Divorce

Unity and indissolubility are the properties or peculiar qualities of marriage which we have to discuss in this chapter. Its unity consists in its being a contract in which the parties are necessarily one man and one woman. If several men have one and the same wife at the same time, we have polyandry, which is contrary to the law of nature, for it prevents the natural increase of the human race, makes domestic life almost impossible, and on account of the uncertainty of paternity renders the proper education of the children who are born very difficult. If one man has several wives at the same time, there is polygamy, which is certainly less in keeping with man’s nature than monogamy. Polygamy degrades woman, destroys that equality which in regard to marriage rights should exist between the sexes, and makes it difficult for peace and harmony to reign in the family. It is certainly against the positive divine law, promulgated anew by Christ our Lord, and obligatory on all men after the preaching of the Gospel. The Council of Trent anathematized him who should say that it is lawful for Christians to have several wives and that this is not forbidden by divine law.¹

¹ Sess. xxiv, c. 2.

Although questions concerning divorce and the separation of married people belong of right to the ecclesiastical court, in most modern States the civil authority claims and exercises jurisdiction in these matters. May Catholics take their marriage cases to the civil courts, and may Catholic judges and Catholic lawyers lend their aid in deciding them¹ No answer can be given to these questions which will apply to all countries and circumstances. In some countries Catholics can still have their rights safeguarded by recurring to the ecclesiastical courts, and there is no reason why they should carry their matrimonial suits to the civil tribunals, In England and in the United States the Church tacitly or explicitly permits Catholics to apply to the civil courts at least for a judicial separation. Before doing so they should put their case before the ecclesiastical authorities, and this is prescribed under liability to penalties by the Third Plenary Council of Baltimore.

With regard to divorce cases, Catholics in England and in the United States may have recourse to the civil courts in order to obtain a declaration of nullity when a marriage has already been declared invalid or annulled by the ecclesiastical authorities. They may not go to the civil courts in order to obtain dissolution of a valid marriage with the intention of marrying again. This is obvious from what has been said above. There is a difficulty as to whether a Catholic may petition for a divorce in the civil courts, not with the intention of considering the marriage dissolved and marrying again, but in order to obtain the civil advantages annexed to divorce, such as a change of marriage settlements or release from the obligation of supporting his wife’s child by another man. The question is disputed among theologians, but as the law in English-speaking countries does not express hostility to religion and does not affect to touch the conscience but only the external relations of the citizens, the better opinion is that Catholics for good cause may petition even for divorce in the civil courts, with the intention of using only the civil advantages that follow from it. A consequence of this is that Catholic lawyers and judges may for grave reasons undertake these cases in the civil courts. For greater safety and to show their submission to the Church they should ask the leave of the Bishop.

¹ N. 126; S.O., December 19, 1860.

I. Reasons for petitioning the dissolution of marriage between baptized persons, not consummated, are, for example: doubtful impotence, or impotence doubtfully antecedent or doubtfully perpetual and difficultly curable; supervening impotence; infirmity impeding the use of marriage; grave error concerning a quality of the person, detected after marriage; grave and continual discords between the parties; an infamous delict perpetrated by one party, especially if a sentence of a judge followed; danger of perversion; civil divorce, especially with celebration of a new civil marriage; probable nullity of the marriage, but which cannot be sufficiently proved, for instance on account of fear applied, on account of a condition added to the consent; malicious departure.¹

II. The mode of obtaining dissolution is presented summarily in these points:²

1. Only the spouses have the right of petitioning for a dispensation over a ratified and non-consummated marriage (canon 1973).

2. The petition to be directed to the Supreme Pontiff should be transmitted to the Congregation of the Discipline of the Sacraments; moreover, it should be directed through one's own Ordinary.

3. The Ordinary cannot instruct the process unless the Apostolic See has given him the faculty (canon 1963, § 1).

4. The Ordinary will take care to constitute the tribunal as soon as he can, employing for this purpose the ministers constituted in his Curia, or also others. A collegiate tribunal of three judges is not required; however, an instructing judge, a defender of the bond, and an actuary are required.

5. The tribunal should especially inquire: 1° into the legitimate causes of dispensation; 2° into the non-consummation of the marriage.

6. When the process has been finished, all the acts together with the vote of the Bishop and of the defender of the bond are to be transmitted to the Congregation, and the sentence of the Supreme Pontiff himself is to be awaited.

¹ De Smet, op. cit., n. 330; Vlaming, op. cit., II, n. 606.

² The Decree of the Congregation of the Discipline of the Sacraments, May 7, 1923, established the rules to be observed (A.A.S. 1923, pp. 389-436).

I. The petition to be directed to the Supreme Pontiff should be transmitted to the Holy Office, to which this cause is committed.

II. The conditions required so that a marriage between a baptized party and a non-baptized party may be dissolved are:

1. If the non-baptized party desires to be converted to the Catholic Church, he or she should first be baptized, so as to be subjected to the jurisdiction of the Church. Besides, it is required that after receiving baptism he or she has not had copula with the spouse; otherwise there would be a marriage consummated after the baptism of both parties, which cannot be dissolved by the Church. In addition, juridical proof is demanded by which it is proved that baptism had in no way previously been conferred, or had been conferred invalidly.

2. If the baptized party wishes to be converted to the Church, he or she must first in fact be converted to it.

3. Finally, other things are to be inserted into the petition; these indeed will be investigated and inserted by the one to whom this matter is committed.

I. The causes of perpetual separation are adultery and the mutual consent of the spouses for conversion to a more perfect state.

1. Adultery furnishes to the innocent spouse the right of perpetual separation. This is clear from Sacred Scripture,¹ which, while excluding dissolution of the bond (n. 720), indicates perpetual separation. It is further clear from Tradition,² and from the fact that someone vainly demands that faith be kept with him by one to whom he refuses to keep the faith furnished by himself.³ Hence canon 1129, § 1: "Because of the adultery of a spouse, the other spouse, the bond remaining, has the right of dissolving, even in perpetuity, the communion of life, unless he consented to the crime, or gave cause for it, or expressly or tacitly condoned it, or also himself committed the same crime" (St. Thomas, Supplement, q. 62, a. 1; St. Alphonsus VI, 960). Moreover, adultery must be: consummated, formal, morally certain, not approved, not compensated, not condoned. It is said:

a) Consummated through copula of itself apt for generation, not merely begun through kisses, touches, embraces, etc.; nor, since here carnal union with a third person is considered, does mere lying together or union of bodies, or onanistic copula, suffice.

b) Formal, not committed by oppression or in good faith (St. Thomas, Supplement, q. 62, a. 1; St. Alphonsus VI, 960; Homo Apostolicus, tract 18, n. 95).

c) Morally certain. Certainty of this kind can also arise from indications, conjectures, and vehement presumptions (St. Alphonsus VI, 961; Homo Apostolicus, tract 18, n. 93).

d) Not approved, that is, it is required that the other did not consent to the adultery nor directly give cause for it; not, however, that he or she did not furnish an indirect cause for it, for instance by denying the debt, by treating the spouse badly (St. Thomas, Supplement, q. 62, a. 1; St. Alphonsus VI, 966).

e) Not compensated by adultery committed by the other party before the sentence of divorce was issued by the ecclesiastical judge. It does not matter that one committed adultery more often than the other, or that the crime of one is occult and that of the other public. But if, after adultery has been committed by both, one comes to his senses while the other continues in adultery, the one who is amended can with sufficient probability institute divorce (St. Alphonsus, loc. cit.).

f) Not condoned either expressly or tacitly. "Tacit condonation is had if the innocent spouse, after he has been made more certain concerning the crime of adultery, has freely associated with the other spouse with marital affection; moreover it is presumed unless within six months he has expelled or left the adulterous spouse, or has made a legitimate accusation" (canon 1129, § 2).

Sodomy with a third person and bestiality are equated with adultery, because what is considered here is present, namely carnal union with a third person. Otherwise one must speak concerning sodomy perpetrated with the spouse (St. Thomas, Supplement, q. 62, a. 1, ad 4; St. Alphonsus VI, 962, question 2°).

Corollary I. The innocent spouse is not bound of himself to institute divorce; incidentally he can be bound either on account of hope of amending the guilty one, or on account of avoiding scandal arising from the fact that someone would seem to consent to the continued adulteries of the spouse. Practically, however, an obligation will scarcely be present, with the inconveniences also about to follow considered (St. Thomas, Supplement, q. 62, a. 2; St. Alphonsus VI, 963, 964).

Corollary II. The innocent party, whether he or she has departed by sentence of a judge or by his or her own authority, is never bound to receive the adulterer, however amended, or to return to him or her (canon 1130), unless the innocent party commits adultery before the sentence of divorce has been issued by the ecclesiastical judge. After this sentence has been issued, the obligation is sufficiently probably lacking according to that maxim, "What has once been well decided... ought not to be reconsidered by any repetition" (St. Alphonsus VI, 965; 967, doubt 2; Homo Apostolicus, tract 18, n. 96). Nevertheless it is always laudable to receive the penitent one back into favor.

Corollary III. The innocent spouse can admit or recall the adulterous party, unless with the innocent spouse's consent the latter has taken up a state contrary to marriage (canon 1130), namely sacred Orders or Religion. If, however, the adulterous wife prudently fears cruelties, she is not bound to return (St. Alphonsus VI, 976).

2. Mutual consent confers the right of perpetual separation in a twofold case:

a) If one or both parties emit perpetual religious profession, with the other party consenting; but in order that religious profession be valid, a dispensation of the Holy See is required (canon 542, 1°). Once religious profession has been emitted in this way, neither ever has the right of returning to the other or summoning the other.

b) If the husband receives sacred Orders, with the wife consenting; but in order that the reception be licit, a dispensation of the Holy See is required (canon 987, 2°). The reception of Order without the consent of the spouse is likewise illicit, indeed in such a way that the husband can be compelled to return and to abstain from all acts of Order.

In occurring cases, the Holy See can establish conditions for the other party who does not enter Religion, or for the wife whose husband receives sacred Orders; common law now prescribes nothing.

¹ Matthew 5:32; 19:9; Mark 10:11; Luke 16:18; 1 Corinthians 7:11-12.

² The Dogmatic theologians should be consulted.

³ Rule of Law 75 in VI.

II. Causes of temporary separation. 1. Causes of this kind are comprehended by canon 1131, § 1: If one spouse has given his name to a non-Catholic sect; if he has educated the offspring non-Catholically; if he leads a criminal and ignominious life; if he causes grave danger, whether of soul or of body, to the other; if by cruelties he renders common life too difficult: these and other things of this kind are for the other spouse so many legitimate causes of departing. It is said:

a) If he has given his name to a non-Catholic sect. Therefore it is required that he be formally joined to a sect, whether of infidels, or heretical, or schismatic, and that after the marriage has been entered.

b) If he has educated the offspring non-Catholically.

c) If he leads a criminal and ignominious life, as if he joins himself to a band of robbers.

d) If he causes grave danger, whether of soul or of body, to the other. Danger of soul, for example if he solicits to heresy, poisoning, etc. Add if the husband introduces others into the house with danger that they may tempt to adultery. Or if he wishes to exercise sodomy with the wife, even if she refused to consent (St. Alphonsus VI, 973). Danger of body, to which belongs, for example, a contagious disease of the spouse, unless, which today more easily has place, the danger can be removed in another way (St. Alphonsus VI, 973).

e) If by cruelties he renders common life too difficult, for example by treating the consort cruelly. Mere beating, however, unless it is grave and happens several times, is ordinarily not judged among common people to be a just cause for withdrawing. Besides, it suffices that a grave evil be prudently feared (St. Alphonsus VI, 970, 971, question 3°). To this can also be referred insanity from which danger is imminent to the spouse; likewise very troublesome cohabitation, namely on account of grave and frequent insults or quarrels, especially if they bring in a just fear of a greater evil. Here, however, as was likewise said concerning cruelty, the condition of the persons is considered (St. Alphonsus VI, 971, question 3°).

f) And other things of this kind, for example malicious desertion by the spouse.

2. All these causes of themselves furnish only the right of temporary separation. Wherefore canon 1131, § 2 says: In all these cases, when the cause of separation ceases, the custom of life must be restored; but if the separation was pronounced by the Ordinary for a definite or indefinite time, the innocent spouse is not bound to this except by decree of the Ordinary or when the time has been completed.

III. The authority by which separation is to be instituted. 1. Adultery, provided it is certain, confers the right of instituting separation by one's own authority (cf. canons 1129, § 1; 1130). Nevertheless, for the sake of avoiding scandal, ordinarily the authority of the ecclesiastical judge must be invoked, unless the adultery is notorious by law or by fact, although even then ordinarily it is expedient to seek the intervention of the ecclesiastical judge. And this is to be advised all the more because, when adultery is neither notorious nor legitimately proved, the judge can compel the spouses to cohabitation; but one must obey the judge, yet not render the debt to the adulterous spouse (St. Alphonsus VI, 968).

2. Mutual consent requires the intervention of Ecclesiastical Authority, as was said in n. 840.

3. Other causes require the authority of the local Ordinary, unless they are certainly established and there is danger in delay; in that case separation can be instituted by one's own authority (canon 1131, § 1).

Finally, separation from bed alone can take place either by mutual consent, according to these words of the Apostle: "Do not defraud one another, except perhaps by consent and for a time, that you may give yourselves to prayer,"¹ or, if a just cause exists, for example a contagious disease, by the authority of one spouse. The same must be said of a separation not of long duration from bed and cohabitation, for instance to undertake a journey.

Note 1. The ecclesiastical judge in causes of separation of which canon 1131, § 1 treats can proceed without a judicial process, even in the second grade or instance.²

Note 2. In several dioceses the faculty has been granted to vicars forane of granting separation from bed and cohabitation for a time.

Note 3. Those who improperly instituted separation by their own authority can be left in good faith and admitted to the sacraments, if hope of fruit is absent and scandal is not feared. Besides, note that a wife illegitimately expelled by her husband is not numbered among those who are separated by their own authority.

¹ 1 Corinthians 7:5.

² Pontifical Commission, July 25, 1932 (A.A.S. 1932, p. 284).

IV. Consequences of separation legitimately instituted. 1. When separation has been instituted, the children must be educated with the innocent spouse; and if one of the spouses is non-Catholic, with the Catholic spouse, unless in either case the Ordinary, for the good of the children themselves, their Catholic education always preserved, has decreed otherwise (canon 1132).

2. The innocent spouse, perpetual separation having been legitimately instituted, can with a dispensation of the Holy See enter Religion or receive sacred Orders; the guilty one cannot do this unless the other either has already changed state by professing Religion or receiving sacred Orders, or consents expressly, or tacitly, for instance by refusing reconciliation repeatedly demanded (St. Alphonsus VI, 969).

3. Separated spouses can restore common life by private authority, and this holds even if the sentence of separation was issued by an ecclesiastical judge.

Question 1. Whether it is ever licit to petition for civil divorce.¹

Response 1. If the marriage is invalid from any cause whatever and has been declared such by competent ecclesiastical authority, it is licit, by petitioning, to intend and obtain civil liberty.²

Response 2. If the marriage is valid, the things to be posited having been posited, it is likewise licit if the law in force does not intend the dissolution of the bond. If it intends the dissolution of the bond, it is disputed; but a sufficiently probable opinion affirms it, because the petitioner can abstract from the intention of the legislator, and as a Catholic, for we are speaking of such a person, must be judged to abstract from it. This being posited, the petitioner, as we will immediately say, does not seek something which cannot be furnished by the judge without sin. I said "the things to be posited having been posited," that is, with the approval of the competent ecclesiastical authority first had, insofar as this is required according to what was said in n. 842. I said "can abstract from the intention of the legislator," just as he can and must abstract if there is question of an invalid marriage.

Question 2. Whether a judge can ever render a sentence of divorce if there is question of a valid marriage.

Response 1. If the law intends the dissolution of the bond, it is disputed; but a sufficiently probable opinion affirms it. For the judge can abstract from the intention of the legislator and, as a Catholic, for we are speaking of such a person, he is judged to abstract from it. This being posited, his action is not evil in itself; nor does it involve approval, and therefore neither formal cooperation, of the action of the petitioners, who perhaps do not abstract from the intention of the legislator or who intend the dissolution of the bond. I said "can abstract from the intention of the legislator," just as he can and must abstract if there is question of an invalid marriage. Besides, a just cause for admitting material cooperation is already had from the fact that otherwise good men would have to abstain almost entirely from an office of such great importance.

The controversy does not seem able to be settled by authority. Some favorers of the more benign opinion appeal to the response given by the Holy Office to the Apostolic Nuncio of Belgium, September 14, 1866. But if you admit that by Belgian law the dissolution of the bond was originally regarded, the sense of the law already for a long time seems to have been so changed by usage that the law rather permits one to act as if the bond were dissolved than itself intends to dissolve the bond. Favorers of the stricter opinion chiefly allege responses of the Holy Office, June 25, 1885 and May 27, 1886; but the adversaries respond that these were probably given by reason of peculiar circumstances.³

Corollary I. Advocates of themselves speak licitly for divorce only insofar as the spouses licitly petition for it. If they petition illicitly, the advocate is not excused except on account of a most grave cause.

Corollary II. Where separation from bed and cohabitation suffices for the intended end, divorce of itself cannot be petitioned. Nevertheless it is licit on account of a very grave cause; for instance if, when divorce is petitioned, the whole offspring will be entrusted to the religious spouse, but if it is not petitioned, a part of the children certainly or probably will be entrusted to the irreligious spouse.

Corollary III. Pastors and confessors should for the most part endeavor to turn the faithful away from the plan of obtaining divorce, and to exhort the separated to restore common life, namely on account of the danger of incontinence which rather often is imminent to each party. There is added the fact that the education of the offspring easily suffers detriment; indeed the fear that the offspring, wholly or in part, may be adjudged to a pernicious spouse can be a reason on account of which one must abstain from divorce or from a lesser separation.

¹ Cf. Duynstee, Burgerlijk Recht en zielzorg, n. 76.

² Holy Office, September 9, 1824.

³ De Smet, op. cit., n. 399.

The mere presence, however, of condemned matter in a writing does not cause it to fall under prohibition.

(a) Some works are not forbidden unless the author’s purpose to teach error or attack the truth is known. Hence, books on religion written by non-Catholics which contain errors against the Catholic Faith are not forbidden, unless they deal with religion ex professo (i.e., not incidentally or cursorily, but clearly for the purpose of teaching). It is not necessary, however, that religion be the main theme of the book, Similarly, books that attack religion are forbidden, not when attacks are casual or by the way, but when they are made purposely; and the same is true as regards books that insult the clerical state. The purpose is recognized from the declaration of the author, from the nature of the work, from the systematic treatment, length or frequency of argumentation or attack, etc.

(b) Other works are not forbidden, unless they contain not only agreement with error, but also argument in defense of error. Thus, books in favor of heresy, schism, suicide, duelling, divorce, Freemasonry, etc., are forbidden when they champion wrong causes by disputing in their behalf.

(c) Other works are forbidden, not because they state, but because they approve of error. Such are books that attack or ridicule the foundations of religion or the dogmas of faith, those that disparage worship, those that are subversive of discipline, those that defend proscribed propositions, those that teach and favor superstition, etc.

1. That this sentence is altogether illicit is plain from several Decisions of the S. Penitentiary and of the S. U. Inquisition concerning this matter. It is asked whether it is intrinsically illicit? It must altogether be responded affirmatively.

2. For first, if there is any law which contains something against natural and divine law, it is certainly the law of divorce as to the bond itself of matrimony. But "if the writing of a law contains something against natural law, it is unjust and does not have the force of obliging.... And therefore one must not judge according to such laws," St. Thomas, 2.2, q. 60, a. 6, ad 1; otherwise judgment would be made according to injustice and against natural and divine law, which certainly is intrinsically illicit. Nor certainly is it less intrinsically illicit in this matter of matrimony than in any other matter of temporal good and property for a judge to give sentence against natural and divine law.

3. It is intrinsically illicit for the parties to seek a sentence against natural and divine law. Consequently it is intrinsically illicit for an advocate to seek and patronize this same sentence; for the advocate holds himself on the part of the client and represents the client. Therefore much more is it intrinsically illicit to give a sentence against natural and divine law. But again, a sentence of divorce against the bond of matrimony, indissoluble by natural and divine law, is a sentence against the same natural and divine law.

4. The law itself of divorce is intrinsically illicit and iniquitous. Therefore the sentence of divorce is still more intrinsically illicit and iniquitous. Surely law is of itself quasi speculative-practical. Insofar as it is considered speculatively, the enunciation of a law that is illicit and iniquitous is not illicit, but false and absurd. But insofar as it is inspected practically, then indeed it is illicit and evil. Moreover the sentence of the judge is what constitutes it de facto practical, or practical-practical. "The sentence of a judge is, as it were, a certain particular law in some particular fact." St. Thomas, 2.2, q. 67, a. 1, c.

5. This intrinsic malice is evidently confirmed from various Decisions of the S. U. Inquisition; for such a sentence is said to deflect from the principles of natural law and to be repugnant to divine law.

6. Nor indeed do the reasons of the adversaries prove anything. They say first that that sentence is not intrinsically evil if it is considered in itself and by reason of itself, namely by reason of the act itself: because the judge does nothing other than declare the law in a particular case. But it is not intrinsically evil to declare that which an iniquitous law contains. But this reason has no force at all. For the judge does not declare the law in just any way, but declares it authentically and authoritatively, defining or determining the just, or the right, in a particular case. St. Thomas, 2.2, q. 60, a. 1, c. It is intrinsically evil authoritatively and juridically to declare, not indeed speculatively, but altogether practically, that that is just which in itself is unjust, that that is right which in itself is injury. Men, Aristotle says, and after Aristotle St. Thomas, l.c., flee to the judge as to a certain animated justice. In the present case the judge is nothing except animated injustice. By this reason brought forward by the adversaries, it would also be proved that judges under the Roman Emperors could licitly have condemned Christians, because in reality they were doing nothing other than merely declaring, in a particular case, the edicts of the Emperors.

