or pastor or their delegate assists at marriage, it is required that he himself be certain of the free state of the contracting parties, as we said above, n. 851.

(b) One of those about to marry must be a subject of the assisting priest, which is done in a fourfold manner: by domicile, quasi-domicile, monthly residence, and, if it is a question of a vagus, by actual presence in the place. - Hence if there are several pastors of this kind, any one of them assists licitly, without any permission. If the marriage is celebrated elsewhere than in the place of domicile, quasi-domicile, or monthly habitation, the pastor of the place where it is celebrated must have permission (not delegation), unless grave necessity intervenes, from one of those whom we have just enumerated.

Vagi can be united in the place where they now dwell, but, from can. 1032, for celebrating their marriages the permission of the Ordinary must be had beforehand.

It remains that we explain the notions of domicile, quasi-domicile, and monthly residence according to the recent discipline (can. 92).

1. Domicile is acquired in two ways: either by actual residence in a parish with the intention of remaining there perpetually, if nothing calls one away from there, - or likewise by actual residence already prolonged for a completed decade. But understand residence not as bodily presence, but as presence resulting from facts which manifest the intention of having one's seat there: for example, by buying a house there and transporting into it one's household goods, or by accepting a permanent office there. Once acquired, domicile is not lost except by a positive intention, externally manifested, of not returning. A minor necessarily retains the domicile of him to whose power he is subject (can. 93).

2. Quasi-domicile likewise is had in two ways: by actual residence with the mind of remaining there at least for the greater part of the year, if nothing calls one away from there, - or likewise by actual residence in fact prolonged for the greater part of the year.

3. Monthly residence, however, does not consist in the intention of staying somewhere, but in the fact itself, whatever the intention may be. A completed month, or at least thirty days, is required. This residence must be morally continuous: an absence of some hours, even daily, does not obstruct this continuity, provided on each day of the month the principal residence in the place of marriage truly was present. Say the same very probably concerning the absence of one day. But if someone is absent for two or three days with the intention of returning, the residence is suspended, but the preceding residence can be joined with the following, for completing thirty days: thus Titius, who had rented a room in parish N. for one or more months, after ten days is called elsewhere for two days on account of urgent business; having returned, after twenty other days, he licitly contracts marriage in parish N. If he had departed without the intention of returning, the time previously elapsed will not be computed.

(c) If the proper priest does not assist, permission is to be had from the proper pastor or Ordinary, unless it is a question of the marriage of vagi, as was said, or necessity urges which excuses from seeking permission. Permission given in any manner is valid, and sometimes can be presumed.

(d) "Let it be held as a rule that marriage be celebrated before the pastor of the bride, unless a just cause excuses," for example, the reasonable desire of the parties or custom (can. 1097, § 2).

1032. 3° Form to be observed in extraordinary cases. Can. 1098 decrees that "if the pastor or Ordinary or delegated priest cannot be had or approached without grave inconvenience," marriage is contracted validly and licitly before witnesses alone in a twofold case: 1) in danger of death; 2) when it is foreseen that this condition of things will endure for a month. - Concerning these things note:

(A) For validity two things are required: (a) that the proper priest or delegate cannot be had; (b) that two witnesses be present.

This impossibility of having or approaching the proper priest is not required to be physical, but moral suffices, which is induced by "grave inconvenience" of any kind, whether on the part of the contracting party, or of his own, or even, as it seems, of the priest himself.

Here it is permitted to observe that in the Code it is not a question of a difficulty which affects some region, or parish, or village, but that a personal difficulty suffices. On this occasion it has been asked whether that case is verified if the pastor cannot assist without grave inconvenience for himself, for example, because the civil marriage cannot be performed within a month, and the law of the region gravely prohibits ministers of worship from assisting at the marriage of those who are not joined civilly? The matter had recently been much agitated, on the occasion of various responses which the Sacred Congregations had given before the promulgation of the Code; but now, with the new law in force, several grave authors judge that can. 1098 is to be applied, and that such a marriage before witnesses alone is valid and licit. Thus De Smet, 3rd ed., n. 135-136; Vlaming, 3rd ed., n. 590. Otherwise Lehmkuhl (Questions... novo juri adaptatae, p. 55). Hence the Ordinary should prudently be consulted in so grave a matter, if time permits.

(B) For liceity two things also are to be observed: (a) if there is present another priest, he should be had, who assists with the witnesses. But it is not said that such a priest, lacking delegation, must ask and receive the consent; it suffices that he assist passively.

(b) Let either the assisting priest or the witnesses, or the contracting parties, take care that the marriage entered be noted in the ritual books (can. 1103, § 3). - It is also fitting that, given the opportunity, the spouses receive the nuptial blessing from a sacred minister (can. 1101).

1033. 4° On the registration of marriages. (a) Immediately after the celebrated marriage, or as soon as possible, the pastor or he who takes his place, for example the first vicar, must write in the book of marriages the names of the spouses and witnesses, the place and day of the marriage. Since it is not said by his own hand, the act can be written by another, but the pastor himself or he who takes his place must see to it that all things are written accurately. - In many regions, as in France, the act is signed not only by the pastor or delegated priest, but also by the witnesses, immediately after the marriage has been celebrated.

(b) Besides this, the pastor shall also note in the book of the baptized that the spouse contracted marriage on such a day in his parish. But if the spouse was baptized elsewhere, the pastor of the marriage shall transmit notice of the contract entered to the pastor of Baptism, either by himself or through the episcopal curia, so that the marriage may be entered in the baptismal book¹. This was wisely provided so that marriages already entered may thus be more easily detected. Wherefore it is expedient to demand from the betrothed a recent document of Baptism, by which it may be more safely known whether they have contracted another marriage.

¹ Ne temere, IX, 2; Code, c. 1103. - Cf. Instr. S. Cong. de Sacram., March 6, 1911, A. A. S., III, 102-103; a commentary on which is handed down by Nouv. Rev. theol., 1911, p. 261-276.

1034. 5° Sanctions. Pastors who, without the permission of the proper pastor and outside a case of grave necessity, have assisted at the marriage of non-subjects, must remit the stole fees to the proper pastor of the contracting parties (can. 1097, § 3). - The suspension from priestly office inflicted by Trent on a priest who had dared to join in marriage the betrothed of another parish without the permission of their pastor has been abrogated.