The impediments in general

556. Notion and Division. 1. "All can contract matrimony who are not prohibited by law."¹ Now prohibitions arising from law, whether divine or human, which render a person incapable of entering matrimony, are called impediments. Therefore an impediment of matrimony is generally called a circumstance which, from a statute of law, whether divine or human, renders a human being incapable of contracting matrimony. Impediments of matrimony are of a twofold kind: some are diriment, which prohibit matrimony under grave obligation and effect that it cannot be entered either licitly or validly; others are only impedient, which prohibit matrimony under grave obligation and effect that it cannot be entered licitly. Therefore impediments of matrimony are laws either only prohibiting, or prohibiting and at the same time invalidating.

They are called diriment not because they dissolve a valid matrimony, but because they stand in the way so that an attempted matrimony cannot be validly entered.

2. An impediment is called certain if the law and the fact are established, and doubtful if either the law or the fact or both are not established. If the law is not established, it is doubtful by doubt of law; if the fact is not established, it is doubtful by doubt of fact; if both are not established, it is doubtful by doubt of law and fact.

3. An impediment is judged public which can be proved in the external forum, and occult which cannot be proved in the external forum.²

Not the knowledge of many among men, but the possibility of proving in the external forum, is the reason for this division. Wherefore, e.g., consanguinity or affinity, even if unknown to men, are never occult impediments, since they can be proved from canonical books. Two or three witnesses above every exception suffice for proving the matter in the external forum; indeed sometimes the deposition of one witness makes full faith, if it is a qualified witness who testifies concerning things done from office.³

4. Although an impediment has itself on the part of one side only, nevertheless it renders the matrimony either illicit or invalid.⁴

¹ Cn. 1035.

² Cn. 1037.

³ Cn. 1791.

⁴ Cn. 1036, 3.

557. On a Doubtful Diriment Impediment. A doubtful impediment here is understood as an impediment which exists not certainly but only probably, namely where after diligent investigation of the truth there remains a founded doubt concerning the existence of the impediment. Moreover doubt, or probability, can be of law or of fact; and doubt of law can be of divine law or of ecclesiastical law.

a. It is licit to enter matrimony with a doubtful impediment if the doubt is of law and indeed of ecclesiastical law, because in this case the Church supplies, or rather because the law from the will of the Church in this case does not oblige: "For laws, even invalidating and incapacitating ones, do not urge in a doubt of law."¹ And because matrimony can be licitly entered with an impediment of this kind, theologians are accustomed to say that a doubtful ecclesiastical impediment, by doubt of law, is no impediment.

b. It is not licit to enter matrimony with a doubtful impediment if the doubt is of divine law or a doubt of fact. If the doubt is of divine law, the Church cannot supply, and therefore the sacrament would be exposed to the danger of nullity; if the doubt is of fact, it is established that the Church itself does not wish to supply, but the ordinary in this case can dispense: "For in doubt of fact, ordinaries can dispense in laws, even invalidating and incapacitating ones, provided there is question of laws in which the Roman pontiff is accustomed to dispense."²

Therefore if, e.g., it is probable that the bridegroom is related by blood in the third degree with his bride, he contracts matrimony illicitly; and if he is in reality related by blood, also invalidly. But the Church does not render matrimony valid in doubt of fact because in this doubt per se and ordinarily the truth can be discovered, and only per accidens in a particular case is it not discovered. Hence if a doubtful impediment by doubt of fact stands in the way of matrimony, dispensation must be sought as a precaution, which in this case the bishop can grant.

¹ Cn. 15.

² Cn. 15.

558. Diriment Impediments Are Divided: 1. By reason of origin, into impediments of natural law, positive divine law, and ecclesiastical law, according to the diverse authority which establishes the impediment. Impediments of natural law are impotence and consanguinity in the first degree of the direct line; of divine law, bond; the rest are of ecclesiastical law.

All human beings are subject to impediments of divine law, whether natural or positive, both the faithful and infidels; only the faithful, at least directly, are bound by impediments of ecclesiastical law; only infidels are bound by impediments of civil law.

2. By reason of extension, into absolute, which dirimently impede matrimony with any person, such as vow, order, bond, age, absolute impotence; and relative, which dirimently impede matrimony only with certain persons, such as relationship, crime, disparity of cult, fear, public honesty, affinity, relative impotence, and abduction.

3. By reason of dispensation, into dispensable impediments, in which the Church can and is accustomed to dispense; and indispensable, in which the Church either cannot dispense or is not accustomed to. Of the first kind are almost all impediments of merely ecclesiastical law; of the second kind are impediments of natural and divine law and some of ecclesiastical law.

4. By reason of the immediate end and right of impugning matrimony, into impediments of public law, whose immediate end is principally the common good, and therefore the right and office of impugning matrimony invalid from such an impediment belongs to all the faithful, and to the ecclesiastical judge by reason of office; and impediments of private law, whose immediate end is principally the private good of the contracting parties, and therefore the right and office of impugning matrimony invalid from such an impediment belongs proximately to the contracting parties themselves, and the ecclesiastical judge proceeds against the matrimony only at the instance of the contracting parties.

Of this kind is impotence; the rest are of public law. Hence matrimony invalid because of the impediment of impotence can be impugned only by the spouse, by demanding a declaration of nullity. On the contrary, since, e.g., bond is an impediment of public law, the ecclesiastical judge can and must impugn from office a matrimony invalid because of the impediment of bond.

5. By reason of gravity and moment, into impediments of minor degree, such as:

a. Consanguinity in the third degree of the collateral line;

b. Affinity in the second degree of the collateral line;

c. Public honesty in the second degree;

d. Spiritual relationship;

e. Crime from adultery with promise or attempted matrimony, even through only a civil act;

and impediments of major degree, such as all the rest.¹

In minor impediments, dispensation is valid even if obreption or subreption intervened in the petition, even if the sole final cause was false.²

¹ Cn. 1042.

² Cn. 1054.

559. Who in the Church Can Establish Impediments.¹ 1. The supreme ecclesiastical authority alone, the supreme pontiff and a general council, can:

a. establish impedient and diriment impediments for the baptized by way of law, whether universal or particular;

Several doctors think that bishops by divine law can establish impedient and diriment impediments after the manner of law and that they have in reality exercised this power; but that the supreme pontiff Gregory IX reserved this power to himself alone. But most authors deny that bishops have this power from ordinary right. It belongs to the Roman pontiff by ordinary right; but to a general council, which represents the universal Church, by extraordinary right. An Ecumenical Council, as a legitimate general synod, derives its authority from the pope, without whose confirmation its decrees do not have force for obtaining all the faithful. The new Code reserves the same to the Roman pontiff, Cn. 1038, 2.

b. authentically declare when divine law impedes or dirimently impedes matrimony;

c. abrogate or derogate from impediments of ecclesiastical law, whether impedient or diriment, and dispense in them, unless this faculty has been conceded by the Holy See to others.

2. Ordinaries of places can for a just cause, and while it endures, forbid matrimony in a particular case, but only for a time, to all actually staying in their territory and to their subjects even outside the territory; but only the Apostolic See can add an invalidating clause to the prohibition.²

a. Causes on account of which matrimony can be prohibited: a. doubt whether some circumstance impedes or dirimently impedes matrimony; b. probable fear lest grave inconveniences arise from the matrimony, such as scandals or enmities.

b. The parish priest, who lacks jurisdiction in the external forum, forbids matrimony for a time by a simple extra-judicial prohibition until the matter has been decided by the bishop.

3. Custom inducing a new impediment or contrary to existing impediments is reprobated by law.

There exist impediments introduced by custom, e.g., disparity of cult, spiritual relationship; for the future, impediments of this origin are excluded.

Note. Since Christ the Lord elevated the matrimonial contract itself, without changing its nature, to the dignity of a sacrament, it could seem that the Church, because it institutes and abrogates diriment impediments, changes the sacramental institution of Christ. But it must be noted that the contract which Christ increased with the dignity of sacrament is not a merely natural or civil contract, but a canonical one, whose value depends on natural and positive law, both divine and ecclesiastical.

¹ Cn. 1038-1041.

² Cn. 1039.

560. Whom the Matrimonial Laws of the Church Oblige. 1. The matrimonial laws of the Church oblige all the faithful, not only Catholics but also heretics and schismatics. Wherefore canonical impediments affect also the marriages of heretics. And indeed the Church has never recognized as valid the marriages of heretics to which a canonical impediment stood opposed,¹ and has more often declared that not even the custom of the longest time can effect that, as regards heretics, the matrimonial laws of the Church lose their force.²

Some theologians of Germany, such as Laymann and Schmalzgrueber, thought that the Church indeed can, but does not wish, to oblige even heretics by its matrimonial laws, and therefore that the Church exempts heretics from at least some canonical impediments. But today there is no longer a theologian who professes this opinion. Nor, however, must it be inferred that the offspring of heretics are frequently illegitimate; for since heretical spouses ordinarily are in good faith, their matrimony is putative, and therefore the offspring legitimate.

That heretics and schismatics also are held by ecclesiastical laws as regards marriages is not doubtful from the new Code, which is proved a. from the general principle established in Cn. 12 and Cn. 87, by which all baptized persons are held by the laws of the Church; b. from Cn. 1038, 2, by which the right of the Church is vindicated for establishing impediments for all the baptized; c. from Cn. 1099, by which this is expressly indicated if it intends to exempt heretics from some law; d. nor does ignorance or good faith excuse them, since Cn. 16 says that no ignorance excuses from invalidating and incapacitating laws.

2. The matrimonial laws of the Church do not oblige infidels; therefore canonical impediments at least directly do not affect the marriages of infidels, for over infidels the Church exercises no power of jurisdiction.

Directly is said because indirectly, and indeed in a threefold case, the power of the Church extends even to the marriages of infidels. a. Marriages of infidels are ruled by natural and divine law; but the Church is the infallible interpreter of natural and divine law; wherefore declarations of this law made by the Church extend also to infidels. b. If an infidel contracts matrimony with a faithful person, because the latter is subject to the laws of the Church, by reason of connection the infidel also is indirectly subject to the Church. c. If an infidel joined in matrimony is converted to the faith, that person's matrimony can be dissolved through dispensation of the supreme pontiff, in which case the matrimony of the one who remains in infidelity is subjected to the Church by reason of the faithful other party.

Article Two.. On Impedient Impediments.

a. Some impedient impediments are improperly so called, which stand in the way of matrimony insofar as it is a sacrament, such as mortal sin and excommunication; others are properly so called, which stand in the way of matrimony as it is a contract. The discussion here is concerning the latter.

b. In the old law impediments of this kind were numbered five: the prohibition of the Church, time, betrothals, vow, and mixed religion.

c. In antiquity two other impedient impediments of matrimony were numbered, namely the impediment of catechism and of crime. By the name catechism is understood the profession of faith which the person to be baptized had to emit in antiquity, and still partly emits, through questions and answers before the doors of the church, when asked whether he renounces Satan, whether he believes, etc. Now the one who held the person to be baptized in catechism and answered for him, who in antiquity was distinct from the baptismal sponsor, contracted a certain imperfect spiritual relationship, which was designated by the name impediment of catechism. The impediment of crime arose from seven different delicts, such as incest, killing of a priest, killing of a spouse, etc. The impediment of catechism was abrogated through the Council of Trent,³ the impediment of crime through universal custom.

d. In the new law, from these, only two impedient impediments are mentioned: vow and mixed religion, to which is added a third new one, namely legal relationship.

¹ Cf. Becker, p. 34 f.

² Concerning this question, the three constitutions of Benedict XIV can be consulted: Matrimonia, November 4, 1741; Magnae, June 29, 1748; Ad tuas manus, August 8, 1748. Cf. Cn. 12 and 87.

³ Sess. 24, c. 2, De reform. matr.

568. Declaration. a. In order that matrimony can be entered validly and licitly, three things are required: capable persons, sufficient consent, and due form. Therefore three things impede the validity or liceity of matrimony: incapacity of persons, defect of consent, and defect of form. In the old law all these were called impediments of matrimony and were customarily treated together under the title of impediments. The new Code calls only incapacities of persons strictly and properly impediments of matrimony and treats them under this title; concerning defect of consent and defect of form it speaks elsewhere.

b. Impediments immediately keep one away from entering the contract, and mediately and consequently also from receiving the sacrament.

c. In the new law there are numbered only thirteen diriment impediments: 1. age, 2. impotence, 3. bond, 4. disparity of cult, 5. sacred order, 6. religious profession, 7. abduction, 8. crime, 9. consanguinity, 10. affinity, 11. public honesty, 12. spiritual relationship, 13. legal relationship.

THE impediments of marriage are certain conditions or circumstances which prevent marriage between the persons whom they affect. Some have their origin in natural and divine law, as the impediment of previous marriage, which as long as it lasts prevents a second marriage; others have their origin in ecclesiastical law, like that of public decency. Some prevent marriage being lawfully contracted and are called prohibitory, though a marriage contracted in spite of them is valid; others are diriment impediments and where they exist prevent marriage being validly contracted; but if they arise after marriage has already been contracted they cannot make it null and void.

Diriment impediments are, in general, annulling laws which for the common good make the parties affected incapable of contracting a valid marriage, and render the act null and void if marriage is attempted in spite of them. Such laws remain in force in spite of ignorance or fear, and so as a general rule a marriage contracted in ignorance of a diriment impediment which exists between the parties is null and void in spite of the ignorance. In the same way private inconvenience does not make a diriment impediment cease to bind, but if the law cannot be observed without causing public harm and inconvenience, then it ceases to be of obligation. ‘Thus, if illness prevents one of the parties from going to be married in the Church on the day appointed, he is not justified in contracting marriage privately at home; but if all the priests of a country are driven out, as were those of France in the Revolution, marriage may be contracted without the presence of the parish priest,

The impediments of natural and divine law bind all men, whether infidels or Christians, and so a marriage between parent and child is always and everywhere null and void. The civil authority more probably has power to make impediments of marriage which will bind its non-baptized subjects, but the Church alone has power to make impediments for Christians who have been baptized.¹ All baptized persons, whether Catholics or heretics or schismatics, are subject to the diriment impediments of marriage unless they have been specially exempted from them. For all who are baptized thereby become members of the Church of Christ and subject to the - jurisdiction of the divinely constituted head of that Church.

The Supreme Pontiff, then, has power to bind all who are baptized by those impediments of marriage which are of ecclesiastical origin. Neither the practice of Rome nor the express declarations of the Popes afford any ground for the opinion that it is not the Church’s intention to bind heretics and schismatics by the diriment impediments of marriage.

Especially since the time of Benedict XIV many cases have been decided of marriage contracted between non-Catholics being declared null and void on account of some impediment of ecclesiastical origin. The general principle is clearly stated in the answer of the Sacred Congregation of the Council to the Bishop of Rosenau, August 20, 1780: ‘‘ But, you say, because heretics in Hungary marry among themselves even within the prohibited degrees in virtue only of royal permission, I may well be asked what is to be said about the validity of such marriages. The answer is that unless a lawful dispensation of the Church by whose authority those impediments were introduced is obtained for them, the declaration of Benedict XIV clearly decides that those marriages are invalid. For it lays down that in Holland marriages between heretics are to be held as valid, even though the form prescribed by the Council of Trent was not observed in solemnizing them, provided that no other canonical impediment stood in the way; and this exception shows clearly that if there be any other canonical impediment, such as exists within the forbidden degrees of kindred, those marriages are not valid.”

According to the common opinion, then, marriages contracted by baptized heretics and schismatics, when there is a diriment impediment of ecclesiastical origin between the parties, are invalid, though the impediment may not be recognized in the sect to which they belong. Such marriages, however, inasmuch as they are contracted in good faith, are putative, and the children are legitimate,

¹ Leo XIII, Encyc. Arcanum, February 10, 1880.

The impediment called the Church’s prohibition is either special or general. A special prohibition of marriage is issued by the parish priest, or the Bishop, or the Pope, when it has been found out that the proposed marriage will violate the rights of a third party, or when a well-founded suspicion arises that there is some impediment between the parties (Can. 1023, sec. 3). By a general prohibition is understood a law of the Church which forbids marriage in the circumstances but does not make it null and void if in spite of the prohibition it is contracted. Thus the Church forbids marriage without banns and mixed marriages. We have already treated of the law concerning banns, and it will be more convenient to treat of mixed marriages under the diriment impediment of disparity of worship. Clandestinity, or marriage without the presence of the parish priest and witnesses, is now a diriment impediment, to be treated of below. In Great Britain and in the greater part of the United States of America the decree Tametsi was never published, but clandestinity is now a diriment impediment of marriage in Great Britain and in the United States, as well as throughout the Western Church, by virtue of the decree Ne temere, August 2, 1907, and Canon 1094.

There are several simple vows which are so many prohibitory impediments of marriage.(Can. 1058).

A vow of chastity hinders marriage, for he who has taken such a vow exposes himself to the danger of violating it if he marries, or of depriving the other party of his marital rights. Even after marriage has been contracted the obligation of the vow remains, unless a dispensation is obtained or the obligation of the vow is indirectly annulled by the other party.

By a vow of virginity he who takes the vow promises God that he will not commit a consummated sin against chastity. He will sin, therefore, by marrying, because he exposes himself to the danger of breaking his vow or of defrauding the other party of his rights. If by a consummated sin against chastity his virginity has been destroyed, the vow can no longer be observed, and ceases.

The same rules hold with regard to a vow of celibacy which is violated by marriage, but after marriage has been contracted no further obligation remains.

Chastity, virginity, and celibacy are loosely used one for the other, and if a case arose in the confessional the intention of the penitent would have to be inquired into in order to discover what obligation he wished to take upon himself by his vow.

One who has vowed to receive sacred orders would commit sin by marrying, for by marriage the other party obtains rights which are incompatible with the observance of the vow. Canon 987 lays down that marriage is an impediment to the reception of orders, and so the obligation of the vow will ordinarily cease as being impossible of fulfilment, though per se it is only suspended, and revives on the death of the other party.

Similarly, one who has taken a vow to enter religion commits sin by marrying, as he makes the observance of his vow difficult or impossible. Before consummating marriage he is still bound by his vow if it bound him to enter a religious order in the strict sense. After marriage has been consummated he may use his marital rights, and the vow usually ceases on account of impossibility of observance.

WHEN there is 1 doubt as to the existence of a diriment impediment which annuls marriage by natural or divine law, marriage must not be contracted, for as there would always be a doubt as to whether it was valid, the parties would be exposed to the continual danger of sinning against the natural law. Theologians make an exception to this general rule in favour of those who labour under probable impotence, for these may marry on account of the strong presumption that all men are potent unless the contrary is certain, and because it would be an intolerable hardship to prohibit a person from marrying because of such a doubt (Can. 1068, sec. 2). In the case of a doubtful impediment of positive law, we must distinguish between a doubt of law and a doubt of fact. When there is a doubt whether the positive law extends to the particular case, as whether spiritual relationship arises between the sponsors in a private Baptism and the child, the impediment practically does not exist, as the law is of strict interpretation and the Church dispenses as far as is necessary in such a case of doubt, When the doubt is about a fact, as whether the parties are related within the prohibited degrees of kindred, the Church does not supply if the impediment really exists, and a dispensation should be asked for to make sure. The Bishop has power to dispense in such cases of doubt (Can. 15). When marriage is contracted with a supposed impediment which in reality does not exist, the marriage will of course be null and void if the parties thought that it was altogether impossible, and merely intended to go through the external form. On the other hand, it would seem to be valid if they intended to marry as far as they could, though they were afraid they could not do so. And so if one whose consort has been absent for a long time and who is not known to be dead, as in fact he is, marries again, giving her consent to the marriage as far as possible, it would seem that the marriage is valid though unlawful.

THE Church cannot grant a dispensation from those impediments which belong to the natural and divine law. She cannot, for example, allow a Christian to marry again while a former wife is still alive, nor dispense in a case of certain impotence. Although she can dispense in all impediments which have their origin in ecclesiastical law, yet as a matter of fact she but seldom does so in some of them, such as the priesthood, and affinity in the first degree arising from consummated marriage. The Council of Trent decreed universally that ‘‘ as regards marriages to be contracted, either no dispensation at all shall be granted, or rarely, and then for a cause, and gratuitously.”¹ Still, according to modern discipline it is not uncommon for dispensations to be granted in the more remote degrees of consanguinity and affinity, in spiritual relationship, in occult crime, and in some other impediments,

¹ Sess. xxiv, c. 5, de ref. Matr.

As the diriment impediments of marriage belong to the common law of the Church, per se only the Holy See can lawfully dispense in them.

However, in certain cases, whether by law or by special indult, bishops and others have power to dispense.

(a) A bishop can dispense a doubtful impediment when the doubt is about a fact (Can. 15).

(b) In pressing danger of death, local Ordinaries, to appease conscience, and, if the case admit of it, for the legitimation of offspring, can dispense both in the form to be observed in the celebration of marriage, and in each and all impediments of ecclesiastical law, whether public or occult, even though they are manifold, except the impediments arising from the sacred order of priesthood, and of affinity in the direct line when marriage has been consummated (they can dispense) their own subjects wherever they be, and all who are actually staying in their territory, but scandal must be avoided, and if the dispensation is granted for difference of religion or for a mixed marriage, the usual promises must be given (Can. 1043).

(c) In the same circumstances, and only for cases in which not even the local Ordinary can be approached, both the parish priest has the same power of dispensing, and the priest who assists at marriage contracted in danger of death in accordance with Canon 1098, n. 2, and a confessor, but the latter for the internal forum in the act of sacramental confession only (Can. 1044).

(d) Subject to the clauses laid down at the end of Canon 1043, local Ordinaries can dispense in all the impediments mentioned in that same canon, whenever the impediment is discovered when everything is ready for the marriage, and without probable danger of grave harm the marriage cannot be put off until a dispensation is obtained from the Holy See (Can. 1045).

(e) This same faculty avails also for the convalidation of marriage already contracted, if there is the same danger in delay, and there is no time to have recourse to the Holy See (ibid., sec. 2).

(f) In the same circumstances, the parish priest and other priests mentioned in Canon 1044 have the same faculty, but only for occult cases in which not even the local Ordinary can be approached or not without danger of violating the seal of confession (ibid., sec. 3).

The parish priest or the priest mentioned in Canon 1044 should at once notify the local Ordinary of the dispensation granted for the external forum; and enter it in the book of marriages (Can. 1046).

The above special faculties for particular cases are granted by law; sometimes Bishops receive other faculties for granting dispensations by indult from the Holy See. The Code lays down the following rules which govern the exercise of such faculties: In marriages already contracted or to be contracted, he who has a general indult for dispensing in a certain impediment can dispense in it even though it is manifold, unless the indult expressly prescribes otherwise (Can. 1049, sec. 1).

One who has a general indult for dispensing in several impediments of different kinds, whether diriment or prohibitory, can dispense in those same impediments even if they are public, when they occur in one and the same case (ibid., sec. 2).

If ever together with a public impediment or impediments, in which one can dispense by indult, there is another impediment in which he cannot dispense, the Holy See ought to be approached for all of them; but he can use his faculties if the impediment or impediments in which he can dispense are discovered after a dispensation has been asked for from the Holy See (Can. 1050).

By a dispensation in a diriment impediment granted either by ordinary authority or by authority delegated by general indult, but not by rescript in particular cases, legitimation of offspring is thereby also granted if any was born or conceived of those who were dispensed, with the exception of adulterous or sacrilegious offspring (Can. 1051).

A dispensation from an impediment of consanguinity or affinity granted in any degree of the impediment is valid notwithstanding a mistake about the degree in the petition or in the grant, provided that the true degree is lower, or although another impediment of the same kind in an equal or lower degree was not mentioned (Can. 1052).

A dispensation granted from a minor impediment is annulled by no defect of obreption or subreption, although the only motive cause mentioned in the petition was false (Can. 1054).

The impediments of minor degree are:

(a) Consanguinity in the third degree of the collateral line.

(b) Affinity in the second degree of the collateral line.

(c) Public propriety in the second degree, (d) Spiritual relationship.

(e) Crime arising from adultery with a promise of marriage, or with attempted marriage even though it be only civil. All the other impediments are of greater degree (Can. 1042).

The Pope grants matrimonial dispensations through various Roman Congregations. The Congregation of the Holy Office grants dispensations in mixed marriages and in the impediment of difference of religion. The Congregation on the Discipline of the Sacraments grants dispensations from public impediments and for the external forum. The Sacred Penitentiary grants dispensations only for the internal forum. If a case occur in which there is both a public and an occult impediment, the petition for dispensation from the public impediment should be sent to the Sacred Congregation on the Discipline of the Sacraments in the ordinary way, and another petition without mentioning the real names of the parties should be sent to the Sacred Penitentiary, mentioning the public impediment in the case as well as the occult.

Dispensations are granted gratuitously by the Sacred Penitentiary, but for dispensations from public impediments granted by the Roman Congregations besides the expenses of agency a small tax is imposed on those who can afford to pay. This is lowered or altogether remitted in favour of the poor.

As only males and those who are baptized can be validly ordained, the same two conditions are required in order to be subject to irregularity. There is nothing to prevent the same person from being subject to several different irregularities arising from different defects or crimes, nor from being subject to several irregularities of the same species arising from several crimes committed against different people, as from several homicides; but otherwise only one irregularity is contracted from one and the same cause though several times repeated, and so a priest who while under suspension celebrates Mass several times only incurs one irregularity (Can. 989).

Whenever there is a doubt either of law or of fact as to whether an irregularity has been incurred, almost all authorities agree that in practice it must be held not to have been incurred.

Irregularities are incurred even by those who are ignorant of them (Can. 988).

Besides irregularities which of themselves are perpetual impediments to the reception of Orders, the Code enumerates certain simple impediments which cease to exist on certain conditions. They are: (1) The sons of non-Catholics as long as their parents remain in error; (2) husbands who have wives; (3) those who hold an office forbidden to clerics; (4) slaves; (5) those bound to military service; (6) neophytes; (7) those who labour under infamy of fact (Can. 987).

I. Notion. An impediment, taken in the broader sense, is a circumstance which prevents marriage from being able to be contracted licitly or even validly. In the strict sense, it is a circumstance which prevents this by law, not by mere precept. A particular precept or prohibition can indeed render someone's marriage illicit, but it is not called an impediment in Canon Law (cf. canon 1039, § 1 and 2).

II. Division. Impediments are divided:

1. By reason of cause, into impediments of divine law and of human law, and of the latter either ecclesiastical or civil.

2. By reason of extent, into absolute and relative, according as they prevent marriage with any person whatever or only with certain persons. Of the former kind are, for example, bond, age, etc.; of the latter kind are, for example, consanguinity, affinity, etc.

3. By reason of effect, into impedient and diriment. An impedient impediment contains a grave prohibition of contracting marriage; nevertheless the marriage is not rendered invalid if, notwithstanding the impediment, it is contracted (canon 1036, § 1). A diriment impediment both gravely prohibits a marriage to be contracted and prevents it from being contracted validly (canon 1036, § 2). Although the impediment is present only on one side, nevertheless it renders the marriage either illicit or invalid (canon 1036, § 3).

4. By reason of duration, into temporary and perpetual. The former are those which cease by the passage of time, such as age; or at least can cease without dispensation, such as mixed religion. The latter are those which either cannot cease at all or cannot cease without dispensation, such as consanguinity.

5. By reason of demonstrability, into public and occult. An impediment is judged public if it can be proved in the external forum;¹ otherwise it is occult (canon 1037).

An impediment is called public by its nature insofar as it rests upon a fact which is public of itself; of this kind are, for example, the impediment of age, of legitimate consanguinity, etc. It is called public by fact insofar as the fact from which the impediment arises can be legitimately proved, or by prescription of law does not need proof. The word "fact" is used; but to the fact, if the discussion concerns a delict carrying an impediment with it, culpability also pertains; however, it is not required that it be known that an impediment arises from some fact.²

An impediment occult by its nature is an impediment which rests upon a fact occult of itself, of which kind are, for example, impotence, illegitimate consanguinity, etc. An impediment of this sort ought to be held as truly occult only when the fact cannot be legitimately proved.

