Impediments of Marriage

516. What impotence is and when it excuses. Both physical impotence excuses from restitution, when the debtor does not have and cannot afterward have the means from which to restore, and moral impotence, when restitution cannot be made without grave damage which would arise from this to the debtor or to a third person. Hence impotence of restoring, or rather a just cause of delaying restitution, is considered to be present:

1. If by restoring the debtor would fall into very grave or grave necessity.

2. If by restoring the debtor would fall from his justly acquired state, for example, from the state of merchant to the condition of a worker.

Justly acquired: for he who acquired his state unjustly (by frauds, deceits, things of another) cannot licitly delay restitution because otherwise he would lose his state; for by restoring he does not lose his state, but rather returns to his own state.

3. If by restoring the debtor would suffer grave damage in goods of fortune which by delaying restitution he would avoid, as if a farmer by restoring would have to deprive himself of grain necessary for cultivating fields, or if a merchant would have to sell "obligations" with great detriment.

4. If restitution cannot be made without grave damage in goods of a higher order, for example, without danger of sin, or of life, or of reputation.

517. Whether entrance into religion excuses from restitution. 1. If the debtor has not yet entered religion, one must answer with a distinction. Where he has hope of paying debts within a short time, he is bound to delay entrance, because creditors are reasonably unwilling that, because of a slight spiritual damage, he not satisfy his temporal obligations. But if the debtor would have to remain in the world for a long time in order to pay, considering natural law he can licitly enter religion, because the creditors cannot be reasonably unwilling that with such great loss in spiritual goods he not satisfy his temporal obligations.

2. If the religious is a debtor, whether because he entered religion burdened with debts or because he contracted debts in religion, these things must be held.

a. Religion does not free from the obligation of paying debts except insofar as it renders payment impossible; but neither is the prelate bound to pay the debts from the goods of the monastery, unless he had received the debtor in bad faith or the religious contracted the debts in his name.

b. Therefore the religious debtor is bound to labors suitable to his state and condition, so that he may earn those things by which he can pay, if the prelate has given permission; but he is not bound to extraordinary labors not suitable to his state, even if the superior had given permission.

The prelate who denies permission for ordinary labors does not injure justice, because he himself owes nothing and has a right in the labors of his subject; yet he seems to injure charity if he denies this permission without a just cause.

c. If the religious debtor acquires goods for the monastery, whether by inheritance, donation, or stipend of his labor, for example, by teaching, after expenses have been deducted, debts must be paid from these: for these goods are acquired for the monastery with that burden which they would have had annexed if they had remained in the ownership of the religious debtor.¹

¹ Cf. Lugo, disp. 3, n. 220; Lacroix, l. 3, pr. 2, n. 441 ss.; Reuter III, n. 362; Lehmkuhl I, n. 1039.

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.

562. Nature of the Impediment. The impediment of mixed religion exists between two baptized persons, one of whom is Catholic, the other acatholic, namely heretical or schismatic. Matrimony entered between them is called mixed matrimony (Mischehe).

1. Mixed marriages are prohibited by natural and divine law chiefly from a threefold reason:

a. The danger of perversion which the Catholic party undergoes; and although there may not be danger of losing the faith, nevertheless there is present at least the danger of growing cold in the faith and the danger of indifferentism.

b. The danger of perversion which offspring to be born from a mixed matrimony undergoes; and although the offspring may not be educated in heresy itself, nevertheless there is present at least the danger of neglecting truly Catholic education.

c. Communication in sacred things, which the contracting parties commit, because the Catholic party administers the sacrament to the heretic and in turn receives the sacrament from the heretic. To this is added moreover that the Catholic party administers the sacrament to one unworthy and thus cooperates in that person's sacrilege.

2. Mixed marriages are also prohibited by ecclesiastical law. The Church already in most ancient times prohibited them; and when in recent time these marriages grew strong, it renewed the ancient prohibitions in order to turn the faithful away from so great an evil.² The new Code deters from mixed marriages in grave words.³

From the decrees of the Holy See, these things must be provided by the parish priest before whom mixed spouses about to marry present themselves:⁴

a. First, he should try with all his strength to impede a matrimony of this kind.

b. But if he cannot impede it, conditions must be required: that all offspring be educated in the Catholic religion, and that full liberty of exercising their religion be granted to the Catholic party and to future offspring.

c. Safeguards must be required; namely, ordinarily in writing, the acatholic must promise that he or she will faithfully observe the conditions.⁵

d. These things having been premised, the matter is to be referred to the bishop, who will procure the dispensation from the Holy See.

e. The parish priest cannot assist at the matrimony except after the ordinary has been consulted; the ordinary can permit it if a grave cause urges and if he himself judges that the promised conditions will be observed.

f. Once mixed nuptials have been celebrated, he should diligently watch that the spouses faithfully fulfill the promises made.⁶

To a matrimony which is contracted by a Catholic party with another party, likewise Catholic, who has cast away the faith but has acceded to no heretical sect, the ecclesiastical impediment of mixed religion indeed does not stand opposed; nevertheless the matrimony is per se gravely illicit by natural and divine law, since the same dangers threaten.

¹ Krueckemeyer, Die Mischehe in Theorie und Praxis 1924. Ries, Die Mischehe, eine ernste Pastorationsfrage 1918. A. Stolz, Der verbotene Baum (Freiburg: Herder, 1904). H. Szillus, Eine verbotene Fracht (Essen: Fredebeul u. Konnen, 1904).

² Cf. the constitution of Benedict XIV, Magnae nobis, June 29, 1748, and the instruction of Pius IX, November 15, 1858, transmitted to the bishops.

³ Cn. 1060 ff.

⁴ S. Office, January 30, 1867; January 11, 1899.

⁵ Cn. 1061, 2.

⁶ Cn. 1064, 3.

563. The Requisites for Obtaining Dispensation are three: a. the due conditions; b. suitable safeguards; c. a grave cause of dispensation.

