I. On Civil Marriage

120. - By an improper usage, a marriage can be called civil when, in addition to the value which it has before God, civil protection and effects have been attributed to it. In this sense, in Spain and Ireland, a religious marriage, since it is sanctioned by law, could be called civil.

You would also improperly call civil a marriage which is contracted before a civil official without a priest, when and where, by ecclesiastical law itself, it is contracted in this way at least validly or even licitly. Before the decree Tametsi, in the Middle Ages, not a few marriages were celebrated before a notary ¹, nor was the Council of Trent far from admitting a notary as a necessary witness, being content with public celebration alone. And now canon 1098 of the new Code permits celebration without a pastor or priest, under certain conditions, because of necessity or in order to avoid a grave inconvenience.

¹ On this notion and the whole subject of civil marriage, compare Wernz, vol. 4, nos. 200-206.

But, properly speaking, civil marriage is said to be that which, with every religious consideration neglected, depends in its existence and in its effects upon the form and conditions prescribed by civil law.

Now the law can merely offer this marriage to those who want it, or impose it either upon all or upon those who are not Christians or who live alienated from religion. Hence civil marriage is optional, necessary, or subsidiary.

The law itself can be enacted from a philosophical thesis, because the civil ruler is held to possess an innate competence to establish it; or by way of a practical settlement by which, every question of right having been set aside, on account of religious and philosophical dissensions it is agreed among the dissenting parties that civil protection and rights should adhere to this artificial institution (concerning which each person may think whatever he pleases). A law of this kind is then part of that civil toleration which, although by no means desirable in itself, can be observed in order to avoid greater evils or obtain a greater good. Compare the letter of Leo XIII, Immortale Dei, November 1, 1885.

121. - The foundation of an institution of this kind was laid by Luther, through his doctrines by which, after denying the sacred nature of marriage, he subjected even the matrimony of Christians fully to rulers. But it was first established in Holland and Friesland by the law of April 1, 1580, when there was a retreat from the excessive harassment of Catholics and of others who dissented from the Calvinist sect. For the option was given to all these either to celebrate marriages before a Calvinist minister or before a civil magistrate. In the year 1656 this law was extended to all the federated States of Holland, and it remained in force there until, in 1795, the French regime prevailed also in Holland and Belgium. In England, the law of August 24, 1653, subsequently promulgated for Scotland and Ireland, commanded that all contract civilly. Yet the fortune of the institution in that region was various, so that now, since the years 1826-1836, milder laws are in force there than in most other parts of Europe. For under the law of 1836 the option is given of celebrating marriage either before a minister of one's own religion (Anglican or dissenting) or before a civil magistrate alone (a registrar). But in Ireland, under the laws of 1844 and 1863, and in Scotland, under the laws of 1844 and 1863, it is enough that a marriage duly contracted be inscribed in the civil registers. Indeed, this difference now exists between England and Ireland: in Ireland "registration" is commanded only under a penalty, with the validity and efficacy of a Catholic marriage remaining untouched; whereas in England a civil registrar - a character which, however, every Anglican minister at the same time possesses and which a Catholic minister can acquire - must be present at the marriage in order that it may be recognized civilly.

A not dissimilar option of contracting either before a suitable minister of religion or before a competent civil magistrate (a justice of the peace) is granted in the United States of North America, although the obligation of procuring registration in the civil records is laid upon the parties.

For a long time in France even Protestants had to contract before a Catholic pastor in order to obtain civil effects for their marriage. But the French law of September 20, 1792, commanded the civil celebration of marriage for all. From there it was introduced into Belgium and Holland; and, especially from the year 1848, when it began to be proclaimed as "the palladium of modern liberty and a distinctive mark proper to the liberal State," it invaded very many regions. It has been in force in Italy since 1865 ², in the Austrian Empire since 1868 ³, and throughout Germany since 1875 ⁴; it is sanctioned by article 118 of the Swiss Civil Code of 1907. The Spanish Code of 1889 ⁵ and the Portuguese Code ⁶ of 1867 recognize a twofold marriage: canonical, which all who profess the Catholic faith must contract, and civil for others. But although canonical marriage is of itself governed by canonical laws, nevertheless each law also prohibited certain marriages even for Catholics. Yet not all laws establish what the fundamental law of Belgium requires, that the civil ceremony precede the religious celebration. Thus the Italian Code does not require it.