6. By reason of the degree of knowledge, into certain and doubtful, according as prudent doubt is excluded or not excluded. A doubt can be a doubt of law only, or a doubt of fact only, or a doubt of law and fact. Besides this, a doubt of law can turn upon divine law, or human law, whether ecclesiastical or civil.

7. By reason of gravity, into impediments of the lesser degree and of the greater degree (canon 1042); of these we shall speak in their own place.

8. By reason of dispensation, into dispensable and indispensable, according as they are often or at least sometimes removed by the Church, or cannot be removed by her, or at least are scarcely ever taken away.

9. By reason of the forum in which dispensation is granted, at least of itself, into impediments of the external forum and of the internal forum. I said at least of itself, because in some circumstances impediments which pertain to the external forum can also be taken away in the internal forum, as will be explained in its own place.

¹ As regards proof, canon 1791 should be attended to: the deposition of one witness does not make full proof, unless he is a qualified witness who deposes concerning matters done by reason of office. If under the faith of an oath two or three persons, above every exception, firmly agreeing with one another, testify in court concerning some matter or fact from their own knowledge, sufficient proof is had; unless in some cause the judge, because of the very great gravity of the matter or because of indications which introduce some doubt concerning the truth of the matter asserted, judges fuller proof necessary (canon 1791).

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

III. The subject to whom power concerning impediments belongs. 1. It belongs to the supreme ecclesiastical authority alone to declare authentically when divine law impedes or dirimently invalidates marriage (canon 1038, § 1).

2. The same supreme authority exclusively has the right to establish other impediments, impedient or diriment, for the baptized, by way of law, whether universal or particular (canon 1038, § 2).

Note. Local Ordinaries can forbid marriages in a particular case to all actually staying in their territory and to their subjects even outside the boundaries of their territory, but only for a time, from a just cause, and while that cause endures. Only the Apostolic See can add an invalidating clause to a prohibition (canon 1039). It says "from a just cause"; but just causes are: a founded suspicion of a diriment or impedient impediment; a founded fear that the marriage will give occasion to enmities, scandal, or other inconveniences, etc. (St. Alphonsus VI, 982). A pastor cannot forbid a marriage even in a particular case; but if the marriage is illicit, he can and must abstain from assistance and meanwhile refer the matter to the Ordinary.

3. Except the Roman Pontiff, no one can abrogate impediments of ecclesiastical law, whether impedient or diriment, or derogate from them; likewise no one can dispense in them unless this power has been granted by common law or by a special indult from the Apostolic See (canon 1040).¹ To what extent the power of dispensing has been granted to Ordinaries and priests by common law will be stated later (cf. canons 15, 1313, 1043-1045, 81).

Note. A custom introducing a new impediment or contrary to existing impediments is reprobated (canon 1041). Therefore: 1° if at present a custom contrary to existing impediments is in force, it is to be corrected as a corruption of law, and must not be permitted to revive in the future (canon 5); 2° if in the future a custom arises introducing a new impediment or contrary to existing impediments, it is not reasonable (canon 27, § 2), and therefore cannot obtain the force of law or abrogate impediments or derogate from them.

¹ Constitution of Pius VI Auctorem fidei, August 28, 1794 (props. 59, 60); Pius IX, Syllabus of Errors (prop. 58).

IV. The passive subject of impediments. 1. All human beings are bound by impediments of divine law, whether natural or positive.

2. As regards impediments of ecclesiastical law, these things hold:

a) In general, all baptized persons are bound by impediments of ecclesiastical law, even non-Catholics, as is clear from the Constitution of Benedict XIV Matrimonia and Singulari nobis; likewise from the practice of the Church in revalidating marriages entered by heretics in heresy with an impediment; finally from the fact that exemption is clear from no source, nor is it suggested by the Code of Canon Law; and this presses all the more because the Code expressly exempts non-Catholics from the form of marriage.

b) Infidels after Baptism are bound not only by impediments whose cause was placed after Baptism, which is clear, but also by those impediments whose cause was placed before Baptism, if the foundation of the impediment is a natural bond, such as consanguinity. Otherwise one must speak if the foundation is to be placed in the mind of the Church, as in the impediment of spiritual relationship. If the foundation of the impediment is a certain civil bond, as in legal relationship, the matter seems doubtful.

c) Those certainly but doubtfully validly baptized seem to be held by ecclesiastical impediments; this is deduced from the argument proposed in vol. I, n. 130. There is added a response of the Holy Office¹ which in its obvious sense favors this opinion, although others understand it of the presumption by which a baptism doubtfully valid is presumed to have been conferred duly.² If the fact of Baptism is doubtful, the question is solved with more difficulty (vol. I, n. 130).

Corollary I. A marriage between a faithful person bound by an ecclesiastical impediment and an infidel is illicit or invalid according as the impediment is impedient or diriment, because it is sufficient for the effect of the impediment that it be present on one side only (canon 1036, § 3).

Corollary II. A marriage between an infidel bound by a civil diriment impediment and a faithful person, according to several authors, is invalid even after dispensation in disparity of cult; for since one party is incapable, the reason given above holds. Nevertheless, the contrary opinion is not without foundation, according to what was said in n. 742.

¹ February 4, 1891 (Collectanea, n. 1746).

² Cf. Holy Office, July 14, 1880 (Collectanea, n. 1536).

V. Causes excusing from a diriment impediment. 1. Ignorance, even invincible, does not exempt from a diriment impediment. For canon 16, § 1 declares: "No ignorance of invalidating or incapacitating laws excuses from them, unless something else is expressly stated."¹ There had been dispute about an impediment of crime unknown to the person; but since nothing else is stated, every doubt has been removed.

2. Nor does grave inconvenience or necessity excuse from a diriment impediment. The reason is that the common good requires that invalidating laws retain their force, even if the invalidation is unknown or the act cannot be avoided without grave inconvenience (St. Alphonsus VI, 1079). Nevertheless, it is not clear that in an altogether extraordinary case there is no place for epikeia, for instance if, while the impediment of disparity of cult presses, the faithful in some region could not enter marriage.²

Question. To what extent is it licit to enter marriage with a doubtful diriment impediment?

Response 1. It is not licit if the matter concerns an impediment of divine law, whether natural or positive, whether the doubt is of law or of fact.³ The reason is that the matrimonial contract, since it is a sacred contract and, if it is entered by the faithful, is a sacrament, cannot be exposed to danger of nullity (St. Alphonsus VI, 902, q. 3). Therefore, for example, an infidel brother and sister, although they are not held by the impediment of consanguinity insofar as it is ecclesiastical, cannot enter marriage, because there is a doubt of law concerning the natural impediment; likewise even infidels are not permitted to enter nuptials in a doubt of fact, for example whether the parties are consanguineous in some degree of the direct line or in the first degree of the collateral line. There is added, as regards the faithful, that the said marriages are certainly opposed by a diriment impediment to marriage, from which dispensation is never given (canon 1076, § 3).⁴

The case of doubtful impotence is excepted, however, whether by doubt of law or by doubt of fact (canon 1068, § 2): by doubt of law, for example where organs are lacking which probably are required for a valid marriage; by doubt of fact, namely if it is not known whether copula between such persons is possible or not. The reason for the exception is that the theoretically probable right of marrying prevails over the reverence owed of itself to the matrimonial contract, or because the inconvenience of not marrying is so great that, in order to avoid it, it is licit to neglect the reverence owed of itself to the said contract (St. Alphonsus VI, 1102).

Response 2. If the matter concerns an impediment of ecclesiastical law, a distinction must be made.

1° In a doubt of law it is licit to contract: for "laws, even invalidating and incapacitating laws, do not oblige in a doubt of law" (canon 15). This certainly holds if there is common or fairly common doubt concerning the existence of the impediment. Whether the rule holds, "Whenever non-existence is probable, the impediment does not oblige," even though many deny the probability - whether that rule holds, I say, can seem doubtful to someone. The reason for doubting is taken from the fact that a rule of this kind would give occasion to invalid marriages; for there is danger lest many regard as probable what is not truly probable, and thus, being disposed in mind, permit marriage to be contracted without dispensation.⁵

2° In a doubt of fact it is not licit to contract, but dispensation must be sought, at least for caution. Otherwise the marriage is exposed to danger of nullity. But the Church grants to Ordinaries the faculty of dispensing in doubts of this kind, if the matter concerns impediments in which the Roman Pontiff is accustomed to dispense (canon 15); these things also hold, as is clear, if the matter concerns convalidating a marriage already contracted. If, however, the doubt turns upon Baptism, what will be said concerning disparity of cult should be attended to.

¹ Holy Office, July 4, 1855 (Collectanea, n. 1114); December 9, 1874 (Collectanea, n. 1427); February 4, 1891 (Collectanea, n. 1746).

² Cf. Holy Office, June 4, 1851 (Collectanea, n. 1062).

³ A doubt of law is one which regards the law itself of the impediment, for example whether this or that condition is required for inducing the impediment. A doubt of fact is one which regards the fact on which the rise of the impediment or its continuance depends.

⁴ Cf. Holy Office, April 6, 1906. If infidels have entered such a marriage, the fact stands; nor after conversion can an obligation of separation of itself be imposed. The Holy See, however, can permit new nuptials, either, if only one has been converted, by declaring liberty from the prior bond in favor of the faith, or by dispensing for caution from the bond contracted in infidelity, provided the marriage has not been consummated after the Baptism of both.

⁵ Thus, for example, some hold it as probable that the impediment of spiritual relationship between sponsor and baptized person does not arise from private Baptism. Thus many authors held as probable that the Constitution Provida persisted even after the Code of Canon Law; but it seems certain that marriages entered since the Code came into force according to the norm of the said Constitution are invalid.

I. Effect of the impediment. One who is bound by a promise not to use marriage: if he has obligated himself from fidelity, exacts the debt lawfully but unlawfully; if he has obligated himself from justice, he exacts the debt neither lawfully nor licitly. He can nevertheless ask amicably, because the partner is able to remit the promise. Thus theoretically, because in practice a promise of this sort will easily be invalid, or at least will not be able to be urged.

Canonical Requirements for Ordination.—(a) Positive requirements are: proper age (that is, the twenty-first, twenty-second, and twenty-fourth years completed are necessary for subdeaconship, deaconship, priesthood, respectively); Confirmation should have been received before Ordination, for it is suitable that those who are to strengthen others in the faith should have the character of soldier of Christ; promotion from Order to Order should be from lower to higher in proper succession, that fitness may be shown in lesser offices before the greater are received; an interval must elapse between certain Orders, which will give to clerics the opportunity to exercise the powers they have received (e.g., between acolythate and subdiaconate a year, between subdiaconate and diaconate three months); the candidate for sacred ordination must have a title or some canonical means of support (i.e., for secular clergy the title of benefice, or patrimony or ministerial service; for religious the title of profession, common life, etc.). The law allows certain dispensations from some of these requirements (Canons 974 sqq.).

(b) Negative requirements are freedom from certain disabilities introduced by the Church for the sake of the honor and dignity of the sacred ministry. Some of these disqualifications are of their nature permanent, and they are removed only by dispensation or by disposition of the law (e.g., in certain cases by cessation of the cause, or by baptism, or by religious profession), and these are known as irregularities; other disqualifications, which are of their nature temporary and cease with lapse of time or changes in circumstances, are known as simple impediments. The effect of disqualification is to make it unlawful to receive an Order, or to exercise an Order already received. Irregularities are produced either by deficiency or by delinquency, but the cause in either case must be certain; and, in case of delinquency, it must be a personal sin committed after Baptism, which is mortal, external, and consummated in act. The irregularities from defect are: illegitimate birth; mental imperfection (such as epilepsy, insanity, possession); bodily imperfection that makes one unsuited for the service of the altar, on account of mutilation (e.g., those who have lost hand or foot, or thumb or index finger), or of unsoundness (e.g., the blind, the deaf, the dumb, cripples, paralytics), or of very noticeable deformity that excites ridicule or horror (e.g., dwarfs, giants, noseless persons, those who are hunchbacked); successive bigamy, that is, the fact that one has been twice validly married, for St. Paul ruled that a cleric should be a man of not more than one wife (I Tim., iii. 2, 12; Tit., i. 5, 6); infamy of law, that is, the commission of certain crimes which the law declares infamous ipso facto or after sentence (such as profanation of the Eucharist or of graves, violence done to the Pope or a Cardinal, duelling, simultaneous bigamy, and certain sexual sins); participation in capital punishment by pronouncing (i.e., as judge or juryman) or executing the sentence of death. The irregularities from delinquency are: apostasy, heresy, schism; reception of Baptism from a non-Catholic; attempt at adulterous or sacrilegious marriage; voluntary homicide, cooperation in an abortion, mutilation of self or of another, attempt to commit suicide; unlawful exercise of medicine or surgery by a cleric with fatal results; unlawful exercise of the powers of Major Orders by a cleric or layman. The simple impediments are found in the following: in those who may be weak in faith, namely, persons whose parents are non-Catholics, or who are themselves converts (I Tim., iii. 6); in those who are prevented by other occupations, namely, persons held by marriage, business forbidden to clerics, slavery, military service (II Tim., ii. 4); in those who are actually in bad repute before the community on account of misconduct (I Tim., iii. 7). See Canons 983-991.

Matrimonial Impediments.—(a) Definition.—An impediment is a circumstance directly affecting the contract of marriage and rendering it illicit or invalid. Thus, an impediment differs from an unfitness that refers immediately to marriage as a sacred rite or Sacrament (such as lack of proper intention or a state of mortal sin), or that does not directly affect the parties (such as forbidden time).

(b) Division.—In reference to effects, an impediment is either impedient (i.e., one that forbids marriage under pain of grave sin but does not render it null and void) or diriment (i.e., one that not only forbids marriage, but also makes it null and void).

What are human acts? - An act in created things is the determination of some potency or faculty. Hence human acts are acts of human faculties. But human acts are considered in moral theology in the genus of morals, or insofar as they are moral acts. Hence here "moral acts and human acts are the same." S. Th. 1. 2. q. 1. a. 3. But "the genus of morals begins where dominion of the will is first found." S. Th. 2. D. 24. q. 3. a. 2. Therefore human acts are, in general, acts of man by which man himself orders himself to an end suitable to him. Therefore human acts can be considered either in relation to the man who is ordered to the end by them, or in relation to the end to which he is ordered by their help. We shall speak step by step of human acts considered in both respects. S. Th. 1. 2. q. 1. a. 2; E. M. n. 4.

What are the impediments of the human act? - As is clear from what has been said, to have a human act there is required: 1. the exercise of the adverting intellect; 2. the free exercise of the will; 3. the exercise of the other faculties proceeding from free will. Now then, if we look at the fact itself, often we act without knowing what we are really doing, for we think we are doing something else. Likewise, often we act impelled by some vehement passion of concupiscence, or oppressed by some vehement passion of fear, and with violence done to us. In the first case there seems to be lacking the condition required on the part of the intellect; but in the second case there seems to be lacking the condition required on the part of the will. Here without doubt an impediment of the human act is had; and the question is raised concerning ignorance, concerning concupiscence and passion, concerning fear and force, whether they cause the involuntary. For ignorance and error obstruct advertence; force and fear obstruct deliberation; concupiscence and passion obstruct both.

What is required for validly receiving orders? - For validly receiving ordination it is required and suffices that one be a baptized male. Therefore a woman is incapable of orders, and a hermaphrodite in whom the female sex prevails, and likewise one not baptized. On the contrary, infants, the perpetually insane, the blind, the mute, those deprived of hands, etc., are validly ordained, although by natural law they are irregular. Yet St. Thomas says that boys before the use of reason cannot validly receive the episcopate. - C. Tuae litterae, un., de Cler. per salt. prom.; Benedict XIV, Constitution Eo quamvis, § 20; L. 781, 782; St. Thomas, Suppl., q. 35, a. 3; q. 39, a. 1, 2; Lugo, Resp. Mor., l. 1, d. 31; E. M.

Are betrothals contracted between those having a diriment impediment under the express condition "if the Pope shall dispense," once the condition has been fulfilled, valid without new consent? Resp. Affirmatively. For consent perseveres per se until the fulfillment of the condition. Moreover, such consent is in itself honest and licit. Therefore there is no reason why consent must be renewed. L. 843, 859, l. 3, n. 650. But before the condition is fulfilled, they are neither betrothals, nor do they induce the impediment of public honesty. Nevertheless they oblige one to seek dispensation, if the Pope is accustomed to dispense in such an impediment. Therefore the bridegroom would sin if he contracted marriage with the sister of the bride without awaiting the event of the condition. But betrothals contracted with the same woman would be null, since it would be an illicit promise concerning an unjust thing, which does not oblige. If the Roman Pontiff is not accustomed to dispense, the betrothals would be altogether illicit and therefore of no moment, and they would induce no obligation. L. 11, cc.

Nevertheless, in the present, there are several who hold that the aforesaid betrothals are altogether void; and therefore there is no obligation of seeking dispensation. They rely on various Decisions of the Holy See.

Cf. A. S. S., vol. 1, p. 79 ff., 121.

St. Thomas says these things generally concerning betrothals under condition: "But if the said promise is made under condition, it must be distinguished; because either the condition is honorable, as when it is said: I will take you, if it pleases my parents, and then, while the condition stands, the promise stands, and when it does not stand, it does not stand; or it is dishonorable, and this in two ways; because either it is contrary to the goods of marriage, as if I should say: I will take you, if you procure poisons of sterility, and then betrothals are not contracted; or it is not contrary to the goods of marriage, as if I should say: I will take you, if you consent to my thefts, and then the promise stands, but the condition must be removed." Suppl., q. 43, a. 1.

But since, for betrothals to be validly contracted now, it is necessary that they have been contracted by a written act, it is necessary that the aforesaid condition was expressed in the same written act; otherwise the betrothals are altogether null.

Are betrothals dissolved by a supervening impediment? "If the impediment is impedient, the authors very commonly and more probably... deny that the betrothals are dissolved, unless the impediment comes from a vow of religion, and very probably also of chastity... The reason is that other impediments do not have force today." "But if the impediment is diriment, it is certain among all that they are dissolved on the part of the innocent one... The mere reputation of such an impediment suffices, when there is an opinion of the impediment among the greater part of the neighborhood... Whether then they are dissolved also on the part of the guilty one, Dic. affirms, and Salm. think it probable, because, with such an impediment supposed, marriage has now become impossible. But Sanchez, etc., more commonly and more probably deny it, and say that then the obligation of betrothals is suspended until the impediment is removed; because it is not equitable that the delinquent gain advantage from his own crime." L. 857; St. Thomas, Suppl., q. 43, a. 3, ad 4.

What and of how many kinds is an impediment of marriage; by what law is it constituted, and by what superior; whom does it affect? Impediments of marriage are certain conditions or circumstances constituted by law, which prohibit from contracting marriage. By law, for a particular precept or prohibition made to someone or to some persons is not customarily called an impediment. - Impediments which forbid entering marriage licitly are called impedient; those which bar from validly contracting marriage are called diriment. Contracting, for if perhaps they supervene when it has already been contracted, they by no means render it invalid. Diriment impediments fall into inhabiting and invalidating laws. Wherefore regularly neither ignorance nor force nor fear even of death excuses from incurring them. - All diriment impediments are established either by natural law, or by divine law, or by canon law. Nor can Bishops constitute them, but only the Roman Pontiff. Impediments introduced by Christian Princes are neither diriment, nor properly impedient, and therefore do not oblige in conscience except merely per accidens, from damage that would occur if they were not observed. - Impediments of natural and divine law oblige all, even unbelievers. Impediments of canon law oblige only Christians, C. 4, de Consang., C. 8, de Divort., namely Catholics and heretics; and thus the Holy See, when permitting mixed marriages of Catholics and non-Catholics, if some diriment impediment is present, first dispenses it. And if marriage is entered by a faithful person with an unbeliever, an impediment of ecclesiastical law certainly does not directly affect the unbeliever; nevertheless it directly affects the faithful person, and because marriage is a contract, and a contract is between two and cannot be invalid on one side and valid on the other, the impediment indirectly affects even the unbeliever, as is seen in the impediment of disparity of worship, crime, etc. C. 1, de Conv. infid. - Trent, sess. 24, c. 3, 4; Sanchez, l. 7, d. 5, d. 78, n. 3; Schmalzgrueber, l. 4, t. 1, n. 375; t. 7, n. 46; La-Croix, l. 6, p. 3, n. 525; Benedict XIV, de Syn., l. 8, c. 14, n. 5; l. 13, n. 23; Lugo, Resp. Mor., l. 1, d. 45, n. 4; E. M.

How many and which are the diriment impediments of marriage? - Today twenty diriment impediments are absolutely numbered. Five are on the part of consent and liberty: 1. error of person; 2. error of servile condition; 3. fury and insanity; 4. force; 5. abduction. Fourteen are on the part of the persons contracting. If someone is simply impeded from contracting with any person whatever, the impediment will be 6. either of impotence, 7. or of age, because he cannot altogether, whether perpetually or only for a time; or because he cannot because of an office received, and it is the impediment 8. of order; or because he cannot because of a vow emitted, and there is had the impediment 9. of vow. But if someone is impeded from contracting only with a determined person, either this is because of an obligation to another, and it is 10. the impediment of bond; or because of excessive distance from that person, and it is 11. disparity of worship; or because of excessive nearness, and it is 12. consanguinity, 13. spiritual kinship, 14. legal kinship, 15. affinity, 16. public honesty; or because of undue union with that person, and so it is crime, namely 17. adultery, 18. homicide, 19. both together. - Finally one is on the part of extrinsic solemnity, and the impediment is 20. clandestinity. St. Thomas, Suppl. q. 50, a. 1.

The aforesaid impediments are contained in the following verses. The first comprises the five impediments on the part of consent; the four following contain the fourteen impediments on the part of the persons contracting; the last contains the impediment on the part of form.

1. Error, 2. Condition, 3. Madness, 4. Violence, 5. Abduction;

6. Not able, 7. or Age, 8. Order, and 9. Vow, 10. Bond, 11. Disparity of worship, 12. Blood, 13. Sacred kinship, 14. Or kinship arising from adoption, 15. Affinity, 16. Public honesty, 17. Invading the marriage bed, 18. Killing, 19. or each crime;

20. If Clandestine: the twice ten related things dissolve.

What is the impediment of force or fear? Light fear, even unjust fear, does not dirimently impede marriage. The reason is: 1. because light fear is not judged gravely and efficaciously to influence consent; 2. because from positive law only grave fear makes marriage invalid; 3. because otherwise innumerable marriages would become invalid, to the greatest detriment of society.

But grave fear certainly dirimently impedes marriage by ecclesiastical law. The following conditions are nevertheless required, namely that fear be struck: 1. by an external and free cause; 2. unjustly; 3. for the purpose of contracting marriage. C. 10, 14, 15, 18, 28, de Spons.; C. 2, de Eo qui duxit. By ecclesiastical law, or also by natural law? The matter is disputed among the doctors. Trent, sess. 24, chap. 1, 2, de R. M.; St. Thomas, Suppl., q. 47, a. 3, 4; Sanchez, book 4, disp. 12, n. 3; Lugo, de Iust. et Iur., disp. 22, n. 175 ff.; Schmalzgrueber, book 4, tit. 1, n. 399; L. 1050; Italian Civil Code, 105; French Civil Code, 180; Austrian Civil Code, 55; German Civil Code, 1335.

Whichever law you say this impediment dirimently impedes by, it does not admit dispensation; rather, it is necessary that the cause of fear be removed. C. Cum locum 1, de Spons. et matr. Therefore, while the cause of fear perseveres, marriage is not convalidated either by copulation or by cohabitation, for these are otherwise presumed to have been extorted by fear. For while fear lasts, just as marriage cannot be validly contracted, so neither can a marriage invalidly contracted be convalidated. It must be said otherwise if copulation is admitted entirely freely and with marital affection, as the doctors commonly hold after St. Thomas, IV Sent., d. 29, q. 1, a. 3, q. 2, ad 2, or also if cohabitation is spontaneous, which, C. Ad id 21, de Spons. et matr., is taken as ratification of consent. In this case, if an occult impediment existed, it will certainly not be necessary to renew consent again before the pastor, according to the general doctrine which Benedict XIV confirms from decrees of the Sacred Penitentiary issued by the authority of St. Pius V, from Declarations of the Sacred Congregation of the Council, and from the practice of the Sacred Rota, Instruction 87, n. 62. Sanchez, book 2, disp. 36, n. 2.

Nor indeed is it necessary that the other spouse, who did not know the impediment, be informed of it when the marriage must be convalidated by new consent. For although this perhaps more probably is required when the consent of each contracting party is invalid because of an impediment by which each is by law itself incapable of contracting, Sanchez, l.c.; L. 895, nevertheless the opposite seems to be said concerning the present case, when the matter concerns only a defect of consent, just as also happens when one or the other contracting party consents fictitiously. Sanchez explains the reason thus, de Matr., book 4, disp. 18, n. 2: "Secondly, it must be supposed that if, after a marriage extorted by fear, copulation spontaneously had with conjugal affection is added, the prior marriage is ratified and begins from then to be valid, if the other, who had consented without fear, perseveres in the original consent. And the reason is that, since the consents need not be simultaneous, and the consent of him who did not suffer fear was legitimate, only the spontaneous consent of him who had consented from fear was lacking for marriage, as I said, book 4, disp. 15, n. 2. But this consent is sufficiently expressed by copulation, etc., from C. Is qui 30, de Spons. Therefore when that has followed, the prior marriage is ratified." And in the same way a little later, ibid., n. 3, he reasons concerning consent expressed by long, mutual, and spontaneous cohabitation, confirming this from the explicit definition of the law in C. Ad id 21, de Spons. et matrim.

In doubt whether fear is to be judged grave, the common doctrine is that one must judge in favor of the validity of the marriage, both because the cause of marriage is favorable and because of reverence for the sacrament. Laymann, book 5, tract 10, part 2, chap. 5, n. 4. To this belongs that statement of Innocent III, C. Licet 47, de Test. et attest.: "It is more tolerable to leave some persons joined contrary to the statutes of men than to separate those legitimately joined contrary to the statutes of the Lord." Schmalzgrueber, book 4, tit. 1, n. 432. Sanchez, book 4, disp. 3.

But the disagreement of the doctors concerning the sufficiency of reverential fear is easily reconciled, if you consider that this fear also, according to the variety of circumstances, is deservedly judged now light, now grave. Thus with others Laymann, l.c., n. 3, who judges that one must reason similarly concerning importunate prayers, which according to the different circumstances of persons may be easy or very difficult to contradict, as Sanchez, book 4, disp. 7, n. 7, Koninck, Lessius, etc., also note.

There is also disagreement among the doctors whether grave fear unjustly inflicted, but not for extorting consent, invalidates marriage, although the common opinion affirms this. Cf. n. 944; Sanchez, book 4, disp. 12, n. 3; Lugo, de Iust. et Iur., disp. 22, n. 175; L. 1049.

When marriage was contracted from grave fear, one is not bound in the forum of conscience, speaking per se, to perfect it, and can withdraw, even against the will of the other. And this is valid also concerning the one who was free from fear, even if it was inflicted by him or by his fault. Thus Sanchez and others, and it is probable according to St. Alphonsus, 1057. Speaking per se, i.e., unless the harm inflicted could not be repaired except through marriage. L. 1045 ff.; E.M.

Can all impediments be dispensed, and are they dispensed? Not all impediments can be dispensed, such as the impediments of impotence, infantile age, ligamen, consanguinity in the first degree of the direct line, error, and fear; nor do all need dispensation, such as abduction, clandestinity, defect or vice of consent. Likewise not all are usually dispensed, such as consanguinity in the first degree of the collateral line, affinity from licit copulation in the first degree of the direct line, public crime with both or one or the other plotting, and abduction while the woman remains under the power of the abductor. But among those which are dispensed, some are dispensed more rarely, others more frequently. More rarely and for a graver cause are dispensed clandestinity, spiritual paternity and filiation, affinity from illicit copulation in the first degree of the direct line, solemn vow, sacred order, disparity of cult, age.