1. The conditions are: a. that all offspring be educated in the Catholic religion; b. that full liberty be granted to the Catholic party of exercising his or her religion.

Note. The twofold promise concerning procuring the conversion of the acatholic party and concerning not approaching a heretical minister, which formerly were required as conditions, in the new law are no longer counted among the conditions. Nevertheless there is discussion of them in another place, and those about to marry must be warned concerning them. Cn. 1062 says: the Catholic spouse is held prudently to procure the conversion of the acatholic party; and Cn. 1063: the spouses cannot also approach an acatholic minister for giving or renewing matrimonial consent.

In antiquity the Church never permitted mixed marriages except under this condition: that the acatholic party promised that he or she would return to the true faith. But after the rise of the Lutheran heresy it began to permit them even without this condition.¹

Since, if these conditions are not furnished, mixed matrimony is against natural and divine law, it is clear that there can never be dispensation from furnishing them,² and that the Church does not dispense from the canonical impediment unless the prohibition of divine law has ceased in a particular case.

The promise concerning procuring with one's powers the conversion of the acatholic party contains an obligation of charity; for fulfilling it, the Catholic party must chiefly provide these things: that by suitable warnings and counsels he or she prudently try to convert the acatholic party to the true faith; that he or she pour out prayers to God for that person's conversion; but especially that by his or her virtues, especially modesty, patience, and services, if it is the wife, the Catholic party commend esteem and love of the Catholic faith. Concerning this means are the words of St. Peter.³

2. Suitable safeguards, that is, such promises of each party as furnish prudent or moral certainty that the essential conditions will be faithfully fulfilled.

In what form the due safeguards must be provided, whether orally or in writing, before witnesses or a notary, with an oath or with only a word of honor, has not hitherto been prescribed by universal law.⁴ But by particular law, safeguards sometimes must be furnished in writing through written reversals; but if special reasons impede the safeguards from being furnished in writing, the bishop can permit the acatholic party to provide faith or promise by words, provided he is morally certain that the promises will afterward be fulfilled.⁵ Finally, diocesan statutes sometimes require also an oath, or a legal contract, or other safeguards besides.

3. A grave cause because of which dispensation is required and granted, since mixed matrimony is against the universal law of the Church.

Formerly the Church granted dispensation from the law prohibiting mixed marriages only for a public cause, that is, from hope of obtaining a great common good. Today dispensation is also granted from a private cause, which nevertheless must be truly grave. But if sometimes a canonical cause which has force only for other impediments suffices for the Church to grant dispensation, the Church itself has a grave cause of permitting marriages of this kind. Wherefore the betrothed per se sin who, without a truly grave cause, seek dispensation for entering a mixed matrimony and compel the Church by fear of a greater evil to grant it, although they are prepared to furnish the due safeguards.⁶

¹ The bishops of the ecclesiastical province of Milwaukee decreed that dispensation from the impediment of mixed religion is not to be granted unless the acatholic party has first received instruction concerning the Catholic religion, especially concerning matrimony and the obligations of the matrimonial state, for six weeks, twice in each week.

² The Apostolic See recently, September 26, 1890, in letters given to the bishops of Hungary, again affirmed that dispensation from the due conditions cannot be granted.

³ Instruction of S. C. de Propaganda Fide, December 9, 1822. 1 Pet. 3, 1 f. Cf. St. Augustine, Confessions, l. 9, c. 9.

⁴ Even the new Code, Cn. 1061, 2, has only this: safeguards are regularly required in writing.

⁵ S. Office, December 10, 1902.

⁶ Lehmkuhl, Casus consc. II, n. 911.

564. Liceity of Mixed Matrimony. When the safeguards have been furnished and dispensation obtained, mixed matrimony must be called per se licit. For two things stand in the way of mixed marriages: the danger of perversion which threatens both the Catholic party and the offspring to arise, and the prohibition of the Church. But at least the proximate danger of perversion ceases when the safeguards are furnished, and the prohibition of the Church ceases when dispensation is obtained. But from granted dispensation the liceity, and less still the full liceity, of mixed matrimony cannot always be gathered; for sometimes the Church by prudent counsel permits lesser evils, dangers of perversion, provided there is a serious will of observing the safeguards, in order to avoid greater evils, e.g., lest the Catholic party wholly defect from the faith, lest the betrothed live longer in civil marriage, etc.

a. If the danger of perversion in a particular case not only did not cease in reality, but was also proximate, the contracting parties would sin gravely against natural law.

b. Although every danger to the soul in the Catholic party and in the offspring is scarcely ever entirely excluded, nevertheless for a sufficiently grave cause some remote danger is licitly admitted. From this very fact, because some remote danger of perversion almost always remains, the Church dispenses in marriages of this kind with difficulty and never fails to dissuade them; moreover there are added the great harms which arise everywhere for the Catholic religion from mixed marriages.

c. There are those who say that mixed matrimony can never be licit, because forbidden communication in sacred things cannot be separated from it. But nothing occurs which could not licitly be done on account of a grave cause. And indeed, for a grave cause it is licit to administer a sacrament to one unworthy and in this way to cooperate in that person's sacrilege; it is licit to seek and receive a sacrament from a heretic, which he, if he wishes, can administer without sin, for if he is in bad faith he can procure for himself the state of grace through perfect contrition; finally, communication in sacred things with excommunicates after the Council of Constance is no longer prohibited unless they are excommunicated by name.¹

Note. Because mixed marriages are per se opposed both to divine law and to ecclesiastical law, and the Church always detests them; because moreover marriages of this kind ordinarily have an unhappy outcome, the parish priest will use every care to turn the Catholic party away from contracting a matrimony of this kind. And since, as experience testifies, once betrothals have been entered or longer familiarities have already been premised, the betrothed can scarcely be separated any longer, he should try to impede familiarities from being contracted between Catholics and acatholics, from which mixed marriages would arise. But if every effort will be fruitless, he will at least take care that the required conditions are furnished in such a way that certain hope of future execution is provided; and after mixed nuptials have been celebrated, he will diligently watch that the promised conditions are observed in reality.