² Civil Code, article 93.

³ Law of May 25, 1868.

⁴ Code, articles 1317-1318.

⁵ Civil Code, article 42 and following.

⁶ Civil Code, article 1057 and following.

Therefore, religious toleration introduced the institution of civil marriage; political secularism, or secular intolerance, imposed it upon unwilling Catholics.

122. - 1. They attempt to defend the institution of civil marriage juridically and philosophically by various arguments. Some, especially certain Catholics, separating the contract from the sacrament, considered matrimony, insofar as it is a contract, subject to the civil power. And because they thought that the sacrament acceded to a valid contract as its form, they concluded that the civil power was able by its law efficaciously to prevent the conferral of the sacrament. This error of theologians, rejected many years ago ⁷, is also rejected by canon 1012 of the Code of Canon Law, in these words: "Christ the Lord raised the very matrimonial contract between the baptized to the dignity of a sacrament."

⁷ Compare Denzinger, Enchiridion, nos. 1766, 1773, and 1854, and the dogmatic treatises on matrimony, for example, Franzelin, Palmieri, and Huarte, S.J.

2. Others, abusing an adulterated notion of a mixed question ⁸, claim for the State the full right to govern all matters which contribute to the public utility of the State.

⁸ Compare the dogmatic treatises on the Church or the canonical treatises on ecclesiastical public law.

3. Finally, others appeal to principles concerning the complete independence of the State from the Church, the separation of Church and State, and the equal indifference of the State toward all religions; or they even reduce religion to private matters, after denying its social constitution. Religion, according to them, is a private opinion to which the State must show only so much reverence as can be reconciled with its own care of the common good.

And they pronounce their opinion in a very absolute manner. "Citizens," says Laurent, the celebrated professor of Ghent, "belong to the fatherland independently of every religion: it is therefore for the civil law to establish their status" ⁹.

⁹ Cours de droit civil, II, 262, 265.

The magistrate De Meulenaere, although he is far less averse to the Catholic Church, speaks no less absolutely: "Civil marriage has entered absolutely into the customs of the countries governed by the Napoleonic Code... its necessity needs no justification" ¹⁰.

¹⁰ Code civil allemand et loi d'introduction, traduits et annotés, on article 1317.

123. - The antiquated error of Catholics concerning civil marriage as the matter of the sacrament having been omitted, truth requires that we judge briefly as follows concerning the civil marriage of more recent philosophers or jurists:

1. Civil marriage, insofar as it has been substituted in place of religious celebration, contains a profanation of matrimony which, being opposed to the truth of the matter ¹¹ and contrary to reverence for marriage, is very greatly opposed to the common good of families and of human society.

¹¹ Compare what was said above concerning the sacred nature of matrimony, no. 108.

2. Insofar as it is part of a more universal plan of "secularizing" minds, morals, and customs, it contains an impiety harmful to the Church and to religion and most greatly to be detested. For while citizens continually see ecclesiastical laws held in the least account, no present advantage arising from their observance, and no harm arising from their violation, they easily neglect and contemn ecclesiastical authority itself and religion itself, and incline in mind toward indifferentism.

Moreover, while that fictitious celebration of marriage before a civil magistrate, who seems to join the spouses in a solemn tone ¹², is constantly presented to the eyes of citizens, and while all efficacy of legitimate matrimony is attributed to that empty ceremony, errors concerning the competence of the civil power are spread and are so confirmed that the Church appears by her decrees concerning matrimony no longer to vindicate her own rights but to usurp those of another. Thus, in Laurent, the Church is represented as raging with an insane ambition to invade another's province. By this means, however, minds are turned away from the Church herself.

¹² In article 1318 of the German Code, they wished in some measure to temper the force of the formula usurped by the civil magistrate by these words: "By force of the law they are henceforth regarded as lawful spouses." Compare De Meulenaere, on article 1318.

3. Finally, insofar as it inevitably undermines the estimation and firmness of marriage, this institution, since it is otherwise connected with divorce, is to be abhorred by us more than the civil law of divorce itself.

124. - It remains now for us to examine what manner of acting is to be recommended to Catholics in this matter.