Concerning spiritual paternity and filiation cf. De Iustis, de Dispens. matr., book 2, chap. 5, n. 7; Schmalzgrueber, book 4, tit. 11, n. 57; tit. 16, n. 144. But at present spiritual kinship of any kind is counted among impediments of lesser degree, although in the Forms of the Sacred Congregation of the Sacraments there is excepted, in the communication of faculties, dispensation between the one lifting and the one lifted, or vice versa between the one lifted and the one lifting, and between the baptizing person and the baptized person. Cf. the following numbers, 1036, 1038. Concerning affinity cf. Collectanea S.C. de Propaganda Fide, n. 1242. Concerning public honesty cf. Ferraris, Supplement, this word. Concerning solemn vow and sacred order cf. Benedict XIV, Quaest. Can., 200.

Others which can be dispensed and are more frequently dispensed, such as consanguinity, affinity, public honesty, spiritual kinship, apart from the degrees already excepted, legal kinship, occult crime, are not usually dispensed without grave cause. Trent, sess. 24, chap. 5, de R. M. Hence for the validity of a dispensation to be obtained, it is required that there be no obreption or subreption falling upon the motive cause. For a Superior is not judged to dispense except under the tacit condition: if the prayers rest upon truth. Motive; for if falsity is brought forward, or truth is suppressed only concerning an impulsive cause, the dispensation is valid. C. Super litteris, de Rescript.

But now impediments of lesser degree do not need a special cause. Cf. the following number. Practice of Apostolic Dispensations of the Apostolic Datary according to the reformed Forms; Pyrrhus Corradus, Prax. Dispens. Apost., book 8; L. 1118-1120, 1129; E.M.

What are the principal clauses which are usually placed in dispensations? It must be noted first that, from the various clauses contained in the Apostolic Rescript, some contain true conditions regarding the validity of the dispensation, while others contain precepts and admonitions pertaining only to the liceity of the dispensation.

Now the principal clauses are the following:

1. If it is so, if the prayers rest upon truth, or another equivalent clause. This pertains only to those things which would render the dispensation subreptitious or obreptitious. But faith, as regards the confessor, is to be given to the penitent, unless he certainly knows the opposite from knowledge outside confession.

2. Sacramental Confession having first been heard. This is required for validly dispensing for the internal forum, although the penitent has already previously confessed to another. It suffices that only one of the spouses has confessed, unless something else is clearly expressed, because an unjust condition ought not to be imposed on one through the other. De R.I., in VI. In the tribunal of penance alone, after hearing the penitent's Confession, can the confessor execute a rescript of the Sacred Penitentiary for the internal forum. But the execution is valid, although the penitent confesses invalidly and sacrilegiously. Moreover, the dispensation must be manifested before absolution, and can be granted even if absolution is deferred. Sacred Penitentiary, May 19, 1834. And the same Sacred Penitentiary, January 4, 1839, declared: "In executing rescripts of the Sacred Penitentiary, care must indeed be taken that the penitent be disposed for absolution from sins; nevertheless absolutions from censures will be valid, provided that at least an accusation or confession of sins has preceded, which is sacramental."

3. The occasion of sinning having first been removed, namely the proximate and voluntary occasion; but if it is necessary, it suffices that it be removed in mind, by rendering it remote from proximate through the due means. It is an admonition, not a condition for the validity of the dispensation.

4. Scandal being removed, insofar as it is present, especially through separation, if this can be done. "Separation is to be preferred to other modes of repairing scandal; if this cannot be done, scandal is to be repaired, but the manner of repairing scandal is left to the prudent judgment and conscience of the Ordinary, according to the requirements of each case." Sacred Penitentiary, April 12, 1889.

5. Provided that the impediment is occult, namely if it is known to few, in a town to only five or six persons, in a city to only seven or eight, and from the circumstances it is prudently conjectured that it will not be divulged. But if it is known only to the contracting parties, or only to one who cannot prove it, then it is called altogether occult. L. book 1, app. 2, n. 33; book 6, nn. 593, 1111; book 7, nn. 76, 78, 141; Benedict XIV, Instruction 87, n. 39 ff.; D'Annibale, 3rd ed., part 1, n. 242.

6. With grave and long-lasting salutary penance; with grave salutary penance. "In defining beforehand the quality, gravity, duration, etc., of the penance, which are left to the judgment of the one dispensing or the delegate in conformity with law, neither the limits of severity nor of humanity are to be exceeded, and account must be taken of the condition, age, infirmity, office, sex, etc., of those upon whom the penalty is enjoined to be imposed." Sacred Penitentiary, April 8, 1890. Therefore a penance must be imposed, and it must be accepted and fulfilled under grave obligation. But "omitted fulfillment of it does not bring with it the invalidity of the dispensation." Sacred Penitentiary, December 14, 1891. "The clause prescribing the imposition of penance is judged satisfied, even if it is accepted with a feigned mind by those who are dispensed." Sacred Penitentiary, November 12, 1891. De Iustis, book 1, chap. 7, n. 137 ff.; Reiffenstuel, book 4, tit. 21, n. 409.

7. Some alms having been distributed, according to the judgment of the Ordinary. "Non-observance of this clause, which is usually placed in dispensations, does not bring with it nullity of the dispensation." Sacred Penitentiary, June 10, 1876. With the poor this clause can be omitted according to the judgment of the Bishop. Sacred Penitentiary, November 11, 1890.

8. The party having been informed concerning the nullity of the prior marriage; yet in such a way that the crime of the petitioner is not to be manifested. This clause imports two things, namely: 1. that the other party renew consent; 2. that he or she consequently be informed concerning the nullity of the prior consent.

9. And insofar as this notification cannot be made without grave danger, consent having been renewed according to the rules handed down by approved authors. Various modes are handed down. These are the principal ones assigned by various authors: 1. If the spouse simply says: Our marriage is null because of some impediment; or: The confessor told me that it is null..., and therefore let us renew consent. But in this way the other party now becomes altogether informed concerning the nullity of the marriage, and in this practically the whole difficulty consists. 2. If the spouse says: I did not have true consent when I contracted marriage; now I wish to give new consent, do you also wish to give it? This mode is commonly admitted by authors, and can rightly be used without a lie, since null consent is not true consent; and otherwise the spouse ignorant of the impediment thus knows sufficiently the nullity of the marriage. 3. If he says: I am troubled by scruples concerning the validity of our marriage, and therefore let us renew consent. This mode can be admitted according to the more common opinion with St. Alphonsus, 1117. For it suffices that the other party place consent independent of the prior; and for this it is enough that he prudently doubt concerning the validity of the first marriage. 4. Various other modes are also offered by several theologians, e.g., if the spouse says to the spouse: Tell me, please, if our marriage were null, would you not wish to contract again? Or: If you had not married me, would you not wish to marry now? etc. But these modes are rightly rejected, because thus it is uncertain whether the other party intends to repeat consent in the preceding marriage, or to consent to a new one. L. 1117. "It is necessary to distinguish between nullity and the cause of nullity. The nullity is to be manifested. For a null act cannot be ratified unless its nullity is known, C. Proposuit, C. Ad nostram, de Coniugio servorum. But as regards the cause of the nullity, it would be an error to manifest it." Benedict XIV, Epistle Accusiamo to Cardinal de Sinzendorf, Bishop of Breslau, December 29, 1742. As is clear, practically the whole difficulty lies in having that knowledge of the nullity of the marriage.

If it is morally impossible to inform the party, and thus to renew consent, either a dispensation in radice must then be sought, or after a dispensation has been sought, and with urgent necessity standing, the clause can be held as not invalidating, so that only the one conscious of the impediment renews consent, while the other, unaware of the impediment, perseveres in the consent previously given. Cf. Benedict XIV, Notification 87, n. 74 ff.; cf. here n. 1050.

10. These presents having been torn up, under penalty of excommunication latae sententiae. The tearing up of the Letters of the Sacred Penitentiary, which places this clause, must be done immediately, but understand morally, namely at least within three days after the dispensation has been executed. But if the clause of tearing up has not been placed in the letters, as it is not placed when marriage has not yet been contracted, then there is no obligation to tear them up, but a dispensation of this kind must be carefully noted by the pastor in a book which cannot be seen by anyone else, so that he himself, when there is need, may be able to give proof concerning the dispensation obtained. L. 1143; Schmalzgrueber, book 4, tit. 16, n. 242 ff.; Benedict XIV, Notification 87; A.S.S., vol. 28, p. 512; Practice of Apostolic Dispensations; E.M.

What about revalidation because of defect of consent? Consent remains habitually, and here also virtually, for as long as, once duly placed, it has not been revoked. Therefore: 1. if one of the contracting parties did not give consent, he must altogether give it, even without the other party knowing, and this alone suffices; otherwise marriage will never be had, nor can consent be supplied in any other way and manner. Consent of this kind is signified by cohabitation and other conjugal acts. And thus both are had, interior consent and its exterior signification, which does not necessarily consist in words. Nor indeed is anything else per se required in the case for the validity of marriage. Nevertheless the one who renews consent must know that the prior consent was null, and that the marriage was null, because otherwise he does not really consent, since nothing is willed unless it is first known. And thus consent must altogether be given if it was never present, or was only simulated, erroneous, or coerced, after the error and fear have ceased. This holds if the defect is occult, although the pastor and witnesses were conscious of the impediment. The reason is that the assistance of the pastor and witnesses is required only so that they testify to the celebration of the marriage, so that it may be impeded lest the spouses contract another marriage; not so that they testify to the validity of the marriage. But if the defect was public, the marriage must then again be contracted before the pastor and witnesses, where Trent was in force, and where now marriage must be contracted according to the decree Ne temere; otherwise where the marriage is valid independently either of Trent or of the aforesaid Decree. Nor is it per se necessary that the other contracting party also renew consent. L. 1114; A.S.S., vol. 11, p. 346 ff.

2. If the consent of each contracting party was lacking, it is necessary that each consent. But is it necessary to place consent mutually, or does it suffice that it be placed separately? This is controverted. Some hold that it suffices if it is placed separately, because once the consent of one has been placed, the consent of the other can be added to it. Others say it must be placed mutually, because otherwise the contract is lacking. "It is certain," says St. Alphonsus, 1114, "that in the contract of marriage physical simultaneity of the consents of the spouses is not required, but moral simultaneity suffices, namely if the consent of one morally perseveres while the consent of the other is placed." And indeed it must again be renewed before pastor and witnesses if the aforesaid defect was public; but otherwise if occult, as in the preceding case.

3. But if the defect in each preceding case, although occult, is such that it must be dispensed in the external forum and can be proved, it is altogether necessary that the marriage be secretly revalidated before the pastor and witnesses; otherwise, if perhaps the impediment becomes manifest, the spouses could institute divorce. C. Insuper 4, Qui matrim. accusa.; C. Propositum 1, de Eo qui dux.; C. Ad id 21, de Sponsal.; Sanchez, book 2, disp. 32; L. 1109-1114; St. Thomas, Suppl., q. 47, a. 4, ad 2.

What about revalidation because of defect of form? It is certain that a marriage invalid by reason of clandestinity must be entered before the pastor and witnesses, formerly according to the law of Trent, now according to the decree Ne temere, from which dispensation is rarely given. If both spouses do not refuse to present themselves before the pastor and witnesses, marriage must be contracted publicly or occultly according as its nullity is public or occult. The reason is that in the first case scandal must be removed, in the other it must be guarded against, and the whole reputation of the spouses must be preserved.

If one party or each refuses to go to the Church, they are to be joined in their own house or another place chosen by them, provided that grave witnesses are present, by whose aid convalidation of this marriage can be made public, if this is necessary for removing scandal, namely if the invalidity of the prior union is notorious. If one refuses to contract before the pastor, and the refusal arises from ignorance or some error against the laws or doctrine of the Church concerning impediments invalidating marriage, the one refusing should be instructed with due prudence and in charity. And insofar as he still refuses to convalidate his marriage in the face of the Church, then one must strive that he constitute a special procurator, who in his name will contract marriage in the customary way; or at least, with express consent de praesenti by letter directed to the proper pastor or to another priest having the license of the Ordinary or pastor, the marriage should be renewed. Cf. 963. If the indisposed party does not wish to contract even through a procurator, one can come to dispensation in the root of the marriage, or to sanation of the marriage in the root, so that at least provision is altogether made for the salvation of the soul of the innocent party, the legitimacy of the offspring, and the tranquility of the families, and so that provision can as soon as possible also be made for the salvation of the soul of the one refusing. Instruction of Cardinal Caprara, Legate a latere in France.

If a marriage was invalidly contracted by reason of clandestinity, and the spouses then go into a place in which clandestine marriage is valid, and there continue conjugal life, the marriage is convalidated if, being conscious of the nullity, they renew consent at least through conjugal copulation. But if they are ignorant of the nullity, or do not attend to it, and conjugal life is continued, the marriage remains invalid, Holy Office, August 31, 1887, because the prior invalid consent always remains, and no new consent independent from the prior one, and altogether necessary, has been added. But this reason for the resolution is not without difficulty, since the consent of the parties is naturally consent, and consent remains in whatever place, and therefore, when the extrinsic impediment of observing the extrinsic form has been removed, the consent which was naturally valid and could not produce its effect while the impediment of the law stood, once this has been removed, produces its effect. And thus, when baptism has been received by unbelievers, their marriage remains and becomes a sacrament, although consent into marriage is not renewed. And so also, by the same consent altogether, and in no way renewed after the nullity of the marriage has become known, a marriage invalid from an occult impediment is sanated in the root. Therefore the reason for the Resolution does not seem to be able to be the invalidity of consent, but rather because from the Council of Trent, sess. 24, chap. 1, de R. M., those who attempt to contract clandestinely are rendered incapable of contracting thus, and therefore even in another place they persevere incapable of contracting clandestinely. C. Propositum 1, de eo qui duxit, etc.; E.M. 859.

What about revalidation because of defect of personal incapacity? If marriage must be revalidated because of the incapacity of a person, by reason of some diriment impediment which is dispensed, dispensation from the same impediment must certainly be sought. If each spouse is conscious of the impediment, each is bound to renew consent, after dispensation has been obtained for revalidating the marriage. The reason is that knowledge of the nullity of marriage because of a known diriment impediment had easily excluded true consent in the preceding contract of marriage. Cf. 1033.

If only one party knew the impediment, that party is bound to renew his or her consent, at least alone and separately. This follows from what has just been said.

The party ignorant of the impediment would not necessarily have to renew consent for the validity of the marriage if the impediment regarded only the other party. The reason is that the consent of that party was valid from the beginning, and therefore perseveres; therefore renewal of consent of the incapable party would suffice. Hence, if a believer had married a non-baptized woman who is ignorant of the impediment, it would suffice, when infidelity ceases or dispensation is obtained, that the believer renew consent; because the consent of the unbeliever was valid, since the Church could not impress personal incapacity upon her. L. 1114; St. Thomas, Suppl., q. 47, a. 4, ad 2. Cf. Monit. Eccles., vol. 11, p. 24 ff., p. 105 ff. Nevertheless, from various decisions of the Holy Office, if each party in the case was ignorant of the impediment, and the unbelieving party received baptism, and the marriage is not ratified by them, knowing its nullity, in a place where clandestine or mixed marriages are valid, the marriage remains invalid, although they persevere in conjugal cohabitation. Holy Office, May 8, 1899. In finding the reason for this Resolution, the same difficulty appears as in the preceding case, as can also be seen from the following question. The reason is brought forward that the consent which is gathered from marital custom arises from error, namely that the prior consent is judged to have force. But if this were true, whenever marriage had been contracted invalidly, marriage could never be sanated in the root without renewed consent, which is against the fact itself. Therefore it can better be said that the Church in such a case does not accept that prior consent as legitimate; and unless the Church accepts it, it remains subject to the invalidating power of the Church.

C. Propositum, de eo qui duxit, etc.; E.M. 959.

But must consent also be renewed by the party ignorant of the impediment when this touches both? There are two opinions. The first opinion affirms. The reason is that the impediment takes away the efficacy of consent from the beginning; therefore it remains ineffective, and accordingly can produce no effect, since it perseveres in the same way in which it was given; but a simple dispensation does not heal the vice which preceded, but only renders the parties capable of consenting in the future. The second opinion denies. The reason is that the prior consent, although it lacked its effect because of an impediment placed by positive law, nevertheless by natural law was valid, since it was given by a person capable by natural law toward a person capable by natural law of contracting. This is confirmed from dispensation in radice itself, which is sometimes given. For in it the Church certainly does not supply, nor can she supply, a defect of consent. Therefore, when the impediment has been removed, the prior consent suffices, which virtually perseveres in its effect, through conjugal copulation, cohabitation, or other external signs. Therefore, when the internal consent of the spouse conscious of the impediment is added, expressed at least through similar external signs, the consent of each is united, and the marriage is convalidated. C. Si infantes un., de Despons. impub., in VI; Lugo, Responsa Moralia, book 6, disp. 2, n. 2.

But practically, consent must altogether be renewed not from the nature of the thing, but because of the clause contained in a simple dispensation: "the other party having been informed concerning the nullity of the prior consent." This clause contains not an admonition, but more probably a condition. L. 1115, 1116, 1117, 895, 1145; A.S.S., vol. 26, p. 421 ff. Consent, moreover, must be renewed publicly before the pastor and witnesses if the impediment is public; but privately if it is occult. The reason is that otherwise the marriage could not be sufficiently proved before the Church; and in the first case scandal must be removed, but in the other scandal and the defamation of the parties must be impeded. Indeed, if the impediment, although occult, can be proved in the external forum and must be dispensed, the marriage must be secretly revalidated before the pastor and witnesses, lest the spouses afterwards be able to separate if the impediment becomes known. Therefore, when the impediment is so occult that it can in no way be proved in the external forum, it is not then necessary to contract marriage again before the pastor and witnesses.

St. Alphonsus, book 6, n. 1116, speaking of the second opinion just reported, says that it can serve for practice in a case of urgent necessity. "For if from knowledge of the nullity of the marriage there can prudently be feared danger of death, grave infamy, or scandal to follow from separation; and on the other hand the spouse could not avoid rendering the debt, then he can well use the second opinion as probable; because in that case, by reason of necessity, even with danger of frustration of the sacrament, it is lawful to follow an opinion only probable, as they commonly teach." Cf. here n. 1046, 9. Benedict XIV, Epistle Accusiamo to Cardinal de Sinzendorf, Bishop of Breslau, December 29, 1742, Bullarium, Naples ed., 1885; Instruction 87, n. 62 ff.; Sacred Congregation of the Council, June 8, 1610; Sacred Penitentiary in Ferraris, v. Matrimonium, a. 8, n. 9; Pyrrhus Corradus, book 7, chap. 7, nn. 8, 9, 12, 13; book 8, chap. 3, n. 44; L. 1899.

If there is danger that the other, upon knowing the nullity of the marriage, will not wish consent to be renewed; or, when each spouse is ignorant of the impediment, the same danger is present and there would be other grave inconveniences of defamation, then the Apostolic See must be approached, so that it dispense from the aforesaid condition of renewal of consent and grant the dispensation which is called in radice. Rising up to the origin, or root, of the marriage, this both renders the person capable of contracting and heals the very vice of the consent given at the beginning. For the root of marriage is consent, and the root which is sanated is consent into marriage naturally valid; and therefore the marriage begins from now to be valid. Holy Office, March 8, 1900; Monit. Eccles., vol. 12, p. 3. The marriage itself moreover is sanated as regards effects, and as regards the legitimation of offspring, from then, i.e., as if it had been valid from the beginning. Namely, in such a case that condition of renewing consent is relaxed; when this has been removed, and when the incapacity of the person has also been removed by dispensation, that consent, valid by natural law, exercises its moral force, and the marriage is perfected. But, as is clear, it is necessary that consent into marriage truly was present and perseveres, and that marriage truly was contracted, and in good faith on the part of both or at least on the part of one, and that it had and still retains the appearance of marriage. Therefore this dispensation is applied while one party, or even both parties, are ignorant of it.

Dispensation in radice is to be executed in the same way as a simple dispensation, by adding in the formula the words, "in the root." Thus, for example: "I, by apostolic authority granted to me, sanate and consolidate in its root the marriage contracted by you with N., and I declare legitimate the offspring received and to be received, in the name of the Father, and of the Son, and of the Holy Spirit." But no formula is contained in the Roman Ritual. Sanchez, book 2, disp. 35, 36, 37; book 8, disp. 7; Benedict XIV, Const. Etsi, Notifications 68, 80, 87; de Syn., book 13, chap. 21; L. 1109, 1115 ff.; E.M.

Dispensation in radice is granted by the Sacred Penitentiary, by the Sacred Congregation of the Sacraments, and by the Holy Office for various cases, and regularly must be sought through the Ordinary. Monit. Eccles., vol. 19, p. 4 ff.

According to the Holy Office, November 22, 1889, for sanation in radice it is required that the Catholic party acknowledge the nullity of the marriage. Collectanea S.C. de Propaganda Fide, n. 1721.

According to the Holy Office, March 11, 1868, marriages contracted with impediments of ecclesiastical law are revalidated in radice without renewed consent. Collectanea S.C. de Propaganda Fide, 2nd ed., 1897, n. 1326.

According to the Holy Office, August 22, 1906, a marriage null because of disparity of cult is sanated in radice after baptism has been received by the wife, without any prior admonition of the Catholic husband. Collectanea, cited, n. 2239.

Legitimation of offspring made by the Supreme Pontiff is extended by a certain consequence also to temporal effects. C. Per venerabilem 13, Qui filii sint legitimi. This is clear in two ways: as regards canonical and civil effects, and as regards the removal of the very stain and infamy of illegitimate birth.

The faculty was twice granted to me by the Supreme Pontiff Pius X of sanating in radice the marriage of two married women, without their husbands being forewarned, and with a document of this sanation left with the women themselves, if perhaps the necessity should occur of demonstrating that sanation had been obtained.

"Since marriage is by its own force, by its own nature, by its own impulse sacred, it is fitting that it be ruled and moderated not by the command of princes, but by the divine authority of the Church, which alone has the magisterium of sacred things. Then the dignity of the Sacrament must be considered, by whose accession the marriages of Christians have become by far most noble. But concerning a Sacrament the Church alone can and ought to establish and command, according to the will of Christ, so that it is plainly absurd to wish even the least part of its power to have been transferred to the governors of civil affairs." Leo XIII, Enc. Arcanum, 10 Feb. 1880.

The Church has the power to constitute impediments not only impeding but also diriment of matrimony. It is of faith.

785. • It is clear, first, from the definition of the Council of Trent, session 24, canon 4: If anyone shall say that the Church could not constitute impediments diriment of matrimony, or that she erred in constituting them, let him be anathema.

It is confirmed, second, from theological reason. For the Church received from Christ every power necessary or even useful for rightly governing the Christian commonwealth; but the power of constituting impediments of matrimony is very useful, indeed even necessary, so that matrimony may be treated by the faithful with the honor and decency owed to the Sacraments; therefore, etc.

The Church alone can constitute diriment impediments of matrimony, and consequently SECULAR Princes with respect to Christian subjects cannot CONSTITUTE IMPEDIMENTS except for merely civil effects.

786. • 1. It is proved from the Council of Tours in the year 1583, specially approved by Gregory XIII, chapter 19, On Jurisdiction, section 6, where it is said thus: Since it is most certain law that matrimonial causes belong to the ecclesiastical forum, and therefore that the knowledge and decision of them have been altogether forbidden to lay judges by the sacred Canons, under penalty of anathema we prohibit all except Bishops and their Officials from taking cognizance of and deciding concerning them and their appendages and circumstances, as, for example, if there is a question of conjugal adherence. - Collection of Councils (Labbe).

2. It is evident from the Council of Trent itself, session 24, chapter 12, where it defined that matrimonial causes pertain to ecclesiastical judges.

3. It is established from the letter of Pius VI to the Bishop of Motula, September 17, 1788, in which he expressly declares that such is the sense of canon 12 of the Council of Trent.

4. Theological reason confirms this. For since matrimony was elevated by Christ to the dignity of a Sacrament, it is necessarily subject to the spiritual power alone. And although the nature of a contract and the nature of a Sacrament are distinguished in matrimony, nevertheless the whole matrimony pertains to the Sacrament, since the contract is its matter and cannot be separated among Christians from the nature of a Sacrament. Otherwise, the greatest inconveniences would follow from a conflict of power if two powers independent of each other could constitute impediments of matrimony; for what one built up, the other could destroy.

787. Questions. - QUESTION 1. Does an impediment invincibly unknown invalidate a matrimony contracted with it?

Reply. Yes. The reason is that the law constituting such an impediment has as its object the invalidation of the contract itself, and therefore it always invalidates the contract independently of the knowledge and will of the contracting party. Moreover, invalidating laws must obtain their effect in every case unless the general good absolutely stands in the way, as will be said concerning the impediment of clandestinity, which ceases only when, while persecution rages, suitable Priests ¹ cannot be had to assist at marriages. - Lacroix, no. 626, and others most commonly.

¹ Namely, even a Priest, unless he has a delegated faculty from him who by ordinary right ought to assist at the contract of matrimony, is altogether incapable of conferring any validity upon the contract by his presence.

Hence if, after matrimony has been contracted, a woman certainly discovers a diriment impediment by force of which the matrimony was null, she can neither seek nor render the debt, even if she were compelled to it by a threat of death, because the union would be fornicatory, which is licit in no case. Some except the case in which the woman would conduct herself merely passively, so that she would cooperate in such an act altogether materially; but not even this must be conceded, since there is question of a thing intrinsically evil, unless, according to a probable opinion, the woman is compelled to it by fear of death, provided nevertheless that the danger of consent is absent. - Recall what was said in volume 1, On Human Acts, no. 21, and On the Fifth Precept, no. 390.

788. • QUESTION 2. Are those impediments which appear to have the nature of a penalty, such as the impediment of crime, also incurred even when unknown?

Reply. Yes. Thus more commonly with Lacroix, book 6, part 3, no. 641 ². The reason is that those impediments have primarily the nature of a bond and only secondarily the nature of a penalty; and consequently they are always incurred, although ignorance excuses from a penalty according to the common opinion when there is question of a merely prohibiting law.

² Ferdinand Krimer should be consulted concerning this question, for he treats it expressly (On the Decretals, book 4, nos. 1011-1029), and, having weighed the reasons of each side, concludes thus (no. 1024): Of these opinions opposed to each other, the affirmative... is without doubt very probable; nevertheless, the negative is not only probable absolutely, but also retains its probability in relation to its opposite. For the greater probability of the affirmative opinion neither proceeds from certain or evident principles nor concludes certainly or evidently, but only probably, and perhaps with some excess from authority; consequently it does not remove from the negative its probability even when compared with the affirmative. For it still remains within the limits of pure probability and has very probable solutions to its reasons, or solutions supported by a prudent foundation.

That Krimer truly affirms that the affirmative opinion is deduced neither from certain principles nor by a certain conclusion is easily evident. Take, for example, Suarez, who, while he otherwise teaches that ignorance does not excuse from incurring this impediment, nevertheless establishes (On Laws, book 5, chapter 19, no. 6) that this impediment is penal. Thus he says: Among the impediments of matrimony, those which arise by reason of an offense are penal, as are the killing of one's wife with a promise, adultery with someone while a spouse is living together with a promise of future matrimony, etc. And he gives the reason (ibid.) because the invalidation of an act is a great burden and can cause harm; therefore, of itself it can be a sufficient penalty, and sometimes it is very well accommodated to the offense. Palaus agrees with him (tract 3, disputation 2, point 2, no. 2), where he writes: Sometimes the annulment of an act is introduced as a punishment for a committed offense, as IN THE OPINION OF ALL it is introduced... if a married person, after giving a pledge of matrimony, committed adultery with someone, etc. Cardinal de Lugo speaks no differently (On Penance, disputation 16, no. 337): In these cases matrimony is not prohibited because of a motive of special uprightness, but as punishment for the offense committed and to provide... for the safety of the spouse, whose life would be endangered if adulteries, promises, or plots to kill the spouse were made with the hope of a future matrimony.