7. Hence another reason is dissolved, namely that in the case about which there is question, the cooperation of the judge with sin is only material and by no means of itself efficacious, which, a grave cause intervening, is lawful. The new matrimony to be entered depends only on the will of the parties, who can abuse that sentence. Although the cooperation of the judge is only material, nevertheless the yielding of his own office, which is brought forward as an excusing cause, is certainly not a sufficient cause for giving honorable color to so great a damage, which comes both upon families and upon society itself from that most impious law of divorce, as is established by experience itself. But the cooperation of the judge is by its nature formal and of itself efficacious, although the second act of the new matrimony, or adultery, depends on the free will itself of the parties. It is by its nature formal, because all that it is tends toward making a faculty on the part of the law of flying to other nuptials, which thing is certainly most iniquitous in itself. It is by its nature efficacious, because the aforesaid faculty of marrying on the part of the law, in a particular case and in a determined person, is only the effect of the sentence of the judge. And if, the sentence of divorce having been pronounced, one spouse flies de facto to other nuptials, the other spouse objecting and pleading exception, the latter objects and pleads exception in vain; by the law itself and by the very sentence of the judge the other spouse is protected and fortified in his adultery. "Judgment," says the Angelic Doctor, 2.2, q. 60, a. 6, ad 1, "imports a certain impulsion, and therefore it is unjust that someone be judged by him who does not have public authority." And the same Angelic Doctor, l.c., q. 67, a. 1, says: "The sentence of a judge is, as it were, a certain particular law in some particular fact. And therefore, just as a general law ought to have coercive force..., so also the sentence of a judge ought to have coercive force, through which each party is constrained to observe the sentence of the judge; otherwise the judgment would not be efficacious." It matters little or nothing that adultery de facto depends on the free will of the parties. If a judge were to make a faculty for iniquitous and impious men of killing Clerics and despoiling Churches, would he not cooperate formally and efficaciously, although in act and de facto, because the judge does not command and compel to that killing and despoiling, the aforesaid killing and despoiling would depend on the free choice of those criminal men? Finally, in our case it is so true that by the law and the sentence of the judge there is made a faculty and civil right of flying to other nuptials, that, when these have been contracted, that right is now acquired by the new spouse; so that, during that new marriage, return to one's own and true spouse is prohibited; and the new spouse will always be able juridically to invoke the favor of the law conceded to himself.

8. Nor indeed does it have force to insist by saying that the judge can privately warn the parties concerning natural and divine law; indeed that in the Consideranda preceding the Sentence he can very well assert the Catholic doctrine concerning this matter. Whence it is that his Sentence in reality will be nothing except a mere exterior ceremony, and a certain solemnity, or rather a mere formality without any force and strength. A prior admonition privately made by the judge, even an expression of the doctrine of the Church in the Consideranda preceding the Sentence, does not change the intrinsic nature of the sentence; indeed it shows more the iniquity of this, against which the judge wishes to protest. That protest and admonition privately made is of a private person. The sentence is of a juridical and public person. In a judge of this sort there is had a true practical contradiction. For as judge he sanctions by his sentence that very thing which as a Christian faithful person he affirms to be against natural and divine law. The contradiction grows, as is plain, if that protest and admonition is placed in the very Consideranda preceding the sentence, which always remains an authentic, juridical, authoritative definition or determination not of the just or of right, but of the unjust and of injury. By this very sentence of his the judge openly confesses that he is not an interpreter of justice, but an interpreter of injustice by public authority. St. Thomas, 2.2, q. 60, aa. 5, 6; q. 67, aa. 1-2. And this certainly is intrinsically illicit.

9. Nor again does it have force to insist that that Sentence of the Judge is nothing except a mere permission. And as liberty of cults is permitted, so also Divorce can be permitted. This reasoning, if it proves anything, proves also that the Law itself of Divorce is not intrinsically evil. Indeed this is what it properly and directly proves. For the judge, as the adversaries themselves assert, does nothing other than merely declare and apply the law in a particular case. Therefore either they must say that that Law, as it is de facto, is not intrinsically evil, or they must confess that the Sentence of the judge also is intrinsically evil. Besides, if the action of the Syndic who pronounces the dissolution of the bond of true matrimony, or the validity of a second marriage, notwithstanding the first true and legitimate matrimony, is intrinsically evil, as even the adversaries themselves affirm, how is the Sentence of the judge not intrinsically evil, which gives that faculty to the Syndic, and to the parties the right of demanding that declaration from the Syndic? Can the execution of some action be intrinsically illicit without either the ratification, or the mandate, or the right conferred for that action being intrinsically illicit? Then the parity of liberty of worship would have force, when, as for liberty of cults, so for divorce the law would be a mere permission, i.e., a negative permission, namely insofar as, although the Legislator held divorce as a crime, he nevertheless tolerated it and did not punish it in certain determined circumstances, lest graver damage in detriment of the Republic should thence follow. Cf. St. Thomas, 2.2, q. 10, a. 11. But the law of divorce, as it is had de facto, is indeed a permission of divorce, but a positive permission, authorizing divorce, giving a civil right of divorce, and making power of flying to other nuptials before the civil magistrate himself, who holds the new marriage as ratified.

10. Others, who sustain the contrary manner of opinion, bring forward another reason. They say that the aforesaid Sentence is not intrinsically evil if its object is considered; acts are specified from the object. For indeed the object of that sentence is not the bond of matrimony to be dissolved, or simply the civil faculty made of flying to other nuptials, but only the civil advantages and effects which that sentence removes, or of which that sentence deprives the matrimony otherwise indissoluble, by defining the cessation of civil rights. But this is asserted altogether falsely. The intrinsic, immediate Object of the Sentence of the judge, specifying the same Sentence, is the intrinsic, immediate Object itself of the Law. This is established from the very nature of judicial Sentence, from the most manifest doctrine of all Theologians, especially of St. Thomas. For the judge, by his judgment or sentence, does nothing else than authoritatively interpret the law, define and determine the law in a particular case. Wherefore either it must be said that the Law of Divorce itself is not intrinsically illicit; or if that is intrinsically illicit, the Sentence of Divorce also is intrinsically illicit. Let the Angel of the School be heard: "He who brings forth judgment interprets in a certain way the dictum of the law, by applying it to a particular business. But since it belongs to the same authority to interpret the law and to establish the law, just as a law cannot be established except by public authority, so neither can judgment be brought forth except by public authority," etc. 2.2, q. 60, a. 6. The Angel of Our School teaches the same in the preceding article, where he says that judgment is the definition or determination of the just, or of written law, in which natural law or positive law is contained. This same is the mind of the Angelic Doctor, when he says that the sentence of a judge is, as it were, a certain particular law in some particular fact, ibid., q. 67, a. 1. For the sentence of a judge is not the particular law of the judge by simply constituting law, but by applying, defining, and determining in a particular case the law already constituted by the legislator.

11. It is insisted and asserted that that Sentence reaches only the civil contract, not the contract-sacrament; namely that contract, or species of contract, which is really distinct from the sacramental Contract and has place before the civil magistrate. The Law, not attending to the Sacrament, has this contract as matrimony; which nevertheless truly is not matrimony. Hence the Sentence of divorce does not have for its object divorce from the bond, but only denial of the protection of civil law. This insistence and assertion affirms in reality the same thing as the preceding assertion; for in other words it establishes that the object of that Sentence is the denial of civil effects and rights. Wherefore this insistence and assertion is altogether false, as was the preceding affirmation. For legislators bringing a law of divorce, although impious men, nevertheless are not so foolish that, leaving matrimony, which is the foundation of those civil rights, untouched, they would nevertheless deny the rights flowing from it; but, dissolving matrimony itself, by civilly making power of flying to other nuptials, they consequently deny the protection of law as to civil rights. Therefore the intrinsic immediate object of that law is the bond itself of matrimony, whence also it receives its name and is called the Law of Divorce. Therefore the object of the Sentence of the judge is the same, since it belongs to the judge not to establish law, but to pronounce judgment according to written law, by applying it to a particular case. Thus indeed the Fathers of the Provincial Council of Quebec understood the matter. For they say: "Not without great sorrow of soul, or rather horror, did the Fathers of this Provincial Synod learn that certain legislators of this region had most recently proposed that a Court of divorce be constituted, whose office would be TO PRONOUNCE DIVORCE FROM THE BOND on account of the cause of adultery." Thus also the Bishop of St. Gallen understood the matter, who proposed the doubt concerning this matter to the Sacred Congregation. For he says that, by that most recent law of the Helvetic Confederation, "marriages even of Catholics under certain very slight reasons can be dissolved perpetually, and DISSOLVED AS TO THE BOND, so that litigating spouses of this sort, after the sentence of divorce of the secular judges has been given, can pass, if they wish, to contracting other marriages." But then the same Most Reverend Bishop of St. Gallen enunciated the sixth Doubt thus: "Whether the same Catholic judges and advocates, according to the recent law of Helvetia, can with safe conscience propose THE BOND OF MATRIMONY AS TO BE DISSOLVED, or declare it AS DISSOLVED, and also declare that spouses of this sort can pass to contracting another marriage," etc. Likewise the Most Reverend Fathers, the Bishops of the Gauls, understood the matter. For, after a Letter had been received from the S. R. and U. I., in which it was said that "it can be tolerated that those who hold magistracies and advocates conduct matrimonial causes, which pertain to Ecclesiastical power, in France... provided that... they never bring forth a sentence, nor defend one to be brought forth, or provoke or excite to one repugnant to divine or ecclesiastical law;" a doubt was proposed by the Most Reverend Bishops: "Whether correct is the interpretation diffused through the Gauls, and also given in print, according to which the judge satisfies the aforesaid condition, who, although some matrimony is valid before the Church, abstracts from that true matrimony with constant mind, and, applying the civil law, pronounces that there is place for divorce, provided that in mind he intends to rupture only the civil effects and only the civil contract, and that the terms of the sentence pronounced regard these alone?" Namely, the Most Reverend Fathers understood very well that the Law of Divorce regards true Matrimony itself, and consequently that the Sentence of Divorce reaches objectively the bond itself of Matrimony. Hence by right and deservedly they doubted concerning satisfaction of that condition of doing nothing against divine or ecclesiastical law, by that subjective abstraction. To this doubt the S. R. and U. I. responded: Negatively. Nor indeed could it respond otherwise, for that subjective abstraction and intention is retracted by the objective action itself, namely by that pronouncement of the Sentence of Divorce. And hence it is plain that the same also was the mind of the Sacred Congregation itself. For it could not deny for any other reason that this interpretation was correct, except insofar as it held as ratified and firm that the Law of Divorce and the Sentence of Divorce objectively reach, intrinsically and immediately, the very bond of Matrimony to be dissolved. This same mind the same Sacred Congregation disclosed to the Bishop of St. Gallen. For saying that it can be tolerated that Catholics act in the civil forum in the parts of advocate and actor in this cause of Divorce, besides other limitations, it added this: provided that "the Sentence of this tribunal has no other effect than the aforesaid separation," namely as to bed and board, just causes standing. Therefore the Sacred Congregation understood that that Sentence of itself can have also another effect, namely Divorce from the very bond of Matrimony, which, besides, is established from the whole tenor of that Response. Finally the aforesaid Congregation of the Holy Inquisition, in the Letter to the Bishops of France, says that judges ought to be so disposed in soul "both concerning the validity and nullity of marriage, and concerning the separation of bodies... that they never bring forth a Sentence... repugnant to divine or ecclesiastical law." Therefore the Most Eminent Fathers openly suppose that the object of that Sentence in the case is no other than both the very validity and nullity of marriage, and the separation of bodies.

12. Nor should it be objected that intrinsic illicitness cannot at least be deduced from the Decisions of the Sacred Congregation, since it uses the disjunctive particle or, saying that that Sentence is "repugnant to divine or ecclesiastical law." It is responded, 1st, although in the Letter to the Bishops of France the S. C. uses the disjunctive particle, nevertheless in the response to the Bishop of Southwark and St. Gallen it uses the copulative particle and, saying that nothing in the case ought to be done "which deflects from the principles of natural AND ecclesiastical law." It is responded, 2nd, that there was a reason why the S. C. used in the letter to the Bishops of France the disjunctive particle. For there was question not of the simple object of that Sentence, but of the complex object. There was question not only of divorce from the bond, but also of divorce from cohabitation and bed; wherefore it was well added with the disjunctive particle that the Sentence could be repugnant to divine or ecclesiastical law. This is the whole text: "provided that they be so disposed in soul both concerning the validity and nullity of marriage, and concerning the separation of bodies, concerning which causes they are compelled to judge, that they never bring forth a sentence... repugnant to divine or ecclesiastical law." A sentence against the validity and bond of matrimony is always repugnant to divine law; for by divine law that bond is constituted. But a sentence concerning separation of bodies can sometimes be repugnant to ecclesiastical law only, since many things in this matter have been constituted by the merely positive law of the Church. Nor does the Church, by tolerating that lay judges handle matrimonial causes, also make power for them of altogether putting aside ecclesiastical laws. In the Response, on the contrary, to the Bishop of Southwark and St. Gallen, there was question of the simple object of that Sentence, of the dissolution of the bond, and then the Sacred Congregation employs the copulative particle. For not only by divine law but also by ecclesiastical law does that bond stand. The whole text is of the following tenor: "Whether a Catholic advocate can defend the causes of the defendant party against the plaintiff seeking the dissolution of the bond? The Response was: Provided that the Bishop is assured of the probity of the advocate, and provided that the advocate does nothing which deflects from the principles of natural AND ecclesiastical law, it can be tolerated." But the Letter which also is brought forward against this conclusion, to the Nuncio of the Holy See in Belgium and to the Minister of foreign affairs in the same Belgium, proves nothing. For that letter enunciates the fact only, but has nothing concerning the doctrine itself of the matter.

13. Finally it is objected: because otherwise a good judge, to the great detriment of Society, would have to desert his office, and a bad judge certainly would be substituted for him; because if a Catholic judge does not pronounce this sentence, another impious judge will give it; because many Catholic judges now act in this way. It is responded to the 1st: It is not a detriment to Society that judges, in order to defend public justice and honesty, yield even their own office. It is not a detriment to Society that, among so many depraved examples of those who rule and govern Society, there are a few who adorn it by a good and praiseworthy example with so great inconvenience to themselves, others seeking the things that are their own, but they the things that are of Jesus Christ. It is a detriment to Society that by the cooperation of most honorable judges themselves Cities are filled with divorces and families are dissolved. It is responded to the 2nd: That others act badly is certainly not a reason why we also should do the same evil. Rather by our example, our principles and doctrines, let us impede also the evil of others. It is responded to the 3rd: That many Catholic judges also so act in good faith surely does not prove that they act rightly objectively. And as regards them, right prudence and a greater evil to be avoided, in determined circumstances of places and times, can counsel silence at least for a time. On the contrary, many and by far more hold the matter as illicit, and illicit by the natural law itself. Moreover secular judges ought not to teach theologians, but theologians ought to teach secular judges what in this matter is lawful and what is illicit.

Can a judge render sentence when the law itself is certainly unjust and inequitable? - If it concerns a civil law contrary only to ecclesiastical laws in which the Supreme Pontiff can dispense, as, for example, is the law of ecclesiastical immunity, the judge can and must, if judgment must be rendered, speaking in itself, seek the due faculty from the Holy See, or from the Bishop of the place, according to the various laws and various cases that occur. But he will easily obtain this faculty, since it is especially expedient for the good of society that there be honest judges in it. The reason for seeking the faculty is the usurpation of the rights of the Church which otherwise would be had, and the public scandal to be guarded against.

If it concerns a civil law contrary to divine and natural laws, then either the judge must command something directly against this right, or he must only apply some penalty. The first is evidently not lawful, and thus he ought rather to relinquish his office than to oblige by military force a concubine to remain at home with her lover. Thus also it is not lawful to render a sentence of divorce according to the law, namely, by which the bond of marriage is dissolved, power being granted to the spouses to enter new nuptials. For this is openly against natural, divine, and ecclesiastical right. For as it is inequitable to execute an inequitable matter, so it is inequitable to command its execution. S. Th. 2. 2. q. 60. a. 5.

The other seems to some also altogether illicit, because it is intrinsically evil to condemn an innocent person, namely when the law itself is evidently unjust, whose transgression is punished. But to others it seems that it can be excused. For to decree some temporal penalty is not always evil in itself; and there is present a most grave reason on the part of the judge, lest he be compelled to renounce his office, and on the part of consenting society, for which it is better that judges be good rather than bad, scandal always having been removed, either from approved custom and the practice of the fearful, or from due faculty previously sought. And thus he can decree a fine because of the omitted formality of civil marriage, which the Church tolerates in this sense, scandal always having been removed, as was said.

But although there is question only of decreeing a penalty, one must distinguish between penalty and penalty. For if it concerns the penalty of death, for example, mutilation, etc., since neither the person himself can yield his right, nor can society by its authority sanction such a penalty, it is altogether inequitable to impose it. "For positive right has place where, as regards natural right, it makes no difference whether it is done thus or otherwise." S. Th. l. c.

But if it concerns some monetary penalty, or another similar one, since anyone in this matter can yield his right, and society can consent, the judge surely can impose some slight penalty of this kind, lest he be compelled to renounce his office with grave damage to himself and to society itself. Consent is then reasonably presumed. Yet this also seems to be limited to the case in which it does not concern a law directly against nature, although it is rather harsh and not sufficiently just. For since the sentence of a judge is not any declaration whatever, but an authoritative one, authoritatively to confirm a law against nature, even by determining a monetary and slight penalty, is against nature. It is against nature to condemn to death a Christian who refuses to adore idols; it is against nature to condemn him to a penalty and fine, even of only five small coins, because he did not wish to genuflect before an idol. Certainly of such a judgment it cannot be said that it is a "definition or determination of the just or of right," nor can it be said of the judge that he is "interpreter of justice" or "animated justice." S. Th. 2. 2. q. 66. a. 1; a. 5 ad 1; q. 67. a. 3; E. M.

Is the form used among the Greeks valid: The seal of the gift of the Holy Spirit? - Resp. In the affirmative with the common opinion of theologians. For the sense is: by this sign, which I confer upon you, the gifts of the Holy Spirit are given, with the verb omitted, according to the custom of the Greeks. But the invocation of the Most Holy Trinity, while in the Latin Church it is had after the anointing, is had in the Greek Church in the preceding prayer. Otherwise one would have to say that the Greeks do not have the sacrament of confirmation, which is very hard. Moreover, this is clear from the Declaration of Benedict XIV in the encyclical letter Ex quo primum to the Bishops of the Greek rite, March 1, 1756. - L. 164, 169.

What concerning the firmness of marriage, insofar as it regards the bond? - Marriage is indissoluble, i.e. once marriage has been contracted, divorce as regards the bond cannot be made, at least by positive divine law. It is of faith. Proof 1. From the words of Christ, Matt. 19:6: And so they are no longer two, but one flesh. What therefore God has joined, let not man separate. 2. From the words of St. Paul, 1 Cor. 7:10-11: But to those who are joined in marriage I command, not I, but the Lord, that the wife not depart from the husband; but if she departs, let her remain unmarried, or be reconciled to her husband. And let not the husband dismiss the wife. 3. From Trent, sess. 24, c. 5, 7. Therefore even if before consummated marriage a case occurs such that, were it standing, marriage could not have been entered, for example, if the man becomes impotent, if the woman becomes insane, the bond of marriage perseveres. C. 25, caus. 32. - L. 955; St. Thomas, Suppl. q. 67; Collectanea S. C. de P. F., n. 1295; C. B. 1348; E. M.

What and of how many kinds is divorce, and by what cause and authority is it licitly made? - Divorce is separation and disjunction. It is threefold: as regards the bond, as regards habitation, as regards the bed. Divorce as regards the bond is that by which the very bond of marriage is dissolved, so that the former spouses can licitly and validly enter another marriage; this is verified in the three cases explained in the preceding number. Divorce as regards habitation is separation merely as regards cohabitation, while the bond of marriage remains. - Divorce as regards the bed is separation regarding the use itself of marriage and the conjugal debt, while again the bond of marriage remains.

A spouse can separate from a spouse as regards habitation and bed: 1. From mutual consent, which is clear of itself, provided the danger of incontinence is absent; whether for a time, because of affairs, or perpetually because of a desire for a more perfect life. 2. Because of adultery of the spouse, on account of violated fidelity, Matt. 5:32; 19:9; 1 Cor. 7:11; C. 4, 5, 8, de Divort. Because of adultery, namely morally certain, not condoned either expressly or implicitly through a conjugal act, not mutual, because then compensation would exist, voluntary, but not committed from violence inflicted, perfect and consummated. Whether also because of sodomy and bestiality? The common opinion affirms, from which St. Alphonsus 362 says one must not withdraw, but he says that it is not really proved. St. Thomas, 4 D. 39, q. 1, a. 1, ad 4. 3. Because of supervening heresy. C. de illa, de Divort. 4. Because of any grave danger of body and soul, can. 28, caus. 1; C. 8, 13, de Rest. spol.; Trent, sess. 24, c. 8; for example, if danger of life, mutilation, enormous or frequent cruelties is imminent; or danger of perversion. - C. I. 148-155.

The aforesaid divorce from bed because of adultery certainly can be made by one's own authority; likewise from bed and habitation, provided that, if the delict is hidden, scandal is absent, which can scarcely be absent; and more truly also because of heresy; and because of the aforesaid danger, if it is proximate and clear. - But no one of himself is bound to make divorce; since neither is anyone bound to this from justice, as is undoubted; nor from charity, which does not urge with grave inconvenience, which is ordinarily inherent in divorces: provision is made besides for one's own and the other's incontinence, and greater scandals are prevented.

Divorce is one thing perpetual, another temporary. Perpetual divorce is of itself divorce made because of adultery, or by the authority of a judge. Once perpetual divorce has been made, the innocent spouse, in whose favor it is, can still call the spouse back to himself or herself whenever he or she wishes; yet he or she is not compelled to admit that spouse, since this is not without grave inconvenience, although the other spouse has been converted to good fruit, or, more probably, has afterward fallen into the same delict, for example, of adultery, whether the divorce was made by one's own authority, or, more truly, by the authority of a judge. But if the divorce is temporary, the spouse is compelled to receive the spouse returned to the faith, C. 6, de Divort., or when the danger because of which he or she separated has now been removed. - L. 960-977; St. Thomas, Suppl. q. 59, a. 3, 6; q. 62; Sanchez, l. 10; Schmalzgrueber, l. 4, t. 19; E. M.

What concerning children to be educated after divorce has been made? - The doctors unanimously establish that children are to be educated with the innocent party. But when the other spouse is an unbeliever or heretic, the offspring must always be educated with the faithful party, although this one is guilty, and this in favor of the faith, from C. fin., de Conv. infid. But the expenses for educating the offspring are to be borne by the father, if he is at fault, Auth. Si pater apud L. 976. But if the mother is at fault, the law establishes nothing; Sanchez, l. 10, d. 20, n. 8, nevertheless judges it equitable that what has been established for the father also be understood for the mother. But if, once divorce has been made, the man retains the dowry, the wife would now seem sufficiently to concur for the education of the offspring. These things according to Roman Law. But now the more recent laws of various places are to be consulted. C. I. 148 ff.; C. G. 229 ff.; C. H. 104 ff.; C. A. 103 ff.; C. B. 1585, 1635, 1636, 1685. - Schmalzgrueber, l. c., n. 181-183.

What concerning a sentence of divorce from the bond to be pronounced by a lay judge? - Where civil law of divorce is in force not only from bed and habitation, but also from the very bond of marriage, spouses cannot, for any reason, petition the sentence of the judge; nor consequently can advocates petition and defend it; nor can judges in any way pronounce it, namely a sentence which repugns to natural, divine, and ecclesiastical law concerning the indissoluble bond of marriage. For there is question of a thing intrinsically illicit. But if by supreme crime spouses have petitioned and obtained from a judge a sentence of this sort of divorce from the very bond of marriage, the civil registrar can in no way admit these spouses to another civil marriage and authorize it by his presence. For then by his authority he would admit them to nothing other than public and legal adultery, which would be protected by the very favor of the law. Hence he would inflict the greatest injury on the pre-existing marriage, and authoritatively declare those capable of the civil effects of marriage who, while the prior marriage still endures, are altogether incapable of these effects. C. B. 1564 ff.; E. M.