¹ Cf. Lugo, De sacramentis, disp. 8, n. 220 ff.; Ballerini-Palmieri VI, n. 714.

565. Declaration. 1. Legal relationship is the nearness of persons arising from adoption. It is called legal because it was first established by civil law, although afterward it was also received by ecclesiastical law.

2. Adoption is defined as a legitimate act by which someone who is not a son or grandson is assumed as son or grandson. It must be made through a public act according to the established laws of each region. Wherefore each person must learn the nature, extent, and effects of adoption from the civil code of his own region.

3. A threefold legal relationship arises from adoption: legal paternity between the adopter and the adopted person and the descendants of the adopted person; legal fraternity between the adopted person and the legitimate children of the adopter, who exist under paternal power; legal affinity, which intervenes between the adopter and the wife of the adopted person and, conversely, between the adopted person and the wife of the adopter.

4. In Roman law a distinction is made between perfect adoption, or arrogation, if a person of his own right is assumed as a son by the supreme authority of the emperor in such a way that he passes into the power and family of the adopter and becomes his necessary heir, equally as natural and legitimate children; and imperfect or simple adoption, if a person who is not of his own right is assumed as a son by the inferior authority of the magistrate in such a way that he does not pass into the family and power of the adopter, but nevertheless receives some right in the inheritance.

5. From perfect adoption in Roman law arose a diriment impediment of matrimony, legal relationship, namely:

a. Between the adopter, the adopted person, and the children and descendants of the adopted person, legal paternity.

b. Between the adopted person and the legitimate children of the adopter who at the time of adoption are constituted under paternal power, legal fraternity.

c. Between the adopter and the wife of the adopted person, and conversely between the adopted person and the wife of the adopter, legal affinity.

The impediment of legal relationship is perpetual, that is, even when adoption is dissolved, it endures in those between whom legal paternity and affinity exist; but in those between whom legal fraternity intervenes, the impediment ceases when adoption is dissolved.

Adoption is dissolved both through emancipation of the adopted person or of the son or daughter of the adopter, and through death of the adopter.

6. The Church made this law of the Romans its own and constituted legal relationship arising from perfect adoption a diriment impediment of matrimony. In more recent time most nations substituted their own civil codes for Roman law; hence the question arose whether the diriment impediment of legal relationship still had force. The question was resolved in this way: the diriment impediment of legal relationship remains in those places in which the law of adoption as to substantial elements agrees with the perfect adoption of Roman law. Wherefore in individual regions it had to be investigated whether the laws in force as to substantial things imitated perfect adoption. Since the decision of the question was not free from difficulty, it happened that this impediment was held as doubtful unless the Holy See issued an authentic declaration concerning it. The new Code now removes the whole difficulty of this matter, because it adopts the civil law as its own.

566. Nature of the Impediment. 1. The peculiar relation which arises by force of adoption between the adopted person and the family of the adopter furnishes a reason for establishing that matrimony not be contracted between persons joined by legal relationship. In reality, in many regions civil law constitutes adoption an impediment of matrimony, now impedient, now diriment. Whether and in what way this impediment stands in the way of ecclesiastical matrimony depends on canon law. Now the new Code has made civil law its own and, as they say, has canonized it.

2. In those regions where legal relationship arising from adoption renders matrimony illicit by civil law, it is also illicit by canon law.¹

3. Therefore in each region it must be examined whether the civil code constitutes legal relationship an impediment of matrimony, whether impedient or diriment, between what persons it has force, and how long it will endure. All these things have force in the same way also in the forum of the Church.

4. Legal relationship brings an impedient impediment of matrimony in Hungary, Germany, Switzerland, and France.

In several other regions legal relationship is a diriment impediment, as will be said below.² Note that a canonical impediment is not removed by civil dispensation, but only by dispensation of the Holy See.

¹ Cn. 1059.

² Cf. Chelodi, n. 57. In Austria, the civil Code derives no impediment of matrimony from adoption; therefore no impedient canonical impediment exists there.

567. On the Unworthy. After he had treated impedient impediments, the Code establishes what must be done by the parish priest if the unworthy wish to enter matrimony.¹ It lists two kinds of unworthy persons: a. notorious apostates and those enrolled in a sect condemned by the Church; b. public sinners and those bound by censure. Although a properly so-called impediment does not stand in the way of their matrimony, nevertheless they deserve peculiar care of pastors.

To 1. a. The faithful must be deterred from contracting matrimony with apostates or those enrolled in a condemned sect; for no less danger threatens both the other party and the future offspring from them than from heretics and schismatics.

b. The parish priest cannot assist at nuptials of this kind, but should refer the matter to the ordinary.

c. The ordinary can grant license of assisting if a grave cause urges and if he prudently judges that all offspring are to be educated Catholic and that the danger of perversion of the other spouse has been removed.

To 2. a. If public sinners or those notoriously bound by censure approach confession, even if they do this sacrilegiously, in the external forum they are held as reconciled before God and the Church; therefore nothing stands in the way of their being admitted to matrimony.

b. If they refuse to approach confession, the parish priest should not assist at the matrimony unless a grave cause, such as danger of civil marriage, concubinage, grave harm, etc., urges.

c. Concerning the cause and its sufficiency, if it can be done, the ordinary must be consulted.

¹ Cn. 1065 and 1066.

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.