But if this, as Palaus said, must be held according to the opinion of all, then the question whether ignorance of the invalidation... prevents the invalidation of the act - to use the words of Suarez himself, l.c., chapter 22, no. 4 - depends upon the question whether ignorance of the penalty alone excuses from it, even if there was sin against the law. And he himself adheres thus to the negative opinion (ibid.): In this question we judged the negative side to be truer. Therefore, regarding the special question of the penalty of invalidation he argues thus: Hence it must consequently be said in the present matter that when a human law prohibits an act by adding invalidation by way of penalty, if the law is not unknown as prohibiting, although it is unknown as invalidating, the act done against the law is invalid; because such ignorance does not excuse the sin against the law and consequently does not excuse from the penalty, although it is unknown; therefore neither does it excuse from the invalidation. Thus Suarez.

But is this foundation solid? For Sanchez (On Matrimony, book 9, disputation 32, no. 17), with respect to that general principle, thinks the opposite opinion truer. Thus he says: Nevertheless, I believe it truer that all these penalties are not incurred where the aforesaid ignorance of the law - namely, of the penal law - is present. Therefore, concerning invalidation itself he thus concludes to the contrary (ibid., no. 18): Add that the annulment of an act, when it is not from a defect of solemnity but as a punishment of the delinquent, is not incurred by those ignorant of the law, as Antonius de Butrio well observes on chapter 2, On Constitutions, no. 19. That this must also be referred to the invalidation of matrimony is evident from what he has elsewhere (book 7, disputation 5, no. 7), saying that matrimony is forbidden between certain persons as a punishment for an offense committed.

From this you will understand why, supposing that principle of Suarez which Palaus rightly added to be in the opinion of all, namely, that matrimony in the case is invalidated as a punishment for crime, Leander of Murcia (Disputations on I-II of St. Thomas, book 2, disputation 4) concluded that all those stand for this opinion - namely, that the penalty of the invalidation of matrimony is not incurred - who assert that irregularity AND OTHER PENALTIES imposed by ecclesiastical laws are not incurred by one who is ignorant of them, even by vincible ignorance..., provided it is not crass and supine.

Moreover, that this opinion, which requires knowledge not only of the prohibiting law but also of the punishing law for penalties to be incurred, pleased many can be learned very easily from the Doctors cited by Sanchez (l.c., no. 17). And besides the fact that the Author also acknowledges this to be the common opinion, for the present it can suffice that Schmalzgrueber (on book 5, title 37, no. 109) writes likewise from the common opinion: It is as a rule, he says, that one committing some offense is indeed subject to penalties proportioned to that offense, but not to other extraordinary penalties which are imposed to avoid the frequent practice of the offense or for another cause, unless the delinquent knew that the offense was prohibited under that penalty. After Suarez himself (On Censures, disputation 4, section 9, no. 21) reported this very principle from Navarrus in these words: Navarrus adds that whenever a penalty is exorbitant and extraordinary, OF WHATEVER KIND IT MAY BE, if it is unknown, even if the offense is committed, it is not incurred, he sincerely admits (ibid., no. 22) that the reasoning of Navarrus is probable, except that it must not be extended to the penalties which God inflicts upon sins in eternity; for otherwise, as he says, those who are ignorant of the eternity of the penalties would not incur them. But no one doubts that the invalidation of matrimony in the case is an extraordinary penalty; therefore Navarrus most rightly applies that principle thus to the impediment of crime (Manual, chapter 22, no. 46): If each party probably is ignorant of the impediment, they can contract matrimony as soon as the one who impeded it shall have died. From these things it is evident that the principles admitted by Suarez himself lead rather to a conclusion contrary to the one he wishes.

Thus, in order to furnish support to that wavering conclusion, they take refuge in what the Author also intimates and Sporer expresses thus (On Matrimony, no. 44): This impediment was introduced by the Church not precisely as a punishment for the offense, but principally to deter men lest they commit crimes in the hope of matrimony, as all the Doctors unanimously suppose. Hence Suarez (On Laws, book 5, chapter 19, no. 10) holds that this impediment has rather the nature of a remedy. Thus he says: Here there is considered not only the common utility which is found in a penalty insofar as it is a penalty, which is to avenge the offense...; but further there is considered the utility of a REMEDY, so to speak, by taking away occasions for perpetrating similar offenses. This utility is not common to every penalty, nor does it belong to its nature insofar as it regards vindication. Therefore, in this way we say that through that invalidation of matrimony in the aforesaid cases occasions for perpetrating similar offenses are taken away, and that this cause was sufficient for imposing such impediments even without vindication of the offense, which could have been effected through another penalty.

You will find a lengthy and complete direct reply to these things in the praised Krimer (on book 5, title 7, nos. 729-743), who most diligently pursues all the objections of the opposing side. For at present it will suffice us to show that these things too, according to the opinion of those very men who bring them forward, altogether waver and indeed destroy one another.

And first, while these men, to defend their cause, contend that the impediment of crime was introduced rather by reason of a remedy than as a punishment for an offense, behold Haunoldus (tract 1, On Laws, no. 109 and following), who, when about to refute John Salas and Pallavicino, who contend with us in this matter that invalidating laws imposed precisely as a punishment for some offense do not bind those who are ignorant because inculpable ignorance excuses from penalty, thinks it necessary, lest he betray his cause, to contend to the contrary that the invalidation of matrimony in the case is a pure penalty. Thus he says (l.c., no. 110): That this invalidation - namely, of matrimony contracted by a murderer or adulterer with an accomplice from an intention or promise of matrimony, etc. - is a pure penalty appears certain to me. Then Haunoldus thus rejects the support which Suarez sought in the utility of a remedy (ibid.): For although by consequence it is favorable to spouses, nevertheless, if this stood in the way, no invalidating law would finally be a pure penalty, since each can finally be resolved into some favor. Therefore he finally takes refuge in denying, contrary to the common opinion, that ignorance of a penalty excuses from incurring that penalty. But since all make an exception whenever the penalty is extraordinary, this one thing was finally left to him: to contend (ibid.), against the understanding of all, that the invalidation of matrimony because of the killing of one's wife or adultery, etc., is not an extraordinary penalty. And thus one of the patrons of that doctrine is compelled to destroy what another builds up; which certainly is not accustomed to happen when solid, certain, and firm principles are employed.

But what fear impelled Haunoldus to contend that the invalidation of matrimony in the case is a pure penalty? He was indeed compelled by another principle which the patrons of the same cause, altogether forgetful of themselves, establish elsewhere. For consult, for example, St. Alphonsus (book 7, no. 351), and you will see that the same Doctors, in order to prove that ignorance of the penalty, namely, of the irregularity itself, does not excuse from incurring irregularity from an offense, employ this very reason: that irregularity is not a medicinal penalty for preventing crimes in the future, but is an incapacity or punitive penalty on account of the stain of guilt. And thus

Suarez also has it altogether thus (On Censures, disputation 40, no. 9): Here that special reason ceases because of which we said that invincible ignorance of excommunication or of a censure properly so called excuses from incurring it, because it is a medicinal penalty which is formally imposed for contumacy and so that one may recede from it; but irregularity, when it is a penalty, is imposed not as medicinal but in vindication of the offense...; and therefore this ignorance alone does not excuse from irregularity. Nor does Schmalzgrueber speak otherwise, as though from the common opinion (book 4, title, no. 40): The common doctrine with Covarruvias affirms that an ignorant person incurs the penalty alone, namely, irregularity, because these are not medicinal, etc. Likewise La Croix (book 7, no. 482) gives as the reason why irregularity from an offense is incurred by one ignorant of it that irregularity is not... a medicinal penalty requiring knowledge or contumacy, etc.

These things having been established, and this question concerning irregularity now being omitted - for, as we shall see in its place with St. Alphonsus, it is equally probable that irregularity is not incurred in the aforesaid case - what remains to be said concerning the argument brought forward above by Sporer and Suarez, namely, that the impediment of crime is therefore incurred even by one ignorant of it because it has rather the nature of a remedy than of a penalty? What, I ask, is this: that the quality of a medicinal penalty, which previously, when the impediment of crime is treated, is brought forward as the reason why a penalty ought to be incurred even by one ignorant of it, is afterward, as we have seen with our own eyes, urged by the same authors as the reason why ignorance ought to exempt from incurring the penalty? Shall we hold firm that argument of theirs which they afterward employ to establish the opposite? Nor do they alone use it, but, what must certainly appear surprising, even those who defend that the impediment of crime is not incurred by one ignorant of it use the same argument taken from the nature of a medicinal penalty. For Schmalzgrueber (book 4, title 7, no. 58) presents their opinion thus: They give the reason that the impediment of crime, from the disposition of ecclesiastical law, has the nature of a penalty for the crime perpetrated and of a remedy conducive to preserving the fidelity of marriages and the safety of spouses and to preventing various evils; but according to common doctrine, penalties, especially medicinal ones, established by ecclesiastical law are not incurred by those who invincibly are ignorant that they were established; therefore, etc. This argument certainly ought to press the adversaries all the more validly because they not only concede each premise but assume it as most true and urge it for themselves against others. And perhaps someone will think it must be attributed to the perceived weakness of the reasons for the affirmative opinion that Sporer (l.c.), after also mentioning without censure those who defended the opposite negative opinion, concludes: Therefore I, with Father Gobat, would not fear to leave in good faith those who in good faith contracted while bound by the impediment of crime.

What Wiestner objects (On Conjugal Impediments, part 2, no. 21) is of still less weight: that there is no parity with censures, irregularity, and deprivation of the conjugal debt, because censures require special contumacy, which ceases in one ignorant that a censure is attached to his offense. Krimer replies well (l.c., no. 1026): Although censures require contumacy, nevertheless this does not essentially suppose an admonition or threat of punishment made by a man; for this fails in censures latae sententiae imposed generally by law, for incurring which the admonition and threat of the law itself, imposing the censure upon the delinquent by the fact itself, suffices. But this admonition and threat of the law also precedes the offense to which the impediment of crime is attached. Therefore here too that contumacy is present. If, therefore, a censure imposed by the law itself is incurred by one ignorant of it without another contumacy, the same must be said of this impediment. Therefore, by reason of contumacy there is no disparity in this respect between censures and this impediment.

Others - see Diana, volume 2, tract 6, resolution 170, no. 3 at the end - employ this argument for the affirmative opinion: that the impediment of crime is not a penalty but an incapacity, or, if it must be called a penalty, nevertheless it is at the same time and principally an incapacity for contracting. But this reason proves little, because the incapacity itself was established by law as a punishment for the crime; and therefore what is required to incur the penalty is also required to incur the incapacity, and what exempts from the penalty will also exempt from that incapacity.

They further argue - see La Croix, book 6, part 3, no. 642 - from the practice and style of the Curia, because those guilty of this crime are never permitted to contract without a dispensation, as Pyrrhus Corradus testifies in Practice of Apostolic Dispensations, book 8, chapter 9, no. 17; therefore Diana (l.c.) holds the negative opinion as very prejudicial to the sacred tribunals of the Penitentiary and the Roman Dataria. To this objection it can be replied with Benedict XIV (Canonical Question 185, nos. 26-27) that the grant or denial of any dispensation or faculty by the Sacred Congregations in no way changes either the state of controversies or the condition of laws. Therefore, just as, according to the same Benedict XIV there, a dispensation granted or denied concerning irregularities or censures does not establish that the irregularity or censure was incurred, and the grant or denial of a faculty sought, for example, by a mendicant Regular who already possessed it by force of his privileges detracts nothing from the privileges of that Regular or of other Regulars, so neither does a dispensation granted for convalidating matrimony establish the preceding nullity of that matrimony, nor does a dispensation granted for contracting matrimony establish the certain existence of the impediment. And indeed, is it the practice of the tribunals of the Sacred Penitentiary or Dataria to command marriages to be celebrated without a dispensation when the petitioners have recourse to them for a dispensation even in a case of a doubtful impediment? And yet who is ignorant - see St. Alphonsus, book 6, no. 901 - that matrimony can be celebrated both validly and licitly without a dispensation with mere probability of the absence of an ecclesiastical impediment? But to what is added from Diana, Krimer replies well (cited book 4, no. 1023) that no prejudice or injury is done to those tribunals by this opinion; otherwise all opinions of the Theologians which sometimes deny the necessity of seeking a dispensation would have to be abolished. But no one contends that through the use of such opinions anything owed by right to those tribunals is withdrawn or denied.

Finally, others argue ad hominem from an absurdity: if a penal impediment necessarily requires knowledge of the penalty in the delinquent, the same would also have force regarding the impediment of affinity from illicit intercourse. For the solution of this difficulty someone perhaps would refer the objectors to what Engel has concerning this question (book 4, title 14, no. 11), for he cites Doctors who favored the opinion exempting the ignorant also from this impediment. But a reply of this kind is neither necessary nor opportune. For Krimer observes much better with others (l.c., no. 1018) that the incapacity from affinity does not of itself necessarily suppose any offense, but only the nearness of persons which flows from the commingling of blood; therefore affinity induces this incapacity equally whether it arises from licit or illicit commingling, although by the benignity of the Council of Trent the extension of the incapacity arising from a condemned union was, for just causes, restricted to narrower limits.

And let these things suffice both so that it may be established that Krimer did not say idly that the affirmative opinion concludes neither from certain or evident principles nor certainly and evidently, and also that the scandal of certain fainthearted men may be tempered, who are astonished and in some manner recoil when they hear that the opposite negative opinion not only has long been accustomed to be handed down as truly probable in the schools of the Roman Seminary under the presidency of its emeritus Professor, now Bishop of Loreto, the Most Illustrious and Most Reverend Joseph Cardoni, but is also spontaneously admitted as such in the assembly of the Examiners of the Roman Clergy. You have a consequence of this opinion in the things which we brought forward a little above from St. Alphonsus (book 6, no. 901), and you have it indicated below (no. 789). Besides those cited here, you have in the praised Krimer, l.c., nos. 1014-1015, those among both the ancient and the recent writers who held this opinion. Compare also Pichler, who establishes and excellently vindicates this thesis (book 4, title 7, no. 6): It is probable that the impediment of crime is not incurred by those who are ignorant that it was attached by law to their offense. Reinhard Baumgartner also proposes and vindicates this thesis (Conclusions from the Five Books of the Decretals, book 4, title 7, conclusion 4); he published his work at Rome in the year 1759.

QUESTION 3. Do the laws of the Church constituting diriment impediments bind even in a case of the gravest inconvenience, for example, danger of death, etc.?

Reply. Yes, because from what has been said, ignorance, even complete, cannot render capable of that matrimony one who is rendered incapable by law; therefore much less can fear of harm, etc. Hence, if someone has contracted an impediment, for example, of affinity with his future bride through fornication with her sister, and the Superiors are unwilling to dispense from this impediment, he cannot marry her for any cause or fear ³.

³ See, however, what the Author himself observed above, after St. Alphonsus, concerning a certain case of necessity, no. 771.

789. • QUESTION 4. Is it licit to contract matrimony with a doubtful or probable impediment?

Reply 1. More probably, yes, in a doubt, or probability, of ecclesiastical law concerning the absence of an impediment; because if perhaps the impediment is truly present, the Church is judged to supply the defect of the contract invalid according to Canon law, just as she supplies a defect of jurisdiction whenever the Doctors commonly hold that she supplies jurisdiction in the Sacrament of Penance where common error intervenes. Moreover, the opinion teaching that the Church also supplies in the present case of a doubtful impediment is generally received as probable by innumerable Doctors who favor it. - Thus Lacroix, no. 534. - St. Ligorius, no. 901, and others commonly ⁴.

⁴ ** At this place the VV. admonish Father Gury (page 947, no. 158) that St. Alphonsus requires that the opinion concerning the absence of an impediment be universally, or at least certainly, received by Authors as probable. And they refer the reader to page 792.

Gury certainly does not speak of a doubtful probability. Moreover, what the opinion of the Doctors is concerning this matter may be seen above in the note to no. 724.

Reply 2. No, if there is question of probability of divine or natural law, for example, in the impediment of bond or of impotence, because then the Church cannot supply the probable defect, since that impediment does not depend upon the Church. Therefore the matrimony thus contracted would remain doubtful; and consequently it is never licit to receive a Sacrament with such a doubt ⁵. Therefore, etc.

⁵ St. Alphonsus (book 6, no. 902) judged that when a most grave cause urges, matrimony can be contracted with mere probability that an impediment does not exist, even if it is of divine or natural law, provided that there is also a declaration of the Supreme Pontiff as interpreter of divine law; and that this is established from the declaration of Urban VIII. In a doubt whether the marriages of certain infidel Indians were valid, and therefore whether those converted to the faith were bound to take the first of the several wives whom they had, or could choose whichever of them they wished, he replied that where the opinions of the Doctors on each side were probable, the Missionaries should follow the opinions more favorable to the barbarians according to the condition of the places and persons. You have the supplication presented to Urban VIII by Father de Lugo, afterward Cardinal, concerning this matter, and the reply of the Pontiff, in Cardenas (Theological Crisis, part 4, dissertation 2, no. 552).

Nevertheless, it must be observed that Gregory XIII and the same Urban VIII had already given those Missionaries in addition the faculty of dispensing with respect to the bond itself of a matrimony contracted in infidelity and not yet consummated again after the conversion of both spouses, as we already saw in the note to no. 759. Therefore, the doubt, if any remained, concerning a bond perhaps existing with the first wife was provided for, or certainly could be provided for, by a dispensation at least as a precaution. Benedict XIV also recalls (On the Diocesan Synod, book 6, chapter 21, no. 6) that this faculty of dispensing was customarily granted to Bishops, Vicars Apostolic, and Prefects of Missions, expressed in these words: Of dispensing with Gentiles and infidels having several wives, so that after conversion and baptism they may retain whichever of them they prefer, if she too becomes faithful, unless the first wishes to be converted. These final words certainly do not indicate a spouse who was unwilling to cohabit without injury to the Creator, etc., and therefore one who could be said, according to the phrase of Paul, to depart; for thus no dispensation would have been necessary. And from the Acts of the Council of Lima - see the note to no. 759 above - it is established that a faithful person was permitted to cohabit with a spouse still infidel, at least for a time. Therefore the dispensation is referred to the case in which, not by force of the Pauline privilege, but by force of a Pontifical dispensation, the matrimonial bond, if any existed with the first spouse, was dissolved. But that Lambertini (l.c.), after bringing forward this faculty of dispensing, somewhat wonderingly observes that no mention is made in it of the infidel spouse having to be juridically questioned must be attributed to the prejudice which he had imbibed from Pontius, as it was possible to observe already in the note cited above.

Reply 3. No, also if there is question of probability of fact. The reason is that in probability of this kind the Church is not presumed to dispense. Moreover, the contrary opinion is not commonly received as probable, and otherwise excessive inconveniences would follow if, after the matrimony had been contracted, the error were discovered. - Thus commonly. - St. Ligorius, no. 902.

790. • QUESTION 5. Is it licit for spouses to use matrimony if, after the nuptials have been entered, a doubt concerning some impediment arises?

Reply 1. No, until a sufficient inquiry concerning the truth has been made. If, however, only one doubts, although that party cannot seek the debt, the party must nevertheless render it to the other seeking it in good faith. - St. Ligorius, no. 903.

Reply 2. Yes, if, after serious diligence has been employed to discover the truth, the doubt still remains, because in a doubt one must stand for the validity of the act. Thus commonly against a few. - St. Ligorius, no. 904, etc.

791. • QUESTION 6. Is a matrimony contracted with an impediment believed to exist, but not existing, valid?

Reply 1. If the contracting party is not altogether certain of the impediment but in some way doubts concerning it, the matrimony is valid. - Thus commonly with Lacroix, no. 525. - The reason is that the party contracts at least conditionally, namely, insofar as I can, although he does not advert to that condition; therefore, since the impediment does not exist, the consent is already absolute.

Reply 2. If the party contracts with certainty of the impediment, which he regards as of little importance, so that he determines to live in concubinage, it is certain that the matrimony is invalid.

The reason is that then the will to contract matrimony is not predominant. Reply 3. If the party contracts with certainty of the impediment, but grieving over the impediment and not daring to disclose it lest the matrimony be prevented or the party be defamed, or because of some inadvertence, the matter is disputed. More probably, the matrimony is valid because of the predominant will to contract it. - Thus Lacroix, ibid. - Nevertheless, in practice, as a precaution the party should be induced to renew consent.

792. • Among the acts of Pius IX many things concerning matrimony are found, of which it is useful to report the principal ones.

I. In the condemnation and prohibition of the works of Nuytz, he speaks thus concerning this impious author in the Brief of the Apostolic See, August 22, 1851:

Many false things are also asserted concerning matrimony:

That in no way could it happen that Christ elevated matrimony to the dignity of a Sacrament;

That the Sacrament of Matrimony is nothing but something accessory to the contract and separable from it, and that the Sacrament itself consists in the nuptial blessing alone;

That by natural law the bond of matrimony is not indissoluble;

That the Church does not have the power to introduce impediments diriment of matrimony, but that this belongs to the civil power, by which existing impediments are to be removed;

That matrimonial causes and betrothals by their own nature pertain to the civil forum;

That in later centuries the Church began to introduce diriment impediments, not by her own right, but using that right which she had borrowed from the civil power;

That the Tridentine Canons (session 24, canon 4, On Matrimony), which inflict the censure of anathema upon those who dare to deny to the Church the faculty of introducing diriment impediments, either are not dogmatic or must be understood of this borrowed power;

That the Tridentine form does not bind under penalty of invalidity where the civil law prescribes another form beforehand and wills matrimony to be valid when this new form intervenes;

That Boniface VIII was the first to assert that a vow of chastity emitted in ordination renders nuptials null.

793. • II. In the Allocution of September 27, 1853, concerning the affairs of the Republic of New Granada (Nouvelle-Grenade), the Supreme Pontiff spoke thus:

... Since no Catholic is ignorant, or can be ignorant, that matrimony is > truly and properly one of the seven Sacraments of the evangelical law, instituted by Christ the Lord, and that therefore among the faithful matrimony cannot exist WITHOUT BEING AT ONE AND THE SAME TIME A SACRAMENT; and that for this reason any other union between a Christian man and woman, made by force of any civil law whatever, APART FROM THE SACRAMENT, is nothing other than a shameful and deadly concubinage, condemned for so long a time by the Church; and consequently that THE SACRAMENT CAN NEVER BE SEPARATED FROM THE CONJUGAL COVENANT, and that it belongs altogether to the power of the Church to decree all those things which in any way can pertain to that same matrimony, etc.

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

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

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

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

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

Error, condition, vow, relationship, crime¹,

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

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

Age, affinity, if clandestine and impotent,

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

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

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

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

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

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

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

2° Who Can Establish Diriment Impediments?

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

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

¹ Code, c. 1038.

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

² Code, c. 1041.

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

3° Who Are Subject to Diriment Impediments?

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

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

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

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

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

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

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

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

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

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

4° What Causes Excuse from Diriment Impediments?

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

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

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

² Ap. Collect. P. F., n. 1226.

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

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

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

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

¹ Code, c. 1068, § 2.

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

² Code, c. 15.

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

³ Code, c. 85.

¹ Decret., lib. V, tit. 39, cap. 44.

— Notion of impediment. In the broadest sense, an impediment is whatever stands in the way of the validity or liceity of matrimony: even natural inability for any contract whatever, such as insanity gives, and the state of sin itself. - In a broad sense, it is whatever externally, by divine or human law, stands in the way of the validity or liceity of matrimony: then it is also a defect of substantial or accidental form, as if matrimony is made without the pastor, without banns. - In the proper sense, it is whatever externally, by divine or human law, makes a person unable, not for any contract whatever, but for matrimony, or forbids him to contract marriage. Then a defect of form is not an impediment. And thus it is understood in the Code. Wherefore defect of solemnities is not numbered among impediments (cf. d'Annibale, III, 429; Gasparri, I, 265-266).

— Division of impediments. 1. An impedient impediment "contains a grave prohibition of contracting marriage": yet this does not render it invalid (c. 1036, §1). A diriment impediment, on the contrary, stands in the way of the very validity of marriage, which at the same time it gravely prohibits (c. 1036, §2).

2. An impediment is judged public which can be proved in the external forum; otherwise it is occult (c. 1037).

You should observe that in the Code itself, marriage and delict are said to be occult and public in a diverse manner, so that the notion handed down here is by no means general. Therefore a case occult or public is one thing; an impediment public or occult is another. It can well happen that an impediment can be proved in the external forum, which nevertheless is so commonly unknown that its case can and must be said to be occult.

Public and occult impediments can be such either by their nature (c. 1971, §2), or by fact. By their nature public are said those to which origin was given by a fact which must occur before the forum of the Church or in an assembly of the faithful, such as the impediment of order; or which must be entered in public registers: age, legitimate consanguinity, and mixed religion itself; or which can be proved by the testimony of a qualified witness testifying from his office or of two immediate witnesses: ligamen.

By fact, an impediment will be public whose proofs of the external forum are truly at hand, even if it is widely unknown. But the question controverted before the Code, whether an impediment should be called occult or rather public which is known materially in its elements but not formally in its juridical force, or whose cause indeed is known but not the effect of producing an impediment, can today be passed over. For the fact which is known can be proved in judgment, where the law is not unknown (cf. Cappello, III, 200, 3).

3. According to their origin, impediments of divine law are distinguished, which the Church authentically declares, and those of positive human law, which the Church establishes, or, for the non-baptized, the competent power establishes.

4. According to the discipline of dispensation, impediments are of lesser grade and of greater grade. Dispensation from the former is not invalidated because of the vice of obreption or subreption. They are: consanguinity in the third degree of the collateral line, affinity in the second degree of the collateral line, public honesty in the second degree, spiritual kinship, crime from adultery or from attempted marriage, even by a civil act only (c. 1042).

— Author of impediments. 1. Impediments of divine law are at the same time of natural law.

2. Impediments of human law for the baptized are established by ecclesiastical law alone. Their constitution is now reserved to the Holy See, with custom also excluded, insofar as a custom inducing an impediment is reprobated (c. 1041). For non-baptized persons, the power of inducing even diriment impediments does not seem to be removed from civil authority.

3. A bishop or local Ordinary can forbid some particular marriage in his territory, but only for a time and while a just cause endures.

The pontifical authority alone also, with even a custom contrary to impediments by abrogation or derogation reprobated (c. 1041), can suppress or relax impediments of ecclesiastical law.

— Subject of impediments. Only the baptized are directly bound by canonical impediments; only infidels by the impediments of civil law. But an impediment in only one or the other party renders the marriage illicit or invalid for both parties (c. 1036, §3).

As regards the form of celebration, the exempt party would of itself communicate its exemption with the other party, unless now it had been established otherwise by positive law (cf. Gasparri, I, n. 297).

After conversion and baptism, a fact before baptism brings forth an impediment if it subsists or perseveres in a natural bond, but not in a bond in the canonical manner.

— Dispensation or relaxation of impediments.

1. The Supreme Pontiff possesses the fullest faculty of dispensing in all impediments of ecclesiastical law, and of declaring divine law concerning the same matter. The civil power can relax its impediments for the non-baptized. Dispensation from occult impediments is sought from the Sacred Penitentiary; for public impediments the Sacred Congregation of the Sacraments is to be approached, excepting the impediments of disparity of cult and mixed religion, for which the Holy Office is to be approached.

2. Those inferior to the Supreme Pontiff cannot dispense in impediments, unless Ordinaries, when the fact is doubtful and it is a question of laws in which the Roman Pontiff is accustomed to dispense (c. 15); or when recourse to the Holy See is difficult and at the same time there is in delay danger of grave harm, and it is a question of a dispensation which is customarily conceded by the Apostolic See (c. 81); - or unless by indult or by the common law itself this faculty has been given.