What about other books of special subject matter? "Books are condemned in which God, or the Blessed Virgin Mary, or the Saints, or the Catholic Church and her worship, or the sacraments, or the Apostolic See, are disparaged. Works in which the concept of the inspiration of Sacred Scripture is perverted, or its extension is too much restricted, are subject to the same judgment of reprobation. Books also are prohibited which deliberately afflict the ecclesiastical hierarchy, or the clerical or religious state, with insults." § 11. Books of any authors whatsoever, whether non-Catholic or Catholic. Disparage: namely speak ill, although not explicitly, but in grave matter. Inspiration of Sacred Scripture, which, "written under the inspiration of the Holy Spirit, has God as author." Vatican Council, Constitution Dei Filius, chap. 2; Decree of the Holy Office Lamentabili, July 3, 1907, prop. 9. Is perverted: if, for example, the concept of inspiration were constituted in a subsequent approval of the Sacred Books by the Church; or in a certain concomitant direction of the Holy Spirit, if necessity demands; or in divine assistance for preventing errors. Cited Decree, props. 10, 12, 19, 20. Is restricted: namely to only some books of Sacred Scripture, not to all; or to only some part of the books, not to the entire books; or only to dogmas of faith and morals, not also to the remaining matters, to historical matters, to profane matters, to matters pertaining to the natural sciences; or only to matters concerning which they treat explicitly, not also to others said only incidentally. Cited Decree, prop. 11. Deliberately: and therefore not if there is only some injurious expression, but if either the whole book, or a notable part of it, or some entire chapter afflicts the ecclesiastical hierarchy, or the clerical or religious state with insults; not some private person, unless from this vituperation turns against the hierarchical order itself, or a part of it, or against the clerical or religious state itself. "Let it be forbidden to edit, read, or retain books in which sorceries, divination, magic, evocation of spirits, and other superstitions of this kind are taught or commended." § 12. Are taught, for exercising them. Are taught or commended: not if they merely narrate superstitious facts, or treat or discourse concerning them, for reproving them and showing their malice and danger. "Books or writings which narrate new apparitions, revelations, visions, prophecies, miracles, or which introduce new devotions, even under the pretext that they are private, if they are published without legitimate permission of the Superiors of the Church, are proscribed." § 13. Writings, although they are not books, but booklets or leaves; although they are manuscripts, for they are most properly writings. If they are published: therefore the prohibition does not affect books published before this Constitution. Without legitimate permission: if this is had, it now no longer seems to be required, by force of the present Constitution, that there be a protestation according to the Decree of Urban VIII. But cf. what is had here at the end of the number. Without legitimate, etc. All books concerning sacred things and morals are indeed to be subjected to ecclesiastical censure so that they may be licitly edited; but not for that reason are all prohibited if they have been edited without legitimate approval, § 41; while on the contrary books of which there is question in this paragraph, published without permission of the superiors of the Church, are proscribed, and consequently can neither be read nor retained. Cf. 1306. "Likewise books are prohibited which establish as lawful duel, suicide, or divorce; which treat of masonic sects or other societies of the same kind, and contend that they are useful and not pernicious to the Church and civil society; and which defend errors proscribed by the Apostolic See." § 14. Books of authors of any kind, non-Catholics or Catholics. Establish, contend, defend: therefore they do this not incidentally but deliberately. Errors proscribed by the Apostolic See, e.g., errors proscribed in the Syllabus. Sacred Congregation of the Index, May 23, 1898. E.M. "Concerning sacred Relics these things are to be held. If Bishops, who alone can in this matter, know certainly that a Relic is spurious, let them remove it from the worship of the faithful. If the authenticating documents of some Relic, perhaps because of civil disturbances or from any other case, have perished, let it not be proposed publicly unless duly recognized by the Bishop. The argument of prescription or of founded presumption will then only be valid if the cult is commended by antiquity; namely according to the decree issued in the year 1896 by the sacred Council for examining indulgences and sacred Relics, by which it is declared: Ancient Relics are to be preserved in that veneration in which they have been up to now, unless in a particular case certain arguments are present that they are false or supposititious. But when there has been a judgment concerning pious traditions, it is necessary to remember this: the Church uses so great prudence in this matter that she does not permit traditions of this sort even to be narrated in writing unless much caution has been employed and the declaration sanctioned by Urban VIII has been prefaced; and although this is duly done, nevertheless she does not assert the truth of the fact, but, unless human arguments for believing are lacking, only does not prohibit it from being believed.

Thus plainly the sacred Council for guarding legitimate rites, thirty years ago, declared by Decree of May 2, 1877: Apparitions or revelations of this kind have neither been approved nor condemned by the Apostolic See, but have only been permitted as piously believable by human faith alone, according to the tradition which they bear, confirmed also by suitable testimonies and records. He who holds this will be free from every fear. For the religion of any apparition, insofar as it regards the fact itself and is called relative, always has the implicit condition concerning the truth of the fact; but insofar as it is absolute, it always rests on truth, for it is borne toward the very persons of the Saints who are honored. Similarly it must be affirmed concerning Relics. Finally We entrust this to the Council of vigilance, that they assiduously and diligently keep their eyes also on social institutions and on any writings concerning the social matter, lest anything of modernism lie hidden in them, but that they correspond to the precepts of the Roman Pontiffs." Pius X, Encyclical Letter Pascendi dominici gregis, September 8, 1907.

747. Since in many regions civil law permits divorce with the faculty of flying to new nuptials, it remains to speak of the manner of acting with respect to a law of this kind.

(A) The law itself, when it intends to dissolve the natural matrimonial bond, is intrinsically evil: (a) because it involves a twofold dogmatic error, both against the exclusive competence of the Church over the matrimonial bond, and against the indissolubility of ratified and consummated marriage; (b) and it introduces evil consequences for individuals, families, and society by favoring divorces,³ as is clear from what has been said, n. 723. Therefore those who cooperate in establishing a law of this kind sin gravely.

³ According to Mulhall, Dictionary of Statistics, p. 217, this is the proportion between marriages and divorces in various regions, through the years 1877-1886: for 10,000 marriages there were counted in Switzerland 468 divorces; in Denmark, 406; in the Federated States of America, 344; in Germany, 152; in France, 127; in Scotland, 29; in England, 19. Now, the laws of these regions being inspected, it is easily clear that divorces are more numerous to the degree that divorce laws are looser both as to the causes on account of which it is granted, and as to the manner of proceeding.

748. (B) But it is further asked whether it is lawful to cooperate in the execution of the law, namely whether a judge can pronounce a sentence of divorce without sin, whether the spouses may petition for it, and whether a procurator and advocate may patronize it.¹ That we may separate certain things from uncertain, these things are granted by all:

¹ Before the month of April 1886, the question was being treated also in France with regard to the syndic (maire), because the judge did not properly pronounce a sentence of divorce, but only declared that there was place for divorce, and afterwards the syndic pronounced the divorce; but now from the year 1886, the judge himself pronounces the sentence, and the syndic only orders the same to be transcribed by the actuary (greffier) in the acts of civil status; now to transcribe a sentence, even one intrinsically unjust, is very remote cooperation, which is permitted for a reasonable cause. Cf. Gasparri, n. 1234.

(a) A civil judge can accept a matrimonial case and recall it for examination, provided that he pronounces sentence against divorce, and otherwise there are most grave reasons for this manner of acting, for example lest he be held to yield his office.

For the Holy Office declared this, June 25, 1885: "The most grave circumstances of things, times, and places being attended to, it can be tolerated that those who hold magistracies and advocates conduct matrimonial cases in France, without being held to yield their office, provided that they openly profess Catholic doctrine concerning marriage and concerning matrimonial causes as belonging only to ecclesiastical judges, and provided that they are so disposed in mind both concerning the value and nullity of marriage and concerning separation of bodies, concerning which causes they are compelled to judge, that they never pronounce a sentence, nor defend one to be pronounced, nor provoke or incite to one, repugnant to divine or ecclesiastical law; and in doubtful or more difficult cases let each one approach his Ordinary, direct himself by his judgment, and insofar as there is need, have recourse through his mediation to the Apostolic Penitentiary. - The Most Holy Father ratified this decree."²

² In Gasparri, n. 1163; Ballerini P., n. 825; in the same place another similar decree of the Holy Office, December 19, 1860, to the Bishop of Southwark in England, is to be read, concerning causes of semi-full divorce, or of separation as to bed and habitation.

749. (b) Spouses who contracted invalidly, or whose marriage was dissolved by the authority of the Supreme Pontiff, can licitly have recourse to the civil tribunal so that they may obtain divorce (although generally it is expedient that they, after a dispensation has been obtained, if it can be granted, renew consent); for then what is sought is not the dissolution of the matrimonial bond, which does not exist, but only the relaxation of the civil effects which are attached to the contract which the State holds as valid.

This is clear from the response of the Holy Office to the Bishop of New Orleans,¹ September 9, 1824, where it is declared that in this case the contracting parties are to be induced so that, the canonical defect having been healed, as often as possible they enter a valid marriage; but if each or either one wishes to pass to new vows, liberty of having recourse to the civil tribunal is not to be denied, so that the civil faculty of entering other nuptials may be restored to him or her: "This would not be to approve the custom of civil repudiation, provided that the petitioner is rightly instructed that this is not done for this purpose, that the matrimonial bond be dissolved, since he or she is now detained by no bond, but only that he or she may free himself or herself and the parish priest from legal penalties and civil vexations... But the missionaries ought not to involve themselves in these things to be done before the Government. Let the one who asks to marry conduct his or her own business." In which case the judge, procurator, and advocate concurring in this judgment act licitly.

¹ In Kenrick, n. 111.

750. (c) Moreover it is certain that those spouses who are united by a valid marriage sin gravely when they petition for civil divorce with the intention of flying to new nuptials: for these wish to violate the divine law of indissolubility and to perpetrate adultery.

751. 2° Disputed question. But if one prescinds from the intention of entering a new marriage, and nothing is sought except the dissolution of the civil marriage and of the obligations annexed to it, it is greatly controverted among theologians whether the spouses can seek it, and whether the judge can pronounce the sentence of divorce.

We shall first treat this latter question, reporting the arguments of each opinion.

(A) The former opinion, which Bucceroni, Baudier, Rosset, Aertnys (loc. cit.), and others defend, holds that the sentence of divorce pronounced by a judge is intrinsically evil, and therefore can never be permitted. It is proved:²

² We take these arguments as to their substance from the work of Bucceroni, loc. cit.

(a) By reason. 1) If there is any law which contains something against natural and divine law, surely it is the law of divorce as to the very bond of marriage. But "if the writing of a law contains something against natural right, it is unjust, nor does it have the force of obliging... and therefore one must not judge according to it";³ otherwise one would judge according to injustice and against natural and divine law, which certainly is intrinsically illicit. Nor indeed is it less intrinsically illicit in this matter of marriage than in any other matter of temporal good and property to pronounce a sentence against natural and divine law.

³ St. Thomas, 2. 2., q. 60, a. 5, ad 1.

2. The law of divorce itself is intrinsically illicit and unjust. Therefore still more intrinsically illicit and unjust is the sentence of divorce. Surely the law is of itself as it were speculative-practical. Insofar as it is considered speculatively, the enunciation of an illicit and unjust law is not illicit, but false and absurd; but insofar as practically, then indeed it is illicit and evil. Now it is the sentence of the judge which in fact constitutes it practical, or practico-practical: "The sentence of a judge is as it were a certain particular law in some particular fact."¹ - Nor let it be said that the judge does nothing other than declare the law in a particular case, and that otherwise it is not intrinsically evil to declare that which an unjust law contains. This reason has no force at all; for the judge declares the law authentically and authoritatively, defining or determining what is just in a particular case; but it is intrinsically evil to declare authoritatively and juridically, and indeed altogether practically, that what is unjust in itself is just. - Nor let it be said that the cooperation of the judge is only material, and therefore must be permitted for a grave reason. For this cooperation is truly formal, because, as far as it goes, it wholly tends to the granting of the faculty, on the part of the law, of flying to other nuptials, which is evil in itself; it is cooperation efficacious by its own nature, because the aforesaid faculty of marrying in the particular case is the effect only of the sentence of the judge.

¹ St. Thomas, 2. 2., q. 67, a. 1.

Nor does it help to assert that the sentence of divorce touches only the civil contract and the civil effects connected with it, but not the sacramental contract. For the mind of the Legislators is to touch the bond itself and to dissolve the marriage, with the power civilly made of flying to other nuptials: which is intrinsically evil. Now, if the law of divorce is intrinsically evil, the sentence of divorce is also intrinsically illicit, since the judge authoritatively interprets the law by applying it to the particular case.

752. (b) By the authority of the Roman Congregations. For when a doubt arose concerning the interpretation of the decree of June 25, 1885 (above, n. 748), it was asked of the Holy Office: ") Whether the interpretation diffused through France and even given in print is right, according to which a judge satisfies the aforesaid condition who, although some marriage is valid before the Church, abstracts from that marriage with a true and constant mind, and, applying the civil law, pronounces that there is place for divorce, provided that in mind he intends to break only the civil effects and only the civil contract, and that the terms of the pronounced sentence regard these alone? In other terms, whether a sentence so pronounced can be said not to be repugnant to divine or ecclesiastical law?

2. After the judge has pronounced that there is place for divorce, whether the Syndic (le maire in French), himself also intending only the civil effects and only the civil contract, as is set forth above, can pronounce divorce, although the marriage is valid before the Church?

3. Once divorce has been pronounced, whether the same Syndic can civilly join with another a spouse attempting to pass to other nuptials, although the prior marriage is valid before the Church and the other party is living?"

Now on May 27, 1886, the Holy Office responded: "To the first, second, and third doubt, Negatively."¹

¹ In Acta S. Sedis, XXII, pp. 635-636; Gasparri, n. 1242.

Moreover this doubt was proposed to the Sacred Penitentiary: "A woman, separated from her husband as to bed by force of a sentence, would wish to undertake a certain public office (un bureau de tabac) for sustaining life; but the Government does not permit this unless she seeks divorce. She herself would wish to seek it, but, in her intention, always with the bond preserved." - The Sacred Penitentiary, January 5, 1887, replied:² "Nothing else is to be counseled to the penitent woman in the case except that she abstain under grave obligation from seeking divorce."

² In Gasparri, n. 1244.

In the same way the Sacred Penitentiary responded, January 14, 1891, in relation to a woman who wished to obtain civil divorce so that in pecuniary matters she might avoid the greatest damages;³ and on June 3, 1891, in relation to another wife who, already separated from her husband, intended to seek divorce so that, the civil effects of marriage having been removed, she might undertake the tutelage of her niece and thus free her from most grave dangers.⁴

³ In Ami du Clerge, XIV, 1892, p. 359.

⁴ In Ami du Clerge, XIV, 1892, p. 350.

Now from all these decisions it is deservedly inferred that a sentence of divorce, even by prescinding from new nuptials to be entered, is intrinsically evil, since it is not permitted to seek or pronounce it when there is no intention of marrying again.

753. (B) The latter opinion, which Kenrick, Ballerini, Palmieri, Lehmkuhl, Konings, Sabetti, Allegre, Genicot, De Becker (loc. cit.), and others follow, thinks that civil divorce can be sought and pronounced, provided that the spouses and judge declare that they regard only the civil effects and only the civil contract, and otherwise a grave cause is present to compensate the damages that will arise therefrom. They prove this:

(a) By reason. That one may rightly judge concerning the legitimacy of civil divorce, it must be kept in mind that it is nothing other than the dissolution of civil marriage, not of religious marriage. Indeed civil law can do nothing about the sacrament of marriage and therefore nothing about the matrimonial bond between Christians, but only about certain civil effects flowing from the contract; therefore civil marriage, where it exists, begets only a certain legal bond as to these civil effects; and therefore civil divorce destroys only the civil effects created by the law, so that, after the sentence, the matter stands in the same way as if no civil marriage had been contracted. But the dissolution of merely civil effects is an act indifferent in itself, not intrinsically evil.

But from the other side, since from civil divorce certain evils follow from the fact that the religious marriage, which subsists, lacks the protection of civil law, a grave reason is required that such a divorce be sought or pronounced, for example lest the judge be compelled to abandon his office, or lest the innocent spouse leave offspring to be educated by an impious spouse.

754. From this the arguments proposed by the former opinion can be solved. Indeed the law of civil divorce is not intrinsically evil of itself, because of itself it does not touch the matrimonial bond, but only dissolves those civil effects which it had created; therefore the judge, when he pronounces a sentence of divorce, declares only that the matrimonial contract no longer enjoys the protection of the law; and this surely is not intrinsically evil. - In reality the law of civil divorce is not in itself worse than the law itself of civil marriage, since divorce is only the civil dissolution of marriage. But the Church permits, indeed in certain circumstances counsels, the act of civil marriage; therefore the law of divorce is not in itself intrinsically evil.

It is indeed objected that the law is evil from the intention of the legislator, who also wishes to touch the matrimonial bond; - but the intention of the legislator, even if it were such, does not fall under the law; and if the judge altogether prescinds from that intention and regards only the civil effects and the civil contract, he does not cooperate in the sin of the legislator.

It is likewise objected that the worst effects follow from civil divorce, especially adulterous unions. - But these effects do not follow per se from the sentence of divorce itself, but only per accidens, since they must be attributed to the malice itself of the spouses; for when the judge pronounces civil divorce, he does not declare that it is lawful for the spouses to enter new nuptials, but only that they are not punished by civil law as adulterous.

755. (b) By authority; for the Roman Congregations, although they have given no speculative solution of this difficulty, have permitted judges in certain circumstances to pronounce a sentence of divorce.

1. First, the response of May 27, 1886 (above, n. 752), is not universal, nor does it settle the question; for the Apostolic Nuncio of Belgium, September 14, 1886, declared to the Government: "The Eminent Cardinal Secretary of State signified to me, by order of His Holiness, that the Congregation of the Holy Office declared that the decree of the day May 27 does not regard Belgium, and therefore nothing has been changed in this region as to those things which pertain to the matter of divorce."¹ Now in Belgium there is the same law as to divorce as in France, and Catholic judges pronounce sentences according to the law, without their manner of acting being reproved by the Holy See.

¹ In Ballerini P., n. 528; cf. Gasparri, n. 1243.

2. In France, Bishop N. set forth that a Catholic magistrate had been named president of the civil tribunal, but was prepared to yield his office if he could not in conscience pronounce a sentence of civil divorce, because in practice it is not always possible either to deter the plaintiff party from the petition, or to reject the petition against the clear disposition of the law; and, after premising two doctrinal questions concerning divorce, he asked: "Whether he can accept the burden and dignity of president of the civil tribunal, since he has clearly perceived that from this he will be constituted in the stricter necessity of more often pronouncing a sentence of divorce." - The Holy Office, July 26, 1887, replied: "The judge of whom there is question is to be strongly encouraged by Your Excellency to persevere in the office, standing by the restrictions already given by the Holy See, and with the cautions applied which are advised by the virtue of prudence."

3. Likewise the Bishop of Lucon had asked whether the syndic could pronounce civil divorce in a particular case in which otherwise he would be stripped of his magistracy, provided that 1° "he openly profess Catholic doctrine concerning marriage and concerning matrimonial causes as belonging only to ecclesiastical judges; 2° in the very sentence, and speaking as a magistrate, he publicly declare that he wishes to break only the civil effects and only the civil contract, while otherwise the bond of marriage remains altogether firm before God and conscience." The Sacred Penitentiary, September 23, responded: "that the same (Bishop) in this particular case, if, after all its circumstances have been inspected, he shall have judged it expedient in the Lord, can tolerate that the syndic petitioner proceed to the act concerning which in the petition, with the declarations proposed by him, yet so that in place of the words that he wishes to break only the civil contract, he put: that he can regard only the civil contract."¹

¹ In Gasparri, n. 1246. - The formula to wish to break the civil contract did not please the Sacred Congregation, perhaps lest dissolution of the bond itself seem to be signified, as Ballerini P. notes, n. 825.

Now if in certain circumstances the sentence of civil divorce is permitted, this cannot be called intrinsically evil; for what is intrinsically evil is never permitted. - Nor let it be said that the Congregation uses the word can tolerate, so that from this it may be inferred that the matter is illicit in itself; for, as Palmieri rightly says,² "the faithful were asking for a decision, so that they might consult their conscience before God, and the Sacred Congregation intended to consult it. Therefore the tolerance which the Sacred Congregation counsels to Bishops in certain circumstances excludes the malice of the act."

² Ballerini P., n. 531.

756. 3° Practical conclusions. It is not ours to compose the dispute which the Roman Congregations did not wish to decide; but from the arguments and decisions adduced above, certain conclusions can be inferred.

(A) Preliminary notes. (a) Where the law of divorce has flourished for a long time, good faith much more easily exists in those who concur in the sentence of divorce; and otherwise the law is much more difficult to resist than where it has recently been promulgated. Hence the responses of the Congregations were stricter for France than for Belgium, because in this region the law of divorce is more ancient.

(b) In a particular case, attention must be paid to the various circumstances and to the various inconveniences which are foreseen as following from the granting or denial of divorce: for cooperation is more easily permitted or tolerated when motives of spiritual and public good require it than where only motives of temporal and private order are present. Hence also for France there were diverse responses for diverse circumstances, and the Sacred Penitentiary more than once said that "it had in mind to provide for the particular case according to its circumstances and exigencies."¹

¹ Thus, for example, June 4, 1890, in Gasparri, n. 1247.

757. (B) On the spouses. (a) Where the civil law does not admit separation as to bed and habitation, but only divorce (as in many American States), the spouse who has the right to separation can, with the consent of ecclesiastical authority, seek divorce, signifying that he or she understands semi-full divorce, provided that a grave reason is present to compensate the evils that will arise therefrom. - Perhaps the same can be said when simple separation, as understood by the law, would not suffice for the intended effect, for example when full divorce is necessary so that provision may safely be made for the Catholic education of the offspring,² or for excluding adulterine children from the inheritance which is proper to legitimate children.³

² Cf. Conferences ecclesiastiques de Paris, 1895, p. 119.

³ This can be inferred from the response of the Sacred Penitentiary, July 30, 1892; since to the question whether a husband can seek divorce from an adulterous wife when no other means is available for obtaining repudiation of paternity concerning adulterine children and their exclusion from the part of legitimate offspring, the response was: let the petitioner consult approved authors.

(b) But where separation flourishes together with divorce, and suffices for obtaining the intended effect, it is not lawful for the spouses to seek absolute divorce, since a sufficient cause for doing this is lacking.⁴

⁴ The Third Council of Baltimore, n. 224, declares that "those are guilty of most grave fault who ask that marriage be dissolved by the civil magistrate," and establishes the penalty of excommunication reserved to the Ordinary, "to be incurred by the fact itself by those who, after they have obtained civil divorce, have dared to attempt marriage."