569. Nature of the Impediment. 1. The impediment of age consists in this, that a man before the completed sixteenth year of age and a woman before the completed fourteenth likewise cannot enter valid matrimony.¹

a. Although the new law requires a greater age for entering valid matrimony than the old law did, it can nevertheless happen that in some northern regions even at this age full natural puberty with proximate power of generating is not had. Therefore Cn. 1067, 2 warns: although matrimony contracted after the aforesaid age is valid, pastors of souls should nevertheless take care to turn young people away from it before the age at which matrimony is customarily entered according to the received customs of the region.

b. For a twofold reason, a greater age is required for the value of matrimony than of betrothals, because matrimony requires both greater maturity of judgment and also power of generating. For betrothals are a promissory contract concerning the future and by their nature rescindable; but matrimony is a contract of handing over concerning the present and indissoluble. Therefore in betrothals a lesser degree of knowledge suffices.²

2. This impediment dirimently impedes matrimony by ecclesiastical law, which is already clear from this, that now for valid matrimony a more mature age is required than formerly. Moreover, by natural law no age is required for valid contracting beyond sufficient use of reason.

3. Because this impediment is of ecclesiastical law, the supreme pontiff per se can dispense in it, and in reality has sometimes dispensed from a most grave cause. But because dispensation is granted most rarely, this impediment is numbered among those in which dispensation is not customary.

Since the impediment of age regards a twofold defect, sufficient discretion and actual power of generating, and since the former is of natural law, it is clear that the supreme pontiff can dispense only in the latter.

¹ Cn. 1067, 1.

² Cf. Wernz, n. 314, note 30.

570. Declaration. By natural law, for validly contracting, nothing is required except perfect use of reason, so that there is full knowledge of the right and obligation which are assumed by contracting, although use of the matrimonial right is not yet possible. But because it is not fitting that matrimony be contracted before the spouses are apt for the use of matrimony, the Church wisely determined the age at which this aptitude can be presumed from things commonly happening. But the determination of age must be understood strictly, so that the matrimony is null even if only a few days were lacking for the due age, indeed if the last day had not yet been completed.

a. In our regions it scarcely happens that those below puberty contract matrimony; but in regions of infidels marriages of those below puberty are most frequent, and these among the infidels themselves, unless another impediment stands opposed, must indeed be held valid.

b. If the betrothed intend to enter matrimony before the canonical age, the parish priest must refer the matter to the bishop, to whom it pertains to declare whether there is really present in the betrothed the capability which is required, namely prudence and power of generating; but the bishop cannot dispense, not even in a case of doubt.¹

¹ Benedict XIV, constitution Magnae nobis.

571. Definition. Impotence is incapacity for perfect copula, that is, copula per se apt for the generation of offspring. Now three things are required in order that copula be per se apt for generation: a. on the part of the man, at least one testicle; b. on the part of the woman, at least one ovary; c. on the part of copula, that the virile semen can be mingled with the female ovule, and therefore in the man a penis, by which semen is ejaculated into the vagina of the woman, and in the woman vagina and uterus, and communication between these, so that the semen can be received into the uterus and mingled with the ovule.

a. Sterility must be distinguished from impotence; it is incapacity for actual generation, although perfect copula can be had, as happens in the aged. The essential difference between sterile persons and impotent persons is clear: for sterile persons are incapable of generating only because of an accidental defect; impotent persons, however, because of a substantial defect. Therefore old men are sterile, but eunuchs and spadones (castrated men) are impotent;¹ for these are entirely without semen, and without semen natural copula cannot be had; but those are not without virile semen, although because of old age or some other cause it may not be prolific. Perfectly castrated women are impotent; old women are sterile: for the former lack ovaries, but the latter do not lack ovaries, although because of old age they do not elaborate ovules. Causes of sterility on the part of the man, besides old age, are especially various diseases by which the testicles are affected; in women sterility can arise from an ill disposition of the ovaries and of other organs serving generation.

b. Impotence of generating must be distinguished from impotence of coeundi. The former exists when the elements necessary for generation are lacking, namely in the man testicles and therefore semen, in the woman ovaries; the latter is incapacity for having copula of itself suitable for generation.

c. Since through perfect copula there is made a mixture of the semens, as the ancients used to speak, or, as the recent authors speak, of the female ovule and the virile semen, through it the spouses become one flesh. Nevertheless, in order that the spouses become one flesh, it is not required that the semens of each actually be mingled, but it suffices that per se they can be mingled, although accidentally, as in sterile persons and the aged, they are not mingled and therefore a fetus is not conceived.

d. Therefore impotence exists in a threefold case:

a. If the man lacks both testicles; therefore Sixtus V declared eunuchs and spadones impotent;² or if he has undergone vasectomy; or if the testicles suffer from perfect atrophy.

b. If the woman lacks both ovaries or the uterus, or all these together. Indeed today several theologians think that a woman who lacks both ovaries or the uterus, or the ovaries and uterus, is not impotent but sterile; namely, they define impotence not as incapacity of generating, but as incapacity of coeundi. But theoretically the opinion once common seems to have to be retained, because according to the mind of the authors it seems certain that impotence is present where incapacity for copula of itself apt for generation is present.³ The question whether matrimony entered with a woman lacking ovaries and uterus is valid had not hitherto been defined by the Holy See, nor does the Code of Canon Law resolve it, but it only adds this: if the impediment of impotence is doubtful, whether by a doubt of law or by a doubt of fact, matrimony is not to be impeded;⁴ this was the practice of the Holy See observed up to this time.⁵

c. If the power of coeundi is lacking; now this is lacking in a man from physical defect, if his virile organ is so imperfectly formed that he cannot have natural copula; from psychic defect, if because of frigidity he cannot be aroused to copula. It is lacking in a woman if she lacks a vagina, or if the vagina is entirely closed, or if it is so narrow that it can in no way be penetrated.

e. Among the causes of impotence the older theologians and canonists also mention maleficium, by which the devil effects that a man and a woman cannot have intercourse, although otherwise they are not incapable. Now it cannot be denied that impotence can arise from maleficium through the work of the devil and has sometimes in fact arisen;⁶ but likewise it is established that several impediments of intercourse which the ancients attributed to maleficium have their origin from natural causes.