— Faculties granted to Ordinaries. 1. General faculties have customarily been granted to Nuncios or Apostolic Delegates; to bishops, Vicars Apostolic, and Prefects Apostolic.

1. By force of c. III of their faculties, Nuncios or Apostolic Delegates can dispense from impedient impediments; for a certain number of cases, from diriment impediments of ecclesiastical law, whether public or occult, excepting those which arise from affinity in the direct line, after consummated marriage, from sacred order, and from solemn religious profession; they can sanate in the root, for a certain number of cases, marriages null because of a diriment impediment, when renewal of consent is morally impossible, yet the party conscious of the impediment having been warned concerning the effect of the sanation. The clauses to be observed, and the communication with an auditor or secretary acting in the place of the Nuncio, are indicated in the formula (cf. Epitome Iuris, I, p. 363 s.).

2. As regards local Ordinaries, by decree indeed of the S. C. Consistorial, April 25, 1918 (Per., IX, 116), the faculties of the external forum which before had customarily been granted were first abrogated; but since the necessity of arming Ordinaries with habitual faculties was soon demonstrated, the same Sacred Congregation, by letters of March 17, 1922, sent various lists to the bishops, of quinquennial faculties which local Ordinaries not subject to the S. C. de P. F., in the year in which they must report to the Holy See, can obtain from the respective Congregations or from the Sacred Penitentiary. After the Motu proprio of April 20, 1923, all these faculties are bestowed by the S. C. Consistorial itself, the right of the individual Offices to draw up and change formulae remaining intact.

To Ordinaries outside Europe, and also to many Ordinaries of Europe, the S. C. of the Sacraments grants the faculty of dispensing in diriment impediments of lesser grade and in impedient impediments arising from a vow; besides this, in more urgent cases, of dispensing from impediments: a) of consanguinity in the second degree or in the third mixed with the first, provided no scandal or wonder arises from it; in the second degree of the collateral line; b) of affinity in the first degree of the collateral line equal or mixed with the second; c) of public honesty in the first degree, provided it is certainly established that the spouse cannot be offspring generated by the other of the contracting parties.

Besides this, at the time and in the act of sacramental visitation or of sacred missions and no further, they can dispense from all matrimonial impediments mentioned above with those who are found to be living in concubinage; they can sanate in the root marriages contracted invalidly because of impediments of lesser grade, if there would be great inconvenience in requiring from the party ignorant of the impediment a renewal of consent, provided the former consent perseveres and the danger of divorce is absent.

By that distinction between consanguinity in the third degree and that which is in the third mixed with the first, the Sacred Congregation in no way thinks to convert consanguinity of a mixed degree into an impediment of greater grade, or to change the computation of the Code; it restricts only the delegated faculty.

From the Holy Office, the same Ordinaries can obtain the faculty of dispensing over the impediment of mixed religion and, if the case calls for it, also over disparity of cult as a precaution, the due cautions having been furnished; of sanating in the root marriages attempted before a civil official or a non-Catholic minister with the impediment of mixed religion or disparity of cult.

The faculties of both Congregations can be exercised everywhere toward subjects, with non-subjects, within the limits of the territory; they are delegable; yet in such wise that the faculty of sanating in the root proceeding from the Holy Office can be subdelegated only to pastors, in individual instances.

The Sacred Penitentiary, in the internal forum, even extrasacramental and outside the diocese, for the flock committed to him [faculty!], also for five years, gives the faculty of dispensing for seeking the debt with a transgressor of a private vow of perfect and perpetual chastity emitted after completing the eighteenth year of age, who has contracted marriage with such a vow; of dispensing over the occult impediment of crime, yet without machination (of death), whether marriage has been contracted or is to be contracted, a grave and lasting salutary penance having been enjoined. The faculty can be subdelegated, within the boundaries only of the diocese, to the Canon Penitentiary and to vicars forane for the forum of conscience and in the act of sacramental confession, even habitually; likewise also to some confessors for special causes; to others it cannot be subdelegated except in individual cases where they have recourse.

3. To bishops, Vicars Apostolic, and Prefects Apostolic of its jurisdiction, the S. C. of Propaganda Fide also grants matrimonial faculties through formulae which after the Code have been newly drawn up; and there are three in kind, yet in such a way that Formulae II and III are distinguished as greater (for Prelates increased by episcopal character) and lesser (cf. our Commentarium on these formulae).

Excepting the first formula, which is restricted to impediments of lesser grade, the others delegate a communicable faculty of dispensing "over matrimonial impediments, whether of lesser or of greater grade, as much public as occult, even multiple, yet of ecclesiastical law; excepting impediments arising from the sacred order of Presbyterate, from defect of the prescribed age, and from affinity in the direct line after consummated marriage"; and of sanating in the root marriages invalidly contracted because of some one of the impediments in which they can dispense.

But when a petition has been sent to the Holy See, Ordinaries are not to use their faculties unless from a grave and urgent cause, and they are at once to warn the Holy See concerning the matter (cc. 1048; 204, §2).

2. From the common law itself, cc. 1043 and 1045:

a) when danger of death is urgent, for consulting conscience and, if the case calls for it, for the legitimation of offspring;

b) whenever an impediment is detected when all things have already been prepared for the nuptials, and marriage cannot be deferred, without probable danger of grave evil, until a dispensation is obtained from the Holy See (the case which was called perplexed);

c) for the convalidation of a marriage already contracted, if the same danger is in delay and there is not time to have recourse to the Holy See; provided scandal is removed, and, if dispensation is granted over disparity of cult or mixed religion, the customary cautions are furnished (which latter condition is required for validity);

d) in these circumstances, I say, local Ordinaries can dispense both over the form to be observed in the celebration of marriage, and over all and individual impediments of ecclesiastical law, whether public or occult, even multiple, excepting the impediments of presbyterate and affinity in the direct line after consummated marriage.

Moreover, they can dispense their own subjects wherever dwelling, and all those actually staying in their own territory. They must see to it that scandal is removed, and, if it is a question of disparity of cult or mixed religion, that the customary cautions are furnished.

That faculty, annexed by the common law to their office, according to the definition of c. 197, can be considered as ordinary and therefore delegable.

— Faculties of pastors. In urgent danger of death, if not even the local Ordinary can be approached, the pastor assisting at the marriage possesses the same faculty, ordinary and therefore delegable.

But in a perplexed case, or for convalidating a marriage (in a quasi-perplexed case), if the local Ordinary cannot be approached, at least without danger of violating secrecy, the pastor can do the same as the Ordinary, but for occult cases only (cc. 1044, 1045).

But the pastor must at once inform the local Ordinary concerning a dispensation granted for the external forum, and note it in the book of marriages (c. 1046).

— Faculties of the priest who assists at a marriage which is validly contracted before only two witnesses, according to the norm of c. 1098. This priest is furnished with the same power as the pastor by cc. 1044 and 1045; and he is held by the same obligation of notifying the Ordinary.

Faculties of the confessor. He can do the same as the pastor and the priest just mentioned, but for the internal forum, in the act of sacramental confession.

— Things to be observed concerning these faculties. a) Concerning the faculty in danger of death. - The danger of death can be either of the person who is bound by the impediment or of the other party. In that danger no difficulty of approaching the Holy See is required. A twofold just cause of dispensing is indicated: the necessity of conscience, if by marriage an occasion of sin is suppressed, or scandal is removed, or material damage is repaired, or hatred is extinguished, etc.; the legitimation of offspring born or to be born, provided it is not adulterine or sacrilegious, because this is not legitimated by marriage.

Provision will chiefly have to be made for removing scandal if a deacon or a professed religious afterward recovers. If there is hope of recovery, a promise of departing into a distant region is to be required, or at least of correcting by fervor of life the bad edification of the contracted marriage. When it is a question of the impediment of disparity of cult or of mixed religion, the customary cautions or promises (cf. n. 767) must be required. If they do not seem able to be fully obtained or prudently demanded, the Ordinary more probably acts validly who, in these extreme matters, is content with the conditions required by divine law (cf. Pigui, n. 90, 6; Cerato, Matrimonium, p. 47; Cappello, III, n. 232). Yet we gather this less from the present faculty than from c. 81, by which, where there is in delay a danger of grave harm, the Ordinary is permitted to dispense according to the mind of the Holy See. Wherefore, contrary to what Cerato thinks, p. 50, outside danger of death, even in a perplexed case, we judge with Cappello, n. 233, that the cautions are to be required for the validity of the dispensation.

b) Concerning the faculty in a perplexed case. Here it is required that the Holy See cannot be approached in time. And by the response of the Pontifical Commission, March 1, 1921, both the Ordinary and the pastor can use their power in a perplexed case when the impediment, even if known before, is nevertheless detected by them only then, when all things are prepared for the nuptials.

c) Concerning the faculty of the pastor and assisting priest. This supposes that the Ordinary cannot be approached at least by letters. For the Pontifical Commission itself, November 12, 1922, to V, judged that the Ordinary cannot be approached if he cannot be approached except by telephone or telegraph (Per., XI, 193). And by analogy from c. 1045, §3, if the matter must be covered with secrecy with respect to the Ordinary, then also he seems unable to be approached (Gen., II, 523 bis). Outside danger of death the faculty is restricted to occult cases. But whether the case is occult by its nature or only in fact, it seems comprehended by the faculty of the pastor and assisting priest. The secrecy whose danger excuses from approaching the Ordinary is not only sacramental secrecy, but also committed or natural secrecy: when grave damage or inconvenience stands in the way of revelation. Because the office of pastor comprises no jurisdiction of the external forum, the faculty given here does not seem annexed to the office. Wherefore it is not ordinary nor can it be subdelegated (Vlaming, op. c., n. 415). Yet this is probably disputed. But the faculty extends to all impediments from which he can dispense in danger of death, so that even (if the case occurs, for example where a marriage is to be convalidated) he seems able to dispense in the form of marriage.

What if, for example, a vicar forane can be approached to whom the Ordinary has delegated his power? Vlaming judges (op. c., n. 312) that recourse must then be had to that delegate, so that otherwise the pastor would dispense invalidly. That severity does not seem to us able to be drawn from the Code. Yet the Ordinary could prescribe recourse to the delegate for liceity.

d) Concerning the faculty of the confessor. Several, for example P. Cappello, III, 258, deny that this faculty extends to impediments public by their nature, even if the case is occult. And indeed, in urgent danger of death, there will scarcely occur a case where the Confessor cannot either obtain that the penitent seek a dispensation in the external forum from the pastor or assisting priest then intervening according to c. 1044, §2, or himself grant it as assisting priest. But if a case of necessity has intervened (as if an occult subdeacon does not wish to be known to the pastor as a violator of his vow), it does not seem to be ours to circumscribe the force of the general canon. But if danger of divulgation, or of conflict between the internal and external forum, is to be feared, the confessor will require from the penitent promises which remove the danger: of seeking a dispensation in the external forum, of permitting entry in the secret archive, or recourse to the Sacred Penitentiary, which perhaps may consent that the marriage be noted in one secret archive, or otherwise provide (cf. concerning this matter the full discussion in Monitor, 1920, p. 59 ss., which P. Arendt called back to examination: Du cas perplexe et des pouvoirs du confesseur d'après le Code, Nouv. Rev. Théol., 1920, p. 261 ss.; Cappello, III, 238).

What if a marriage is celebrated before a delegated priest, and at that moment an impediment is detected in circumstances in which neither pastor nor Ordinary can be approached nor the marriage deferred?

Then either you will say with some, for example Cappello, III, 236, that the delegated priest has the power of dispensing which belongs to the pastor, so that, according to the norm of c. 200, §1, he has all those things without which he could not exercise the power. And indeed it would seem wonderful that a duly delegated priest could do less than any priest assisting when marriage is permitted to be contracted before witnesses alone. Or at least you will permit him to handle the perplexed case as before the Code, that is, to declare that the impediment has ceased, with the obligation added of recurring to the Ordinary.

— The notation of dispensations in the internal forum. "Unless the rescript of the Sacred Penitentiary carries something else, a dispensation granted in the non-sacramental internal forum over an occult impediment is to be noted in a book diligently kept in the secret archive of the curia: nor is another dispensation for the external forum necessary, even if afterward the occult impediment has become public; but it is necessary if the dispensation had been granted only in the sacramental internal forum" (c. 1047).

— Things to be noted concerning the faculty of dispensing and its use.

1. Concerning a multiple impediment. A general principle is now established, according to which those who enjoy a general indult of dispensing can use it whether the same impediment is multiple or several impediments occur at the same time, even public impediments, and this both in marriages to be contracted and in marriages already contracted (c. 1049).

Yet where, for one out of several public impediments, the faculty is lacking, recourse must be had to the Holy See for all. But if, after a dispensation over others has been granted by the Holy See, an impediment or impediments are detected over which the faculty of dispensing was had, use of this faculty is to be made, with a new recourse omitted (c. 1050).

2. Concerning the legitimation of offspring. Whenever a dispensation over a diriment impediment is granted, by ordinary power or by power which has been bestowed through a general indult, by that very fact there is also granted the legitimation of offspring which has already been born or conceived from those who are dispensed, excepting, however, adulterine and sacrilegious offspring (c. 1051).

Therefore every dispensation, when the Holy See itself has granted it, whether in gracious form or by committing the execution to the local Ordinary, since it remains from ordinary power, brings this legitimation. It must be said otherwise concerning a dispensation which, in a particular case, is permitted to be made by the Ordinary¹. For then the faculty does not extend to legitimation, unless it is expressly said. But if the Ordinary dispenses by force of a general indult, the legitimation is contained in the dispensation itself. Hence it also follows that offspring are legitimated by the dispensations granted by force of cc. 1043-1045, unless dispensation is made from a vow or the offspring has been adulterine.

3. Concerning error in the supplicatory petition or incomplete exposition. a) "A dispensation from a lesser impediment once granted is invalidated by no vice either of obreption or subreption, even if the only final cause set forth in the prayers had been false" (c. 1054).

But obreption is had in suggesting a false cause; subreption in concealing a matter which would stand in the way of the dispensation and therefore, from the style of the curia, ought to have been stated.

Therefore the petition itself suffices, so that a sufficient cause for the dispensation is considered to be present. Wherefore even if the one dispensing, for example the Ordinary, had been conscious of the error or fraud of the parties, he will have the right of dispensing.

Nevertheless other causes of nullity subsist, for example if the dispensation had been extorted by force and fear.

b) "A dispensation from the impediment of consanguinity or affinity granted in some degree is valid, although in the petition or in the concession an error concerning the degree has crept in, provided the degree really existing is inferior, or although another impediment of the same species in an equal or inferior degree had been kept silent" (c. 1052).

Therefore a twofold case is considered: a) they were affines in the second degree or consanguineous in the third, for whom a dispensation in the first degree of affinity or in the second of consanguinity was obtained: the dispensation is valid; nothing must be corrected; b) they were impeded by multiple consanguinity or affinity. One has been declared. Provided the omitted degree is not superior, the dispensation is valid; nor does the Code require the condition of good faith in the one keeping silent. Therefore for validity it is enough to have indicated a simple impediment in the nearer degree (De Smet, De Spons., n. 47). But if affinity concurring with alleged consanguinity was kept silent, the dispensation is not valid, for the impediments are disparate or of diverse species.

This rule again is general: it is to be applied whoever the author of the dispensation is. But the Code deliberately speaks of an error which has crept into the petition or concession. For it can happen that the supplicatory petition itself was incomplete; and it also occurs that an imperfect response is given to a well-drafted petition, even from an error of the copyist. Yet each error of itself vitiates the rescript (cf. De Smet, De Spons., 920, 3 and note 1).

4. Virtual dispensation from an impediment. A dispensation given by the Holy See over a ratified and non-consummated marriage, or a permission made for passage to other nuptials because of the presumed death of a spouse, always carries with it a dispensation from the first form of the impediment of crime, that is, adultery with promise or attempted marriage, but not from the other forms, where killing of the spouse has intervened.

Here you should observe that it is necessary that the dispensation be given by the Holy See, whether in gracious form or in imperative commissory form (mandamus, committimus). Other virtual dispensations, since none are mentioned, no longer seem to exist, even if they existed before the Code. Thus a dispensation in the impediment of disparity of cult used to carry with it a dispensation of the Catholic party from impediments to which the other party was immune.

¹ We deliberately abstain from the words, in forma commissoria, which are not always used with the same meaning. De Smet, De Spons., n. 740, p. 204, note 2. This must be attended to, whether the Holy See dispenses by itself or by a mandatary, or whether the bishop dispenses through granted faculties.

— Execution of a dispensation. Dispensations over public impediments granted to the Ordinary of the petitioners are always to be executed by the Ordinary who gave the testimonial letters or transmitted the prayers, yet the Ordinary of another place in which perhaps the marriage is contracted having been warned (c. 1055).

Mention of the faculty delegated by the Holy See is always to be made in the dispensation to be granted (c. 1057).

You should observe that this mention is commanded, yet not for validity. A dispensation for the extrasacramental internal forum is also committed to other persons, for example to the pastor; for the sacramental forum, to the confessor.

— The gratuitousness of dispensation in the diocesan Curia. Saving an express concession of the Holy See, for dispensations which the Ordinary himself grants, every emolument is forbidden to be received, under penalty of restitution, "excepting some modest prestation by title of expenses of the Chancery," and this only from those who are not poor.

For dispensations which the Ordinary executes, the rescript itself often indicates what can be sought for the execution. And also, from c. 1507, §1, after the approval of the Holy See has been obtained, in a provincial council or convention, the tax of execution for the whole province can be predefined.

For dispensations which Nuncios and Apostolic Delegates grant by force of their faculties, it is said: "The persons about to marry should pay some offering, if it can be done, according to their means," to be transmitted to the S. C. of the Holy Office, if it is a question of disparity of cult, to the S. C. of the Sacraments, if there were other impediments.

In conceding dispensations from the faculties of the S. C. of the Sacraments, Ordinaries must see to it that those who are found able to pay should pay an equitable offering according to their means, in service of the Holy See. By the indult of the Holy Office we are taught that the tax customarily sought for any dispensation "which the Right Reverend Lord Ordinary will exact, unless because of the diversity of cases it must be moderated or remitted because of the poverty of the petitioners or other just causes" is 15 francs. The Ordinary is permitted by the Holy Office to retain the fifth part of the taxes which they exact for his own necessities and those of his diocese.

— Principle concerning capacity and liceity of marriage. "All can contract marriage who are not prohibited by law" (c. 1035).

Therefore, 1. when it is a question of marriage in general, the impediment must be proved, and in a doubtful impediment one must respond in favor of liberty. This rule is universal when it is a question of impedient impediments; when it is a question of diriment impediments, the right acquired by a third party must remain safe; wherefore it is not lawful to contract a new marriage if the invalidity of the prior marriage, or its dissolution, for example by death, is only probable. But an application of the rule is had in c. 1068, §2: "If the impediment of impotence is doubtful, whether by doubt of law or by doubt of fact, marriage is not to be impeded." De Smet (De Spons., 472) not undeservedly restricts this application to absolute impotence; for when it is a question of relative impotence, we fall under n. 2. (Yet we do not wish to deny the probability, at least extrinsic, of the more benign opinion.)

2. The rule is less universal when it is a question of the faculty of nuptials between definite persons. Even then it holds concerning impedient impediments, and concerning impediments of ecclesiastical law which are doubtful by law. In impediments of ecclesiastical law which are doubtful by fact, the Ordinary can dispense in those impediments in which the Holy See is accustomed to dispense. But neither before this kind of dispensation, nor when it is a question of a doubtful impediment of natural or divine law, is marriage licit between persons thus doubtfully impeded. Wherefore c. 1076, §3: "Marriage is never to be permitted if there is any doubt whether the parties are consanguineous in any degree of the direct line or in the first degree of the collateral line."

The reason for the distinction between each kind of doubt is manifest. In the former, you would oblige an unwilling person to continence: the common good itself requires that this not be done without manifest reason; in the latter, the faculty of marriage with all persons not prohibited by a similar impediment is permitted to remain.

What must be said after the fact, we shall see below. Now the individual impediments must be proposed, yet the rule of communication of impediments having been recalled.

— Communication of impediments. "Although an impediment has itself on the part of only one party, nevertheless it renders the marriage either illicit or invalid" (c. 1036).

Therefore if an infidel contracts with a faithful person, or a non-Catholic with a Catholic, the impediments by which the Catholic is affected impede the marriage even with the free party: the immunity of the free party is not communicated.

— I. What. Of how many kinds. An impediment properly, and in the Code, is not whatever, even internally or externally, stands in the way of marriage, but is whatever external, by divine or human law, renders a person unable, not for every contract, but for matrimony, or forbids him to contract marriage. For there is an impedient impediment, which contains a grave prohibition, and a diriment impediment, which at the same time prohibits and invalidates.

It is public which can be proved in the external forum; otherwise it is occult, and that either by its nature or by fact.

According to origin, it is of divine law, which the Church merely declares authentically, and of positive human law: that is, for the baptized, of ecclesiastical law alone; for the non-baptized, of civil law alone.

According to the discipline of dispensation, an impediment is of lesser grade, whose dispensation is not weakened because of the vice of obreption or subreption, and an impediment of greater grade.

The Holy See alone establishes or removes impediments. The Ordinary can forbid a marriage for a time, while a just cause endures.

II. Subject. Only the baptized are directly bound by canonical impediments, only the non-baptized by civil impediments. But an impediment existing in either party makes the marriage illicit or invalid for both. For whom the form must be observed will be said later.

After conversion and baptism, a fact before baptism creates an impediment if it subsists or perseveres in a natural bond, but not in a merely canonical one. When it is a question of marriage in general, those doubtfully impeded preserve the right of contracting marriage; but if it is a question of marriage between definite persons, this rule does not hold except concerning impedient impediments or concerning impediments of ecclesiastical law which are doubtful by law.

III. Dispensation. 1. Those dispensing. The power belongs to the Supreme Pontiff for all canonical impediments; to the civil power for impediments of civil law. For occult impediments the Penitentiary is approached; for public impediments, the S. C. of the Sacraments, excepting the impediments of disparity of cult and mixed religion, for which the Holy Office must be approached.

Local Ordinaries, when the fact is doubtful, or when recourse to the Holy See is difficult and, in delay, there is danger of grave harm, dispense in impediments which the Holy See is accustomed to relax.

They also dispense by force of a general indult granted by the S. C. of Propaganda Fide or by a competent Congregation.

From the common law, they can dispense their own subjects wherever dwelling, and all others in their own territory, by a faculty granted as ordinary, both over the form of celebration and over all impediments of ecclesiastical law, excepting presbyterate and affinity in the direct line after consummated marriage: when danger of death is urgent, for consulting conscience and, if the case calls for it, for the legitimation of offspring; besides this, if the Holy See cannot be approached in time, in the case which is called perplexed, that is, whenever an impediment is detected when all things are prepared for the nuptials and the marriage cannot be deferred without probable danger of grave evil until dispensation has been sought from the Holy See; similarly, when the convalidation of a marriage already contracted is urgent. Scandal must be removed, and, if dispensation is made over disparity of cult or mixed religion, the customary cautions must be required.

The pastor assisting at marriage in urgent danger of death can do the same if not even the Ordinary can be approached, at least by letters. In a perplexed case or for convalidating a marriage, he can do the same for occult cases only.

The priest who, when a marriage is validly contracted before two witnesses, assists at the marriage, enjoys the same power as the pastor.

The confessor can do the same, but only for the internal forum and in the act of sacramental confession.

N. B. Of itself, after a dispensation has been granted in the non-sacramental internal forum, a dispensation in the external forum, which is only a mode of recognizing what had already been validly done, is no longer necessary.

2. Concerning the use of the faculty. a) By a general indult, dispensation of a multiple impediment, or of several impediments concurring at the same time, is permitted. Yet if the faculty is lacking for one public impediment, the Holy See must be approached for all. But if, after dispensation over others has been granted by the Holy See, impediments are detected over which the faculty is had, its use is permitted without new recourse; b) a dispensation bestowed from ordinary power or through a general indult, by that very fact legitimates offspring born or conceived, excepting adulterine or sacrilegious offspring; c) a dispensation granted in some degree of consanguinity or affinity is valid, although in the petition or concession an error concerning the degree has crept in, provided the degree really existing is inferior, or an impediment of the same species in an equal or inferior degree had been kept silent; d) a dispensation over public impediments is always to be executed by the Ordinary who gave the testimonial letters or transmitted the prayers; e) saving an express concession of the Holy See, the Ordinary can receive no emolument for dispensations which he grants, excepting, from non-poor persons, a modest prestation by title of expenses of the Chancery.

777. 1. Notion. An impediment of matrimony in general is some circumstance because of which, by a disposition of law, a valid or at least licit matrimonial contract cannot be made between the contracting parties.

Such a circumstance can be sanctioned by either natural and divine law, ecclesiastical law, or civil law. Civil diriment impediments which have been established conformably to natural law bind the non-baptized, as was said above. All Christians are bound by canonical impediments, that is, those which arise from natural, divine, or ecclesiastical law. Infidels are not bound by impediments of merely ecclesiastical law, for example, the impediment of crime.

778. 2. Divisions. a) Impedient and diriment impediments.

An impedient impediment contains a grave prohibition against contracting matrimony; the matrimony, however, is not rendered null if it is contracted notwithstanding the impediment, for example, a simple vow of chastity. A diriment impediment¹ both gravely prohibits matrimony from being contracted and prevents it from being validly contracted,² for example, bond.

b) Impediments of natural or divine law and of ecclesiastical law.

Since God Himself determined the nature of matrimony, and since Christ reduced matrimony to its pristine purity, impediments which are of natural law are also of divine law. This holds especially for Christian marriages, in which the matrimonial contract is inseparable from the sacrament. By natural or divine law all those things dirime matrimony which are directly opposed to the three goods of matrimony, for example, impotence, bond, error in the person, and defect of consent. By ecclesiastical law those impediments prohibit or invalidate matrimony which indeed are not directly opposed to the three goods of matrimony, but nevertheless are opposed to its fittingness, for example, consanguinity in more remote degrees, crime, sacred order, and so forth. Besides, it can sometimes be doubtful whether some impediment is of natural law or of ecclesiastical law. Thus, for example, authors dispute whether consanguinity in the first degree of the collateral line, that is, matrimony between a brother and his full sister, is of natural law or of ecclesiastical law.

c) Absolute and relative.

Those impediments are called absolute which invalidate or prohibit matrimony with any other person whatsoever, for example, bond and absolute physical impotence. But relative impediments are those which stand in the way of a determinate matrimony alone, for example, consanguinity, affinity, and so forth.

d) Public and occult.

Those impediments are called public which can be proved in the external forum,³ or which are known either from their nature or from the notoriety of the fact, or at least can easily be known by many. Those things which rest upon a fact public of itself, for example, a solemn vow and natural kinship, are held public from their nature or by law. Because of the notoriety of the fact, an impediment is called public or notorious if it is known by so many and such persons that the danger of divulgation is very probable and it can be proved in the public forum. If an impediment is notorious in one place but not in the place where the matrimony is celebrated, such a circumstance must be declared when the dispensation is sought.⁴ If a notorious impediment has been given over to oblivion by lapse of time, for example, after ten years, it can be considered occult, unless, however, it is public from its nature or by law.⁵ - An occult impediment is distinguished as either entirely occult, which is known by no one except the parties and the confessor,⁶ for example, impotence or crime, or relatively occult, which is known by a few discreet persons, so that the proximate danger of divulgation is absent. Sometimes an impediment occult in fact, but public by law, is also distinguished; for example, Titius contracts matrimony with Caia, who is held to be the legitimate daughter of Paul; but in reality she was born from the secret adultery of her mother with the maternal uncle of Titius. Therefore between Titius and Caia there is consanguinity in the second degree of the collateral line. This consanguinity in fact is entirely occult, but by law is held public. - Finally, some authors further distinguish an impediment formally occult and materially public; for example, Titius, a widower, wishes to contract matrimony with Caia, with whom he committed adultery under a mutual promise of matrimony. Many indeed know this base fact, but they do not know that an impediment of matrimony arises from it. Therefore it is materially public, but formally (insofar as it is an impediment) it is occult,⁷ yet it must be held as public.^7a

e) Indispensable and dispensable.