758. (C) The advocate and procurator, since they represent the spouses themselves, can patronize the cause of divorce as often as it is lawful for the spouses to seek divorce. Therefore when the client seeks dissolution of the prior bond for this reason, that he or she intends to enter new nuptials, they cannot furnish their work for the sake of capturing profit.

759. (D) On judges. (a) They are held to apply every means so that they may be able to abstain from pronouncing a sentence of divorce, for example by persuading the parties to be reconciled or to seek separation only; or by abstaining from pronouncing any sentence, for example by remitting the case to another day and transferring it to another judge.

(b) But if they cannot abstain from pronouncing a sentence of divorce without losing their office, it can be tolerated that they pronounce the sentence, provided that they declare that they regard only the civil effects. For it is not certainly established that this is intrinsically evil, and otherwise a most grave reason of public order is present, since otherwise Catholics could not act the parts of judge, with great harm to the Republic.

(c) The same must be said of the syndic or other magistrates who, after the sentence of the judge, must proclaim divorce; indeed a lesser reason seems to suffice, since their cooperation is less.

760. But if spouses, after obtaining a sentence of civil divorce, attempt to enter other nuptials while the prior bond remains, it is commonly held that it is illicit for magistrates to sanction this adulterous union by the authority of civil law: for thus the rights of legitimate marriage are publicly attributed to adultery. - Some nevertheless say that the assistance of the syndic in this case is not intrinsically evil; for he is present at this marriage only as an official witness, and therefore his cooperation is not very proximate; indeed he cannot furnish this cooperation without a most grave reason, because by the law of charity he is prohibited from concurring in the evil of his neighbor; but if a most grave reason presses, for example danger of losing his office, in order to avoid scandal, let him cautiously warn the parties that this is a merely civil ceremony, which has no force at all before the Church.¹

¹ Thus Santi (in libr. IV, tit. 3, nn. 55-58), who for many years was canonist of the Sacred Penitentiary; Gasparri, n. 1231; Genicot, n. 562.

761. (E) On the consequences of divorce with regard to inheritance.² (a) When legitimate children have been born from a prior valid marriage, and adulterine ones from a later invalid marriage, practically the illegitimate children can accept the part of the inheritance devolved to them, whether by testament or by the civil law of succession. For parents do not sin against justice by leaving some part of their goods to illegitimate offspring, since they are by no means held to hand over the whole inheritance to legitimate offspring; therefore a fortiori the illegitimate do not sin against justice by accepting the portion left to them. The same must be said if the parents die without a testament; for since they knew that a part of the goods would pass to the adulterine children, and did not prevent this by a contrary disposition, they consented to it at least implicitly.

² Cf. Lehmkuhl, Appendix to vol. II, pp. 804-805; Genicot, n. 562.

(b) Likewise, if the parents leave only adulterine children, these can with safe conscience accept the inheritance, nor are they held to yield it to other blood relatives: for here the same reason holds.

(c) But if the parents have disposed of their goods by testament, can the adulterine children impugn it as invalid, whether because the legal portion was not left to them, or on account of another cause? - If the defect is such that it renders the last will of the parents doubtful, they can indeed impugn the testament and follow the sentence of the judge. But if the will of the parents is certainly established, it is not lawful to impugn the testament; for they are deservedly judged to have wished to repair their fault by leaving their goods to legitimate heirs; and otherwise the unjust civil law of divorce can confer no right on adulterine children; hence these would sin not only against piety, but also against justice by impugning the testament in this case. - Yet where divorce has already flourished for a long time, adulterine children can easily be in good faith, and sometimes it is expedient not to instruct them, lest graver evils arise therefrom.

What duel is? Which things are touched here

81. 1. Duel, namely undertaken on private authority; since it is established that other combats can be justified. Moreover, a duel is a dangerous combat of two persons (or of a few, equal in number), which is undertaken from agreement, or from a certain pact previously made concerning place, time, and also, at least as usage bears, concerning weapons, and these lethal. It is called dangerous insofar as it brings danger of life, of mutilation, or at least of grave wound.

What suicide is

2. Suicide, or the direct killing of oneself, done by one's own authority.

Divorce?

3. Divorce, namely in the modern acceptance, or perfect, by which is designated the sacrilegious attempt of breaking the bond of marriage, even consummated marriage, so that the faculty is given of entering a new marriage while the partner is living.

What if they are said to be lawful by accident?

4. Lawful: whether in themselves, or even in any case whatsoever or by accident. For the mind of the Legislator is clear, by which he wished to protect Catholic doctrine.

When they are established as lawful

5. They establish, that is, they do not merely assert, but contend that it is so, or attempt to demonstrate it;¹ and this with that breadth which satisfies the inscription of chapter 5. Cf. n. 74, 2.

¹ Cf. Gennari, cited place, p. 40.

The plague of divorce, the increasing facility of which is deplored by the Encyclical.¹ Even persons who are little affected by the religious motive are alarmed by the moral and social decline which statistics indicate.² Nevertheless, the obstinate abettors of the new paganism continue to agitate for the establishment of divorce where it does not yet exist, and for extending its facility where it is already recognized.

¹ Pp. 48-51.

² See, for instance, the statistics published by us in Periodica, 1930. See also Dermine, La doctrine du mariage chrétien: “Divorce,” he writes, p. 139, “makes love free, and kills it; indissolubility disciplines love, and saves it.”

They allege both subjective and objective reasons: the interests of the parties themselves they argue, demand that the innocent party be allowed to break with the guilty, and that the guilty party be withdrawn from a union which has become painful and strained; the welfare of the children requires that the quarrels and misbehavior of the parents be removed as a source of offence and scandal; the good of society demands the annulment of marriages which do not fulfill their purpose, and the legal separation of unhappy couples to prevent crimes, and to forestall lies and official perjuries committed in the course of legal proceedings for divorce. Others, seeing no longer in marriage anything but a private contract, claim that, like any other contract, it can be made and dissolved by mutual consent.

It replies in the first place by recalling the inviolable law of God and of Christ, and the anathemas of the Council of Trent. We must have confidence in God and in the Church; neither God nor the Church is mistaken: that is enough to reject, in the name of the common welfare, the reasons conjured up under color of the same interest. Then it adds that in extreme cases separation duly regulated by competent authority, that is, fundamentally by ecclesiastical authority, and as regards civil effects by the civil authority, is a sufficient protection against the evils mentioned. Finally, a detailed contrast drawn between the regime of indissolubility and that allowing divorce, is an eloquent refutation of the argument attempted in favor of the latter.

From the earlier Encyclical of Leo XIII: To revert again [says the Holy Father] to the expressions of Our predecessor, it is hardly necessary to point out what an amount of good is involved in the absolute indissolubility of wedlock and what a train of evils follows upon divorce. Whenever the marriage bond remains intact, then we find

marriages contracted with a sense of safety and security, while, when separations are considered and the dangers of divorce are present, the marriage contract itself becomes insecure, or at least gives ground for anxiety and surprises. On the one hand we see a wonderful strengthening of good will and co-operation in the daily life of husband and wife, while on the other both of these are miserably weakened by the presence of a facility for divorce. Here we have at a very opportune moment a source of help by which both parties are enabled to preserve their purity and loyalty; there we find harmful inducement to unfaithfulness. On this side we find the birth of children and their tuition and upbringing effectively promoted, many avenues of discord closed amongst families and relations, and the beginnings of rivalry and jealousy easily suppressed; on that, very great obstacles to the birth and rearing of children and their education, many occasions of quarrels and seeds of jealousy sown everywhere. Finally, but especially, the dignity and position of women in civil and domestic society is reinstated by the former; while by the latter it is shamefully lowered and the danger is incurred of their being considered outcasts, slaves of the lust of men.¹ Considering the exceptional importance of this matter, it seems worth while to sum up in a synoptic form the teachings which we have just transcribed. | INDISSOLUBILITY | DIVORCE | |---|---| | Marriages peaceful and secure. | Unions made precarious by even the distant prospect of divorce, and by suspicions easily aroused. | | Mutual good will strengthened. | Good will weakened. | | Guarantees of chaste fidelity. | Harmful temptations to infidelity offered. | | Birth and education of children protected. | Birth and education of children compromised. | | Door closed against discord between families. | Many occasions of discord. | | Seeds of discord nipped in the bud. | Seeds of discord growing to bitterness. | | Dignity and position of woman upheld in society and the home. | Humiliation of woman, often irreparable. “After having ministered to the passions of their husbands they are in danger of being considered as outcasts.”—Leo XIII, “Arcanum.” |

¹ Pp. 50, 51.

It is the open road to the decay of morals, and leads to an ever-increasing number of broken homes.

It notes the justice of the forecast made by Leo XIII, the unheard-of degradation of the family where Communism is in control.

126. - Civil divorce is the dissolution of a marriage valid civilly, by which the right is granted to the parties to cast aside the matrimonial bond in such a way that they can pass to other civil nuptials and regard the former ones as altogether extinct. Sometimes, though not always, the civil law prohibits spouses, once divorce has been effected, from restoring common life between themselves by a new civil covenant ¹.

¹ The prohibition made by the French Civil Code of 1801 was suppressed by a recent law of Belgium; by this law the evils of divorce have been diminished in a manner not to be despised.

127. - The origin and vicissitudes of complete divorce. - By a special divine dispensation, which Christ abrogated, the Jewish law conceded a bill of repudiation to the husband; once this bill had been given, each spouse could contract a new matrimonial covenant.

Moreover, the Roman and Greek laws and the institutions of at least many barbarian peoples permitted complete divorce. Wherefore this must assuredly be numbered among the greatest triumphs of the Catholic Church: that she was able so to correct public morals that throughout the West the perfect indissolubility of matrimony was openly acknowledged and sanctioned by laws. But errors concerning the indissolubility of matrimony were introduced into the Eastern Church which the Roman Church was able to remove only among the Greeks united to her (and this not without labor).

In the West the pseudo-reformers ruined the genuine doctrine concerning the indissoluble firmness of matrimony when they contended that complete divorce on account of adultery was conceded by the Gospel itself.

Hence, after full liberty of religions had been granted in France at the end of the eighteenth century, divorce was proposed by Portalis, while the Napoleonic Code was being prepared, as a consequence of that liberty, since some religions admitted and others denied that matrimony could be dissolved.

Previously, however, the first civil law concerning divorce was enacted on September 20, 1792. Then, from the insane fury of changing everything, separation from bed and habitation was abolished and so many causes of divorce were admitted that, on account of the gravity of the excesses, during the French Revolution itself the necessity of abrogating such a law was acknowledged by the revolutionaries themselves.

Therefore, a more moderate faculty of divorce was admitted in the Napoleonic Civil Code, yet in such a way that at the same time the remedy of a truly perpetual separation was denied to Catholics. Afterwards, by the law of May 8, 1816, divorce was suppressed in France until July 27, 1884. Then the law called after Naquet restored divorce, although divorce by mutual consent was excluded. Hence, although the number of divorces increased every year, not without the lamentations of honorable persons (before the war, in the years 1911-1913, there were more than 11,500 annually), not a few attempts are made that a broader faculty of divorce be granted. Indeed, a certain party, for which both Margueritte brothers labor as writers, pursues this with petitions and endeavors: that matrimony be permitted to be made and broken after the manner of a private contract.

They also wish to create a broader faculty of divorce in England, so that a marriage may be dissolved by a desertion itself of five years. And since this bill was rejected by scarcely ten votes of the upper chamber (the Lords) ², the supporters of the law promise themselves a certain victory.

² In the month of November 1918. Lord Buckmaster's Separation and Divorce Bill.

In North America there are States where divorce is granted with such facility that persons of either sex are found there who have tried the fortune of "conjugal life" four or five times. Therefore, those regions are especially infected with the plague of divorces. If only at least part of the force and zeal used there in prohibiting alcohol were deployed in restraining this lust!

The unhappy law of Napoleon was never repealed in Belgium. But in a wonderful manner there for a sufficiently long time (that is, for more than half a century, at least until the year 1857) the law was corrected by religion and morals, so that practically no divorce was sought. But now, with impiety raging, all too many judgments of divorce have to be rendered in certain places, for example Brussels.

From France civil divorce invaded several other regions, while others still happily confirm by laws the holy perpetuity of matrimony.

Moreover, today the supporters of divorce appeal not only to liberty of religions; but rationalists also plead the ruinous cause of divorce from the power of the ruler to order this contract freely toward the common good and from the innate right of man to have a marriage which accords with the end of matrimony. Compare Laurent, Principes, vol. 3, nos. 171-176, 276.

128. - There can be only one opinion of Catholics concerning civil divorce. That they must condemn it in itself has as its authorities the Supreme Pontiffs themselves: both Pius IX, in proposition 67 of the Syllabus, "By the law of nature the bond of matrimony is not indissoluble, and in various cases divorce properly so called can be sanctioned by civil authority" ³, and Leo XIII, in the distinguished encyclical letter Arcanum, February 10, 1880.

³ In the latter part, which is taken from the allocution Acerbissimum, September 27, 1852, Pius IX condemned the attempt of the government of New Granada against Christian matrimony.

For you will observe that in the present rationale of civil divorce there is something other than in a divorce which, admitted by competent authority for grave causes, can with difficulty be demonstrated to be strictly repugnant to the natural law ⁴, especially before it has been consummated by perfect use.

⁴ Absolute indissolubility by the natural law was denied by Cardinal Bellarmine himself, Controv., De matrimonio, book 1, chapter 4; Sanchez, De matrimonio, book 2, chapter 13, no. 7; Carrière, De matrimonio, part 2, no. 227; nor is it established from proposition 67 of the Syllabus, which is satisfied by denying the intrinsic dissolubility of matrimony (that is, by mutual consent) and the authority of the civil power over the sacrament. Compare Huarte, De ordine et matrimonio, nos. 284, 285.

Compare above, no. 106. For the present rationale of civil divorce contains a profanation of matrimony and contempt for ecclesiastical jurisdiction over the marriages of the baptized. The public power, formally as civil and as secular, claims to be competent as over a profane matter. Modern laws concerning divorces are moreover infected by other vices. From the nature of the matter, a matrimonial contract ought to be either valid or null from the beginning; whereas, according to several interpreters of French law, a marriage to which an impediment stands opposed subsists as long as it has not been invalidated ⁵. What of the fact that divorce is permitted to be effected in several places, for example in Belgium, by mutual consent? But this, at least formally, that is, with attention to the form of the concession, is opposed to the natural law, which made matrimony intrinsically indissoluble ⁶.

⁵ Baudry-Lacantinerie, Cours de droit civil, I, no. 497.

⁶ Compare above, no. 105.

Although, according to the mind of the legislator, that consent ought to conceal some grave cause, and, lest spouses use that remedy too freely and easily, provision was made that constancy in the purpose of dissolving the marriage be proved over sufficiently lengthy intervals of time. But how greatly the legislator was deceived in this matter is testified by Laurent himself, writing concerning this divorce: "It ruins the stability of marriage: it is, in the final analysis, a divorce without cause; and divorce without cause is an attack upon marriage, an attack upon the social order" ⁷.

⁷ Principes de droit civil, vol. 3, no. 276.

Insofar as it defends these false principles, a law of this kind cannot be reconciled with the natural law. It can happen that Catholics are unable to impede such a law; nevertheless, they cannot positively approve it ⁸.

⁸ Compare, concerning this argument, the weighty words of Wernz, vol. 4, no. 790, with the notes.

129. - But it is appropriately asked which arguments are more suitably to be used.

And because of the difficulty of demonstration, appeal is to be made to the natural law only cautiously. Although it is usefully shown how greatly the perpetual firmness of matrimony accords with the designs of nature.

But in this manner it will be said more effectively and suitably for persuasion:

1. In an age in which morals flourish, complete divorce is without use, so that morals and marriages are dissolved at almost an equal pace;

2. The civil power was already incapable in former times, and today also appears incapable, of restraining such a relaxation of the matrimonial bond as all must confess is to be feared. It is enough to collect numerical indications from various regions where civil divorce rages in order to prove true what Leo XIII wrote: "It is established that among the Germans, Americans, and others, divorces have increased to such a multitude that those who were not foolish in their judgment have considered the infinite corruption of morals greatly to be deplored and the rashness of the laws intolerable" ⁹.

⁹ Encyclical Arcanum, February 10, 1880.

Indeed, on account of the levity to which secular men, and often those who are little pious, are prone, the civil law cannot efficaciously enforce even its own safeguards. The law wills, for example, that the judge endeavor to procure a reconciliation of minds. Those who are continually occupied in forensic practice are themselves witnesses how often it happens that nothing is attempted seriously, but the matter is concluded by a few questions quickly asked "for form's sake," so that the very occasion of reconciliation is in some manner taken away from spouses who desire it.

3. Nor are all things which in themselves can in some manner be reconciled with the natural law honestly sanctioned or tolerated by civil laws, since those laws ought to be solicitous for "progress." Wherefore the legislator is prohibited by the natural law itself from spontaneously restoring divorce in a society from which divorce had disappeared. For whatever favors the firmness of matrimony is approved by the law of nature; whatever relaxes the conjugal bond cannot be sanctioned by natural law, as contrary to the common good. Bourget says excellently: "You call that progress. Science calls it regression" (Un divorce).

4. These detriments flowing from divorce can also be alleged.

The fear that divorce may occur impedes the intimate union of minds which renders the common yoke most pleasant.

The hope of divorce is the cause why marriages are entered more lightly ¹⁰; why the difficulties of common life appear more serious to the imagination; why the authority of the husband is derided; why adulterous desires are admitted, fostered, and fulfilled in execution. Hence they say that morals are corrupted by divorces and that concubinages increase in number.

¹⁰ Divorce which is admitted for causes other than a fraudulent violation of conjugal fidelity committed by one party is acknowledged by the Protestants themselves to be a cause why unhappy marriages are entered rashly. Compare Real-Encyclopädie für protestantische Theologie und Kirche, V. Eherecht, vol. 4, p. 99.

A divorce once effected is especially harmful to the wife, who does not depart intact from this association; it is especially harmful to the offspring.

If a second civil marriage is entered, the household which is erected is almost necessarily separated by hatred from the family of the abandoned spouse.

5. Finally, experience teaches that divorces continually become more numerous.

130. - Yet several things are alleged in defense of the law of divorce, which we must examine briefly.

1. Everyone has the right to make such a marriage as may attain the end of the institution. Now matrimony signifies a union of minds ¹¹ and is a means of obtaining perfection. Therefore, when hatred succeeds in place of love, when spouses cannot assist one another in acquiring perfection, matrimony no longer truly subsists, and the law ought to grant permission for another marriage to be contracted which is more conducive to the end. Thus, in substance, Laurent, Principes de droit civil, vol. 3, no. 171 and following.

¹¹ "Marriage is the union of souls."

Response. How many errors are contained in these few words! A secondary end is held as primary, and the physical union for which matrimony was immediately instituted is neglected. "They err," says Ribbing very well ¹², "who consider nothing in matrimony except the psychological relation. Both spouses ought to become one flesh."

¹² In Moll, p. 917.

Certainly each person has the right to contract with the hope of a happy outcome; but if you are disappointed in this hope, are you for that reason permitted to disregard the agreement and its obligations?

A partnership is entered in the hope of profit: if its affairs have become desperate, is a partner permitted to bid farewell to the partnership before the appointed time, or, by alleging a right to attain the end of the partnership, to procure money for himself by right or wrong?

If matrimony were broken when some end is impeded, we would now have to assert consequently that all marriages cease after a certain age, since then offspring can no longer be begotten.

Consideration of the common good is entirely neglected, and, contrary to the writer's intention, a road is laid out for innumerable divorces. All who found themselves unhappy would have the right to attempt another marriage!

2. Related to this is the difficulty raised by the Protestants. If one spouse alone has violated conjugal fidelity, or has even deserted the marriage bed, provision must be made for the innocent party. By what other efficacious means than divorce? Thus, in substance, Real-Encyclopädie für protestantische Theologie und Kirche, V. Eherecht.

Response. If the matter concerned an institution directed primarily toward the good of an individual person, this difficulty would not lack its weight; indeed, it could be regarded as insuperable. But now it is rightly understood that every private advantage, or even happiness, must be subordinated to the public good, and that an institution which was immediately created for the sake of the human race must be ordered in the manner which the human race demands. And in the state of probation in which we live, it is not repugnant that a miserable condition of life must be borne here on earth. Unbelievers indeed do not grasp this, although they are compelled to look upon unavoidable physical miseries with their own eyes and admit them. But this sublime philosophy of the cross is not inaccessible to Catholics. Moreover, it is glorious for the Catholic religion that she wishes men to be held no less constrained by necessities of the moral order than by those of the physical order.

3. Once liberty has been granted to all religions, it follows that the law should grant the right of divorce for the use of those who are not prohibited by their religion from obtaining a divorce. Thus Portalis, while the French law was being proposed under Napoleon as consul; thus Baudry-Lacantinerie, I, 668.

890. Notion. Civil divorce is called a separation of spouses pronounced by the civil power.

Just as in divorce pronounced by the Church there are two species, one perfect, or as regards the matrimonial bond, the other imperfect, or as regards habitation and bed, so also a twofold civil divorce is distinguished: one as regards the bond, so that it is permissible to celebrate new nuptials; the other as regards separation of bodies alone.

In some regions there exists only civil divorce as regards the bond, for example, in Romania, Serbia, Denmark, several states of North America, and partly in Switzerland, where imperfect divorce is indeed permitted, but not beyond three years.³⁵⁸ In other regions, however, only imperfect divorce or separation of spouses is permitted, for example, in Spain, Portugal, Italy, Argentina, Chile, and also in one state of North America, namely, South Carolina.³⁵⁹ Finally, there are several regions in which civil law permits either divorce, namely, either as regards the bond or as regards habitation alone, as in Germany, France, Belgium, England, and some states of North America. In Austria only separation as regards habitation is permitted to Catholics, but divorce as regards the bond is also permitted to other inhabitants.

³⁵⁸ Cf. Swiss Civil Code, art. 148, and Tuor, Einführung in das Schweiz. Zivilgesetz, 126.

³⁵⁹ Cf. Schulze, Eherecht und Ehegesetzgebung in den Vereinigten Staaten, in Linzer Theol. Quartalschrift (1909), 748 ff.

891. Principle. A civil law permitting perfect divorce is iniquitous and to be most gravely condemned.³⁶⁰

Against this law militate the same reasons which were adduced above against laws concerning civil matrimony. Moreover, as experience proves, the worst effects for religion and good morals follow from civil divorce: the mutual love and inviolate fidelity of spouses are diminished; the education of offspring is endangered; adulteries, quarrels, material losses, and crimes of every kind spring forth from it. Hence, the more frequent divorces are in some region, the worse the morals seen to flourish there.

Moral corollaries.

³⁶⁰ Cf. Constitution Arcanum. An Instruction of the Holy Office, December 21, 1901, admonishes the bishops of Italy to oppose strongly the introduction of divorce into the Civil Code.