Note. There are persons of frigid nature who are wholly without sexual appetite (Geschlechtstrieb). Natures of this sort are found more rarely among men, but frequently among women. And women can indeed exercise the conjugal act, and even generate offspring, although they suffer from this defect; nevertheless, copula with women of this sort is less pleasing and agreeable to men, because of the lack of sexual love, and for this reason they not rarely seek by adultery with other women the pleasures which their own wife cannot supply to them. But frigid men are for the most part impotent, as being incapable of erection and ejaculation.

¹ Eunuchs are said to be those who were born without testicles; spadones are called those who by art or by accident have been deprived of testicles.

² In the constitution Cum frequenter, June 27, 1587.

³ Cf. Antonelli, De conceptu impotentiae et sterilitatis (Rome: Pustet, 1900). The same, Pro conceptu impotentiae et sterilitatis (ibid., 1901). The same, De mulieris excisae impotentia ad matrimonium (ibid., 1903). Against this, Eschbach, Disputationes etc. (Rome: Desclee, 1901), p. 14 ff. Gasparri, n. 513.

⁴ Cn. 1068, 2.

⁵ S. C. de Sacram., April 2, 1909.

⁶ Cf. Tob. 6, 14 ff.; 7, 11 ff.

572. Division. Impotence is:

a. Perpetual or temporal, according as it can or cannot be removed by licit human means that are not gravely dangerous.

Impotence is judged perpetual which cannot be removed without danger of life or of grave illness, namely illness bringing danger of death. Hence if a woman laboring under perpetual impotence underwent a dangerous operation which brought about the desired effect and rendered her potent, either she could pass to other nuptials, or she would have to contract validly with the former husband.

b. Absolute or relative, according as it exists either with relation to any person whatever, or only with relation to a determinate person. Relative impotence can be perpetual, that is, it can happen that there exist no means through which determinate persons become apt for having copula between themselves.

c. Antecedent or consequent, according as it precedes matrimony, or arises only after matrimony has been contracted, as if, after matrimony has already been contracted, both testicles are cut out from the man.

d. Natural or accidental, according as it takes its origin from nature or from the natural constitution of the body, or from an accidental cause, e.g., from disease.

573. The impediment of impotence consists in this, that matrimony entered between those who are incapable of copula apt for generation is null: for matrimony cannot be valid in which the first and principal end of matrimony cannot be obtained.¹

1. Perpetual and antecedent impotence dirimently impedes matrimony, if it is absolute, with any person whatever; if it is relative, with that person with whom perfect copula cannot be had.

2. Neither temporal impotence nor consequent impotence dirimently impedes matrimony: not the former, because it does not make one simply unfit for generating, but only for a time; not the latter, because it supervenes upon a valid matrimony, which is indissoluble.

a. To the question whether there is an obligation of removing impotence detected after matrimony, one must respond thus: if it can be removed without danger of life or of grave illness, even if not without grave inconvenience and pain, there exists an obligation of removing it; for the woman is held to undergo grave inconvenience in order that she can render the right which the man acquired by the matrimonial contract, because this is judged an ordinary means. But if it cannot be removed without danger of life or grave illness, she is not held, because she cannot be obliged to undergo so great an inconvenience that the right of the husband may be preserved (unless one must say that in this case the matrimony is invalid), because this is judged an extraordinary means.

b. Nevertheless St. Alphonsus (n. 1009) judges this opinion very probable, that a woman is not held to undergo incision if from shame she would abhor with her whole soul submitting herself to the eyes and hands of a surgeon. But the mode of feeling and acting in our time in this matter differs widely from the mode of feeling and acting in the times of St. Alphonsus. Wherefore let it suffice to have mentioned this opinion.

c. To the question whether matrimony is valid if the woman has been made potent through an operation, the answer must be given thus: if the operation was dangerous, the matrimony is invalid and must be convalidated through renewal of consent; whether in the prescribed form or only privately will be said below. If the operation was not dangerous, the matrimony is valid. If there is doubt concerning the danger, consent must at least as a caution be renewed privately. Moreover, it is sufficiently renewed by this, that the spouses, conscious of the doubtful value of the matrimony, continue conjugal life.

3. This impediment is of natural law: for the object of the matrimonial contract is the right over the body as it is apt for perfect conjugal copula; but where the essential object is lacking, the contract from the nature of the thing is null.

Note 1. According to the opinion of more recent physiologists, which rests on experience, for generation it is not absolutely required that virile semen be sent within the female vessel, but it suffices that it be poured at the mouth of the vagina. Hence the question arose whether the impediment of impotence is present if the vagina of the woman, because of narrowness, absolutely cannot be penetrated. There are those who deny that absolute impotence is present, although the vagina of the woman absolutely cannot be penetrated, because generation is not absolutely impossible. But one must altogether assent, it seems, to Eschbach, Lehmkuhl, Wernz, who judge that those are impotent for matrimony who, from any cause whatever, cannot have copula with penetration of the female vessel, because they are incapable of furnishing those things which are essentially required for natural copula. For absolute impotence for matrimony seems to have to be affirmed where absolute impotence for natural copula exists, although accidentally generation could be had. Practically in this case the impediment would have to be held as doubtful, and the declaration of the Holy See would have to be sought.

Note 2. One who contracts matrimony while laboring under temporary impotence, which he thinks will soon be removed, does not sin; but one who contracts matrimony while laboring under temporary impotence that will last a long time, and does not reveal it to the other party, sins in two ways, because he deceives the other party concerning a necessary quality and because he exposes that party to the danger of incontinence.

4. One who before matrimony doubts concerning perpetual impotence cannot licitly contract matrimony until, after the matter has been diligently investigated, he has laid aside the doubt: otherwise he exposes the sacrament to danger of nullity and the other party to danger of deception in a necessary quality. But if after investigation the doubt endures, one positively doubting can licitly contract matrimony, provided he warns the other party concerning the doubt, and use matrimony until the impediment becomes certain.