1. First of all, they must especially take care that, on account of a certain secondary advantage of easier and more accurate "registration," they do not become praisers of an institution which almost entirely falls back upon a fiction that is empty in itself and pernicious to the Church and to public morals.

We can confidently refute the alleged necessity of uniform and universal registration by showing how easily it can be obtained without this apparatus of a pretended celebration, and how it is obtained in America and England. Have these great republics experienced the necessity of this institution? Is it not enough for attaining this end that a penal law command this registration? As our present customs stand (however matters may have been in the past), no sane person will neglect this registration through which his status is established civilly.

2. Since a manner of speaking acts upon the very convictions of the mind, let them also take care that a more accurate usage of words become established.

What do we now observe in laws, in written books, and all too often in the announcements of those about to marry? The name of marriage is reserved for the civil ceremony, while religious matrimony is distinguished by the name of a ceremony or of a nuptial blessing ¹³. Therefore, let Catholics abstain from the words "nuptial blessing," and, reversing the manner of speech instead, let them speak of religious matrimony and of the civil solemnity (formalité).

¹³ Thus in the Belgian Constitution itself.

3. Let Catholics about to marry remember that they cannot have the intention of contracting true matrimony before the civil magistrate, but that this intention must be reserved for the ecclesiastical celebration ¹⁴.

¹⁴ On the contrary, since the Protestants of Germany regard civil marriage as true marriage, it is inculcated in them that before a minister of religion they should conceive no intention of contracting, but only of declaring the marriage already made. Compare Real-Encyclopaedie für protestantische Theologie und Kirche, V. Ehrenfeucht, vol. 4, p. 79, ed. 1879.

You will ask whether this reservation of consent can occasion any civil harm or difficulty for Catholics.

This must be denied without hesitation. For the law concerning civil marriage must be reconciled with the fundamental principle of modern law which men alienated from the Catholic faith defend as the palladium of modern emancipation, that is, with the civil toleration of religions and liberty of conscience. If Catholics were not permitted without penalty to will to assume the moral obligations of marriage only when they can assume them honorably, the Catholic religion would in truth be oppressed, far from being freely exercised.

Moreover, the consent which Catholics express before the civil magistrate is not merely fictitious. For they truly consent that the civil effects of marriage and the whole civil law (insofar as it is not repugnant to divine law) be applied to their matrimony. This is always sufficient so that the agreement cannot be invalidated on account of the alleged defect of consent. How much more is the same sufficient in this matter, which is so closely connected with civil toleration, as they call it. Otherwise, those who now deny and repudiate every matrimonial bond because they profess the doctrine of free love would be incapable of a valid civil marriage.

What of the fact that nullity on account of defective consent ordinarily affords no ground for a public action or for one brought by anyone other than the contracting party himself or those who can act for him?

What common sense proclaims we know to be confirmed by the judgment of jurists.

Therefore, it is not to be permitted that the liberty of Catholics in this matter be diminished by a certain juridical cunning; rather, every attempt of this kind is to be resisted firmly from the beginning.

4. There is indeed no hope at present that the institution of civil marriage will be suppressed. And since there are so many in our States who are alienated from religion, it does not seem that the use of a similar institution can in practice be denied to them. Wherefore it is rather to be attempted that, according to the example of Ireland and the United States of America, the option of either a religious or a civil form be given, with a general precept added that care be taken for contracted marriages to be entered in the public records immediately, or within a brief space of time. It ought also to be among the desires of Catholics that a law of this kind be enacted as though by a common counsel of the Church and the State, or at least with the Holy See approving it in some manner: there is no reason to doubt the consent of the Holy See to a law of this kind.

125. - You will now ask on this occasion whether it is expedient to favor the plans of those who strive to have matrimony assigned to merely private matters.

We doubt it greatly. Certainly, by this road civil marriage will be suppressed, but through an error which departs more greatly from the truth and will exercise a worse efficacy upon morals. Wherefore we rather advise that Catholics defend the public nature of the matrimonial contract, and join themselves as allies to those who wish civil marriage to be preserved in order to protect morals, provided that they are willing to concede to us the faculty of contracting merely religiously. But if they deny this, it will then be better in itself for Catholics to favor and assist neither party.