892. 1. Concerning spouses. a) It is never permissible for Christians to seek the civil divorce of any valid matrimony for the purpose of being permitted to pass to other nuptials. The reason is that something intrinsically evil would be sought, as being directly opposed to the indissolubility of Christian matrimony.

b) For a grave cause it is permissible to seek imperfect divorce or separation of bodies from a civil tribunal. Such is now the common opinion among authors.³⁶¹ Concerning this matter the Holy Office established on December 19, 1860: "Provided that the Catholic party can approach no other tribunal from which he may obtain a sentence of separation as regards bed and board, and provided that the sentence of this tribunal has no other effect than the aforesaid separation, it can be tolerated that Catholics perform in that forum the parts of plaintiff and advocate, provided that just causes of separation are present in the judgment of the bishop."

To the question, however, whether a husband could seek divorce from an adulterous wife while intending only to break merely civil effects, when no other means was available for obtaining the repudiation of paternity concerning adulterine children and their exclusion from the share of legitimate offspring, the Sacred Penitentiary responded on June 30, 1892: "Let the petitioner consult approved authors."³⁶² From this response it seems to follow that not only separation of bodies, but even perfect divorce in a case of most grave necessity, may licitly be sought from a civil judge; for a) the question concerned a true divorce, and b) approved authors teach that not only imperfect divorce, but even perfect civil divorce, is licit if no other means is at hand for preventing grave harms.

Hence, in those regions in which separation of bodies alone does not exist, a Catholic spouse can, when a grave cause is present and the permission of the bishop has been obtained, directly solicit a civil divorce for the purpose, not indeed of attempting new nuptials, but of obtaining the merely civil effects of divorce. The reason is that to seek civil divorce does not seem to be something intrinsically evil. Therefore, unless a special prohibition of the Church is present, it is permissible to act thus.

³⁶¹ De Smet, De sponsal. et matrim., n. 401; Noldin-Schmitt, De sacr., 17th ed., n. 671; Lehmkuhl, Theol. mor. II, n. 922, note.

³⁶² Cited in De Smet, loc. cit.

893. 2. Concerning the civil judge. Among all Catholic authors the following are established:

a) The civil judge must acknowledge his incompetence in matters which touch the sacrament of matrimony.

b) The judge can in no way render judgment concerning civil divorce if a special prohibition of the Church exists in some region.

c) The civil judge can protect the indissolubility of matrimony and reject spouses soliciting civil divorce; likewise, he can decree the perfect civil divorce of some matrimony which either was null in itself, for example, the civil matrimony of Catholics, or was previously dissolved by the Church as regards the bond.

d) The civil judge cannot pronounce the perfect divorce of any Christian matrimony without a most grave cause. The reason is that the judge cannot cooperate in some evil action, such as divorce, without a grave necessitating cause.

It is sharply disputed whether, even when a most grave cause exists, the civil judge can licitly pronounce civil divorce while intending only the civil effects of dissolution. Several authors, among whom Bucceroni³⁶³ and Gasparri³⁶⁴ are prominent, teach that the judicial pronouncement of the civil divorce of a Christian matrimony is an intrinsically evil act and therefore is never licit. Other authors, however, among whom are De Smet,³⁶⁵ Noldin-Schmitt,³⁶⁶ Lehmkuhl,³⁶⁷ Göpfert,³⁶⁸ Marc,³⁶⁹ Waffelaert,³⁷⁰ Ballerini-Palmieri,³⁷¹ De Becker,³⁷² Génicot,³⁷³ Grandclaude,³⁷⁴ and Leitner,³⁷⁵ teach that this pronouncement of divorce is not an intrinsically evil action and is therefore licit in grave necessity.

This second opinion seems to be solidly probable not only extrinsically, because of the authority of the doctors, but also intrinsically; and therefore a Catholic judge cannot be obliged to resign his office rather than pronounce a sentence of divorce. For the pronouncement of divorce made by a judge with regard to civil effects alone is not intrinsically evil either by reason of its object or by reason of circumstances necessarily connected with it.

Indeed, it is not intrinsically evil by reason of its object; for through the pronouncement of divorce nothing else is done except that a matrimony legitimate before God is deprived of civil effects and legal recognition, and legal impunity is granted to the spouses if they wish to enter a new civil matrimony. All these things, however, do not seem to be intrinsically evil when a grave necessitating cause is present, because in all these things the judge does not at all touch the very nature of Christian matrimony, but only the civil bond which was contracted in the civil matrimony. Or, in other words: Civil divorce is nothing other than the destruction of civil matrimony. Now, just as the destruction of civil matrimony for an entire region is not something intrinsically evil by reason of its object, so a fortiori the destruction of civil matrimony in a particular case through a divorce pronounced by a judge is not intrinsically evil.

Nor is a sentence of divorce intrinsically evil by reason of circumstances necessarily connected with it. For, supposing the clearly expressed will of the judge to touch nothing but the civil effects of matrimony, no other evil circumstances can be connected with the sentence of divorce except scandal to the people and cooperation in the sins of others. Certainly, grave scandal can sometimes arise from a sentence of divorce, especially if divorce had hitherto been unheard of in some region and a new law of divorce was enacted in hatred of religion. Then a sentence of divorce could certainly be expressly prohibited by ecclesiastical authority. But if the law of divorce has already been in force for a long time in some region and is often applied, as is usually the case in several states of Europe, then a Catholic judge, pressed by necessity, causes no true scandal by pronouncing divorce. For all know that the judge cannot act otherwise unless he wishes to lose his office.

Nor is a sentence of divorce intrinsically evil by reason of cooperation in the sins of others, both because this cooperation is not so proximate and because it is permissible for a most grave cause to cooperate in the sin of another, provided that this cooperation is not rendered through an action intrinsically evil by reason of its object.

These things being so, a Catholic judge is not to be disturbed if, pressed by most grave necessity, he pronounces a sentence of divorce, provided that no special prohibition of ecclesiastical authority stands in the way and provided that he openly professes that he dissolves only the civil effects of the matrimony.³⁷⁶ This opinion indeed receives great strength from a response of the Sacred Penitentiary given on September 24, 1887 to the Bishop of Luçon: "To the question whether a mayor can pronounce a divorce which he is compelled to pronounce under penalty of resigning his office, on the supposition that he openly professes the incompetence of the civil judge in a matrimonial matter and the ineffectiveness of the divorce as regards the bond, the response is that it can be tolerated that the petitioner, the mayor, proceed to the act concerning which the petition was made."³⁷⁷

The Holy Office, however, wrote to the Bishop of St. Gall in Switzerland on April 3, 1877 that judges ought to have recourse in individual cases. From these two responses it seems manifestly to follow that a sentence of civil divorce is not something intrinsically evil; for otherwise the Sacred Penitentiary could not have tolerated it, and the Holy Office could not fittingly have prescribed recourse for individual cases. For what need is there of consultative recourse if it is clear from the outset that a sentence of divorce is intrinsically, and therefore always, evil?

We are not unaware, indeed, that there also exist certain responses of the Holy Office, for example, those of June 26, 1885 and May 27, 1886, from which it rather follows that a sentence of civil divorce is intrinsically evil; but the answer is that these decrees were particular by reason of the peculiar circumstances present. For it is certain and admitted by all that hitherto no general decree of ecclesiastical authority concerning this controversy exists; indeed, the Holy See has deliberately abstained from settling the question to this day. Therefore, an apodictic argument for the stricter opinion cannot be taken from authority. In practice, then, it is permissible to follow the benign opinion, since it is solidly probable both intrinsically and extrinsically.³⁷⁸ It is nevertheless to be desired that all Catholics, and especially deputies, labor strenuously to reform civil legislation, so that no public official may now be compelled to pronounce the civil divorce of a valid matrimony.

³⁶³ Theol. mor. II, n. 983.

³⁶⁴ De matrim., n. 1248, where he says that he inclines to the stricter opinion.

³⁶⁵ Loc. cit., n. 393.

³⁶⁶ De sacr., n. 669.

³⁶⁷ Theol. mor. II, n. 921, note.

³⁶⁸ Moraltheol. III, n. 284.

³⁶⁹ Instit. mor. II, n. 2126.

³⁷⁰ Sur la coopération, 66.

³⁷¹ Opus theol. mor. VI, n. 819 ff.

³⁷² De matrim., 426 ff.

³⁷³ Theol. mor. II, n. 561.

³⁷⁴ Règles pratiques touchant la coopération au divorce civil, 8.

³⁷⁵ Lehrb. d. kirchl. Eherechtes, 618.

³⁷⁶ For Germany and Holland this opinion seems morally certain, since in their civil codes it is clearly stated that ecclesiastical statutes concerning matrimony are not at all touched by civil legislation. Dutch Code, art. 83; German Civil Code, § 1588: "The ecclesiastical obligations with respect to marriage are not affected by the provisions of this section." Aertnys, Theol. mor., bk. 3, n. 522, is also of this opinion, although for other regions he defends the stricter opinion.

³⁷⁷ Cited in De Smet, De sponsal. et matrim., n. 398.

³⁷⁸ Thus also Linneborn, Grundriß des Eherechtes, 2nd ed., § 4.

894. 3. Concerning advocates. Almost the same holds for advocates as was said concerning judges. For if the sentence of divorce itself is not something intrinsically evil, it is permissible not only to pronounce it when grave necessity exists, but also to plead in its support. Nevertheless, a sufficient necessitating cause is more rarely present for an advocate than for a judge. For an advocate is accustomed to undertake a divorce case freely, not by force of office. Nevertheless, it can happen that even for an advocate there exists a sufficient cause for seeking the divorce of his client, especially if an imperfect divorce has already been obtained in an ecclesiastical tribunal.³⁷⁹ For the rest, in practice a confessor ought not to disturb Catholic advocates who cannot decline the office of plaintiff in a divorce without most grave inconvenience, provided that no scandal arises therefrom and merely civil effects are openly intended.

Scholion. It would remain for us to treat the judicial process in matrimonial cases; but because this whole matter pertains to canon law and cannot be treated sufficiently in a brief Manual of Moral Theology, we refer the reader to the canonists who treat this matter expressly, for example, to Wernz-Vidal, Ius can. V, seventh part; to Linneborn, Grundriß des Eherechtes, §§ 59–66; and to our Manual of Canon Law, q. 537 ff.

³⁷⁹ Cf. Holy Office, December 19, 1860.

277. • I. In our days among many nations God and Christ are exiled from public life. The state is judged to have every power, without being bound in any way to attend to divine or ecclesiastical laws. And thus civil matrimony and civil divorce have been instituted against the rights of God and of the Church. Concerning civil matrimony there is no great difficulty. Not only can the faithful admit it, provided they do not attribute to it any effect with respect to matrimony itself beyond the acquisition of civil rights, but they are altogether to be invited to fulfill that formality, on account of procuring the temporal good of the spouses themselves and of the offspring to be born.

But concerning civil divorce a graver difficulty remains: namely whether it is licit for Catholics both to petition for it, and to pronounce it as judge, and finally to join civilly those who are kept back from new nuptials by the impediment of bond.

278. • II. Notion of civil divorce.

a) Civil divorce is the dissolution of civil matrimony even with respect to the bond, so that the spouses can freely contract another matrimony.

b) But note well that in the intention of the legislator, at least in Belgium and in France, civil matrimony is considered as true and indeed the only matrimony, to such an extent that matrimony contracted before the Church only, the law holds as concubinage, and the children born from such a union as illegitimate.

279. • III. What must be thought concerning the law permitting divorce.

No one of the Catholics can doubt that that law is most evil, as usurping the rights of the Church, which alone is competent to render judgment in matrimonial causes, and, what is still worse, as sacrilegiously contending to break the matrimonial bond, against the precepts of divine law itself.

280. • IV. What concerning the sentence itself of perfect divorce.

a) There is a great dispute among authors whether such a sentence is intrinsically and essentially evil, so that for no cause, although most grave and most urgent, can it be rendered by a judge or petitioned for by spouses.

b) Nevertheless, that essential malice seems to be absent from a sentence of divorce, so that sometimes under certain conditions, with conscience unharmed, it can both be pronounced by a judge and be sought by spouses and advocates.

For such essential malice appears neither with respect to the very object of the sentence, nor with respect to the circumstances necessarily annexed.

1. Not with respect to the object. For a sentence of divorce is of itself nothing other than the destruction of civil matrimony, or the privation of legal recognition and civil effects for the matrimony. Now nothing there seems to be essentially evil.

2. Not with respect to the circumstances necessarily conjoined: For if the judge clearly expresses his will of touching only the civil effects of matrimony, no other evil circumstances can be conjoined with the sentence of divorce except scandal for the people and cooperation in the sins of others.

Such scandal is not present in most European nations, where the law of divorce has been in force for a long time and is constantly applied, if the judge or spouses or advocate, driven by true necessity, render or seek such a sentence.

But with respect to cooperation in the sins of others, the cooperation is not so proximate, and since it is not by an action evil of itself, it can be excused from a most grave cause.¹

¹ Prümmer, cited work, nn. 901 and 902.

281. • V. What concerning the judge in relation to the sentence of divorce.

a) He can pronounce divorce whenever the matrimony of which there is question is certainly invalid, as being merely civil between those who are bound to canonical form, or when its nullity has been declared by ecclesiastical authority, or it has legitimately been dissolved with respect to the bond.

b) He can take up the cause so that he may repel the petition for divorce.

c) If, however, he is compelled to put aside the office of judge unless he is willing to judge the cause of divorce, and he cannot repel the petition of the plaintiffs, he seems able to pronounce the sentence of divorce, provided he protests that he wishes to touch only the civil effects.

282. • VI. What concerning the plaintiff in a divorce cause.

a) Divorce can be petitioned for in the case of an invalid matrimony, and insofar as necessary one declared such by the Church, or legitimately dissolved with respect to the bond.

b) The plaintiff sins most gravely if he intends the dissolution of the matrimonial bond itself or to obtain freedom of entering other nuptials.

c) Even if he seeks only the civil effects, generally one petitioning for civil divorce sins gravely.

d) If, however, most grave causes for petitioning for divorce are present, the plaintiff does not seem able to be condemned, provided he obtains the permission of the local Ordinary.

The Provincial Council of Mechelen of the year 1920, celebrated under the presidency of the Most Eminent Cardinal Mercier and approved by the Apostolic See, thinks in the same way, saying: "Catholic spouses incur the guilt of grave sin who, while the matrimony is valid before the Church, without a most urgent and most grave cause, to be known by the Ordinary, do not hesitate to solicit civil divorce as plaintiffs."²

² Acta et Decreta Conc. Prov. Mechlin. quarti, n. 81, Mechlin, 1923.

e) But whether such most urgent and most grave causes which excuse a petition for divorce really are now ever present, at least in Belgium and France, may deservedly be doubted.

1. For formerly a twofold cause could be present in Belgium for Catholics to solicit divorce and to judge bodily separation insufficient: fear lest adulterous offspring be unduly ascribed to the husband, and the desire for the wife to vindicate to herself sufficient freedom in the administration of her goods and the education of the offspring.

2. But now such causes no longer exist. For the law of 20 March 1927 brought opportune changes into the regime of bodily separation, which extended the principal advantages of divorce to the regime of bodily separation.

Thus from the new law, in the case of a judgment or even only a petition in a cause of bodily separation, the husband can reject paternity of a child born at least on the three-hundredth day from the date of the decision by which the tribunal permits the wife to have a separate domicile, or before one hundred and eighty days to be computed from the definitive rejection of the petition or from the reconciliation accomplished between the spouses. Indeed, the action of the husband in denial of paternity is not admitted if the wife proves that meanwhile she was again with the husband in fact, but that proof is incumbent upon the wife.

On the other side, the new law grants to the wife who is bodily separated from her husband the full exercise of her civil power independently from the husband.

3. In France already the law of 6 December 1850, confirmed by the law of 27 July 1884, established nearly the same things as the new Belgian law with respect to denial of paternity in the case of bodily separation. And the law of 6 February 1893 grants full civil capacity to a bodily separated wife.³

³ Cf. Annales du Notariat et de l'Enregistrement. Aug.-Sept. 1927, pp. 316-337. Jules Chevalier, Loi du 20 mars 1927 portant modification au regime de separation de corps.

4. But with respect to the custody and education of children, bodily separation and divorce practically have the same effects.

283. • VII. What concerning the advocate.

Since the advocate is nothing other than the vicegerent of the plaintiff, the things we said concerning the plaintiff, with respect to the most grave and most urgent causes and the permission of the Ordinary which are required so that he may licitly petition for divorce, are altogether to be applied to him.

284. • VIII. What concerning the mayor celebrating the civil matrimony of those who are held by another valid matrimony.

Since neither does that action seem intrinsically evil, the mayor can, from a grave cause, suppose lest he be compelled to put aside his office, provide that assistance. Thus the modern authors commonly teach.⁴

⁴ Prümmer, cited work, n. 898.

285. • IX. Concerning the manner of acting of the parish priest or confessor toward those who have obtained divorce without permission of the Ordinary.

a) Let him induce them to repent concerning the fault admitted.

b) If reconciliation appears morally possible, and no sufficient cause of bodily separation is present, let the parish priest or confessor command that the party who petitioned for divorce procure reconciliation as far as possible.

c) But if reconciliation is impossible, or if causes altogether sufficient for making bodily separation are present, I judge that the penitent can be admitted to the sacraments. But it would be better to refer the matter to the judgment of the Ordinary.

St. Thomas, Suppl., q. 67; q. 59, a. 3-6, and q. 61; Contra Gentiles IV, 123.

815. State of the question. - Matrimony according to its essence is a lasting and stable union; but this union naturally and of itself wills to be perpetual, continued through the whole of life until the death of either spouse. This property, insofar as from the intimate nature of the thing it is required that the conjugal bond be indivisible, is called firmness; but insofar as it cannot be divided or broken by any human cause, it is called indissolubility: for no one can doubt that it can be dissolved by divine power. Hence indissolubility is defined: the property by which, on account of intrinsic firmness, the inviolable conjugal bond cannot be dissolved. To it is opposed divorce properly so called, or the dissolution of matrimony with the faculty of passing to new nuptials.¹

¹ Sometimes divorce is taken in a broader sense, for separation from bed alone, or also as to habitation.

But indissolubility is twofold: intrinsic and extrinsic. It is intrinsic insofar as matrimony cannot be dissolved by its natural intrinsic cause by which it arose, namely, by the mutual consent of the contracting parties; extrinsic, insofar as it cannot be dissolved by an extrinsic cause, or by the authority of a superior. Opposed to these, on the contrary, stand intrinsic and extrinsic dissolubility.

Indissolubility is usually called the good of the sacrament, insofar as it represents the indissoluble conjunction of Christ and the Church (n. 793). And although a certain firmness already belongs to the matrimony of unbelievers, nevertheless the firmness of a Christian ratified matrimony is stronger, on account of the true notion of a sacrament properly so called, and the greatest or perfect indissolubility belongs to consummated Christian matrimony on account of the perfect notion of a sacrament.

A. Before Christ, at the time of the Mosaic law, it was granted that matrimony could be dissolved under certain conditions; and among very many nations divorce existed, although among some, even primitive peoples, matrimony was indissoluble. But Christ revoked the concession that had been made and restored matrimony to the perfection of the state of innocence, in which there was the perpetual union of one man to one woman.

1° The Greek schismatics, from the ninth century, and the Orientals, teach that the matrimonial bond can be dissolved on account of adultery, and besides they admitted the causes of divorce established in law by Justinian, and afterward still others.

2° Among Protestants, Calvin said that it can be dissolved on account of adultery; but Luther also on account of heresy, troublesome cohabitation, malicious desertion, to which afterward other causes were added, such as cruelty, leprosy, insanity, etc.

3° Launoy, a Parisian doctor, taught that according to Scripture and ancient Tradition matrimony can be dissolved on account of adultery; and therefore that this is prohibited by ecclesiastical law alone, and that the Tridentine canon is merely disciplinary.

4° Some Rationalists, and many politicians and civil jurists, admitted that divorce on account of certain determined causes is not only licit but also useful or praiseworthy, and they introduced it into legislation.

B. But Naturalists, having gone further, preach the liberty of love, on account of which absolute dissolubility is licit to the spouses themselves, who, just as they entered the contract freely, so also can dissolve it at will. Whence in place of stable and perpetual marriage itself, they now "wish there to be new species of matrimony," says Pius XI: "one for a time (for example, which lasts while residence in such a region lasts), another as an experiment, another friendly, which claims for itself the full license of matrimony and all rights, yet with the indissoluble bond removed and offspring excluded, unless the parties should thereafter convert their communion and custom of life into a full legal matrimony."

816. Thesis I. By natural law matrimony is intrinsically and extrinsically indissoluble, so that it cannot be dissolved by any human power, and intrinsic dissolubility is opposed to the primary precepts of the natural law, but extrinsic and restricted dissolubility to the secondary precepts.

Intrinsic dissolubility is that by which the contract of matrimony could be dissolved at will by the will of the contracting parties themselves, by their private authority, and which therefore of itself is absolute: it is repugnant to the primary precepts of the law of nature. Extrinsic dissolubility is that by which the matrimonial bond could be dissolved by an extrinsic cause or by the authority of a superior, and which is restricted to certain conditions: it is repugnant at least to the secondary precepts of the law of nature. For this reason proposition 67 of the Syllabus was condemned: "By the law of nature the bond of matrimony is not indissoluble, and in various cases divorce properly so called can be sanctioned by civil authority."

It is proved: A. First part: Intrinsic dissolubility, by which the contract could be dissolved at the will of the contracting parties, is repugnant to the first precepts of the law of nature. For it destroys the conjugal society itself, and renders impossible its principal end: the propagation and due education of offspring unto perfect age. For that end a lasting time and the concordant care of both spouses are required; and therefore that end itself would be rendered impossible if, at will and at every moment, a separation of the spouses could take place.

B. Second part: Extrinsic dissolubility, by which matrimony would be dissolved by human authority in determined cases, is not necessarily repugnant to the primary but to the secondary precepts of the law of nature.

1° It is not repugnant to the first precepts and to the primary end of matrimony: for this end requires that the procreation and education of offspring not be impeded. But restricted dissolution does not always impede this end, for example, if the children have already been duly educated, or if the woman is sterile, or if other favorable circumstances are present. Therefore restricted dissolution does not necessarily and always impede the primary end. And therefore it does not seem absolutely repugnant to the primary intention of nature that a husband dismiss his wife, or a wife leave her husband, provided that the dismissal or departure is ruled by public authority and by laws, by which the principal inconveniences may be guarded against and by which divorce may be made rare and difficult.

2° Nevertheless it is repugnant to the secondary precepts of natural law. For:

a) It greatly impedes the secondary end: for mutual assistance in the fellowship of domestic life is of itself perpetual and ought to last until death; and love tends to perpetuity, since total donation is irrevocable, and if otherwise, it would be unequal, since it takes away the integrity of the woman. But dissolubility renders the conjugal union less stable and thus greatly harms the fidelity of the spouses and happiness and peace; it diminishes mutual love, which intends a perpetual conjunction; and it harms the dignity of the wife, because it takes away perfect equality on account of the irreparable mark which results for the woman from matrimonial conjunction. Hence St. Thomas, Contra Gentiles III, 123:

"It seems repugnant to equity if the aforesaid society is dissolved: for the female needs the male not only for generation, as in other animals, but also for governance, because the male is both more perfect in reason and stronger in power; but the woman is taken into the society of the man on account of the necessity of generation. Therefore, when the fecundity and beauty of the woman have ceased, she is impeded from being taken by another. Therefore, if one taking a woman in the time of youth, when both beauty and fecundity are present in her, could dismiss her after she has advanced in age, he would inflict harm on the woman contrary to natural equity.