The former are those in which the Church cannot dispense, or at least is not accustomed to dispense, for example, bond, priesthood, and affinity in the direct line. The latter are those impediments from which the Church is accustomed to dispense, for example, consanguinity in the second and third degree.

Dispensable impediments are subdivided into impediments of the lesser and of the greater degree, according to the diverse manner and facility of obtaining a dispensation. Impediments of the lesser degree are: 1. consanguinity in the third degree of the collateral line; 2. affinity in the second degree of the collateral line; 3. public propriety in the second degree; 4. spiritual relationship; 5. crime from adultery with a promise or attempted celebration of matrimony.⁸ All other diriment impediments are of the greater degree.

f) Perpetual and temporary.

The former, the perpetual, endure until a dispensation has been obtained, for example, consanguinity; the latter cease of themselves by lapse of time, for example, defect of age.

g) Certain and doubtful.

A doubt can be either a doubt of law or a doubt of fact. If a doubt of merely ecclesiastical law exists concerning an impediment, the axiom can generally be applied: "A doubtful impediment is no impediment." For "even invalidating and incapacitating laws do not bind in a doubt of law."⁹ Nevertheless, it belongs neither to the confessor nor to the parish priest, but to the Ordinary, to whom the matter is to be referred (if this can morally be done), to decide concerning the existence of a doubt of law. If there is question of a doubt of divine or natural law, or of a doubt of fact, in practice the judgment of the competent ecclesiastical authority, namely, of the bishop or the Holy See, is first to be sought. Thus, for example, in a doubt concerning the existence of the impediment of bond, matrimony is wont to be prohibited; but in a doubt concerning the existence of the impediment of impotence, matrimony is wont to be permitted.

¹ The expression "diriment impediment" is censured by some authors, for example, by Bernard of Pavia (in Freisen, Gesch. d. kan. Eherechtes, 223), because nothing can be dissolved which does not exist. Moreover, when a diriment impediment exists, matrimony does not exist. But since this expression is already contained in the Decretals (c. 4, X 4, 3), there is no reason for us to depart from it, since its meaning is obvious. But St. Thomas says excellently (Suppl., q. 50, a. un., ad 7): "The aforesaid impediments are not said to dirime a contracted matrimony as though dissolving a true matrimony which was duly contracted; but because they dissolve a matrimony which was contracted de facto and not de iure."

² Code of Canon Law, can. 1036.

³ Ibid., can. 1037.

⁴ Cf. Vogt, Das kirchl. Eherecht, § 28.

⁵ Benedict XIV, Instruction 87, n. 41 ff., treats excellently of this matter.

⁶ Thus at least if there is question of a matrimony to be contracted, because one witness suffices to impede a matrimony to be contracted; but if there is question of a contracted matrimony, the impediment is held occult even if one witness knows it. Cf. Wernz-Vidal, Ius can. V, n. 147, and Sacred Congregation of the Council, January 29, 1889.

⁷ Cf. Gennari, Consultazioni mor. I, CXXVII.

^7a Pontifical Commission, June 25, 1932 (Acta Ap. Sed. XXIV, 284).

⁸ Code of Canon Law, can. 1042.

⁹ Ibid., can. 15.

794. General notions. A diriment impediment renders those about to marry incapable, so that they cannot enter the matrimonial contract either licitly or validly, as was already said above. Therefore such an impediment directly affects the contract and indirectly the sacrament of matrimony. In placing certain diriment impediments against validity, the Church does not change the matter and form of the sacrament of matrimony, but brings it about only that contracting parties under certain conditions cannot furnish valid matrimonial consent. For just as civil government can establish for the public good that citizens under certain conditions are altogether incapable of completing certain contracts (for example, that minors cannot complete a contract of purchase and sale, that wills lacking form are invalid), so, a fortiori, the Church, for the spiritual good of the faithful and for the good of the whole Christian society, can determine that matrimony is invalid unless it is entered under the established conditions. - In the Church, this power of placing diriment impediments is exercised only by the Supreme Pontiff or by an ecumenical Council.

All diriment impediments principally have the character of an incapacity, or of an invalidating law; but the character of a penalty, which is found in some, is altogether secondary, and therefore ignorance never excuses from a matrimonial impediment. Hence the Holy Office says: "It must also be noted, with respect to diriment impediments, that invincible ignorance or good faith does not suffice for matrimony to be contracted validly. Although at times that ignorance and good faith can excuse from sin, nevertheless it can never render valid a matrimony which was entered with a diriment obstacle."⁴⁶

The end for which the Church instituted diriment impediments is a) the public good, b) the good of the contracting parties, c) the good of religion and of the sacrament. - The impediments of ecclesiastical law are ordered with such wisdom that civil governments themselves have not rarely adopted them even in civil marriages.

⁴⁶ Pius IX, December 9, 1874, and several times (Collect. de Prop. Fide, n. 1427, p. 86).

795. Number. Authors do not agree on the number of diriment impediments. Formerly, however, fifteen were quite commonly enumerated, expressed by the following mnemonic verses:

Error, condition, vow, relationship, crime, Disparity of worship, force, order, bond, propriety, Age, affinity, if clandestine, and impotence, If the woman has been abducted and not restored to a safe place. These prohibit marriages to be joined; they undo those already made.

The Code of Canon Law enumerates thirteen impediments, namely: 1. age; 2. impotence; 3. bond; 4. disparity of worship; 5. sacred order; 6. solemn profession; 7. abduction; 8. crime; 9. consanguinity; 10. affinity; 11. public propriety; 12. spiritual relationship; 13. legal relationship.

1573. Principles. - I. The Church has power of constituting impediments not only impeding Matrimony, but also diriment impediments. It is of faith. - See the arguments among the Dogmaticians.

II. The Church alone can constitute diriment impediments of Matrimony, and consequently secular Princes as regards Christian subjects cannot constitute impediments, except as to merely civil effects. Likewise see the Dogmaticians.

III. The subject of diriment impediments of divine law, whether natural or positive, are all men; of ecclesiastical law, all the baptized, except clandestinity in certain cases. - See n. 109. 110.

1574. Questions. - Quaer. 1° Can the civil legislator constitute impediments diriment of the Matrimony of infidels?

Resp. Affirmatively, with the more common opinion. The reason is because the Matrimony of infidels is a natural contract. St. Alphonsus¹ also seems to be of this opinion, although he does not treat the question expressly. - Nevertheless among more recent authors Martin, Perrone, and Feije² follow the negative opinion, relying on this reason, that the Matrimony even of infidels is a sacred contract, not to be compared with profane contracts.

Quaer. 2° Does an impediment invincibly unknown void Matrimony contracted with that impediment?

Resp. Affirmatively. The reason is clear from the things said n. 182. q. 2.

Quaer. 3° Are those impediments also incurred, although unknown, which seem to have the character of a penalty, as the impediment of crime?

Resp. Affirmatively. Thus more commonly with Lacroix.³ The reason is because those impediments do not have only the character of a penalty; and consequently they are always incurred, although ignorance excuses from the penalty according to the common opinion where there is question of a merely prohibiting law. Cf. n. 182. q. 2°. § Except, however. - Others deny, relying on reasons not to be despised. Nevertheless, since the probability, if any arises from them, is not universally or certainly received, the negative opinion cannot be brought into practice,⁴ according to the things to be said q. 5°. R. 1°.

Quaer. 4° Do the laws of the Church constituting diriment impediments urge even in a case of most grave inconvenience, e.g. danger of death, etc.?

Resp. Affirmatively. See the reason n. 182. q. 3°. - Recall nevertheless also the things said n. 1556. q. 3°.

Quaer. 5° Is it licit to contract Matrimony with a doubtful or probable impediment?

Resp. 1° Affirmatively, according to the common opinion, in a doubt or probability of ecclesiastical law, provided that that probability is universally or certainly received by Authors. The reason is because, if perhaps the impediment were really present, the Church is judged to supply the defect of a contract void by Canon Law, just as it supplies defect of jurisdiction as often as Doctors commonly hold that she supplies jurisdiction in the Sacrament of Penance, where common error intervenes (n. 60. I.). Moreover the opinion teaching that the Church supplies also in the present case of a doubtful impediment is generally received as probable, and according to several as morally certain, by innumerable Doctors who favor it.¹

Resp. 2° Negatively, if there is question of a probability of divine law, whether positive or natural, e.g. in the impediment of bond or impotence; because then the Church cannot supply the probable defect, since that impediment does not depend on the Church. Therefore Matrimony so contracted would remain doubtful; and consequently it is never licit to receive a Sacrament with such doubt. Therefore. The case can be given with former slaves, "who were sometimes" joined "in several marriages among themselves, with this compact nevertheless, that it would not" be clear "that some true marriage had been entered by them."³ St. Alphonsus² says that it belongs to the Pontiff alone to explain divine law in this matter, in special and rare circumstances of things.

Resp. 3° Negatively also, if there is question of probability of fact. The reason is because in probability of this kind the Church is not presumed to dispense. But the contrary opinion is not commonly received as probable; and from another source too many inconveniences would follow if, after Matrimony had been contracted, the error were discovered. - Thus commonly.⁴ - For the rest, in more difficult and implicated cases, the Bishop should be consulted.⁵ - But in doubt concerning an impedient impediment, the principles of Probabilism are simply to be applied.

Quaer. 6° Is it licit for spouses to use Matrimony if, after nuptials have been entered, probable doubt arises concerning some impediment?

Resp. 1° Negatively, before due inquiry concerning the truth. Nevertheless, if only one doubts, this one ought to render the debt to the other as to a legitimate possessor, provided the other asks in good faith and does not lack the right of asking (e.g. in the first two months, etc.).⁶

Resp. 2° Affirmatively, if, after due inquiry, the doubt perseveres and Matrimony has been entered in good faith (n. 739. II.), indeed, quite probably, even in doubtful faith: for in doubt one must stand for the value of the act. - Except: a) the case concerning which n. 1619. under 4°; b) the case of doubt concerning the death of a prior spouse, and this, as St. Alphonsus¹ teaches against others, "whether the nuptials were entered with good faith or with doubtful faith." The reason is "because then there remains probable danger of injury to the prior spouse," and "because in that case the prior Matrimony possesses." Nevertheless the one doubting, as was said under Resp. 1°, is held to render the debt to the other party asking in good faith and not lacking the right of asking, although he is prohibited from asking.²

Quaer. 7° Is Matrimony valid when contracted with a supposed impediment, but one not existing?

Resp. 1° If the contracting party is not altogether certain concerning the impediment, but doubts about it in some way, the Matrimony is valid. - Thus commonly with Lacroix.³ - The reason is because he contracts at least conditionally, namely insofar as I can, although he does not reflect on that condition: therefore, the impediment not existing, consent is now absolute.

Resp. 2° If he contracts with certainty of an impediment which he little esteems, so that he resolves to live in concubinage, it is certain that the Matrimony is invalid. The reason is because then the will of contracting Matrimony is not predominant.

Resp. 3° If indeed he contracts with certainty of an impediment, but grieving over the impediment and not daring to disclose it, lest the Matrimony be impeded, or lest he be defamed, or from some inadvertence, it is controverted. More probably the Matrimony is valid on account of the predominant will of contracting it. - Thus Lacroix.⁴ - Nevertheless for caution in practice he would have to be induced to renew consent. (38) p. 424.

78. • I. Notion of a matrimonial impediment.

a. An impediment is called a certain circumstance which, from the disposition of law, bars one from entering a matrimonial contract, either licitly or validly.

b. Division: 1° by reason of the author, impediments are distinguished as of divine law, whether natural or positive; and of human law, whether ecclesiastical (for the baptized) or civil (for unbelievers).

2° by reason of effect, impediments are distinguished as diriment and merely prohibiting.

"A diriment impediment both gravely prohibits matrimony to be contracted, and prevents it from being contracted validly." (Can. 1036 § 2.)

A prohibiting impediment, or "an impeding one, contains a grave prohibition of contracting matrimony; which nevertheless is not rendered void if, notwithstanding the impediment, it is contracted." (ibid. § 1.)

3° by reason of scope, impediments are absolute, i.e., those which stand in the way of matrimony with any person whatsoever; or relative, i.e., those which stand in the way of contracting matrimony only with certain persons.

4° by reason of divulgation, an impediment will be public or occult. It is public if it can be proved in the external forum; otherwise occult. (Can. 1037.)

5° by reason of duration, an impediment is perpetual, i.e., one which of itself always remains; or temporary, which ceases by the very fact when time has elapsed.

6° by reason of knowledge, an impediment can be certain or doubtful. But a doubt affecting an impediment is borne either toward the law itself which introduces the impediment, and then it is a doubt of law; or it concerns the very fact of incurring the impediment, and then there is a doubt of fact.

7° by reason of possible dispensation, impediments are distinguished as dispensable, namely those in which the Church can and is accustomed to dispense; and indispensable, those in which the Church either cannot dispense, or at least never dispenses.

79. • II. A doubtful impediment.

a. A doubtful impediment, in a doubt of merely ecclesiastical law, is to be considered practically as not existing. (cf. Can. 15.)

b. An impediment of ecclesiastical law, doubtful by a doubt of fact, indeed urges; but the Ordinary can dispense in it, provided that there is question of an impediment in which the Roman Pontiff is accustomed to dispense. (cf. Can. 15.)

c. In a doubt either of law or of fact, or of law and fact at once, when there is question of an impediment of divine law, matrimony cannot be celebrated, unless there is question of the impediment of impotence. For then matrimony must not be impeded, because the natural right of contracting matrimony prevails. (Cf. Can. 1068 § 2.)

80. • III. An unknown impediment.

Ignorance, although altogether invincible, does not prevent a diriment impediment from being incurred and matrimony contracted with such an impediment from being plainly invalid.

The reason is that "no ignorance of invalidating or incapacitating laws excuses from those laws, unless it is expressly stated," (Can. 16 § 1) and no impediment of matrimony is found excepted from this general rule.

S. Th. Suppl., q. 50, a. un.

856. An impediment of matrimony (empêchement de mariage; huwelijksbeletsel) in the strict sense is an external circumstance affecting a person, which by natural or positive law directly bars him from entering matrimony as such validly or licitly, or which renders a person unfit for contracting matrimony validly or licitly. It is said:

1° an external circumstance affecting a person, in order to exclude those circumstances which affect the consent or the form of the contract and thus can impede matrimony, but do not directly impede the persons from contracting matrimony;

2° which by natural or positive law bars, in order to exclude everything which unjustly or by force draws one back from matrimony;

3° directly, so that it may be distinguished from an impediment taken in a broader sense, for everything which even indirectly draws one back from contracting matrimony, as if a father or social authority justly commands something which is incompossible with contracting matrimony; and which in some way can be called a moral impediment, but is not a juridic impediment constituted by law and indeed from direct intention;

4° from matrimony as such, insofar as it is a contract of a special kind: thus it is distinguished from an impediment taken broadly, which does not impede matrimony as it is such a special contract, but insofar as it impedes every contract, for example, defect of consent, or the reception of any sacrament whatsoever, for example, the state of sin or defect of intention or of Baptism;

5° from entering validly or licitly; whence a twofold kind of impediment is distinguished: diriment and merely impeding or prohibiting. This latter, namely, only prohibits the matrimony to be contracted or renders it illicit; but the former prohibits and diriments, i.e., renders it illicit and at the same time invalid.

The merely impeding impediment, namely, prohibits matrimony and effects that it cannot be entered licitly; the diriment one prohibits it and effects that it cannot be entered either licitly or validly. Hence an impeding impediment is a prohibiting law; a diriment impediment is a law prohibiting and at the same time irritating.

Thus conformably to the doctrine of St. Thomas. For some things are of the essence of Matrimony, some of its liceity; and impediments can be opposed to each. Hence impediments which are contrary to those things which are of the liceity of matrimony "do not effect that there is not true matrimony, and such are said to impede matrimony to be contracted, but they do not diriment the contract... But impediments which are contrary to those things which are of the essence of matrimony effect that there is not true matrimony, and therefore they are said not only to impede contracting, but to diriment the contract already made" (q. 50, in c.); not "as though dissolving a true matrimony which has been duly contracted, but because they dissolve a matrimony which has been contracted in fact and not in law." For "if some impediment supervenes upon a matrimony duly made, it cannot dissolve the matrimony" (ad 7).

In the old law, and also in St. Thomas, the word impediment is taken in a broad sense, for everything which impedes matrimony not only on the part of the person but also on the part of the act. Thus force and fear, error, espousals insofar as they impede consent, and after the Council of Trent defect of pastor and witnesses, because it impedes the external form required as a condition of validity; indeed some numbered the omission of banns among impeding impediments, insofar as banns are regularly necessary for the licit celebration of matrimony. But in the new law, as before was suggested by some, impediment is taken for the incapacity of the person alone; 1 hence force, fear, error, espousals, clandestinity, and a fortiori defect of banns are no longer reckoned among impediments.

1. Sometimes, however, it is taken in the broad sense: thus can. 1990 (com. int., Oct. 10, 1929, n. 17) and can. 1971 (com. int., March 12, 1929).

857. Division of impediments. - Impediments are divided according to various reasons:

A. By reason of cause or origin, some are of natural law, others of positive law, whether divine or human, i.e., both ecclesiastical for the baptized and also civil for the non-baptized.

It belongs to the Church to recognize impediments of natural and divine law, and to assume and sanction them as impediments in the external forum: but by this reason they formally become canonical impediments.

B. By reason of effect, some are impeding impediments (prohibitifs or prohibants; verhinderende or verbiedende), others, as we have already said, diriment (dirimants; ontbindende or ongeldig makende).

Hence can. 1036:

"§ 1. An impeding impediment contains a grave prohibition of contracting matrimony; yet matrimony is not rendered invalid if, the impediment notwithstanding, it is contracted.

"§ 2. A diriment impediment both gravely prohibits matrimony to be contracted and impedes it from being contracted validly."

C. By reason of extension, impediments are absolute, which impede every matrimony with all persons, such as age, bond, vow, order; or relative, which impede it only with certain persons, such as crime, kinship, disparity of worship.

But some are correlative, which exist on the part of each, such as crime or consanguinity, while some are on one part only, such as order or disparity of worship. Nevertheless, can. 1036, § 3 says: "Although an impediment exists on one part only, nevertheless it renders matrimony either illicit or invalid," because, namely, matrimony does not limp.

D. By reason of duration, they are perpetual, which of themselves never cease but always remain, such as consanguinity; or temporary, which cease or can cease by the course of time, such as age or mixed religion.

Perpetual impediments can be taken away only by dispensation, provided they are dispensable. Dispensable are those in which the Church can and is wont to dispense; but indispensable are those in which she cannot or is not wont to dispense. From impediments of natural and divine law she cannot dispense; from impediments of ecclesiastical law she can dispense, but from a few she does not dispense.

Indispensable are: impotence, bond, consanguinity of the direct line; probably consanguinity in the first degree of the collateral line, and the episcopal order; very rarely is dispensed the order of priesthood, affinity in the direct line especially when matrimony has been consummated, crime from killing a spouse especially public; rarely, abduction, affinity in the direct line when matrimony has not been consummated, age, unless perhaps in certain regions of the missions in a case of doubtful age; less rarely, a solemn vow and sacred order below the priesthood.

No human power, neither civil nor ecclesiastical, can establish an absolute and perpetual impediment, because it is against the natural right which each person has natively to marry; - unless, however, there is supposed some free act by which someone has chosen a more perfect state, through vow or order, and thus has implicitly renounced matrimony, or by which he has committed some crime which would fittingly be punished by prohibition of matrimony.

E. By reason of divulgation and demonstrability, they are public or occult. They are public if in fact they can be proved in the external forum, although by their nature they are occult; but occult if in fact they cannot be proved, although by nature they are public.

Thus conformably to can. 1037: "An impediment is considered public which can be proved in the external forum; otherwise it is occult," and to the response of the com. int., June 25, 1932.

F. By reason of gravity, "some are of lesser grade, others of greater," as can. 1042, § 1 says.

"Of lesser grade are: 1° consanguinity in the third degree of the collateral line (perhaps also mixed with the second or first); 2° affinity in the second degree of the collateral line; 3° public honesty in the second degree; 4° spiritual kinship; 5° crime from adultery with promise or attempted celebration of matrimony even by a civil act alone" (ibid., § 2).

There is no reason in law for this division to be applied to impeding impediments; hence § 3: "Impediments of greater grade are all the others."

858. Observation. - To matrimony, before the other sacraments, impediments are assigned insofar as it is a contract and is entered between two. Hence St. Thomas, ad 1: "Impediments are assigned to matrimony more than to the other sacraments for three reasons: 1° because matrimony consists in two, and therefore it can be impeded in more ways than the other sacraments, which belong singularly to one person; 2° because matrimony has its cause in us and in God, but certain other sacraments only in God; 3° because concerning the other sacraments there is precept, or counsel, as concerning more perfect goods; but concerning matrimony there is indulgence, as concerning a less perfect good. And therefore, that an occasion of advancing to something better may be given, more impediments are assigned to matrimony than to the other sacraments."

859. Principle. With the impediments of natural and divine law preserved, the Church herself and alone has the power of establishing impediments, not only impeding but also diriment, for the marriages of Christians; just as, on the contrary, the civil authority has this for the marriages of unbelievers.

That the Church can establish diriment impediments is defined as of faith in the Council of Trent, sess. 24, can. 4; that she can do this by her own right is established from the condemnation of prop. 59 of the Synod of Pistoia; that she alone can do it, to the exclusion of civil authority, seems sufficiently certain, but in the sense explained above in n. 824, where also the competence of the civil power was spoken of with respect to the unions of unbelievers.

Nor should you say that the Church, in the decree of the Council of Trent, can be understood as the assembly of the faithful or the Christian princes themselves. For where there is question of power and of doctrine, the Church designates only the prelates who from the institution of Christ have received the power of ruling and teaching; as is clear, moreover, from the context and from the erroneous doctrine of the Protestants which is reproved.

Consequently, with regard to those impediments which she establishes, the Church enjoys the power of abrogating, derogating, changing, and dispensing (can. 1040).

860. The active subject of the ecclesiastical power of authentically declaring, establishing, or relaxing matrimonial impediments, of themselves are those to whom by divine law belongs the power of ruling and teaching the Church, namely, the Supreme Pontiff and the bishops; nevertheless in the course of time it has come about that the constitution of an impediment was reckoned among the greater causes, which were reserved to the supreme ecclesiastical authority and withdrawn from the power of individual bishops or particular councils: to bishops there remains only the power of commanding in a particular case. Thus also in the code of law:

1° Can. 1038: "§ 1. It belongs only to the supreme ecclesiastical authority authentically to declare when divine law impedes or diriments matrimony.

"§ 2. To the same supreme authority belongs exclusively the right of constituting other impediments impeding or diriment of matrimony for the baptized, by way of universal or particular law."

The supreme authority in the Church is an ecumenical Council, and the Supreme Pontiff either immediately by himself or through the organ of the Sacred Roman Congregations.

2° Can. 1039: "§ 1. Local Ordinaries can forbid marriages to all actually staying in their territory and to their subjects even outside the boundaries of their territory in a particular case, but only for a time, from a just cause and while it continues.

"§ 2. Only the Apostolic See can add an invalidating clause to a prohibition."

Christian marriage, when it is entered into, is a contract (as we said above, Th. I and Question I from p. 102, compared with Th. XXIII, n. II), and it is a Sacrament. It is permissible to regard each aspect separately. Therefore, if the aspect of contract alone is considered, which properly obtains in marriage in fieri, it itself 1° is a natural contract; for nature itself urges toward it, in whose office it is (q. XLI, a. 1), and it itself preceded every public society, of which the origin is through the family; and consequently it could validly be entered into without the aid or authority of any public power.

2° But since this same contract is made by men existing in society, it itself, like other contracts, even those which are made by the law of nature, is subordinated to the public authority ruling that society in which the contract is made. This indeed is the general law of contracts. For nature has not determined all things ἐν ἀτόμῳ, in the individual, which are required so that in any given case contracts which are made by the law of nature may be made as they ought; but it has left them to the determination of the public authority having coercive force, which, on account of the good itself of men united together, has from God the power of establishing the form according to which natural contracts may be made both licitly and validly. Moreover, neither nature nor its institutor has determined everything one by one with respect to entering into the matrimonial contract: for example, with respect to degrees of consanguinity, of affinity, with respect to sacred persons, criminal persons, etc., in which bare reason, the nature of the thing considered, establishes nothing as to many things concerning whether matrimony ought or ought not to be permitted. The same reason therefore teaches that there must exist in society a rule by which this is determined. For many cases occur in which, even if, with only the natural right of marriage inspected, marriage seems able to be entered into, nevertheless, once other rights are inspected which arise from the relations of other essences, a certain repugnance at once appears to its being done licitly or even validly. Nor has the author of nature and institutor of marriage sufficiently determined all things by positive law. Therefore, since it is necessary that a certain norm exist according to which this contract may be rightly made by all in so many diverse circumstances, it follows that the public authority of some society, in which the same contract is entered into, has the power of pre-establishing the form according to which it may be made licitly and validly; therefore the contract of marriage is subordinated to the public authority of that society in which it is made. Nor is there a question concerning this matter among theologians, philosophers, and jurists, who indeed dispute to which authority under God this contract is subject, yet all grant or suppose that it is subject to some authority. Wherefore there is no need for us to dwell much on this matter, especially because discourse concerning the same matter will necessarily return when it will be necessary to demonstrate the authority of the Church in particular.

3° Now the power of establishing the form according to which a contract is made validly is at the same time the power of invalidating contracts made otherwise. But to invalidate the matrimonial contract is to prevent the mutual consent of the contracting parties from being efficacious or sufficient for transferring dominion over bodies, or it is to render persons incapable of contracting. The former is called direct invalidation, the latter indirect (Sanchez L. III, D. 4). But when this latter invalidation is had, the former also is consequently present. For when the persons are incapable, their consent does nothing. Trent mentions each mode, Decree on Marriage, in the invalidating clause.

4° Wherefore by the law of nature, indeed, legitimate consent is efficacious; but nature alone does not determine what consent is legitimate; whence contracts, as to their formal being or value, depend also on public authority, which ultimately and in the individual prescribes the form of a valid contract. Once this has been posited, even those contracts which are made otherwise, and which, if only the law of nature were in force, would be valid (because the law of nature by its primary precepts does not prohibit them, but leaves them to be prohibited by social or superior authority, dictating that they are less becoming), are null, not because public authority is opposing the law of nature, but because it is declaring and determining it.

5° Thus the matter and form of the matrimonial contract is (Th. XIII) efficacious mutual consent expressed by words, by which namely there is made a mutual handing over of dominion over bodies; but its value or efficacy also depends on the manner or form of contracting, which is established by public authority.

6° But the end of this contract is mutual power toward carnal copulation; the end of this power, by the law of nature, is the procreation and education of offspring, by which the human race is propagated and the act of creation of the same is, as it were, continued. But because the adequate reason why men exist is the glory of God, by procuring and obtaining which men themselves also become happy, to which reason the other things are subordinated as means, even existence itself in society; hence it comes about that this end of marriage is necessarily the procreation and education of offspring for the worship and honor of God, and consequently the power ruling it is, insofar as such, a religious power, whether this be distinct from the supreme civil power or not, as could happen in pure nature; for we are not now disputing about this distinction.