¹ Antecedent and perpetual impotence, whether on the part of the man or on the part of the woman, whether known to the other party or not, whether absolute or relative, dirimently impedes matrimony by natural law itself, Cn. 1068, 1. Sterility neither dirimently impedes nor impedes matrimony, Cn. 1068, 3.

574. On Matrimony Entered with an Impotent Party. 1. If antecedent impotence is certain, immediately by the proper authority of the spouses separation as to bed must be made; but complete separation cannot be made without an ecclesiastical judge. Therefore they can indeed sometimes, with the danger of incontinence excluded, cohabit as brother and sister; but ordinarily recourse must be had to the ecclesiastical judge and the impediment must be duly proved. Once this has been done, the judge brings sentence concerning the nullity of the matrimony, and the spouses are separated.

a. In antiquity indeed the practice of separating spouses whose matrimony was null on account of antecedent impotence had not yet everywhere prevailed in the Church; but the putative spouses were permitted to cohabit as brother and sister. But after this license was abolished by Sixtus V, the practice of separating spouses became universal,¹ because danger of incontinence is usually always present. If, however, separation of the spouses is morally impossible, as where civil laws, which do not recognize the impediment of impotence, compel the spouses to remain together, even in our time they are permitted to cohabit after the manner of brother and sister, provided danger of sinning is absent.²

b. If the confessor has noticed that the spouses are in good faith, that is, that they think they are living in legitimate matrimony, and at the same time he has noticed that the impotence is occult and that separation is morally impossible, he can leave them in good faith.

2. If impotence is doubtful (whether the doubt supervenes or preceded), the spouses can licitly use matrimony, even if the semen is poured outside the vessel: for so long as impotence is doubtful, there is always some hope of exercising copula duly. Meanwhile, however, apt remedies must be applied for removing impotence. But if, after remedies have been applied, they profit nothing, and the use of matrimony is recognized as impossible, the matter must be referred to the ordinary for obtaining either separation of the spouses or a declaration of nullity.

a. The new Code agrees with these things: for what Cn. 1068, 2 affirms, "If the impediment of impotence is doubtful, whether by a doubt of law or by a doubt of fact, matrimony is not to be impeded," has force also concerning the use of matrimony, so long as the impediment is doubtful.

b. Formerly there was granted by the Church to spouses a triennial experience, during which they could ask and render the debt, so that in this way it might be established whether impotence was truly present. Only when the three years had elapsed, if impotence was established, was the matrimony declared dissolved. According to present practice an experiment of this sort is no longer required, and since the new law is silent concerning triennial experience, it is no longer granted; but a dispensation in a ratified and non-consummated matrimony is granted. For if it is established that the matrimony has not been consummated, there exists an easier and shorter way of dissolving the matrimony, namely by seeking a dispensation in a ratified and non-consummated matrimony, than a declaration of nullity, because antecedent and perpetual impotence can be proved with difficulty.

¹ Constitution Cum frequenter, June 27, 1587.

² S. C. C., December 15, 1877. S. Office, March 8, 1900.

575. In order that the state of the question may be clear, perfect, imperfect, and improperly so-called hermaphroditism must be distinguished.

a. Hermaphrodites (Zwitter) are properly said to be human beings who share in the organs of both sexes and therefore in the work of generation can, at pleasure, act either as male or as female. It is certain today from the laws of physiology that such true and perfect hermaphrodites have never existed and can never exist; but it is ascertained that imperfect and improperly so-called hermaphrodites exist and have existed.

Therefore the doctrine of the ancients concerning hermaphrodites, which St. Alphonsus proposes from Busenbaum in this way: "If one sex predominates, matrimony will be valid according to that sex only; if both are equal, the option is given to them that they may use either, yet in such a way that whichever they have once chosen, they must always retain" - this doctrine, I say, must be held as antiquated.

b. Improperly so-called hermaphrodites are human beings of a determinate sex who nevertheless, besides their proper organs, are endowed with some one of the essential organs of the other sex, e.g., a male with a female ovary or uterus, a female with a male testicle. These indeed are not unfit for completing the work of generation.

c. Imperfect hermaphrodites (Scheinzwitter) are said to be human beings of doubtful sex, who are neither true males nor true females, since their sexual organs are so formed that they can be held as organs of either sex. These are ordinarily unfit for completing the work of generation, since in it they can act neither as male nor as female.² Human beings of this sort must be kept away from the clerical, priestly, or religious state.

¹ A hermaphrodite (Hermaphroditus) is said to be a human being who, born of Mercury (Hermes) and Venus (Aphrodite), shares in both sexes.

² Cf. A. Eschbach, Disputationes physiolog. theolog., 2nd ed., p. 53.

576. Nature of the Impediment. 1. The impediment of bond consists in this, that a spouse bound by the bond of matrimony cannot enter valid matrimony unless the prior matrimony has first been duly dissolved: for one who has already handed over the right over his body to one person cannot hand over the same right to another unless the prior contract has been legitimately dissolved.¹

By the name bond is understood the matrimonial bond by which each spouse is bound to the other. This impediment was constituted so that the unity of matrimony may be preserved.

2. This impediment is founded on the dogma concerning the unity and indissolubility of matrimony. Wherefore it is of secondary natural law if the man attempts to enter another matrimony while his wife is still living; but if the wife attempts to enter matrimony while her husband is still living, the impediment is of primary natural law.

The Church has taught at every time that, while a prior matrimony exists, a new other matrimony cannot validly be entered, even if the second matrimony has been consummated and the first was only ratified. Wherefore it holds the second matrimony simply as concubinage, although a secular judge or religious sect has declared the first matrimony dissolved. But in the polygamy of infidels, the first wife is to be held as legitimate, unless the matrimony is shown to be invalid because of some diriment impediment.