"Likewise, it manifestly appears to be unfitting if the woman could dismiss the man, since the woman is naturally subject to the man as to a governor; but it is not in the power of one who is subject to another to withdraw from his rule. Therefore it would be against the natural order if the woman could desert the man. But if the man could desert the woman, the society of the man toward the woman would not be equal, but a certain servitude on the part of the woman...

"Furthermore, the greater a friendship is, the firmer and more lasting it ought to be. But between a man and a woman there seems to be the greatest friendship: for they are united not only in the act of carnal intercourse, which also among beasts makes a certain pleasant society, but also for the fellowship of the whole domestic life; whence, as a sign of this, a man also leaves father and mother on account of his wife, as is said in Gen. II, 24. Therefore it is fitting that matrimony be altogether indissoluble."

b) It also harms the principal end, the attainment of which it renders much more difficult and less perfect. The very possibility of separation, and the prospect of a new marriage, and the more fragile union of peace, renders the education of children less provident. Moreover, matrimony according to the intention of nature is ordered to the education and solicitude of offspring through the whole of its life. For since offspring is the common good of the man and the woman, care for it requires the society of both for as long as it remains the good of both, and therefore they ought to remain joined perpetually, "insofar as provision must be made for children by the parents for the whole of life through the due preparation of those things which are necessary for life," as St. Thomas says, q. 67, a. 2. Whence, a. 1:

"Matrimony according to the intention of nature is ordered to the education of offspring not only for some time, but through the whole life of the offspring. Whence it is of the law of nature that parents lay up treasure for their children, and that children are heirs of the parents... And therefore, since offspring is the common good of husband and wife, their society must remain perpetually undivided, according to the dictate of the law of nature. And thus inseparability is of the law of nature."

c) It is opposed to the good of domestic and civil society, because it disturbs the peace of families, multiplies lawsuits, and brings in corruption of morals; on the contrary, indissolubility promotes good morals. This St. Thomas shows, Contra Gentiles III, 123:

"For thus the love of one toward the other will be more faithful, while they know themselves to be indivisibly joined; there will also be a more solicitous care of each in domestic affairs, while they think that they will remain together perpetually in the possession of the same things. The origins of dissensions also, which would have to occur if the man should dismiss the wife, between him and the relatives of the wife, are removed by this; and affection among relatives by marriage is made firmer; occasions of adulteries also are taken away, which would be given if the man could dismiss the wife, or conversely."

817. Thesis II. By divine law matrimony is established as indissoluble, and although in the Old Testament under the Mosaic law it could sometimes be dissolved by a bill of repudiation, nevertheless in the evangelical law indissolubility is urged as in the state of innocence, so that matrimony cannot be dissolved by any human power and for no cause, but only in certain cases by divine power. - It is certain from the definition of the Council of Trent, sess. 24, and canons 5 and 7.

It is proved: 1° From the Scriptures, where, when the Pharisees asked whether it is licit for a man to dismiss his wife for any cause whatever, Christ answered, Mt. XIX, 3 sq.: Have you not read that he who made man from the beginning made them male and female? For this cause a man shall leave father and mother and shall cleave (Greek: shall be glued) to his wife and the two shall be in one flesh. Therefore now they are not two, but one flesh; what therefore God has joined, let not man separate. But when the Pharisees insisted and argued from the bill of repudiation, the Lord added: Because Moses, on account of the hardness of your heart, permitted you to dismiss your wives; but from the beginning it was not so.

In those words it should be noted: a) Christ pronounces: What God has joined, let not man separate. But what God has joined, man, without power given divinely, separates illicitly and invalidly. Therefore the dissolution of matrimony is not only illicit, but also invalid. But by these words Christ did not establish a new law, but renewed the first institution; for he says to the Pharisees: have you not read... and then he brings forward the words of Adam: This now is bone...; and thus the Council of Trent, sess. 24, declares.

b) The Pharisees object: under the Mosaic law the dismissal of a wife was licit. Christ answers that from the beginning it was not as the Mosaic law permitted. Therefore from the beginning the dismissal of a wife was not licit.

c) This is confirmed by the following words: Whoever shall dismiss his wife... and shall marry another, commits adultery; and he who shall marry one dismissed commits adultery (cf. Mt. V, 32; Mk. X, 11-12; Lk. XVI, 18); namely, any such union is not a conjugal union, on account of the bond remaining with the first wife.

d) Wherefore the Apostle urges the law of indissolubility in every way in the matrimony of Christians: I Cor. VII, 10-11, 39; Rom. VII, 2-3.

2° From the perpetual Tradition of the Fathers, Councils, and Pontiffs, by whose testimonies the principle of indissolubility was vindicated with great uniformity and constancy.

The Fathers a) in the first three centuries affirm absolute indissolubility, even in the case of adultery, nor could any contrary testimony be brought forward: thus Hermas, Mand. IV, 1; Justin, Apol. I, 15; Athenagoras, Legatio pro Christianis, 32; Tertullian, Adversus Marcionem IV, 34; Clement of Alexandria, Stromata II, 23; and afterward Lactantius, Inst. div. VI, 23; Hilary, in Mt. IV, 22; Ambrose, in Luc. V, 8; VIII, 16; Jerome, ep. 77; Apostolic Canons, 48.

b) From the fourth century the same doctrine does not cease to be affirmed, not only altogether firmly in the West, but also in the East, where nevertheless it suffered a certain obscuration on account of the assent more easily given to the practical toleration of divorce, especially on account of adultery or a few other causes. Whence the Fathers grieve over the contrary practice: thus already Origen, in Mt. XIV, 23; afterward Asterius of Amasea, hom. in Mt. XIX, 3; Augustine, De coniugiis adulterinis II, 17.

c) From about the ninth century the assertion of indissolubility in every way is, among Catholics, almost unanimous.²

² With regard to the first centuries of the Church it should be noted that the doctrine concerning the absolute indissolubility of matrimony had not yet been defined by the authentic magisterium; whence it is no wonder if certain less learned men, on account of civil laws and practice, erred, and while erring were not held as heretics. In particular, as to the practice of the Greeks: 1° the Greek Fathers never admitted the opposite doctrine; on the contrary Basil, Gregory Nazianzen, and Chrysostom deny that imperial laws have any force in this matter for Christians, and they oppose the law of the Gospel. 2° Civil laws, even under Christian emperors, retained not a few elements of the old pagan legislation, which could be transformed only little by little; besides, under the first Christian emperors the Roman empire still numbered very many pagans, for whom the emperors could make matrimonial laws, nor is it to be denied that the Christian emperors, especially the Greek ones, often exceeded the measure, claiming for themselves truly ecclesiastical rights over Christian subjects. 3° In the Greek Church that dissolubility in certain cases was never asserted as a doctrinal head, but was tolerated as an abuse in order to avoid greater evils. Whence Eugene IV, perhaps supposing a practice of this kind to proceed rather from ignorance, expressly affirms the Catholic doctrine in the Council of Florence. On the other hand, the Patriarch of the Greeks himself, in setting forth Catholic doctrine against Luther, when enumerating the seven sacraments of the Church, vindicates the indissolubility of matrimony. Therefore from the practice of the Greeks it by no means follows that this indissolubility belongs rather to the discipline of the Latin Church than to the doctrine of the Catholic Church.

Councils can be named: Illib. (305), can. 8 and 9; Arles (314), can. 10; Afr. IV, can. 6; Carthage XI (otherwise Milevis), can. 8; syn. S. Patr. (450-456), can. 19; Angers (453), can. 3; Nantes (658), can. 12; Hereford (673), can. 10; Soissons (744), can. 9; Friuli (796), can. 10; Paris (829); Florence (1439), decree for the Armenians; Trent,³ sess. 24, can. 7.

³ Nevertheless the Council of Trent did not wish directly to condemn the practice and opinion of the schismatic Greeks, lest it should be an obstacle to union; but it acts directly against the Protestants and anathematizes those who said that the Church errs when it teaches that matrimony cannot be dissolved on account of adultery; from which, however, the doctrine of the Greeks is with equal certainty touched indirectly.

The Pontiffs vindicated the indissolubility of matrimony: Innocent I and Leo I in the fifth century; Gregory I in the sixth century; Zachary and Stephen II in the eighth century; Alexander III in the twelfth century; Innocent III in the thirteenth century; recently Leo XIII and Pius XI; and they defended it most vigorously against princes.⁴

⁴ We do not deny, nevertheless, that a few resolutions of particular cases proposed by some bishops or particular councils were false or less conformable to doctrine, or that Celestine III unduly extended the Pauline privilege to the case of an apostate leaving the Christian party, which judgment Innocent III reformed. But wholly exceptional particular facts do not impede the doctrine, morally unanimous and constant.

3° From theological reason: Matrimony represents the indissoluble union of Christ and the Church; therefore it too ought to be indissoluble.

Nevertheless, in the Mosaic law it was conceded that matrimony sometimes be dissolved by a bill of repudiation (Deut. XXIV, 1 sq.; Lev. XX, 10; XXI, 7); but only under certain conditions: a) the faculty did not belong to the wife, but only to the man, nor was it permitted to the man who before matrimony had had carnal commerce with the wife, or had unjustly accused her of not being a virgin; b) he could not dismiss his wife for any cause whatever, but only on account of some foulness, which word indicates a certain moral or even physical stain; c) he could not dismiss her except by a written bill of repudiation, by which not only was provision made for the state of the wife, but divorce was made more difficult; d) if the repudiated woman entered a new matrimony, she could not again be received as wife by the former husband; by which it happened that the man proceeded more cautiously.

It does not seem to have been mere toleration, for it is affirmed to be permitted, so that in conscience it was licit, just as also the Jews understood it; but this was done because of the hardness of the hearts of the Jews, as Christ says, or as St. Thomas explains, q. 67, a. 3, "for restraining a greater evil, namely, wife-murder, to which the Jews were prone on account of corruption of the irascible power."

Nor does it stand in the way that no one can be freed from the natural law: for there are certain precepts which, by the concession of God, can exceptionally not oblige in a particular case; indeed secondary precepts in certain circumstances can even commonly fail to oblige, but only for a time and in order to avoid a greater evil or to obtain a greater good. But now, although intrinsic dissolubility [misprint in original: indissolubility] is opposed to the first precepts of the natural law, extrinsic and restricted dissolubility is not necessarily so opposed. And therefore, says St. Thomas, a. 2, it "seems rather to be contained among the second precepts of the law of nature. For the inseparability of matrimony is not ordered to the good of offspring, which is the principal end of matrimony, except insofar as provision must be made by the parents for the children for the whole of life through the due preparation of those things which are necessary for life. But preparation of this kind is not of the first intention of nature, according to which all goods are common (II, n. 396). And therefore the dismissal of a wife does not seem to be against the first intention of nature, and consequently neither against the first precepts, but against the second precepts of the law of nature..."

Having distinguished intrinsic and extrinsic indissolubility, we first state that intrinsic dissolubility, simply permitted to the discretion of the spouses for any cause whatever, is repugnant to the law of nature; but that a certain determinate intrinsic dissolubility is indeed repugnant to the secondary rights of nature, but not to the primary ones.

I. A twofold dissolubility of a contract must be distinguished: one which is called intrinsic, another which is called extrinsic. The former is present when, by the power of the contracting parties themselves, a contract once entered into can be dissolved; and for that reason it is called intrinsic, because it is situated in the nature of the contract itself that those obligations which are contracted by consent should be dissolved by contrary will, Tit. 30, lib. 3, Instit. Quibus modis tollitur obligatio, § 4; although certain rites can be prescribed by positive law, so that the dissolution of the contract may be done licitly and validly. Extrinsic dissolubility is present when, by the authority of a superior, the contract is loosed, or the obligation is taken away. Hence also a twofold indissolubility must be distinguished: intrinsic, by which it happens that a contract once entered into cannot be dissolved by the power of the contracting parties; extrinsic, by which it happens that it cannot be dissolved by the will of a superior. When the former indissolubility belongs to a contract, the contract itself is deservedly called indissoluble per se, although per accidens it may be able to be dissolved extrinsically. For those things belong per se to a contract which arise from the very consent by which the contract is made. Therefore, when the consent is such that afterward it can validly be retracted by the contracting parties, the contract is dissoluble per se; and, on the contrary, when the consent is such that it cannot any longer be validly retracted, the contract is indissoluble per se. But this does not prevent the contract from being able to be dissolved by the authority of a superior, for instance God, to whom the contract and the contracting parties are subject; for then it is dissolved (which must be noted), not by the consent of the contracting parties, but by the power which the superior has of taking away the obligation arisen from the prior consent. Wherefore this potestative act of the superior taking away the obligation must be distinguished from that by which he would permit, or would give power to, the contracting parties themselves to dissolve the contract; for in this latter hypothesis their consent would be the cause of the dissolution.

Directly opposed to intrinsic indissolubility is the faculty in both spouses, or in either one, of giving the other spouse a repudiation, by which one is drawn apart from the other, by which also the bond is loosed and all power and obligation of one toward the other ceases.

II. It is asked whether matrimony enjoys the aforesaid intrinsic indissolubility, and by what right the same belongs to it, and whether it belongs to every matrimony whatever. We shall solve the questions one by one.

Therefore it is first asked how long the mutual obligation of the spouses must endure. And so it cannot be denied that the matrimonial contract requires a certain stability which other contracts do not require. For this belongs to its essence. Its end is the procreation and education of offspring; it is a society of souls; it is a family. But these things cannot exist unless matrimony is permanent; therefore a certain stability, or perpetuity, is required. Yet because these ends seem sometimes able to be obtained, or at least not to be opposed, although the matrimonial bond between the spouses is at some time dissolved, it must be inquired more exactly whether, and in what manner, intrinsic dissolubility, of which alone we are speaking, is repugnant to the law of nature. And so it is certain that dissolubility of this kind will be repugnant by the law of nature insofar as it is repugnant to the essence of matrimony. Moreover, in the law of nature, primary rights, requiring that which is essential, and secondary rights, requiring that which is congruous and more fitting, must be distinguished (Th. XIV, n. 1).

III. This having been posited. 1. Intrinsic dissolubility, simply permitted to the discretion of both spouses or of either one, which could take place from any motive whatever, is repugnant to the primary rights of nature. Namely, with no extrinsic law determining certain motives, and with no intervention of an independent authority approving the dissolution, this act is governed in such a way that any spouses whatever, as often as they wish, from whatever cause, provided only that they wish it, may loose the bond of marriage, whether the will of one is sufficient, or at least the consent of both is required. This dissolubility indeed has been approved in no even slightly cultivated nation.

For although Justin the Younger, by his Novel constitution given in the year 566, granted that marriages be loosed by the mutual consent of the spouses, nevertheless this law was not received by the Greeks themselves, but another opposed to it, which Justinian had earlier issued, Novel 117. Cf. Assemani, Bibl. iuris orient., Tom. III, pag. 329 seqq. And indeed, with this very broad power of dissolving matrimony existing in the spouses, the essence of matrimony is taken away in reality, although in appearance it is preserved. For the essence of matrimony is situated in the mutual power and obligation to the use of the body and to the leading of common life, and therefore in a certain stable power and obligation, which the end requires, which is the society of the family and the procreation and education of offspring. Whence through matrimony there is constituted a certain and determinate family, to which father, mother, and offspring belong. But with that power of dissolving marriage existing in one spouse, or in both together, that stable mutual obligation ceases which the ends of matrimony require. In this hypothesis, certainly, it could happen per se that the offspring would lack due education, if, before he is rightly educated, the marriage were loosed as often as the contracting parties please. Common life also, or the communication of works, would be taken away, and there would be no certain family, since the foundation for keeping faith would be lacking. Wherefore this power is directly opposed to the end of that power and obligation in which matrimony consists. And indeed, in truth, if marriage could be loosed at the pleasure of the spouses, wandering fornication would be introduced by this very fact (Th. VI, III); for whatever, apart from the name, is found among fornicators, or those seeking wandering concubitus, would have a place in such marriages. Certainly a society which can be loosed at the pleasure of the contracting parties cannot be the reason why those associated are bound by a bond of closest friendship, by communication of affections and goods and of life both prosperous and adverse. But matrimony is such that per se it can, and with nature teaching ought, to be the reason of this most inward union of souls, as is manifestly clear even from the history of the whole human race, wherever morals have not been most evidently corrupted. Therefore these two things cannot be combined: matrimonial society and an unlimited power in each spouse singly, or in both, of dissolving the marriage.

III. You will say: this intrinsic dissolubility was permitted by God to the Hebrews; for Deut. XXIV, 1 seqq., men were permitted to give their wives a bill of repudiation and to dismiss them, in such a way that they were able to marry others. Moreover, this lay open to the man because of some foeditas, if he hated her, which are most universal formulas of speaking. Finally, this dismissal was done by the private authority of the man, without any judicial form, and without public authority conferring value upon the act, since the act was valid of itself. Therefore, since nevertheless the marriages of the Hebrews were true marriages, it follows that such dissolubility is not repugnant to the essence of the same.

I answer that in this sufficiently difficult matter there are three things which come into question. 1. Whether in that place of Deuteronomy there is had a true permission of God making that dismissal of which there is speech there licit, or only a toleration. 2. What was permitted or tolerated: whether only the separation and dismissal of the wife from the house of the man, or besides this the dissolution of the conjugal bond. 3. What are the causes on account of which, God permitting or tolerating, it was lawful for the man to dismiss the wife.

1. We take our beginning from the third question and first bring forward the words of the law as the Vulgate has them: if a man has taken a wife and has had her and she has not found favor before his eyes because of some uncleanness, he shall write a bill of repudiation and shall give it in her hand and shall send her away from his house. And when, having gone out, she has married another husband, and he also has hated her and has given her a bill of repudiation and has sent her away from his house, or has certainly died, the former husband will not be able to receive her again as wife, because she is polluted and has become abominable before the Lord, lest you make your land sin. But in the original text it is read thus: if a man has taken a woman and has led her as wife, and it happens that she has not found favor in his eyes, because he has found in her an uncleanness of a thing, עֶרְוַת דָּבָר, and he has written (LXX, καὶ γράψει) for her a bill of cutting off, סֵפֶר כְּרִיתֻת, and has given it into her hand and sent her away from his house, and she, having gone out from his house, has gone and has been with another man ... the former husband, who sent her away, will not be able again to receive her so that she may be to him as wife after she has been polluted, אַחֲרֵי אֲשֶׁר הֻטַּמָּאָה, because it is an abomination before the Lord, and you shall not make the land sin, etc. If you follow the Vulgate, the legislator establishes two things: first, that the man write a bill of repudiation and give it into the hand of the wife; secondly, that the man cannot again receive the dismissed wife if she has been with another. The rest is said hypothetically by Moses. But in the original text all things are said hypothetically except the last of those two; namely, the writing itself of the bill and its putting forth into the hand of the wife pertains to the hypothesis for which the law is established, and this one thing alone is prescribed, that the former man not again receive the woman dismissed by him who has been with another man. From this observation certain learned men infer (cf. Ioan. Buxtorf, de Sponsalibus et Divortiis) that in the law there is not had a permission or mandate concerning the bill of repudiation and the dismissal of the wife, but that the legislator only narrates a fact and does not explicitly disapprove it, and therefore that it can be said at most that this practice was tolerated. But these things have been devised in vain. In Matt. XIX, 7, 8 two things are distinguished: the permission made by Moses of dismissing, and the command of writing the bill of repudiation. Moses, namely, permitted the dismissal of the wife; but, so that this might be done rightly and might be valid, he commanded that a bill of repudiation be written and given to the woman dismissed. With these things posited, let us come to the questions.

And so, as concerns the last question, we say that it is not at all certain that a bill of repudiation could be given with impunity from any cause whatever, according to the discretion of the man. Certainly let it be noted first that in the age of Christ there was disagreement concerning this very matter between two schools of the Jews: the school of Hillel affirming that this was lawful from any cause whatever, even the slightest; but the school of Schammai defending that it was lawful only from a grave cause, not indeed of adultery alone, for which the penalty of death had been established, but from other causes which more or less approached it and by which the fidelity owed by the woman was violated. From this we conclude: therefore, in that age this interpretation of the Mosaic law was not certain among the Jews, namely, that from any cause whatever, at the discretion of the man, it was lawful for him to give the wife a bill of repudiation; nor had there ever existed an authentic declaration of this matter, for thus there would not have been place for the question. But although not a few of the doctors of the Hebrews in the later age interpreted the words of Moses in this way, each person will easily grant, I think, that the sentence of Moses is not to be confused with the interpretations of recent doctors, who have imagined very many things most foreign to Moses.

Indeed the very manner of disputing of the school of Hillel shows that that opinion was new, since it demonstrated it by a most inept argument, contending that the words עֶרְוַת דָּבָר, which are in the construct state, and therefore signify one thing, must be taken separately, as if it were said: either עֶרְוָה or דָּבָר (cf. Selden, de Uxore hebraica, l. 3, cc. 18, 20).

Moreover, if the words themselves of Moses are considered, there is nothing which compels so broad an interpretation to be employed. Certainly the question returns to the force of the expression עֶרְוַת דָּבָר, foeditas rei, that is, some foul thing. We concede that adultery alone is not signified; but we contend that it is suitably taken of some matter or dishonest action against the fidelity of marriage. For properly עֶרְוָה is nakedness, hence turpitude. When these things are said of a wife and are drawn to signify the cause why the wife is hated by the man, it is natural to take them concerning moral turpitude against matrimonial fidelity, or concerning turpitude against the end of matrimony, for instance if she is sterile. But although the same expression occurs in the preceding chapter in the sense of physical foulness, it does not therefore follow that it, or it alone, is signified here too; for from the different adjuncts of speech the supposition of a word is varied. The history contained in the Scriptures indeed supplies nothing which would suggest that the practical interpretation of the Hebrews was different; indeed, almost no example of repudiations of this kind occurs, which permits one to suspect that the matter was not so easy (in 1 Paralip. VIII, 8 an example of this matter is exhibited). Whence it is lawful to conclude that there did not likely exist so many causes of repudiations. But the interrogation of the Pharisees, Matt. XIX, does not show that it was the persuasion of the people that it was lawful for a man to dismiss a wife from any cause whatever which had pleased him, nor does it show that the Pharisees themselves judged the same. For in order that, about to test Christ, they should ask that very thing, it was enough that they knew this opinion to be in force among some doctors of their nation; and in order that they should drive Christ into straits, they could also press the arguments of the opposing party. It is therefore sufficiently probable that repudiation had no place except from a grave cause of violated fidelity, as the school of Schammai also interpreted it, or, if you wish, also of sterility, which in a wife is a grave turpitude, even if physical. Nor is it certain that repudiation was lawful to be done without witnesses and the intervention of some public person; and perhaps the bill itself was written by a public person, as Augustine wills, lib. 19, contra Faustum, c. 26, although Selden (l. c., c. 25) denies that this has thus far been ascertained from the commentaries of the Hebrews. And indeed how would another man have been willing to receive her as wife unless the bill of repudiation, which she herself brought, had been certain by some authentic sign? The same can be confirmed by the example of Joseph, who, only in order that he might spare the honor of his wife, whose sanctity he knew while he was ignorant of the cause of her conception, wished to depart secretly from her (cf. the Appendix at the end of Chapter I).