II. But if the aspect of Sacrament is considered, Christian marriage 1° is certainly a sacred thing, such as, before all things, a sacrament is. Moreover 2° it is a sacred thing in such a way that it is not something mixed from a purely natural thing and a sacred thing, as from two elements; but it is a physically simple thing, intrinsically and essentially sacred, indeed retaining the entity of nature, but supernaturally elevated. Namely, to be sacred is not some nature or substance, but is a certain mode of a thing which is some nature; whence, in order that something be intrinsically sacred, it cannot be required that it be only sacred, and not something of nature, which would be absurd; for what, indeed, is more sacred than the Humanity of Christ? which nevertheless is certainly a thing of nature. Therefore they are deceived who wish to prove that Christian marriage is mixed from a natural thing and a sacred thing, because the aspect and thing of nature remains in it. And certainly a mixture from a natural thing and a sacred thing supposes two really distinct elements, although united, of which the former is a purely natural thing, that is, lacking the mode which is to be sacred; for if it has this mode, then to be sacred is not another thing, but one. But that Christian marriage is not a mixture of this sort is clear from Th. X, in which it was proved that the contract and the sacrament are the same thing. Therefore the same marriage is a physically simple thing, and the multiplicity of aspects or formalities certainly does not obstruct this simplicity; for what is simpler than God? Now this simple thing is intrinsically and essentially sacred. In order that something be such, it is required that the aspect of sacredness be its mode, which is predicated of it in the direct case, that it be an absolute mode, not a pure relation, and that it be a necessary mode, without which it cannot exist. But Christian marriage is a sacrament in such a way that the being of sacrament is predicated of it in the direct case; for it is truly said: marriage is a sacrament. This being of sacrament is an absolute mode, not a pure relation; for it returns to this, that it is efficacious of grace and has such a form which is the foundation of the likeness between itself and the union of Christ and the Church. Finally this being of Sacrament is inseparable from Christian marriage; for, if this mode does not exist, neither is the thing, that is, there is no marriage or matrimonial contract. Cf. Th. X. Therefore there remains a thing of nature, but supernaturally elevated, that is, intrinsically and essentially made a Sacrament, and therefore a sacred thing.

3° Now it is certain that the Church has no power over the matters and forms of the Sacraments instituted by Christ, insofar as she cannot substitute others for them and cannot bring it about that, when they are posited with due intention, there is no Sacrament; but the administration of the Sacraments has been entrusted to the Church herself, and to her it belongs to establish the mode and form by which they may be licitly administered and to pass judgment concerning their existence and value.

4° But the difference between the matter and form of the Sacrament of marriage and of the other Sacraments must especially be noted. For the matter and form of marriage is not consent alone, but efficacious consent, that is, efficacious of the bond; but there can be true consent without its being efficacious, and its efficacy can depend on some public authority which prescribes the form for the contract. Wherefore the defect of power over the very matters and forms of the sacraments does not exclude the power of assigning a form to the contract and of invalidating it; for by that power are established the conditions which, when posited, make the matter and form of the sacrament itself, and which, when lacking, make it not to be. Wherefore by laws of this sort assigning a form, the matter and form of the Sacrament is changed materially, not formally; for formally it is always mutual expressed consent signifying and effecting the handing over of power. Just as (says Sanchez, l. c.) if the Church could bring it about that this word body no longer signified what it signifies, but that this were signified only by another term, then the Church would bring it about that no longer the word body, but this new term, belonged to the form of the Eucharist; nevertheless the change would be only material, not formal; for the signification would remain the same, which is the formal reason why the word body belongs to the form of the Eucharist.

5° Wherefore the power of the Church to administer the Sacrament of marriage can also extend itself, unless something else prevents it, to this: that she assign the form to a valid contract and invalidate one made otherwise. Concerning this matter it will have to be disputed more fully hereafter.

6° But this power (that we may sketch its notion) has a twofold act, each positive. For it invalidates contracts made apart from the form prescribed by itself, and it approves and holds ratified contracts made according to that form. Now this approval, either explicit or at least implicit, is necessary with respect to those contracts which can be invalidated by legislative power, when they are in reality subject to that power. For if they can be invalidated by legislative power, the law of nature has not yet determined their value ultimately and independently of that power; but it has indeed given them the possibility that they should be valid, while as to actual value it has left them, as it were indifferent, to be determined by the legislative power to which the contracting parties are subject; otherwise they could not be invalidated by it. For positive human law cannot make invalid that which the law of nature wills to be valid. Therefore the permission, even by itself alone, of this power that those contracts actually be valid confers upon them that determination which they do not have from nature alone; whence even that permission is an act positive as to value, since it is the cause, and that a necessary cause, of a positive effect. Wherefore when the competent power assigns the form for the value of the contract, it exercises a twofold act, namely it prevents those entered into otherwise from having value, or invalidates them, and it approves and makes valid those which are made according to that form; so that he who would reject those contracts would act not only against the law of nature, but also against the law of that power.

7° Such a power is not borne immediately upon the bond itself, so as to render it null if it exists; nor is it immediately borne upon the matter and form of an existing Sacrament, so as to impede their effect if they actually are present; but it is borne immediately upon the consent or the persons, which consent can be valid and invalid, which persons can be capable or incapable; and it establishes those conditions or the form by which the former is valid and the latter are capable. Therefore only mediately does it touch the matter and form of the Sacrament, which the contracting parties posit, and the bond which follows. For immediately the form and matter are posited by the contracting parties; but that power antecedently establishes the conditions by which, if they are observed, the contracting parties can enter into a valid contract.

III. With these things posited, let us enter the question. The question is not whether in Christian society there is a power of establishing the form of the matrimonial contract; but the question is concerning the subject of this power. This question can be twofold, namely concerning the power of establishing the form for the honesty of the act, or of establishing impedient impediments, and concerning the power of establishing the form for the value of the act, or of establishing diriment impediments. Moreover they are called diriment impediments because they prevent the bond from existing, and bring it about that the persons who seem to be joined, if marriage has been attempted, are in reality separated as before and must be separated. Concerning the first there is no need that we dispute separately, both because no one denies it to the Church, whose authority we are going to defend, and because from what is to be said for the other question the matter will be sufficiently known. The other question to be disputed by us can be distinguished in three ways: 1° whether this sort of power belongs to the Church; 2° whether it belongs to her by her own right; 3° whether it belongs to her alone. The affirmative opinion can be proved by a twofold kind of argument, namely by a demonstration demonstrating that the thing is so, and by one demonstrating why the thing is so. But first a certain inept imagination of Launoius must be excluded (in the work On Royal Power over Marriage, p. I, a. IV, c. 4, and a. II, c. 8). Let it therefore be:

In can. 4 of Trent (if anyone shall say that the Church could not constitute impediments diriment of marriage, or that she has erred in constituting them. A. S.), by the name of the Church are signified not kings and secular princes, but the sacred principate: moreover that canon is dogmatic.

I. Namely, we teach that the Church is not said to be able to do this because some persons who belong to the body of the Church, and these either determined persons, namely kings, or taken indefinitely, whether Priests or Kings, can do it, but because the sacred Principate or body of Pastors who succeed the Apostles, or the Roman Pontiff their head, that is, the ecclesiastical authority which was communicated by Christ to the Apostles and their successors, and it alone, can do this.

The single argument, proposed in many ways, of the Launoian interpretation (supposing indeed what he thinks he has demonstrated, that the right of establishing impediments of marriage, even of Christians, is of itself civil) consists in this, that the Church has never been defined as the assembly of Priests of the first or second order, but as the congregation of the faithful; consequently, without merit, that definition is substituted for the term Church in the canon. Namely the Tridentine Synod would have spoken in a new and unusual manner if, by the name Church, it had understood Priests of the first order or even of the second order. Launoius also adorns this argument with dialectical lights. For he says that the supposition of the name Church is simple when it is taken of the assembly of the faithful, because this is its immediate definition; but that the supposition is personal when certain persons are understood. But a transition cannot be made from simple supposition to personal; therefore.

II. It must be observed that Launoius errs in the definition of the Church. In Tom. V of his works, p. 2 of the epistles, L. 8, there stands epistle 13 to Nicolaus Gatinaeus. In it, by many arguments, he strives to refute the definition of the Church given by Bellarmine, which he says is contrary to the laws of dialectic, and to belong to explaining the state and government of the Church, not to explaining its nature. But he contends from the Scriptures and perpetual Tradition that the Church is to be defined as an assembly of the faithful or of Catholics. As though government and authority in a society were something accidental, not belonging to its intrinsic nature, or as though, in order that the Church of Christ exist, it would be enough that men exist coming together into the same faith, as Protestants will. The Church is indeed an assembly of the faithful, but an assembly of many can be had in many ways; but it belongs to the essence of this assembly of the faithful instituted by Christ that it be united by the apostolic government and authority vicarious of Christ, which flourished first in the Apostles and then in their successors, the Bishops, and especially and most fully in Peter and his successors, the Roman Pontiffs, to whom the sheep of Christ subject constitute that assembly of the faithful which is the Church of Christ. But concerning this matter, in the treatise on the Church.

III. But that the interpretation of Launoius is inept and false is easily demonstrated. And first indeed, the consequence of that argument is denied. For if from the fact that the Church is an assembly of the faithful it does not follow that, by the name Church, Priests, who are a part of the Church, are to be understood in the canon, why will Kings have to be understood, who are neither a necessary part nor an equally noble part? The consequent will be that this power is in the hands of the faithful and therefore that the right of establishing the form of the matrimonial contract belongs to the multitude of the faithful gathered together, and that the same multitude can delegate this its power to others as to its ministers. But why (on this false hypothesis having indeed been made) it would have delegated its power rather to kings, who can be lacking in the Church and who in the Church are simple faithful, and not to Priests, who belong to the Church insofar as it is Church and are a necessary part of it, is not yet clear, and Launoius forgot to declare it. It is indeed supposed that this right is of itself civil and that this has been demonstrated; but besides the fact that it has not been demonstrated, is it permitted, not only to one defending himself but to one arguing, as Launoius does here in the interpretation of this canon, to derive the force of his argument from a hypothesis which the adversaries deny, and, once this hypothesis is set aside, there is no force of the argument?

Then we do not understand why, with this interpretation posited, Launoius grants that those who in can. 12 are called ecclesiastical judges are judges from the priestly order or having authority from it; for if the Church is nothing except the assembly of the faithful, ecclesiastical judges will be judges from the faithful, or any faithful persons whatsoever.

But, these absurdities having been omitted, who does not see that, when the Church is introduced as bearing laws, the name of Church is drawn from the common usage of speaking to stand for the ruling Church, just as the name of kingdom, empire, or state, according to the words of Christ, Matt. XVIII, 17.

IV. And indeed is not the object of the canon at once power and infallibility in the use of this power (could constitute, has not erred in constituting them)? But the subject of power and at the same time of infallibility is only the ruling and teaching Church, not kings or civil powers or the people of the faithful. But what is proscribed in this canon? The error of Luther, who denied to the Church, that is, to the Roman See, the power of establishing diriment impediments; yet he did not deny it to secular princes. "The union of man and woman is of divine right, which holds in whatever way it may have occurred against the laws of men, and the laws of men ought to yield to it without any scruple (De Captiv. Babyl. de Matrimonio)": these men he afterward calls Roman tyrants. Then in the Extemporaneous Response to the articles which our masters extracted from the Babylonian Captivity, to that doctrinal head, "Nothing by any right can be imposed on Christians, whether by man or by Angels, except as much as they will," he himself says: "I said this not about civil laws but about ecclesiastical laws." Therefore the civil power, which was not denied, did not have to be asserted by the Fathers, but the ecclesiastical power proper to priests, which alone was denied.

What of the fact that the same thing is evidently plain from the practical interpretation itself which the Council furnished to its canon? For the Council itself afterwards, by its own authority, constituted new diriment impediments, and tempered certain old ones, and besides established that marriages of children entered into without the consent of parents have validity, even though certain Princes wished otherwise, as the King of the Gauls, and pressed sharply for the opposite decision. Therefore by their own deed the Tridentine Fathers interpreted their canon. For why do the Fathers, who judged that this right belonged to Kings, without these having been heard, and with no account taken of their will or desire, decree absolutely what pleases themselves? Why did kings acquiesce? Moreover, in this whole matter concerning Marriage, the Church to which some authority or power concerning the Sacrament of Marriage is asserted is always the ruling and teaching Church; cf. cann. 7, 8, 12; and the same is understood in those words: celebration of marriage in the face of the Church. For such a celebration is understood, which is made before a qualified witness constituted by the ruling Church herself, and which is public so that the marriage may become known, or of itself can become known, to the ruling Church, which must pass judgment concerning matrimonial causes. For this form of celebration was prescribed because, when an evil had arisen from clandestine marriages, the Church, which does not judge concerning hidden things, cannot meet it. Decr. De Reform. Matrim.

V. We add that this canon is dogmatic. For it treats of the right of the Church and of her infallibility in the exercise of this right; but right and infallibility are the object of dogma and are presupposed by discipline as its cause; therefore they are not disciplinary matters. Moreover, it does not treat of one who is disobedient, but of one who affirms that the Church lacks this power or that she has erred in its use; but by affirmation or negation truth is attacked; therefore the Council treats of establishing truth, which is dogma, not discipline. Cf. the Treatise of Cardinal Gerdil On Marriage, Works, Tom. XV, Rome 1809, P. II, § 5.

But what we have said concerning can. 4 must also be said concerning can. 3, which has itself thus: "If anyone shall say that only those degrees of consanguinity and affinity which are expressed in Leviticus (c. XVIII) can impede marriage to be contracted and dirimently dissolve one contracted, and that the Church cannot dispense in some of them, or constitute that more degrees impede and dirimently dissolve: A. S."

You see, therefore, that we gather the argument not from the fact that the canons are established under penalty of anathema; for who is ignorant that even transgressions of law can be punished by anathema? but from the fact that the object of the canon is doctrine and truth to be asserted and believed.

Historically it is established that the Church by her own judgment established impediments diriment of the marriage of Christians.

I. We are now considering only the historical matter and the fact alone. Whether the Church did this by right or by wrong will have to be judged in the following Theses. For the moment, since the adversaries, among whom after Marcus Antonius de Dominis John Launoius stands forth as chief, contend that all impediments were first constituted by the secular power and in this way obtained force in the Church, we wish to demonstrate the historical falsity of this opinion, which nevertheless is the foundation of the whole doctrine of the adversaries. But in order that this historical thesis may be demonstrated, certain things must be premised.

1° A twofold function of Ecclesiastical authority or jurisdiction must be distinguished: the one by which it authentically proposes divine doctrine and divine law and commands that the former be believed and the latter observed; the other by which, by force of the power divinely conferred upon it, the Church sanctions positive laws which must be observed. Moreover, since in the present question ecclesiastical jurisdiction is being treated, the question is not properly concerning the first, but concerning the second. For the adversaries do not deny that God can bear laws concerning marriage and establish impediments, nor do they deny that the Church is an authentic witness of divine revelation; but they deny that there has been made by God to the Church the power of bearing laws concerning the bond of marriage, or that she alone has this power. Wherefore the things which the Apostle decreed in 1 Cor. would not now be brought into the middle very opportunely; for in certain things he certainly acted as a witness of revelation and of divine law, while in others he can be seen to have acted otherwise.

2° It must be held not only that the legal Jewish economy was abolished by Christ through the institution of the Church, but also that this was always believed in the Church; and therefore that it was believed that the positive precepts which exist in the law of Moses no longer have, of themselves, the force of obliging. Yet this does not prevent one from being able to appeal to them as to a norm according to which the Church may found her laws; for that which at some time proceeded from God, although only for a definite time, always retains the dignity of a certain norm to which men may conform their actions when they are placed in the same or similar circumstances, so that they may act more perfectly. Therefore if it happens that impediments are found to have been established by the Church which God had already established by positive law through Moses, someone would wrongly infer that these were constituted from divine right and by its command.

3° In order that it be demonstrated that the Church has used her own authority, there is no need to bring forward decrees of the universal Church; rather even decrees of particular Synods which, with none contradicting, established something are sufficient.

4° In order that we may demonstrate what we have proposed in the thesis, it is not necessary that we describe the origin of each single impediment, but it is enough to dwell on some. For if it is established that the Church by her own judgment established certain diriment impediments, what we affirm in the Thesis is already true.

Now indeed the account is the same whether of the power of establishing impediments in particular or of the power of decreeing the form of contracting necessary for the value of the contract (cf. Praenot. n. II). It is permitted to take the beginning from that impediment concerning which, with Bellarmine as witness, there is a question among theologians whether it is of Ecclesiastical right or of divine right; for if it is not of divine right, it is certainly demonstrated that it was constituted by the authority of the Church.

II. Therefore a) It is established that the vow of religious profession is a diriment impediment of marriage. Seeking the antiquity and origin of this impediment, we warn that we are disputing only concerning virgins or women consecrated to God, whose solemnity of consecration to God is certainly more ancient in the Church. The testimonies pertaining here are these. Gelasius I, epistle to the Bishops through Lucania, the Bruttii, and Sicily, ep. 20, says: "We have learned that certain men rashly associate themselves with sacred virgins, and after a purpose dedicated to God mix incestuous and sacrilegious covenants." Moreover an incestuous covenant is not a marriage. Before him Siricius, whose decree 4 from the epistle to Himerius and decree 1 from the Synodical epistle to the Gauls may be compared in the Appendix, and then Innocent I, in the letters given to Victricius, Bishop of Rouen, declares the matter more distinctly. "Those women who have spiritually married Christ and have merited to be veiled by a Priest, if afterward they have married either publicly, or have secretly corrupted themselves, are not to be admitted to penance unless he to whom they had joined themselves has departed from this world. For if in all cases this rule is observed, that whoever, while her husband is living, has married another is held to be an adulteress, and the license of doing penance is not granted to her unless one of them has died, how much more must it be held concerning her who before had joined herself to an immortal spouse, and afterward migrated to human nuptials. But those who, not yet covered with the sacred veil, nevertheless had promised always to remain in the virginal purpose, although they have not been veiled, for these penance is to be done at some time, because their promise was held by the Lord. For if among men a contract of good faith is accustomed to be dissolved by no reason, how much more ought that promise which they contracted with God not to be dissolved without vengeance?" You have the distinction, even if not by name, yet in reality, between solemn vows of religion and non-solemn vows; you have the distinct double class of virgins, namely of the veiled and of those not yet veiled. The Bishop imposed the veil in the public and solemn ceremony of the profession of chastity, which took place at Easter. Read Ambrose, Exhortation of Virginity, c. 7, and the same or another writer, On the Fall of a Virgin, c. 5. Jerome, epist. CXXX, n. 2, calls this veil the virginal flame-colored veil; Optatus, L. II, c. 19, and L. VI, c. 4, calls them mitres or little mitres, "which were made from wool dyed purple, by which the head was veiled, and which were, as he himself says, signs of profession... so that neither he who was betrothing would persist in seeking a thing now devoted to God, nor a ravisher dare to violate it." Cf. also the book of Tertullian, On the Veiling of Virgins, from which it appears that at that age this custom of veiling virgins had not yet been received among all. Therefore Innocent decrees that matrimonial unions of veiled women are adulteries; and when he denies that the fallen woman can be admitted to penance while the spouse lives, he signifies that that union is such that by no reason can it be made honorable, which indeed would happen if it were valid. The same is evinced from the opposition of the veiled virgin with another not veiled; for concerning the vow of the latter alone it is affirmed that it is dissolved with vengeance; for the other is not dissolved.

The author of the Sermon to a Fallen Virgin (among the works of Ambrose; cf. p. 65, in the Treatise On Penance), c. 5, says: "Someone says, it is better to marry than to burn. This saying pertains to one not promised, to one not yet veiled. But she who has promised herself to Christ and has received the holy veil has already married, has already been joined to an immortal husband. Even if she should wish to marry by the common law of matrimony, she perpetrates adultery; she is made a handmaid of death." Ambrose, in the book On Virginity, c. 3, after he had said that it is disapproved by some that a father has vowed the integrity of his daughter, adds: "In this business even we are called into fault. What fault, pray? because we have prohibited illicit nuptials. Let them therefore call even John the Baptist into the same fault... Or have we brought forward an author of whom we must be ashamed? but recall in your mind what other cause he had of martyrdom. The cause of that suffering certainly was this: It is not lawful for you to have her as wife. If this is said concerning the wife of a man, how much more concerning a consecrated virgin?" (Namely, if it is not lawful to have the wife of another, how much less a consecrated virgin.) "Thanks therefore to the Divinity that here there is no Herod, and would that there were no Herodias."

Jerome, L. I against Jovinian, c. 7: "If a virgin has married, she has not sinned; not that virgin who has once dedicated herself to the worship of God; for if this one has married, she will have condemnation, because she has made void her first faith (1 Tim. V). Virgins who have married after consecration are not so much adulteresses as incestuous women." Basil, in the first canonical Epistle to Amphilochius, established in cn. 6: "Let the fornications of canonesses not be reckoned as marriage, but let their union be entirely torn apart." But in the second epistle, cn. 18, discoursing more fully concerning this matter, he indeed speaks directly concerning the penance to be enjoined on fallen virgins; at the same time, however, he teaches what he thinks concerning their unions. It is indeed permissible to doubt whether Basil brings forward that sentence as his own or as common (cf. in the Appendix); but it is established that he agrees with many. Therefore he says: "If a widow is subjected to a very grave judgment, as one who has made void her faith in Christ, what must be thought by us concerning a virgin who is the bride of Christ and a sacred vessel dedicated to the Lord? It is indeed a great sin for even a maidservant, giving herself to clandestine marriages, to fill the house with dishonor, and by a worse life to do injury to her possessor; but it is far graver for a bride to become an adulteress, and, bringing disgrace upon her union with the spouse, to give herself over to impure pleasures. Therefore a widow is condemned as a corrupted maidservant, but a virgin is subjected to the judgment of an adulteress. Therefore just as we call him who is with another's wife an adulterer, not admitting him to communion before he has ceased from sin, so certainly also concerning him who has a virgin we shall establish. But this must now be established by us beforehand, that she is called a virgin who of her own accord has offered herself to the Lord, and has sent a refusal to nuptials and has embraced the institute of holiness." This, therefore, is the sentence of the Fathers of the fourth century, inculcated at the beginning of the fifth century by Innocent.

III. Moreover, if we consult Synods, among the canons collected from several synods in the Carthaginian Council of the year 398, canon 104 is reported. It indeed is not certain, since it was found in one Urgellian manuscript codex (cf. Mansi, Councils, Tom. IV) and does not seem to cohere sufficiently with the doctrine of Augustine to be cited below, who is said to have subscribed the synod in which the canon was framed; nevertheless this canon, without doubt ancient, has itself thus. "If any widows, however much still placed in lesser years and left by a husband in mature age, have devoted themselves to the Lord and, having cast off lay clothing, have appeared under the testimony of the Bishop and the Church in religious habit, but afterward have passed over to secular nuptials, according to the Apostle they will have condemnation, since they dared to make void the faith of chastity which they had vowed to the Lord. Therefore let such persons remain without the communion of Christians, who also are not to communicate at banquets. For if adulterous wives are liable by guilt to their husbands, how much more will widows who have changed their religious state be marked by the crime of adultery, if they corrupt with lustful pleasure the devotion which they had offered to God of their own accord and not by compulsion, and have made a passage to second nuptials? And these, even if they have suffered violence rushing upon them from someone and afterward, by delight of the flesh and lust, have consented to remain in union with the ravisher or violent man, will be held liable to the condemnation comprehended above." Although religious women of this sort have suffered violence, nevertheless if afterward they consent to the ravisher, they are struck with the same penalty as those who freely passed over to these secular nuptials. But since they themselves are compared to adulteresses, and no discourse is made concerning permission to remain in the union after penance has been completed, but only a most grave penalty is indicated for those persevering in such a union, the Fathers seem to have judged such nuptials null; especially since in that age not a few judged concerning these nuptials thus, as is clear from the testimony of Augustine to be cited shortly. Among the more ancient canons, cf. in the Appendix can. XIII from the Council of Elvira, and can. XVIII of Basil. Nevertheless we do not wish to press the authority of this canon very much.

The First Council of Toledo, year 400, cn. 16, decreed: "that a devoted woman sinning is not to be received in the Church, unless first she has desisted and, desisting, has done suitable penance for ten years... but she who has taken a husband is not to be admitted to penance unless, while the man himself is still living, she has begun to live chastely, or after he has died." From this the same thing must be gathered which we gathered from the decree of Innocent. In the Fifth Council of Orleans, year 549, cn. 19, concerning girls who, having entered a monastery, have chosen to remain in it, if afterward they transgress the holy purpose by worldly ambition, it is decreed that "with those with whom they are joined in marriage, they be deprived of the communion of the Church." But "if they shall heal the fault by separation, they are recalled to the grace of communion." Since separation is absolutely commanded, the nuptials are judged null. The Second Synod of Tours, year 567, cn. 20, having first recited the response of Innocent to Victricius which we have already heard, and the testimony of the Apostle, 1 Tim. V, 12, adds: "We therefore, following this which either the Apostle Paul or Pope Innocent established, inserting it in our canons, establish that it is to be observed, that no one presume either to seize or to seek in marriage or to preserve to himself as wife a virgin consecrated to God, who has changed her clothing in honor of Christ; because even Roman law constituted that whoever perhaps has seized a virgin or widow consecrated to God, if afterward they agree with them concerning union, they are struck by capital sentence (Cod. Theod., l. I, De Raptu)... therefore those who shall have wished to persist in this obstinacy and to remain more in the wallowing-place of evil conduct than to separate themselves from a forbidden marriage, are condemned by perpetual excommunication." Behold for you, says Launoius wittily (cited work), an impediment more than diriment established by the Emperor, and the Synod executes the imperial laws. But 1° the Synod says that it follows Paul the Apostle and Pope Innocent; moreover the citation of Roman law is employed for the confirmation of the fittingness of the canon, which that little word even sufficiently indicates. 2° It could not happen that the Bishops by their canon were executing the law of the Emperor; because the law speaks only of ravishers, but the Synod generally of the marriage of these virgins.

Therefore, as is established from the things cited, in not a few Churches already from the fourth century, although not yet universally received, it was constituted that the nuptials of girls or virgins who, having changed clothing or having received the veil or in monasteries, had consecrated themselves to God, are null. The Fathers establish this by appealing to the tradition of the Ancients. Were any civil laws then extant concerning this matter?

IV. Christianus Lupus (in the first prooemial dissertation to Tome IV, on the continence of the Latin Bishops and clerics, c. 10) says that nuptials of this sort were made invalid by an Imperial law, namely of Constantius Augustus, whose law exists in the Theodosian Code, and which Jovian renewed, augmented with capital punishment, to which law the Synod of Tours appealed. Moreover his law (Cod. Theod. L. IX, Tit. 25, De Raptu) has itself thus: "If anyone, I will not say to seize, but even to attempt, for the sake of joining marriage, sacred virgins, or unwilling women (or, perhaps, widows?), he shall be struck by capital sentence." Sozomen opens the cause of the bearing of this law, L. VI, c. 3: "He carried that law for this reason, because certain wicked men, in the reign of Julian the Apostate, had joined such virgins to themselves in marriage, induced to this corruption either by force or by persuasion." Therefore the law had been borne against ravishers or violent corruptors or seducers of virgins; but if religious women, having abandoned their purpose, afterward had wished to marry, they were not prohibited by this law, as Valesius rightly observes. But the Fathers speak of the virgins themselves, who of their own accord make void their first faith bound to God; therefore, even if it were admitted that by that law the nuptials of such men were established as null, that law is wrongly brought forward in our question.