¹ Matt. 19, 9. 1 Cor. 7, 39. Cn. 1069, 1: One invalidly attempts matrimony who is held by the bond of a prior matrimony, although not consummated, saving the privilege of the faith.

577. Certainty Concerning the Free State. 1. In order that a second matrimony can be licitly entered, it is required that it be established with moral certainty that the prior matrimony has truly been dissolved; nor is probability concerning the death of the spouse sufficient, however great it may be:¹ for it is not licit to expose a sacrament to danger of nullity outside a case of necessity. Wherefore a second matrimony entered without certain knowledge concerning the dissolution of the prior one is gravely illicit, but nevertheless valid if the prior matrimony has truly been dissolved.

2. Concerning the obtaining of this moral certainty several instructions of the Roman congregations have appeared,² from which these things are had:

a. The long absence of one spouse does not suffice, nor mere report concerning that person's death, nor the affirmation of one witness, unless he is above every exception and his testimony is confirmed from the circumstances. But positive and legitimate proof is required, such as ordinarily is either an authentic document or, if this cannot be had, the testimonies of two witnesses who are above every exception.

b. Extraordinarily, proof by indications is also admitted, which, taken together, suffice for obtaining moral certainty; relying on these, the ecclesiastical judge authentically declares the death of the spouse.

If the death of the spouse occurred in the very parish in which the second nuptials are celebrated, testimony is not required, since the matter concerns a fact publicly known. But if the spouse died in another place, the authentic testimony of the parish priest of the place where the death occurred is required. This testimony must be furnished with the parochial seal, and if it must be acquired from a distant diocese, also with the seal of the episcopal curia.³ If authentic testimony of this sort cannot be obtained, the matter no longer pertains to the parish priest, but must be referred to the ordinary. What must be done in this case is taught by the cited instruction of the Holy Office.

If a spouse in good faith contracted a new matrimony while the other party was still living, this matrimony, after the death of the other party has actually followed, does not become valid of itself, but consent must be renewed.

¹ Cn. 1069, 2: Although the prior matrimony is invalid or dissolved, it is not therefore licit to contract another before the nullity or dissolution of the prior one has been legitimately and certainly established.

² Instruction of the Holy Office (1870) for proving the death of some spouse; instruction of Clement X, August 21, 1670, which prescribes procuring full certainty concerning the free state of the contracting parties. Cf. Acta S. Sedis VI, p. 436 ff.

³ In order that matrimony be held valid in the civil forum, in Austria (G. A. n. 112 ff.) testimony of the civil authority concerning the death of the spouse is required; before this testimony has been obtained, the parish priest cannot proceed to the nuptials. Although this civil testimony does not suffice in the ecclesiastical forum, nevertheless the ecclesiastical judge can be assisted by it.

578. Nature of the Impediment. The impediment of disparity of cult consists in this, that matrimony cannot be validly entered between one baptized in the Catholic Church or converted to it and one not baptized. But if one converted from heresy or schism afterward defects again from the Catholic Church, he is held as Catholic, and therefore is bound by this impediment.

Disparity of cult between spouses is called perfect if one party is baptized and the other not baptized; it is called imperfect if one party is Catholic and the other acatholic, that is, heretical or schismatic. The former, in the proper and strict sense, is called disparity of cult; the latter is properly called by the name mixed religion.

1. This impediment, insofar as it is diriment, is of ecclesiastical law. For although no testimony of ancient law establishing this impediment exists, nevertheless by the long use of the Church, which obtained the force of law, it is certain that disparity of cult dirimently impedes matrimony;¹ moreover, it is expressly established by the new Code.²

a. This impediment was established lest, from close familiarity with infidels, the faithful spouse, together with offspring, undergo danger of losing the faith; and then also lest matrimony, which among the baptized is a sacrament, be contracted by a baptized person with an unbaptized person; but especially because nothing is more opposed to matrimony, which by its nature involves an intimate union of minds, than disparity of cult and therefore disparity in the supreme principles of moral and religious life.

b. Therefore the Church can dispense in this impediment, and in regions of infidels indeed it dispenses more easily from an urgent cause; but in our regions a dispensation is granted with great difficulty, and much more difficultly if the matter concerns the matrimony of a Christian with a Jew. But if the Church for a grave cause dispenses in this impediment, this is done only under the same conditions under which mixed marriages are permitted.³ If these conditions are not furnished, dispensation is never granted. Moreover, a dispensation imparted by one having power from the Holy See, when the prescribed cautions have not been required or have been denied, is invalid. And the ordinary himself can declare the nullity of the matrimony, if it is evidently established concerning it because of this cause, nor is recourse to the Holy See necessary.⁴

c. For convalidating a matrimony invalid because of the impediment of disparity of cult, dispensation is granted more easily. Thus to American bishops there has been granted the faculty of convalidating by sanation in the root even marriages invalid because of disparity of cult; only if it is a matter of matrimony entered with a Jew must they recur to the Holy See in individual cases, all circumstances being accurately set forth.

2. This impediment, insofar as it is prohibiting, is of natural and divine law; the reason of the first is the danger of perversion which threatens both the faithful spouse and future offspring; the reason of the second is the prohibition which is had in the sacred Scriptures: "Do not bear the yoke with unbelievers,"⁵ that is, do not enter conjugal union with unbelievers.

Therefore matrimony between a baptized and an unbaptized person is also gravely illicit, and it can become licit only if the proximate danger of perversion becomes remote, and if there exists a grave cause of seeking and granting dispensation from this impediment.