IV. It follows that we must see of what sort this dismissal was, or what was the effect of the bill of repudiation. For there are not a few among the older and more recent Christian interpreters who judge that it was nothing but separation of bed and cohabitation, with the conjugal bond remaining; so that therefore the woman could not marry another, although the man could take another wife, because at that time it was lawful to have several wives. The reasons for this opinion, besides the authority of certain Fathers, which is not very rightly brought forward, are reduced to these two. The first rests upon the nature of the matter itself. They say, namely, that the permission made by Moses was such that it was open to the man to dismiss the wife from any cause whatever; for he says, if the woman has not found favor in his eyes, if he has hated her. But the foeditas on account of which the woman is said not to find favor in the eyes of the man is whatever can displease the man, whether moral or physical. But it could not happen that so broad a power of dissolving the conjugal bond would be made for the man in the people of God. Therefore. The other reason is gathered from the very words of Moses. For he says that the dismissed woman who has married another is polluted and abominable before the Lord. But this pollution is certainly moral, since on account of it the woman is abominable to God. But why is the dismissed woman called polluted if she has married another, unless because, existing as wife of the man by whom she was dismissed, she could not be united to another? Therefore not the bond of marriage, but only the society of cohabitation, was loosed by the bill of repudiation.

Now if it were certain that Moses tolerated (or, if you wish, permitted) that a man by his own authority should dismiss his wife from any cause whatever, we confess that we too would concede to that opinion, namely, that the effect of the bill of repudiation was not the dissolution of the conjugal bond, and this on account of the reason brought forward. But we have already declared that that is not demonstrated from the words of Moses. Nor is it established, as we have indicated, that this was lawful to do without the intervention of a public person. The other argument also seems to us to lack demonstrative force. For, short of adultery of the wife who has married a second time, we seem to ourselves to understand sufficiently that pollution and abomination of which there is speech. And first it must be noted that the verb טָמֵא is not said of moral uncleanness alone, but also of legal uncleanness of men and beasts; cf. Gesenius ad h. v. Likewise, as to the words which the Vulgate renders she has become abominable, if we consult the original text, the words of the text תּוֹעֵבָה הוּא may rather be translated thus: this is an abomination before the Lord (for תּוֹעֵבָה is a substantive, and הוּא or הִיא frequently serves in place of the substantive verb), namely, that the man should again receive the wife whom he repudiated. Certainly it must be noted that the things which are said here concerning the dismissed wife are not said of her in any hypothesis whatever, but only in this one: that she returns to the former husband by whom she was repudiated. For her second nuptials are not reprehended, nor is she herself prohibited from going to a third man after the second man either dismissed her or died; but this alone is here presented as hateful to God, that those who had been separated by repudiation should again be united after the woman had been with another man. Therefore it is an abomination, or, if you wish according to the Vulgate, the woman is abominable to God, not considered absolutely, but relatively, namely, insofar as she returns to the former man after she has married another. And this is what God prohibits. Chrysostom seems to us to have touched upon the reason for this matter, Hom. XVIII on Matthew, n. 4: "The ancient law," he says, "was that he who, from any cause whatever, hated his wife was not prohibited from repudiating her and taking another. Nor, however, did the law command that this be done simply, but after a bill of repudiation had been given to the wife, in such a way that she could not again return to him, so that at least the figure of marriage might remain. For if it had not prescribed this, and if it had been lawful to repudiate her and to receive another and then to bring back the former, great confusion was going to arise, with all frequently receiving the wives of others by alternating turns, and this would plainly have been manifest adultery." Namely, under the appearance of marriage there would have been introduced a certain promiscuous exchange of wives and wandering concubitus. This certainly is wicked, and under this aspect a woman who would undergo these vicissitudes would be abominable before the Lord. But why is she called polluted, since she has been known by another man? We think that, although she was a true wife of this man, she could be called polluted by God. For although God permitted repudiation, nevertheless this "was conceded not by the will of God but by the necessity of sinners (Jerome on Matt. XIX, 3)," that is, God permitted it not from antecedent will but from consequent will, namely, on account of the hardness of heart of the Hebrews. Therefore the thing was something which God, considered in itself, did not approve, in which He saw a certain disorder and a certain defect of true cleanness; and so that God, in the very permission of repudiation, might signify this to the Hebrews, He called that woman polluted who had been known by the second husband. These words indeed in the Hebrew text indicate only the fact, not properly the reason of the law: after she has been polluted, he says, not because she has been polluted.

We judge that the same interpretation must be applied to the words of Jeremiah III, 1. Commonly it is said: if a man has dismissed his wife, and she, departing from him, has taken another man, will he return to her again? Is not that woman polluted and contaminated? Nevertheless it is better to note that in the Hebrew text mention is made not of the woman but of the land: has not that land been profaned by profaning? It perhaps alludes to the words of Moses: lest you make your land sin, l. c.; cf. Jerome, comm. on Jeremiah, l. I, c. 3, v. 1. But as to Malachi II, 16, after it has been said, when you have had hatred (for your wife), dismiss her, says the Lord God of Israel, there is immediately added: but iniquity shall cover his garment. It is lawful from the Hebrew to translate: but he covers his wife with injury, which, whichever dismissal it is, can be true.

On the contrary, the opinion affirming that the bond of marriage was dissolved by the bill of repudiation is strongly recommended by these reasons. 1. The second man can give a bill of repudiation; but a bill of repudiation could be given not to an adulteress, but to a wife or betrothed woman. 2. A dismissed woman, if afterwards she has married another, is prohibited, not indeed from marrying another when this second husband has died, but from returning to the former husband. But if the first bond remained, there was no sufficient reason why this should be prohibited; for this prohibition was in conflict with the obligation of the woman herself toward the man, which remaining, reconciliation could not be impeded. It was moreover in conflict with the law of honesty; for thus the woman was exposed to the danger of adultery, and it is not honest to impede that this danger be removed. 3. Besides, in Lev. XXI a special law is enacted concerning the marriage of priests and of the high priest, so that to them is forbidden what is lawful to others, or that is commanded to which others are not bound. Namely, the high priest is commanded to marry a virgin; he is forbidden to marry a widow, a repudiated woman, a defiled woman, a harlot (v. 14). The reason of this law is a special reason: because the oil of unction has been poured upon his head, because his hands have been consecrated in the priesthood (v. 10). A reason is brought analogically for the other priests (v. 6). Therefore the law also is special, not common to all Hebrews. And certainly no one from the people was prohibited from marrying a corrupted woman, a widow, a harlot. Therefore also the prohibition against marrying a repudiated woman pertained only to the high priest and the other priests; it was permitted to the rest to marry a repudiated woman as wife. But if this is so, then the bond of the repudiated woman with the former man was dissolved. And indeed, in truth, if it had been lawful for no one to marry a repudiated woman, why in the law of the priests, by which things peculiar to them are prescribed, would it have been decreed that a repudiated woman was not to be married by them? Did they not already know that they were bound to this, because they were from the people of the Hebrews? 4. The Hebrews interpreted the law in this way; for in the age of Christ there was indeed a dispute about the causes of dismissal, but in this all agreed, that a woman dismissed by a bill of repudiation could marry another. Cf. Josephus, Archaeol., l. 4, c. 8. 5. Christ Himself, Matt. XIX, opposes the permission of the bill of repudiation, considered simply, to the primitive institution, affirming that it did not exist from the beginning. But the mere permission of dismissal without dissolution of the bond is not opposed to the primitive institution; for even now this is lawful for Christians, among whom the primitive institution has been recalled entire. Therefore let it be certain that the bond was loosed by the bill of repudiation.

In this matter the opinions of the Fathers seem divided. Jerome indeed, on Malachi, c. II, 16, seems to judge that not every dismissal among the Hebrews was without fault, except the cause of fornication; nevertheless it is not established whether the things which he says he wishes to refer only to Christians, or also to the Hebrews who were before Christ. Equally ambiguous is what he says on Matt. XIX, 8. Ambrose also, on Luke, lib. VIII, n. 70, rather supposes that dissolution of the bond was permitted to the Jews, which he denies to Christians. But Augustine, who, lib. XIX, contra Faustum, c. 20, expounds at length the economy of the institution of the bill of repudiation, speaking of the same in l. 1, de Sermone Domini in monte, c. 14, says that "however hard the man was who wished to dismiss his wife, when he thought that, once the bill of repudiation had been given, she could now without danger marry another, he would easily be appeased." Therefore Augustine thought that the marriage was loosed. But when he says, de Bono coniugali, c. 8, that in that permission of Moses there appears a reproach of divorce rather than an approval, he is speaking of the approval of God according to antecedent will, which certainly was lacking; indeed, according to that will there was a reproach, for repudiation had been permitted only from the cause of men, namely, on account of their hardness. Basil indeed, can. 9, Epist. CXCVIII, and can. 21, Epist. seq., referring the words of Jeremiah from c. III, 1, calls the dismissed woman who has married another, of whom there is speech there, an adulteress. But it is manifest that the holy Doctor is not interpreting the law of Moses data opera, but incidentally referring the words of Jeremiah, which, taken separately, could agree with the matter which Basil was then treating. Cyril of Alexandria, on Malachi II, 14, 16, from the fact that the law permitted a bill of repudiation to be given, denies that it follows that those who give it are without fault, who give it for the purpose of being coupled with others. Perhaps he places the sin in this, that men repudiating their wives are not led by a good intention.

In the biblical apparatus containing several Dissertations collected by a certain Discalced Carmelite in the year 1705, there exists in Tom. 3 a Disputation De ritibus nuptiarum penes Iudaeos; and there, a. 8, there is vehemently defended the opinion denying that it was permitted to the Jews, by a permission which would take away sin, to dismiss their wives through a bill of repudiation in such a way that the conjugal bond would be loosed; and the principal reason for this denial is the authority of St. Thomas, who is said to have denied it. This indeed is proved both by several testimonies of his brought forward, and from his principle, namely, that, according to Thomas, the dissolution of matrimony is repugnant to the law of nature. But 1. St. Thomas recounts both opinions in this question, and calls the one which we defend probable; indeed he also defends it, having solved the contrary arguments against it. He only says that the other opinion is more common, and shows that he himself is borne more toward it. Cf. in 4, D. XXXIII, and 1a 2ae, q. CV, a. 4, ad 5. But as to what they say, that Thomas from his customary modesty calls the opposite opinion probable, we do not understand what this regards; for neither do we believe that the holy Doctor, on account of modesty, wished to assert as probable that which did not seem probable to him. Therefore, even if we wished to settle the question by the authority of St. Thomas alone, we would have nothing certain here.

But 2. that principle of St. Thomas is brought forward wrongly. For the distinction of the precepts of natural law into first and second must be kept before the eyes, which we gave in Thesis XIV, n. 1, not from our own store, but from St. Thomas himself. Therefore, when Thomas, in lib. 3, contr. Gentes, c. 123, produces several arguments by which he proves that the dissolubility of marriage is not congruent with the law of nature, we say that he speaks of the second precepts of the law of nature, by which that which is more fitting is proposed. And we demonstrate this evidently from the fact that he judged it probable that power of dissolving marriage had been made to the Jews by God; which certainly he would not have judged if he had thought it to be against the primary precepts of the law of nature, from which not even God can dispense. Therefore what Thomas teaches l. c. is that which we also with him shall teach in the following part.

What, then, finally do we have? That the opinion which denies that it was permitted by God to the Jews through a bill of repudiation to dismiss their wives in such a way that the bond was loosed, was in the age of Thomas the more common among the Theologians, and pleased him more. But these things are not yet sufficient for a Theologian for the full solution of the question. On the contrary, the opinion which we defend, several Theologians of the first rank defended either as certain or as more probable: Sanchez, de Matr., l. 10, D. 1, n. 7, with several authors also cited; Bellarmine, de Matr., l. 1, c. 17; Bonfrerius on c. 24 of Deuteronomy; Cornelius a Lapide, ibid.; indeed also from the Thomists, Gonet in Tom. 5 of the Clypeus, D. 5, and Cajetan on Deuteronomy c. 24. Therefore proper arguments must be brought forward, taken from the accurate analysis of the text and the nature of the matter, which we have tried to furnish according to our powers.

You will nevertheless say: Paul expressly teaches that in the Old Testament a woman was bound to the law of the man as long as he lived, so that accordingly she would be called an adulteress if she had been with another man. For he assumes this from the law (namely, of Moses) to prove that the law has dominion in a man for as long a time as he lives, Rom. VII, 1-3. Therefore, according to the law of Moses, a wife also who had been dismissed remained bound to the man dismissing her as long as he lived.

I answer first. This obligation of the woman toward the man is again predicated by the Apostle in almost the same words, 1 Cor. VII, 39, and he hands it down among the precepts proper to the Christian economy, in such a way that this precept also seems to be proper to the same economy. Wherefore one might perhaps suspect that the law to which he appeals (Rom. VII) is rather the Christian law.

I answer secondly. The parenthetical words, for I speak to those knowing the law, may be interpreted thus: I speak, namely, to those knowing the force of law, whatever law it may be, which force of law is this, namely, that law has dominion over a man as long as he lives. Moreover, he declares this by the example of a wife bound to her husband; nevertheless he could borrow this example also from Christian law, since in this place, if you receive that interpretation, he was not treating of the Mosaic law.

I answer thirdly. If you wish τὸν νόμον, Rom. VII, 1, to be the law of Moses, which we too more gladly admit, note that the Apostle speaks in the hypothesis that the woman has a husband: she who is under a man, he says, while the man lives, is bound to the law, certainly of marriage, since it was not lawful for her to give a bill of repudiation. But we deny that a dismissed woman is under a man, which you also cannot affirm, unless you suppose what must be proved by you, that the bond endured after that dismissal.

There is also another response which we once gave, and which now we think by no means necessary. Namely, we noted that such a law concerning the obligation of the woman toward the man is not found in so many words in the whole law. But it exists according to the sense. Where, then? I do not know whether you may find another place besides Gen. II, 23, 24, where the law of the institution of matrimony is set forth. Now if the Apostle had regard to this place, what do you have? Namely, that by the law of institution the wife is indissolubly bound to the man and the man to the wife. We freely grant this; indeed, in its place below we shall prove it. But this is not what is now being treated. Rather, it is asked whether some dispensation from this law (and when we say dispensation, we certainly suppose the prior law) was conceded to the Hebrews, by which men could dismiss their wives with dissolution of the bond. We prove this from the place of Deuteronomy, where Christ Himself testifies that something had been permitted otherwise than had been instituted from the beginning. Nor does the Apostle deny what we contend, since he only cites the law of institution as uniquely valid in his age, since it had been recalled by Christ.

V. Therefore there remains the question whether such an economy of Moses was a true permission, by which the matter became licit, or only a toleration, leaving to that action its malice. But certainly that question has already been prejudged from the preceding question. For if the effect of the bill of repudiation was the dissolution of the bond, so that the dismissed woman could marry another, and could not, after the death of the man to whom she had married the second time, return to the former man, there was need of the intervention of a divine dispensation by which the dissolution of the bond, which from the beginning had been established as indissoluble, would be permitted. For mere toleration would have operated nothing on the part of the thing; it would have freed the one dismissing only from penalty, not from conjugal obligation toward the dismissed woman. But with divine permission existing, the matter became licit.

Besides, as St. Thomas argues in 4, Dist. 33, q. 2, a. 2, ql. 3, ad 4: "If the Jews, by repudiating their wives, had sinned, this at least ought to have been indicated to them through the law (for the law is holy, and through it comes knowledge of sin) or through the prophets (Isai. LVIII, 1: Announce to my people their crimes); for otherwise they would seem too despised if those things which are necessary to salvation, which they did not know, had never been announced to them. Which cannot be said, since the justice of the law observed in its own time (certainly from grace) merited eternal life."

And so one may judge that it was permitted to Jewish men to repudiate their wives from a grave cause, with some public authority intervening. But this is a different dismissal from that which we disapproved above.

VI. But intrinsic dissolubility from certain causes only, by which the proper goods of matrimony are not impeded, which is governed by certain laws guarding against the more serious inconveniences and rendering the act more difficult and rare, and which takes place with the consent of an independent authority, is not repugnant to the primary law of nature. The first argument for this doctrine can be taken from the permission of repudiation made to the Hebrews by God, since repudiation looked to this, that the bond of matrimony be loosed. For in this hypothesis it was truly the man who dismissed the wife, commanding her by the bill of repudiation to be free. The form prescribed by the law was indeed kept, but the dismissal and repudiation was done by the authority of the man; and therefore it was an intrinsic dissolution. Moreover, in that law there certainly were not more precautions than those which we have posited in the enunciation of our assertion. Therefore, since God permitted to all Hebrew men the power of giving a bill of repudiation, and nevertheless did not destroy the essence of matrimony in His own people, it follows that some power of dissolution, or intrinsic dissolubility, is not repugnant to the laws of nature, at least the primary ones. And because, per se, with regard to the power over the body of the other by which the conjugal bond is constituted, the right in each spouse is equal, hence what is lawful to the man ought also, per se, to be lawful to the woman; although the dignity of headship which belongs to the man brings it about that this right is more congruent to the man.

And indeed, suppose that enough provision has now been made for the children with regard to education and sustenance; suppose that the wife is sterile; you will with difficulty prove (says Bellarmine, de Matrim., c. 4) that dissolution is repugnant to the essence of matrimony; indeed, there is nothing which, with the law of nature alone considered, demonstrates that it is repugnant. For this demonstration is sought from the ends of such a union. Suppose, besides, that one spouse commits adultery; since with natural horror the spouse shrinks back from the contract and familiarity of the party who has violated fidelity so greatly, does the primary law of nature, especially if as yet there are no children, deny to the other, offended party the right of separating himself and contracting other nuptials, so that contrary to his wish he remains unmarried and, through the fault of the other, is deprived of the good of offspring and of the bridle of concupiscence? It can indeed be demanded that this power be restrained within certain limits, and be governed by certain laws independent of the discretion of individuals; and in this matter we judge that nothing more can be demanded than what we set forth from the beginning in the enunciation of this part. But with these things posited, you cannot prove that intrinsic dissolubility in cases of this kind is repugnant to the essence of matrimony by the law of nature, unless you prove that any dissolubility whatever is repugnant to the same; which, however, is false. For whatever argument you fashion, it will return to this: that either from the ends of matrimony, or from the nature itself of the obligation of the spouses undertaken from the beginning, you demonstrate that this dissolubility is repugnant to the primary law of nature. Now from the ends you cannot demonstrate this, as we have seen. But if you argue from the nature of the obligation, since this is always the same, you will bring it about that any dissolution whatever is against the primary law of nature, because it is opposed to that obligation. But if you concede that some dissolution of the same can be combined with the nature of that obligation, then how do you prove that this dissolubility also, of which we speak, is repugnant to the primary law of nature? Moreover, that the conjugal bond suffers some dissolution is certain from the permission made to the Jews.

This which we defend is certainly the opinion of Augustine, who judges that full indissolubility is proper to Christian marriage because it is a sacrament; indeed, he places in that the reality of the sacrament (but Augustine speaks of indissolubility especially intrinsic; for a certain extrinsic indissolubility belongs to Christian marriages, as we shall see afterwards). Therefore Augustine did not recognize that indissolubility in marriage considered by the law of nature alone.

VII. Nevertheless this intrinsic dissolubility, of which we have just spoken, is opposed to the secondary rights of nature. For that which is per se congruous and more fitting for the essence of matrimony, so that the opposite is more or less unbecoming, is prescribed by the secondary rights of nature. Moreover, it is certainly congruous and most fitting for matrimony that it be intrinsically altogether indissoluble. Certainly it is abhorrent from matrimony that a spouse, while he is bound, should think of entering another marriage; for by this very fact that mutual friendship is diminished, which nevertheless follows spontaneously from so close and natural a communication, by which one gives himself to the other. But unless the union is indissoluble, that could and would follow not only from the fault of man, but per se. Besides, the wife is, by a certain fixed reason, the flesh of the man, and the man also the flesh of the woman; for they are one flesh. But no one ever hated his own flesh, but nourishes and cherishes it (Ephes. V, 2); therefore nature shrinks back from divorce as from hatred of one's own flesh, with some distinction indeed, according as spouse and flesh properly differ. Again, by the indissolubility of matrimony, provision is more certainly made per se for the good of the offspring and the modesty of the wife is more honorably cared for; thus the communion of life, the union of souls, the state of the family, and the necessity of affinities is firmer and holier. Finally, in this way the distinction of families is more certain and peace between diverse families is safer, and thus better provision is made for the good of human society. But if it sometimes happens that it is becoming that the bond be loosed, this need not be done by the power of the spouses, but can be done by the authority of a superior, and therefore extrinsically. Wherefore this indissolubility was deservedly sanctioned by the law of institution.

Certain inconveniences are usually objected, which have a place when the indissolubility of matrimony is posited after hatred or weariness has succeeded love. But 1. these do not outweigh those things which would arise from dissolubility. 2. These are inconveniences of individual persons; but those which arise from dissolubility are opposed more or less to matrimony itself and to the end intended by nature through it. 3. These do not exist per se, but from the evil will of men, who, since they are free, can impede those things from which they take their origin; but the former would arise per se from dissolubility. Moreover, compare the things which we shall discuss data opera on this argument in Th. XXIII.

According to the things just said, we understand that proposition 67 in the Syllabus of Pius IX was rightly condemned: "By the law of nature the bond of matrimony is not indissoluble, and in various cases divorce properly so called can be sanctioned by civil authority."

It is established by Catholic tradition that Christian matrimony, not only consummated but also ratified only, is intrinsically indissoluble even in the case of adultery.

I. Now specifically concerning the indissolubility of Christian matrimony. Note that several Theologians (cf. Sanchez, L. II, D. 13) in this question do not use this distinction of indissolubility into intrinsic and extrinsic, and regard this one thing for affirming or denying indissolubility: whether matrimony can be dissolved. But when they deny that every matrimony is altogether indissoluble and affirm that only consummated matrimony of Christians is such, they in reality regard that indissolubility which we have called extrinsic, which ratified matrimony of the faithful, and consummated matrimony also of unbelievers, can lack. Nevertheless, all agree that consummated matrimony of the faithful is altogether indissoluble; but they do not agree in assigning the intrinsic reason of this matter, namely, whether it is by the law of nature, or by the positive law of God, or by ecclesiastical law, or by reason of the sacrament, or by reason of a certain signification. First it will be necessary to demonstrate the truth, then to investigate its reason. We say, therefore, that Christian matrimony, whether ratified or consummated, is intrinsically indissoluble even in the case of adultery of either spouse. The difficulty is from the words of Matthew XIX, and from the practice of the Greeks and the opinions of certain Fathers, namely, whether to Christians, on account of fornication or adultery of the spouse, there was made a power, which also belonged to the Jews on account of other causes, of dissolving the conjugal bond.