V. But on the contrary, besides the decrees of Innocent, which do not signify that something new is established, we also have conciliar canons more ancient than Constantius decreeing concerning this matter. These directly indeed look to this, that they constitute a mode of penance for the offense; nevertheless they also signify in what place nuptials of this sort were held by the Church. The Council of Elvira, cn. 13, established: "Virgins who have dedicated themselves to God and have betrayed the covenant of virginity and have served the same lust, not understanding what they have lost, it pleased that communion be not given to them even at the end. But if, persuaded once, having fallen into the vices of the lowest body (thus the Synod of Cologne, year 887, cn. 6, reads this clause), such women have done penance for the whole time of their life so that they abstain from intercourse, because they seem rather to have fallen, it pleased that they ought to receive communion at the end." The canon supposes that these fallen virgins ought to abstain from intercourse, that is, that they are to be separated in perpetuity from those to whom they had joined themselves. This indeed of itself is equivalent to a declaration that such nuptials are null. Now observe that the Fathers of Elvira do not first decree this, but rather suppose it; but they decree the penalty. From this you may infer that already by ecclesiastical law it had been provided that such nuptials would be null. For you would be inept if in that age you were to seek civil laws establishing this.

I say 1°. § 1. An impeding impediment contains a grave prohibition of contracting marriage; which, however, is not rendered invalid if, notwithstanding the impediment, it is contracted.

§ 2. A diriment impediment both gravely prohibits the marriage to be contracted and prevents it from being contracted validly.

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

An impeding impediment gravely prohibits, but the marriage is valid; a diriment impediment both gravely prohibits and obstructs it from being entered validly. And however the impediment has itself from one party, it makes the marriage either illicit only or also invalid. Catholic Titius and heretical Bertha enter marriage before the pastor of the place and witnesses; they sin gravely, but they enter validly. Catholic Theodore and non-baptized non-Catholic Bertina enter marriage before the pastor of the place and witnesses; they sin gravely and enter invalidly. In each case the pastor is deceived, who held all as Catholics. In the first case the marriage is illicit but valid. In the second case the marriage is illicit and invalid. In neither has dispensation been obtained.

I say 2°. An impediment is deemed public which can be proved in the external forum; otherwise it is occult (Can. 1037).

Public, namely, in this question is not only that which is known to many, but also that which can be brought into judgment and proved in whatever manner. It has been received by common jurisprudence that an impediment is to be held altogether public which, although it is actually occult, nevertheless can at some time be made known and proved. - Cf. Anal. Juris. Pontif., year 1882, p. 116.

I say 1°. The Church has the power of constituting diriment and impeding impediments of Marriage. It is established from the definition of the Council of Trent, sess. 24, can. 4: "If anyone shall say that the Church could not constitute impediments diriment of Marriage, or erred in constituting them, let him be anathema." It is established also from theological reason; for the Church has the power of decreeing what is required for the right and decent administration of the sacraments.

"Therefore Christ, when He had renewed marriages to such and so great an excellence, entrusted and commended their whole discipline to the Church. To establish and prescribe concerning the Sacraments, by the will of Christ, the Church alone can and must do so, such that it is plainly absurd to wish even the smallest part of her power to have been transferred to the rulers of civil affairs." Leo XIII, Encyclical Epistle, Arcanum.

I say 2°. § 1. It belongs only to the supreme ecclesiastical authority to declare authentically when divine law impedes or invalidates marriage.

§ 2. To the same supreme authority belongs privately the right of constituting other impeding or diriment impediments of marriage for the baptized, by way of law either universal or particular (Can. 1038).

This is clear from the Council of Trent itself, sess. 24, can. 12, where it defined that matrimonial causes pertain to ecclesiastical judges. Indeed, since Marriage has been elevated by Christ to the dignity of a sacrament, it is necessarily subject to spiritual power alone. And although in it the nature of contract and the nature of sacrament are distinguished, nevertheless in reality they are one and the same thing, and therefore the whole of Marriage pertains to the Church alone.

Question 1. Does an invincibly unknown impediment invalidate Marriage contracted with it?

Resp. Affirmatively, as is expressly asserted in Canon 16, § 1:

No ignorance of invalidating or incapacitating laws excuses from the same, unless something else is expressly said.

Hence if, once Marriage has been contracted, a spouse certainly detects a diriment impediment by force of which there was no Marriage, he cannot ask the debt nor render it, even if he were compelled to this by threat of death, because the conjunction would be fornicary, which in no case is licit. Some except the case unless the woman should have herself merely passively, so that she would cooperate with such an act altogether materially; but neither should this be conceded, since it is a question of a thing intrinsically evil, unless, according to a probable opinion, the woman is compelled to this by fear of death, nevertheless with the danger of consent excluded.

Question 2. Are those impediments also incurred, although unknown, which seem to have the nature of penalty, such as the impediment of crime?

Resp. Affirmatively, as is established from Canon 16, § 1 cited above.

Question 3. Is it licit to contract Marriage with a doubtful or probable impediment?

Resp. In relation to ecclesiastical laws, the New Code says thus:

Even invalidating laws do not urge in a doubt of law; in a doubt of fact the Ordinary can dispense in them, provided it is a question of laws in which the Roman Pontiff is accustomed to dispense (Can. 15).

In a doubt of divine law the Church is accustomed to settle the matter. In a doubt of fact concerning the impediment of impotence, or of kinship in the first degree, or of bond, it belongs to the Church also to resolve the case. In the first impediment, the native right is deemed to prevail until the existence of the impediment is undoubtedly established: "It is publicly pernicious to prohibit men from marriage in such a doubtful matter"; thus D'Annibale. In the case of bond, the prior wedlock is in possession until it is broken off; and in the case of kinship, in a similar way it is not to be entered without consulting the Apostolic See. In reality, in doubtful impotence it ought not to be impeded, otherwise than in that doubtful kinship and bond. Cf. Can. 1068, § 2; Can. 1076, § 3.

Question 4. Is it licit for spouses to use marriage if after the nuptials have been entered a doubt concerning some impediment arises?

Resp. Negatively, until sufficient inquiry concerning the truth has been made. Nevertheless, if only one doubts, although he cannot ask the debt, nevertheless he must render it to the other asking in good faith. But otherwise one must speak if, after serious diligence has been employed for detecting the truth, the doubt still remains, because in doubt one must stand for the value of the act. - Cf. S. Alphonsus, nn. 903 and 904.

Question 5. Is Marriage contracted with an impediment thought to exist, but not existing, valid?

Resp. If the contracting party is not altogether certain concerning the impediment, but in some way doubts concerning it, the Marriage is valid. The reason is that he contracts at least conditionally, namely, insofar as I can, although he does not reflect upon that condition; therefore, the impediment not existing, consent is already present as absolute. - But if he contracts with certainty of the impediment, yet grieving over the impediment and not daring to disclose it lest the Marriage be impeded, or lest he be made infamous, or from some inadvertence, it is disputed; but more probably the Marriage is valid on account of the predominant will of contracting it. - Nevertheless, for caution in practice, he would have to be induced to renew consent. - Cf. Lacroix, n. 525; Heiss, § 12 and § 26, v.

Question 6. Are heretics bound by the matrimonial impediments of the Church?

Resp. Affirmatively, prescinding from clandestinity and disparity of cult, concerning which we will treat afterward. Those validly baptized, although by heretics, by force of the sacrament itself are made members of the Catholic Church. Besides, we have as established that "those baptized by heretics, if they come to that age in which they can by themselves discern good things from evil, and adhere to the errors of the one baptizing, are indeed repelled from the unity of the Church, but are not freed from her authority and laws. Let Anacletus be consulted, who, adhering to the aforesaid opinion, established that marriages entered by heretics are invalid if a diriment impediment sanctioned by the Church, either by universal law or by common custom which obtains the force of law, intervenes." Thus Benedict XIV, Const. Singulari nobis.

Question 7. Is it licit for the State to decree anything concerning the marriages of the faithful?

Resp. Affirmatively; the civil State can dispose the civil effects of marriage: "But by civil law," declared Leo XIII, Arcanum, "only those things can be ordered and administered which marriages bring forth of themselves in the civil order." Hence princes can rightly make law concerning taking care that legitimately entered wedlocks be inserted in the registers of the civil State; concerning dignities and honorific titles, concerning the right of the wife or offspring in participating in these, etc. But they cannot deny civil effects inseparably connected with the validity and liceity of a validly and licitly entered marriage on account of some violated civil law. They can punish the omission of civil prescriptions as regards separable effects by denying these effects. Since it is incumbent upon a Catholic man to obey just laws, it is not licit for him to neglect the prescriptions which the State establishes concerning civil effects according to its competence. - Cf. Card. Rauscher, Instructio; Wernz, vol. 4, n. 82 and following; Van de Burgt, p. 78; cf. Can. 1016.

Question 8. What is it not licit for the State to decree concerning the Marriages of the faithful?

Resp. Since Christ raised marriages to the nature of a Sacrament, He entrusted their whole discipline to the Church. Leo XIII, Arcanum. Therefore any law issued by civil power which would regard the conjugal contract itself, by which the State would thrust itself into the administration of the Sacrament, which would impose conditions necessary for entering duly, which would determine whether the betrothed are capable and fit for contracting nuptials, or would establish the other circumstances by which marriage would be entered honorably and holily, validly and licitly, or which would dispose concerning effects which are essential to the contract and inseparable from it, such as the obligation of cohabitation of spouses, legitimacy of offspring, paternal authority, any such law, I say, is a sacrilegious usurpation of another's right. - Leo XIII, Il divisamento, 8 Feb. 1893. Then he recalls "the unjust and sacrilegious plan undertaken as regards the wedlocks of soldiers, by which, just as after they have entered nuptials conjugal separation is enjoined on them, so before they enter the same, nuptials are interdicted. And thus we seem to have returned to the old and savage barbarism which dared to deprive men of a right implanted by nature itself, and for the uprooting of which the Church labored so greatly." Besides, the State does not have the right of imposing virginity; for this gift of perfect continence is not granted to all, and according to the saying of the Apostle: it is better to marry than to burn. I Cor. vii, 9. Moreover, it belongs altogether to the Church to bring judgment concerning the moral law and morals, not otherwise than concerning the deposit of holy faith. "But to discern and judge whether in certain circumstances of affairs it is fitting to enter wedlock or rather to abstain from it is a matter which regards the moral law and the honesty of morals." Therefore all new laws concerning eugenic marriages passed among us violate the power itself of the Church and the right which any human being possesses as implanted in him by nature itself, and the exercise of which precedes the constitution of civil society. - Cf. Leo XIII in the same Epistle, 8 Feb. 1893.

The right of entering marriage belongs to man from the natural law itself, and therefore also the right of founding a family. Therefore the State cannot take away this right or impede him from using it, so long as the natural law permits. Hence neither can the State without sin against this law impede the object of this right, which is the generation and education of offspring; hence it cannot impede the generation or education of offspring: "nor can any human condition effect that man be deprived of those means which are necessary for procreating and educating the number of children which nature permits to be received." - Pottier, De Jure et Justitia, p. 169.

Therefore the State has no power of founding impediments of marriage, whether diriment or impeding. But to establish and prescribe concerning the sacraments, by the will of Christ, the Church alone can and must do so, such that it is absurd to wish even the smallest part of her power to have been transferred to the rulers of civil affairs. Leo XIII, Arcanum.

Question 9. Is it licit for the civil State to establish diriment impediments of the marriage of unbelieving subjects?

Resp. Negatively, altogether, if the question is of impediments to be established against natural and divine right itself by arbitrary means. Otherwise, it is much disputed; but the pleasing opinion of very many moderns is affirmative. The reason is that natural matrimonial right is neither complete nor determined on every side; therefore some power is required which determines and orders it authoritatively. But such a power is not the Church, which does not have jurisdiction over unbelievers; nor the family, which is indeed unsuitable; nor private persons, who are not legitimate arbiters in their own causes. Therefore only the civil State is left, which may settle the matter and rule subjects by coercion, judgment, and law. It is proved by authority: ancient theologians commonly, and now very many, have embraced this opinion. - Suarez, De Legibus, L. 9, C. 21, nn. 5, 6; Schmalzgrueber, vol. 4, n. 367; D'Annibale, vol. 3, n. 425; Wernz, vol. 4, n. 75; Resemans, De competentia civili in vinc. conj. infidelium, passim; Gasparri, n. 290; Genicot, n. 467; Van de Burgt, n. 43a III; De Smet, n. 224, says: "the affirmative opinion is pleasing"; Noldin, n. 518; Aertnys, n. 454; Chabagno, "Le Mariage des Infideles," and others. Finally, the Sacred Congregation de Prop. F., 5 Dec. 1631, transmitted the following response to the Orator: Opinion of the theologians, etc.: "Polygamous Indians who with all their wives are converted to the faith and are baptized are bound to dismiss all wives except the first, who alone is the true wife, if no impediment of natural right or of positive right established by their prince intervened in that marriage"; concerning the authenticity of this response no doubt is raised, but it is transmitted as the opinion of the theologians. "An unbelieving man who had entered marriage with an unbelieving woman, with a certain ceremony omitted, whose omission according to the Tonkin registers is deemed a diriment impediment of marriage, departed from that woman and took another Christian wife; embracing the Christian faith, he seeks baptism." Concerning this cause it was asked: "In one word, does a diriment impediment sanctioned by an unbelieving Prince, or introduced among an unbelieving people by ancient and common custom, render void and invalid marriages contracted between unbelieving men and women with such an impediment?" R. "That the first and second marriage are null; that hence there is no place for interpellation, but there is place for a new marriage, with those things observed which must be observed, and let instruction be given." S. C. de Prop. F., 26 June 1820. Nevertheless it must be confessed that the matter is not certain on every side: "Since marriage is by its force, by its nature, sacred, it is fitting that it be ruled and tempered, not by the command of princes, but by the divine authority of the Church, which alone has the magisterium of sacred things." Leo XIII, "Rerum Nov." Indeed, speaking of a certain peculiar note of marriage, he says: "Since marriage has God as author and was even from the beginning a certain foreshadowing of the Incarnation of the Word of God, therefore there is present in it something sacred and religious, not adventitious, but innate. ... Wherefore Innocent II and Honorius III, Our predecessors, were able to affirm, not unjustly nor rashly, that among the faithful and unbelievers there exists the sacrament of wedlock." "No law of men can take away from man the natural and primordial right of wedlock, or in any way circumscribe the principal cause of nuptials constituted by the authority of God." ... "Behold therefore the family or domestic society, very small indeed, but a true society, and the same older than every city, to which therefore there must be certain rights and duties of its own, which in no way depend upon the republic." Rer. Nov.

Besides, the affirmative opinion can be practically dangerous to the individual, the family, and the state. Indeed, in this question concerning the power of the state around various matters, we judge that the opinion of Pesch is to be followed: No power is to be attributed to the civil republic in private and religious matters which cannot be evidently proved. Vol. 7, p. 445. - Martin, De matrimon., p. 11, page 184; Perrone, De matrimon., II, 443 and following; Lehmkuhl, n. 951, note.

But if the Church granted a dispensation in disparity of cult so that a Catholic entered a matrimonial covenant with a non-baptized non-Catholic woman, and she was not yet in the eighteenth year of age, such a wedlock, duly entered before the Church, would be held as valid, although the State required that year for contracting validly. - Wernz holds the same, vol. 4, nn. 60, 77, note 221. Careful caution is to be used against the practical solution of cases according to some opinion not sanctioned by the Church, to whom alone it belongs to settle the matter.

Question 10. To whom alone does it belong authentically to declare when divine law impedes or invalidates marriage?

Resp. It belongs only to the supreme ecclesiastical authority to declare this authentically, because this alone is the infallible interpreter of divine law. - Cf. Can. 1038, § 1.

Question 11. Can Ordinaries of places prohibit marriages by a veto, or add an invalidating clause to a veto?

Resp. § 1. Ordinaries of places can prohibit marriages in a particular case to all actually staying in their territory and to their subjects even outside the limits of their territory, but only for a time, from a just cause and while it endures.

§ 2. The Apostolic See alone can add an invalidating clause to a veto (Can. 1039).

Question 12. Who can abrogate impediments, derogate from them, and dispense in them?

Resp. The Roman Pontiff alone, in whom alone there is supreme power. And just as it belongs to the supreme power alone to found them, whether diriment or impeding, so it belongs to him alone to abrogate them, etc., unless this has been conceded by common law or by special indult. Thus Canon 1040 of the Code established.

Apart from the Roman Pontiff, no one can abrogate impediments of ecclesiastical law, whether impeding or diriment, or derogate from them; likewise neither can anyone dispense in the same, unless by common law or by special indult from the Apostolic See this power has been conceded (Can. 1040).

Question 13. What is the force of custom concerning impediments?

Resp. Absolutely no force of custom belongs in this matter. Thus the Code: A custom inducing a new impediment or contrary to existing impediments is reprobated (Can. 1041).

The reason is that experience teaches that, on account of the multitude of prohibitions, marriages are many times contracted ignorantly in prohibited cases, in which dispensation is in no way or not without great scandal given. Council of Trent, sess. 24, de ref. matrimonii.

Question 14. Of how many degrees are impediments?

Resp. § 1. Some impediments are of lesser degree, others of greater.

§ 2. Impediments of lesser degree are:

1°. Consanguinity in the third degree of the collateral line;

2°. Affinity in the second degree of the collateral line;

3°. Public honesty in the second degree;

4°. Spiritual kinship;

5°. Crime from adultery with promise or attempted marriage, even through a civil act only.

§ 3. All others are impediments of greater degree (Can. 1042).¹

¹ Cf. Addenda, p. 1123, n. 78.

I. Fifteen impediments are numbered after Trent, contained in these verses:

Error, condition, vow, kinship, crime, Disparity of worship, force, order, bond, Honesty, affinity, if clandestine, if impotent, If the woman be seized, and not restored to a safe place.

These forbid marriages to be made, and undo them when made.

Case.—Antonius marries a certain Sempronia, who before contracting this marriage had been sponsor at the baptism of Bertha, the illegitimate child of her friend Veronica. As the father of Bertha, Veronica had named one Titus, but in reality it was Antonius, so that between him and Sempronia there existed the impediment ex cognatione spirituali (inter levantem levataeque patrem).^* For some time the two had lived in putative wedlock when Sempronia got knowledge of the real relation of Antonius and Bertha. Deeply chagrined but without suspicion of her invalid marriage, she told her trouble in confession to a missionary. She could not reproach her husband, she said, without bringing upon herself serious quarrels and other bad consequences. The confessor, although he is certain about the invalidity of the marriage, believes, from motives of pastoral prudence, that he should not enlighten Sempronia; for, on the one hand, he is obliged to leave town within an hour’s time, and therefore cannot possibly conduct dispensation proceedings himself, on the other hand Sempronia, for the reasons given, would not be in a position to tell her husband of the invalidity of their marriage. Supported by Lehmkuhl (II. 11, n. 1054 and 1055), Göpfert (III., 6, n. 229 and 271) and Noldin, (de usu matrimonii, 11, n. 97) in the probable opinion that in casu gravissimi incommodi an impedimentum juris mere ecclesiastici ceases, he induces the penitent in a prudent way to a renewal of marriage consent, and absolves her with the encouragement: “Strive as much as possible to keep up a good understanding with your husband!”

^* Canon 768 of the new Code of Canon Law abolishes the relationship of the sponsors to the parents of the baptized.

Question.—Quid ad casum?

Solution.—The case is a very evident example of how occasionally the practical application of moral principles may and must soften the strict directions of Canon Law. A Canonist who would believe in carrying his principles to the last consequences, would be displeased at the missionary’s action, whilst a Moralist might deal with him more leniently. The missionary relies upon Lehmkuhl, Göpfert and Noldin for his chosen procedure. Both the latter, however, refer to Lehmkuhl in this matter, so that really Lehmkuhl is the only authority holding this view. Almost all Moralists and Canonists treat this question: though most of them only in the so-called casus perplexus, when, namely, a diriment impediment to marriage is discovered immediately before the marriage ceremony, and there is no time to obtain the requisite dispensation. Lehmkuhl is probably the first one to apply this solution of the casus perplexus also to the convalidatio matrimonii jam contracti. At least I know of no other author who so extends it. Noldin, Göpfert, Wernz, Ballerini-Palmieri, who hold the same opinion, refer to Lehmkuhl and mention no other authority. Feije (De impedimentis et dispensationibus matrimonialibus n. 646), however, who treats very thoroughly this power of dispensation, says: “The reasons adduced ought much more to prevail for an impediment discovered after the marriage was contracted and unknown at the time of its celebration; nevertheless, as all admit, it does not cease.” Since therefore Lehmkuhl appears to lead in this matter, it will repay us to repeat here his views on the subject, as they are found in the eleventh edition.

“What is a confessor to do if he lacks the faculty of dispensing from a diriment impediment to marriage arising from ecclesiastical law and it cannot now be obtained?

Answer 1. If the penitent is in good faith concerning the validity of the marriage, it is generally expedient to leave him in good faith, but under another pretext to move him to return after a certain time to confession with that same confessor; meanwhile the confessor should seek the faculty of dispensing, so that when the penitent returns he may explain the whole matter to him and immediately make him capable of contracting a true marriage.” In this probably all theologians agree. In practice it will be best to obtain at once the sanatio in radice because then no difficulties can arise concerning a renewal of the consent.

R. 2. “If the penitent knows of the nullity of the marriage, it is not impossible to avoid the marital debt under some pretext, by a journey, and so forth, although this is joined with difficulty: it must certainly be done.” Since this solution often appears impossible Lehmkuhl continues:

R. 3. “If neither can a dispensation be obtained so quickly nor can the marital debt be avoided without an urgent danger of a most grave evil, such as defamation, scandal, and so forth, the invalidating ecclesiastical law seems to cease, so that the putative spouses now become capable of effecting a valid marriage... although the obligation remains of recurring immediately to the lawful superior, both so that a more certain dispensation may be made as a precaution and so that a just penalty may be accepted for the crime committed and obedience may be rendered to the superior’s command...”

But that I may briefly give the reason for this answer—which perhaps seems rather indulgent to the reader—I am moved by the authority of St. Alphonsus. St. Alphonsus and the early authors, however, speak merely of the casus perplexus, as already remarked. Lehmkuhl then continues: “But to set forth my own opinion: if in such a case before marriage the law probably ceases, why should we not say the same in the other case after a marriage has been invalidly contracted, where a similar, indeed greater, necessity and graver harm threaten?’”’ It is of interest to note how the distinguished Jesuit Wernz expresses himself on this view in his great work Jus Decretalium (IV. n. 619, nota 87) “Certainly this teaching of approved authors, by which a confessor in these straits can declare that the impediment ceases, but with a certain burden, at least as a matter of fittingness under the law, of recurring after the marriage has been contracted to the Ordinary or the Sacred Penitentiary so that a dispensation may be obtained as a precaution and entrusted for execution, is established with difficulty by intrinsic reasons.”

It would indeed be difficult to give intrinsic, valid reasons for this opinion. Yet it has been attempted and in two different ways. First of all, many authorities, for instance Thomas Sanchez, who quotes more than twenty authors in support of his opinion, claims that the bishop, and also the priests delegated by him, can in cases of necessity set aside obstacles to marriage by dispensation, as in such a case a silent delegation of the Pope is present. The Pope, thus Sanchez holds, would in such a case certainly delegate his powers of dispensation to the bishop and priests, as otherwise great scandal and detriment would arise for the Church. In these days nearly all bishops possess in their Quinquennal faculties far-reaching, positive powers of dispensation, even in regard to diriment impediments; so that hardly a case may happen for which they could not grant the needed dispensation. In some dioceses the bishop permanently delegates this power to confessors for cases of necessity. A similar faculty, though only pro matrimonio jam contracto, is granted to all confessors in the so-called Pagella S. Poenitentiariae. Since this Pagella, which includes other most practical faculties, is readily given, all missionaries at least should secure it. It would enable them to solve easily many difficulties. If power of dispensation is expressly granted to bishop or priests, then of course there is no difficulty. Whether, however, every confessor has in the case of need, to avoid scandal and harm, the power to dispense eo ipso from the canonical impediments, as Thomas Sanchez opines, is very problematical. I am unaware of any direct proof to support such view and probably there is none. For this reason other authorities, as for instance St. Alphonsus, teach that pastors and confessors cannot actually dispense in such cases of need, because this particular power is granted them neither tacite nor even in most cases explicite, but they can declare that the Church law concerning the impediment is to cease in such a case of need, because its observance would be very detrimental. Herewith the difficult question is opened whether a lex irritans— such as a diriment impediment ceases in casu gravissimi incommodi. D’Annibale who is not generally regarded as a rigorist, replies with a categorical “no.” He says: “Invalidating laws admit of no equity, and therefore no inconvenience, not even the gravest, excuses from observing them” (Summula Theol. Mor., 3, I, 216). He claims for his support Thomas Sanchez, who explains the matter as follows: It is not actually the positive Church law that imposes so difficult a restriction, since no positive law, as such, obliges under conditions of great harm. This important restriction proceeds rather from the natural and the Divine law, which allow marital intercourse only between two persons who have contracted a legitimate marriage. The parties in the case, however, are unable to contract a legitimate marriage: consequently matter and form are lacking in such a sacramental union. In fact the claim that in gravissimo incommodo the lex irritans of impediments ceases, cannot generally be maintained. The impedimentum ordinis is manifestly only of an ecclesiastical nature, nevertheless a priest can never, not even upon his deathbed and despite utmost necessity, enter into a valid marriage. Furthermore, what would we come to, if in cases of necessity an ecclesiastical lex irritans could readily be set aside? Would not arbitrariness be given full rein? St. Alphonsus gives as warrant for the cessation of a lex irritans: “A law ceases when it is harmful rather than useful. And although here the purpose of the law does not cease in general but in the particular case, nevertheless, since the purpose of the law ceases in the contrary direction, the law also ceases, as all agree.” Of course, if this be correct without restriction, then we cannot see why a priest could not change an illegitimate union under certain conditions into a valid marriage. The circumstances might be such that the lex ecclesiastica is actually nociva and that the finis legis in contrarium cessavit.

From the above it must be plain that no intrinsic valid grounds are at hand either for the confessor’s faculty to dispense, nor for the cessation of the lex irritans impedimenti in such a case of necessity. It is greatly to be desired that, like the far-reaching powers for dispensation granted by Leo XIII. and Pius X. for validating marriages on the deathbed, also powers of dispensation be granted for the casus perplexus and similar cases of necessity. Meantime, however, the views of St. Alphonsus, Lehmkuhl, Noldin, Gennari, Göpfert, Ballerini-Palmieri, etc. are to be accorded at least extrinsic probability. In the Acts of the South American Plenary Council, of 1899, approved by Leo XIII., the solution of the casus perplexus according to St. Alphonsus (Theol. Mor. lib. VI., n. 613) is recommended. This may be taken as an indication that the Roman Curia does not oppose the practical application of the view of St. Alphonsus.

Let us now attempt to solve the case in point. The missionary is not to be reproached on account of his mode of procedure, as he has followed the opinion of weighty authorities. It is true, nevertheless, that all authorities require that after such solution of the case ad cautelam either the sanatio in radice or simplex dispensatio be obtained. But this demand is made as a matter of propriety rather than as a matter of necessity. Of course, most authorities let the above solution apply only to impedimenta occulta (such as crimen, or affinitas ex copula illicita) not however to impediments which according to their nature are public, although de facto secret. The cognatio spiritualis belongs by its nature to the public impediments, but Gennari rightly extends the above solution also to “impedimenta materialiter publica, formaliter autem occulta.” The cognatio spiritualis is in the given case still secret, therefore, formaliter occulta. Though the missionary’s mode of action is not open to censure, it is not to be commended. He contented himself with probabilities in a very important matter where the validity of the Sacrament of Matrimony stood in question. How easy it would have been to proceed much more securely and correctly! For instance, he might have told Sempronia to take up this matter with her confessor in her next confession, because the matter was very important and her confessor would undoubtedly help her. Should Sempronia refuse to do this, the missionary might have subsequently sought the sanatio in radice from the Poenitentiaria and thus have validated the invalid marriage. Indeed, all authorities recommend that at least ad cautelam recourse should be had subsequently to the proper authority. A missionary who is likely to meet with such cases ought to secure the Pagella of the Poenitentiaria, or even wider faculties. They will not be refused him by the competent authorities.