II. The doctrine is asserted by the Council of Trent, Sess. XXIV, de Reform. Matrim., cn. 5: If anyone shall say that on account of heresy, or troublesome cohabitation, or affected absence from a spouse, the bond of matrimony can be dissolved: A.S.; and cn. 7: If anyone shall say that the Church errs when she has taught and teaches, according to the evangelical and apostolic doctrine, that on account of adultery of one of the spouses the bond of matrimony cannot be dissolved, and that neither spouse, or even the innocent one who did not give cause for the adultery, can contract another matrimony while the other spouse is living, and that he commits adultery who, having dismissed an adulteress, marries another, and she who, having dismissed an adulterer, marries another: A.S. In these canons there is speech simply of matrimony, which at least is the matrimony of Christians, to whom these canons pertain, no distinction being made between ratified and consummated. The power which is denied is certainly the power which belongs to the spouses themselves; for if this were present, the canons would be false per se and simply. And concerning this the question was when these canons were issued. There are enumerated the causes which might have the greatest force for dissolving the bond and which were brought forward by the heretics for the dissolution of the same. From the second canon we have: 1. that the Church, not this or that Church, but simply the Church, that is, the Catholic Church, has taught and teaches that the bond of matrimony cannot be dissolved on account of adultery of one of the spouses; 2. that she has taught and teaches this according to evangelical and apostolic doctrine; 3. that he is anathema who shall say that the Church errs in this doctrine. Pallavicini reports, L. XXII, c. 4, that a simpler decree had previously been proposed, by which he was said to be anathema who would say that consummated marriages can be dissolved on account of adultery. If you look to the sentence, almost the same doctrine is handed down in both decrees. For the Church cannot fail to err when she teaches that matrimony cannot be dissolved, unless this is true, and indeed true according to evangelical and apostolic doctrine; for the Church testifies that she teaches it according to this doctrine. Therefore by this very fact the Tridentine Fathers signify that it is a revealed truth. And certainly he who would affirm that marriage can be dissolved in that case would also have to affirm that the Church errs, which denies this. And the Protestants were doing this. But the Greeks, less logical, content with their practice of dissolving those marriages, abstained from this calumny against the Latin Church. Moreover, from this special manner of thinking of the Greeks, it happened that they would not be struck by the anathema if the anathema were said only against those who would say that the Church errs in this matter. Therefore, so that the Council might comply with the Venetian orators, who demanded that an anathema not be brought against the Greeks, it admitted that other formula proposed by the same orators. Therefore the doctrine was not changed, but the manner of inflicting the anathema was changed, and the condition on account of which the anathema would be incurred. Moreover, no one can deny that the canon is doctrinal. For the indissolubility of matrimony is asserted to be doctrine of the Church, doctrine according to evangelical and apostolic doctrine, that is, revealed doctrine; that the Church is infallible in handing down this doctrine; and that those who deny this are heretics. Moreover, a canon proposing revealed doctrine and doctrine infallibly asserted by the Church is certainly doctrinal. Indeed it is also dogmatic, namely, establishing a dogma of faith to be believed by all; but its direct object is the inerrancy of the Church in teaching that matter, while its indirect object is the matter itself, or the indissolubility of marriage. "What Catholic," says Pius VI in the epistle to the Bishop of Eger, "does not recognize as a head of doctrine that which the Church has taught and teaches according to the Gospel and apostolic doctrine, and in teaching which it is certain, indeed expressly defined, that she does not err?"

In order that we may vindicate the doctrine of the Council, it is necessary to demonstrate that it is really evangelical and apostolic. This can be proved both from the words of Christ and of the Apostle, to which the Council of Trent certainly alludes, and from the constant consent of Tradition. Since the question especially is whether, in the case of adultery, the spouses have the power of dissolving marriage, which being denied, it follows of itself that that power must be denied in the other cases, we shall chiefly treat this question; although the things which we shall bring forward will have force, both implicitly and explicitly, universally for any case whatever. Note, moreover, that although now in treating we are dealing only with intrinsic indissolubility, we do not wish to say that this alone belongs to, and this alone is asserted by the testimonies to be brought forward concerning, the matrimony of which we speak; but whether another also belongs will be discussed expressly afterwards.

III. Let the first argument be from Tradition. The constant sense of the Church that this is a divinely revealed doctrine, if we ascend from the age of the Council of Florence to the beginning, is clear in this way. 1. In that Florentine Synod the Latins and the Roman Pontiff openly signified that they disapproved the method of the Greeks of dissolving the bond of nuptials on account of fornication. The same Pontiff, in the Instruction for the Armenians, taught that "although for the cause of fornication it is lawful to make separation of bed, nevertheless it is not lawful to contract another matrimony, since the bond of a legitimately contracted matrimony is perpetual." Thus it has been sanctioned in canon law, and indeed as an evangelical law, the words of Christ and the Apostle having been brought forward: c. Ex parte, de Sponsalibus et Matrimonio, and c. Gaudemus, de Divortiis, which rescripts are indeed, the one of Alexander III, the other of Innocent III. Before these, John VIII had written in these words to Ederetus, Archbishop of the Angles, in the year 877: "But as to these whom you assert to leave their own wives against the precept of the Lord, we command that neither the man depart from the wife nor the wife from the man except on account of fornication; but if on this account he or she shall depart, let him or her remain unmarried, or be mutually reconciled, since the Lord says, what God has joined let not man separate. And therefore, since each person cannot desert the former woman joined to himself in lawful matrimony, by no reason whatsoever is it granted to him to lead in another while the former lives." Before him Nicholas I, in an epistle to Ado, Archbishop of Vienne, in the year 862: "You ask whether, a wife having been dismissed whom someone has taken after legitimately betrothing her, because afterwards he imposed an evil name upon her, without the decree of a general Synod, it is lawful for him either to receive another against evangelical authority, or, while she survives, to have a concubine in place of a wife. Supported by apostolic authority, we wholly resist these things according to the evangelical sanction, and we grant neither the union of another wife to those who do such things while the dismissed woman survives, nor do we bestow license of having a concubine." Photius, in the Syntagma Canonum, Tit. XIII, c. 4, recites the canon of the Milevitan Council which will soon be brought forward. The same is established in the Capitularies from the Collection of Benedict, L. II, n. 87 and 235, by which this is decreed: "those who, after dismissing their wives on account of fornication, marry others, are marked by the sentence of the Lord as adulterers." The same was established in the preceding century in the Council of Friuli, with this reason added: "For although it is read in the sacred evangelical pages that the Lord said that a man may dismiss his wife for the cause of fornication alone, nevertheless it is not read that He conceded that he may join another to himself in marriage while she lives; indeed, there is no doubt that He prohibited this in every way. For He says: whosoever, etc." The same was established in the same century by Stephen II in the responses given to the Bishops of the Gauls, renewing the decrees of Innocent I and Leo the Great. The same had been decreed in the preceding century in the Council of Herudford in England under Theodore, Archbishop of Canterbury, c. 10: "Let no one leave his own spouse except, as the holy Gospel teaches, for the cause of fornication. But if anyone has expelled his own spouse joined to himself in lawful matrimony, if he wishes to be a Christian rightly, let him be joined to no other; but let him remain so, or be reconciled to his own wife." In the fifth century, moreover, the Second Milevitan Council issued a canon, which is also attributed to the Carthaginian Council of the year 407. The canon is 8: "It has pleased that, according to evangelical and apostolic discipline, neither a man dismissed by his wife, nor a woman dismissed by her husband, be joined to another; but let them remain so, or be reconciled to each other. But if they shall contemn this, let them be brought to penance. In this cause, an imperial law ought to be requested to be promulgated." Likewise Innocent I to Exuperius, Bishop of Toulouse: "Your love also inquired concerning those who, after a repudiation has intervened, have coupled themselves to another marriage. It is manifest that these are adulterers on each side; but those who, while the wife is living, although the marriage seems to have been separated, have hastened to another union, cannot not be seen as adulterers, to such an extent that even those persons to whom such persons have been joined seem themselves also to have committed adultery, according to that which we read in the Gospel: he who shall dismiss his wife and marry another commits adultery; likewise he who shall marry one dismissed commits adultery." The Council of Elvira, year 305, can. 9, established this: "A faithful woman who has left a faithful adulterous husband and marries another, let her be prohibited from marrying; but if she shall marry, let her not receive communion before he whom she left has first departed from this world, unless perhaps necessity of infirmity shall compel it to be given." Finally Apostolic canon 48, according to the recension of Dionysius Exiguus, decreed: "If any layman, having rejected his wife, has received another, or one dismissed (or loosed) by another, let him be separated." Nor are the Greek interpreters Theodore Balsamon and Aristenus to be heard here, who, for the purpose of confirming the practice of their Church at that time, add a limitation, namely, if he has cast her out beside reason, or without some one of the causes sanctioned by the laws.

I. QUESTION I. Whether the matrimonial bond be indissoluble? ANSWER. All Catholics affirm it. Theologians with St. Thomas, Suppl., q. 67, art. 1, repeat its firmness and perpetuity from natural right itself. This natural perpetuity God confirmed by his own divine right, Matthew 19: Therefore now they are not two, but one flesh. … What therefore God hath joined together, let no man put asunder.

II. QUESTION II. What is to be said of the matrimony of unbelievers? ANSWER. That a true and legitimate matrimony, as it is a natural and civil contract, is contracted among unbelievers is certain. When both spouses are converted to the faith, their matrimony is not dissolved, as all theologians teach. If an unbelieving husband in the first centuries of the Church embraced the faith of Christ, and the unbelieving wife was willing to dwell peaceably, such cohabitation was lawful, as is had from 1 Corinthians 7. Theologians dispute whether at present this cohabitation of a believing husband with an unbelieving wife be lawful, who desires to dwell with her husband without contumely to the Creator. The more common opinion affirms it, since there exists no law which forbids such cohabitation. An opposite custom nevertheless obtains, by force of which such cohabitation is unlawful, unless the wife's conversion be prudently hoped for.

III. When one of the spouses is converted to the faith, the other persisting in unbelief, if the offspring be capable of guile, it enjoys its own liberty. If it be destitute of the use of reason, it ought to follow the parent converted to the faith of Christ. In doubt whether the offspring be endowed with the use of reason, judgment is to be made in favour of Religion.

IV. QUESTION III. If an unbelieving spouse consent to dwell peaceably with the believing spouse, can the believing spouse take another? ANSWER. Bellarmine affirms it; others deny it; others distinguish. St. Augustine, Book 1 On Adulterous Marriages, chapter 25, absolutely denies it. Similarly Innocent III, chapter Laudabilem, defends the negative opinion. But if the unbelieving spouse be unwilling to cohabit peaceably without contumely to the Creator, then the believing spouse, he being deserted, can enter upon another marriage, as St. Thomas expressly teaches, Suppl., q. 59, art. 5.

V. When one of the unbelievers is converted to the faith, the matrimony is not dissolved by Baptism, but by the subsequent nuptials. Wherefore if the unbelieving party, obstinate before the matrimony of the other spouse, and the believing party celebrated contrary nuptials, these would be null; and if these spouses were converted to the faith, they would have to be separated. Since the privilege of dissolving the conjugal bond has been granted by Christ in favour of the faith only, not of unbelief, as is had in chapter Quanto on Divorces. Similarly if a believer after admonishing the unbelieving spouse obstinate in unbelief contract matrimony, and then this second be dissolved by the death of the spouse, then that believer would not be bound to return to the former unbelieving spouse, even if he were converted to the faith. Since, the former matrimony having been lawfully dissolved, the believer became altogether free; and so he is not bound to return to the former converted spouse in the case of the death of the second wife.

VI. QUESTION IV. Whether the matrimony of the Jews became null through a bill of divorce? ANSWER. Some affirm it, others deny it. Christ the Lord, Matthew 19, says that Moses permitted the bill of divorce for the hardness of the Jews' heart. Therefore repudiation was not lawful. Therefore the matrimonial bond was not dissolved. And this negative opinion Sts. Jerome, Augustine, Chrysostom, Isidore, and Theophylact perspicuously teach. And this opinion St. Thomas calls the more common. But it is not of such moment that it ought to be discussed longer.

VII. QUESTION V. Whether the matrimony of Christians be dissolved through adultery? ANSWER. All Catholics deny it. And this truth is openly delivered in the Gospel, Luke 16, where these things are had: Every one that putteth away his wife, and marrieth another, committeth adultery: and he that marrieth her that is put away from her husband, committeth adultery. Which words are so to be disposed that they may more easily be understood: Whosoever shall put away his wife (which is not lawful save for fornication) and shall marry another, committeth adultery. Fornication makes the dismissal lawful, but by no means the celebration of a new marriage. The last words of the Evangelist declare the matter perspicuously: He that marrieth her that is put away, committeth adultery. A wife could not be put away save for fornication, as all confess. He therefore who marries her that is put away for the cause of fornication commits adultery. Therefore the conjugal bond is not dissolved. There is added the perpetual tradition of the Church.

VIII. QUESTION VI. Is the ratified and unconsummated matrimony of Christians dissolved by solemn profession in an approved Religion? ANSWER. All Catholics affirm it, and this truth was defined in the Council of Trent, session 24, canon 6, in these words: If anyone shall say that matrimony ratified and not consummated is not dissolved by the solemn religious profession of one of the spouses, let him be anathema. This definition of the Council rests upon the universal and perpetual tradition of the Church.

IX. Whether the Pontiff can dispense from the bond of a ratified matrimony, theologians dispute on either side. This is agreed among all, that most grave causes must urge, and that only for the greater utility and decorum of the Church can Pontiffs dispense from the aforesaid bond.

X. QUESTION VII. Whether the ratified and consummated matrimony of Christians be dissolved by entrance into Religion? ANSWER. The negative opinion is common and true. Since the Church has declared that only ratified matrimony is dissolved by monastic profession. If one of the spouses perpetrate adultery, the innocent spouse can enter Religion or vow perpetual chastity, because on account of the crime of adultery he has a right of perpetual divorce. One spouse nevertheless, with the other spouse's consent, can enter and profess a Religion; the consenting spouse nevertheless, remaining in the world, ought, if he be old, to emit a vow of chastity; if young, to enter Religion, as is established in chapter Cum sis. A husband, his wife being unwilling, whether before or after the matrimony consummated, cannot be initiated in sacred Orders. If, his wife being unwilling, he should receive sacred Orders, he could render but not ask the debt. With his wife consenting, a husband can become a priest, provided the wife herself profess an approved Religion, as is established in chapter Sane on the conversion of spouses.

XI. They dispute when a matrimony is to be called consummated. Some say it is the penetration of the woman's vessel without effusion of seed; but the more probable and more common opinion requires the emission of seed into the woman's vessel. Copulation had before matrimony does not suffice for the consummation of matrimony: for matrimony is perfected not through fornication, but through matrimonial copulation.

XII. QUESTION VIII. What is divorce, and whether the right to it be equal in each spouse? ANSWER. Divorce is that separation from bed, in which it is distinguished from repudiation, which brings in the dissolution of the bond. That divorce is lawful for the cause of adultery all affirm. In each spouse the right to divorce is equal, because in those things which pertain to the bed the rights of each spouse are equal. The innocent spouse, divorce being made, can either vow chastity or enter Religion, the guilty spouse being unwilling. But the guilty spouse can neither vow chastity nor enter Religion, so long as the innocent spouse retains the right of recalling him. If nevertheless the innocent spouse do not contradict, the change of state made by the guilty spouse is valid. If by the judge's sentence the guilty woman be thrust into a monastery, a biennium is granted to the innocent party to deliberate whether he will recall her. Within this biennium the woman's profession is null; the biennium having elapsed, it is held valid.

XIII. QUESTION IX. In what cases is divorce lawful among Christians? ANSWER. It is lawful: 1. From the consent of each spouse, out of a study of a holier life; 2. For the cause of adultery; 3. Immoderate savagery, if it be public and manifest, is a just cause of divorce; if occult, the judge's sentence is to be awaited; from bed nevertheless one can separate oneself, but not depart from the house; 4. If a danger of subversion threaten one spouse from the cohabitation, divorce is not only lawful but necessary; 5. If the other spouse have fallen away from the faith.

XIV. QUESTION X. What are the cases in which on account of fornication divorce is not lawful? ANSWER. Seven. 1. A husband cannot be separated from a fornicating wife, if he himself be similarly a fornicator. 2. If he himself have prostituted his wife. 3. If the wife, probably believing her absent husband dead, have married another. 4. If she have been secretly known by another entering the bed under the appearance of her husband. 5. If she have been oppressed by force. 6. If the husband, conscious of the adultery, have known his wife carnally. 7. If, matrimony having been contracted in unbelief, the man gave a bill of divorce, and the wife married another. If nevertheless both be converted to the faith, the man is bound to receive her.

XV. The will alone of committing adultery does not suffice for divorce; nay, neither do touches and kisses. Very many dispute whether carnal copulation without effusion of seed be a just cause of divorce. Some deny it; but the contrary opinion is common and true. The crime of sodomy is a sufficient cause of divorce. A secretly adulterous spouse cannot seek divorce from a publicly adulterous spouse. For he who is secretly an adulterer is guilty, not innocent. Therefore he cannot seek divorce. An innocent spouse morally certain concerning the other spouse's adultery can by right deny the debt before the judge's sentence; he cannot nevertheless depart from the adulterous spouse, the judge's sentence not being awaited. An innocent spouse is bound to make divorce from an adulterous wife, unless she repent, as holy Scripture teaches, Proverbs 18: He that keepeth an adulteress is foolish and wicked. A wife nevertheless is not bound to depart, because she cannot hinder her husband, nor coerce him, as a husband can his wife. It is disputed which spouse sins more gravely. If unchastity be regarded, adultery is more grave in a man than in a woman, says St. Augustine, Book 2 On Adulterous Marriages, chapter 8. If injustice be considered, an adulterous wife sins more wickedly on account of the uncertainty of offspring, whence grave absurdities follow.

Anna, an Anglican, asked Titius, a priest, to admit her into the Church. While instructing her, Titius discovered that she was very unhappy because of the frequent adulteries and cruelty of her husband, who often openly advises her to procure a divorce if it pleases her, for he would be content, since he would not have entered marriage unless it were dissoluble; Anna remembers that he also said this before marriage. Titius judges that it would benefit both the soul and the body of Anna and of their two children more if she could obtain a divorce; indeed, he doubts whether Anna lawfully leads a married life because of the doubtful validity of the marriage. Hence it is asked:

1. Is it lawful to seek a divorce in a civil court?

2. Can marriage be rendered invalid because of an attached condition, and when?

3. What is to be said of the case?

1. Is it allowed to petition in the civil court for divorce?

If the bishop judge that there is a good reason for asking for a judicial separation in the civil court this may be done in England and in the United States. If the ecclesiastical court has previously decided that a marriage was null and void, the case may be taken into the civil court to obtain a declaration of nullity in that court also. If the marriage was and remains valid no one can ask for a divorce with the intention of marrying again during the lifetime of the first spouse. It is probable that in England and in the United States a Catholic may petition in the civil court for a divorce with the intention of obtaining the civil effects of divorce, not of marrying again.¹

1 Manual of Moral Theology, vol. ii, 281 ff.

2. May a marriage be invalid on account of an annexed condition, and when?

If an express condition against the essence of marriage be added to the contract the marriage is null and void for want of consent. For the same reason if one of the parties only marries under a tacit condition which is against the essence of marriage, it will also be null and void.²

2 Ibid., 271 f.

3. The case. Ann’s Anglican husband said before and after marriage that he would not have married unless he knew that marriage could be dissolved. The marriage, as we must suppose, was contracted in the ordinary way, nothing being said in the act of marriage about these dispositions of the husband. In the external forum at least the marriage must be pronounced valid according to the rule laid down by Pius VI: “If indeed no express condition of this kind, repugnant to the substance of marriage, was appended, although the contracting parties generally intend to contract according to the tenets of a sect or of a law granting dissolution of the conjugal bond, the marriage must nevertheless be judged to have been validly contracted. ” (Litt. ad Archiep. Prag.¹¹ Jul. 1789).

The same solution must be given even for the internal forum unless it is certain that at the time of contracting it the husband had no intention of contracting absolutely and for life.¹

1 Génicot, vol. ii, 459.

The only remedy therefore available for Ann would be to petition for judicial separation, or, if there is any special reason for it, for a divorce, with the intention only of benefiting by its civil effects; but such remedies as a rule are rather to be tolerated than suggested by a confessor or parish priest.

Titius, a Catholic lawyer, was asked by Caius, likewise a Catholic, to seek a divorce for him in a civil court. For Caius had found, as he said, certain proofs of his wife’s adultery, and hence rightly feared that he would be bound to support offspring not his own. Titius sought a delay of two or three days before giving a reply and meanwhile consulted a confessor. Hence it is asked:

1. To which jurisdiction do causes of divorce belong, ecclesiastical or civil?

2. Is it lawful for a Catholic judge in a civil court to pronounce divorce, and for a Catholic lawyer to seek it?

3. Can all responses of the Sacred Congregations concerning this question be applied equally to all regions?

4. What must the confessor answer Titius?

1. Do divorce cases belong to the ecclesiastical or to the civil authority?

Divorce cases and all other matrimonial causes belong exclusively to the ecclesiastical courts, as Leo XIII taught in his letter Arcanum 10 Feb. 1880. However, in England and in the United States of America, with the leave of the bishop, a Catholic for just cause may petition for judicial separation and probably even for divorce in the civil court.¹

1 Manual of Moral Theology, voL i, 587, 591; vol. ii, 281.

2. May a Catholic judge pass sentence of divorce in a civil court, and may a Catholic lawyer petition for it in the same court?

This is a disputed question, and something depends on the country and the law under which the trial takes place. Confining ourselves to England and to the United States, it is probable that for grave reason both may be allowed, though it is better to have nothing to do with such cases as far as possible.²

2 Ibid., vol. i, 591; vol. ii, 283.

3. Can all the answers given by the Roman Congregations on this question be applied equally to all countries?

No, the circumstances of Catholic countries, of countries where the majority of the people are Catholics, but where sometimes the government is hostile to the Church, and of most English-speaking countries, are widely different, and much depends on circumstances. Thus the Holy Office, 27 May 1886, answered that in France a judge could not abstract from the objective validity of a marriage and give sentence of divorce as far as the civil effects were concerned. The nuncio in Belgium declared 14 Sep. 1886, that this answer did not refer to Belgium.³

3 Ballerini-Palmieri, Opus Morale, vol. vi, n. 825.

4. What should the confessor say?

The confessor should tell Titius, who is obviously a conscientious Catholic, that he should write to the bishop and ask for his leave to undertake the case. This will give the bishop the opportunity of satisfying himself about the reality of the facts alleged in the case, and perhaps of suggesting some way of avoiding all the scandal and unpleasantness of a divorce case among Catholics. If Titius gets the bishop’s leave he will be able to proceed without scruple.