3. Heretics and schismatics are not held by this impediment. Therefore matrimony between a validly baptized heretic or schismatic and an infidel is now valid.

a. Apostates from the true Catholic faith, likewise converted heretics or schismatics who afterward defect again from the true faith, are bound by this impediment.

b. A great difference intervenes between the ancient impediment of disparity of cult and the modern one. For hitherto disparity of cult dirimently impeded matrimony between any baptized person whatever and a non-baptized person; but now only between one baptized in the Catholic Church (to whom converted heretics or schismatics are equated) and a non-baptized person. Therefore matrimony between a validly baptized heretic and an infidel is valid, which formerly was invalid.

c. Because in this time there is often deserved doubt concerning the validity of baptism conferred by heretics, several marriages of heretics were invalid because of disparity of cult. Perhaps for this reason the Church restricted this impediment, lest many marriages of heretics be invalid.

d. Therefore marriages of heretics and schismatics contracted up to May 19, 1918, must be judged according to the former law.

¹ Cf. constitution of Benedict XIV, Singulari nobis (February 9, 1749), n. 10. At the beginning of the thirteenth century disparity of cult is already a diriment impediment of matrimony.

² No matrimony exists contracted by a non-baptized person with a person baptized in the Catholic Church or converted to the same from heresy or schism. Cn. 1070, 1.

³ What has been prescribed concerning mixed marriages (n. 540) must also be applied to marriages which the impediment of disparity of cult opposes. Cn. 1071.

⁴ S. Office, June 21, 1912.

⁵ 2 Cor. 6, 14; the same is also prohibited in 1 Cor. 7, 39.

579. In Doubt Concerning Baptism. Here there is no discussion except of the question whether doubtful baptism in a case of disparity of cult between those about to marry suffices for contracting valid matrimony. Now from several decrees and declarations of the Holy Office and from the new Code,¹ the following rule must be observed:

1. Doubtful baptism, whether there is doubt concerning its conferral or concerning the validity of the baptism conferred, in order to a matrimony both to be contracted and already contracted, is held as valid from presumption; and only if it is certain that baptism either was not conferred or was conferred invalidly is there present the simple impediment of disparity of cult.

a. A Catholic who truly doubts concerning the validity of the baptism received, whether in the case of entering matrimony or outside this case, must be rebaptized under condition: for the matter concerns a sacrament necessary for the salvation of the soul.

b. The practice of administering baptism under condition to an acatholic party who declares that he or she remains in heresy is illicit and to be reproved, if before entering matrimony a doubt arises concerning its validity. But when a doubt of this sort has arisen, investigations must first be instituted; if they have been useless, the doubt must be removed from presumption and the matrimony, whether to be contracted or already contracted, must be held as valid.

c. If doubtful baptism, which is presumed valid, was in reality null, some authors thought that the matrimony, although disparity of cult opposed it, was nevertheless valid, either because the Church had implicitly dispensed, or because it had exempted this case from the law of the impediment from the beginning. But in reality, from Cn. 1070, 2, it is invalid.

2. If doubtful baptism, which is presumed valid, is afterward discovered with certainty to be null, recourse must be had to the Holy See, which will prescribe what must be done.

In order that it may be known when the validity of baptism can duly be presumed, the Holy Office established these things:

With regard to heretics whose rituals prescribe the conferral of baptism without the necessary use of essential matter and form, the particular case must be examined.

With regard to others who according to their rituals baptize validly, the baptism must be judged valid, nor is further examination required in particular cases.

But if doubt persists, even in the first case baptism must be judged valid in order to the validity of matrimony. Hence the general principle which the Holy See holds in this matter is gathered: doubtful baptism, in order to matrimony to be contracted or already contracted, must be held as valid.

¹ S. Office, November 17, 1830; July 7, 1880; September 9, 1868; September 18, 1872; September 18, 1890. Cn. 1070, 2.

580. Nature of the Impediment. The impediment of order consists in this, that one who has received sacred order (subdiaconate, diaconate, priesthood) cannot enter valid matrimony.¹

a. Sacred order does not dirimently impede matrimony contracted beforehand, but only impedes its use.

b. The question hitherto disputed, whether a cleric receiving major order must emit a vow of chastity at least implicitly, the new Code does not solve. Therefore it is not certain whether the force invalidating matrimony arises from ecclesiastical law alone, or from the law of the Church by means of a vow, or from law and vow together.

1. A threefold condition is required for inducing this impediment:

a. That the ordination be valid.

b. That it be freely received. The Code establishes concerning this matter: one who, compelled by grave fear, received sacred order and, when the fear had been removed, did not ratify the ordination, is to be declared immune from clerical obligations.² Once this has been done, he can validly and licitly enter matrimony.

c. That it be received with knowledge of the obligation: for the Church does not wish to impose this burden on a cleric unless he himself freely wills it.

a. If someone compelled by grave and unjust fear receives sacred ordination, the ordination is indeed valid; nevertheless the ordained man is neither held to continence nor rendered incapable of contracting matrimony, unless afterward expressly or tacitly (by the exercise of sacred order) he consents to the obligation of celibacy annexed by the statute of the Church to the order.

b. There are those who say that a solemn vow emitted in a religious order and in receiving sacred order is one impediment;³ nevertheless some authors hold that they are different impediments, because the reason and effect of each impediment are different.⁴

2. This impediment is of ecclesiastical law: for it must be derived neither from the nature of sacred order nor from the internal force of a solemn vow of chastity, but from ecclesiastical law alone.⁵ For a vow dirimently impedes matrimony not by its nature, but from the disposition of the Church. Moreover, that sacred order can be joined with matrimony is gathered from the practice of the Eastern Church.

A dispensation is never granted to a priest; so much so that from the acts it is not established that this dispensation for contracting matrimony has ever been granted (but only for convalidating matrimony). There is less difficulty of dispensation with deacons and subdeacons.

3. The penalties in force today are: a. excommunication latae sententiae simply reserved to the Apostolic See, which both the cleric attempting matrimony and the person with whom he attempts it incur;⁶ b. loss of all offices by the fact itself, if he has contracted matrimony even only civilly;⁷ c. degradation, if, after having been warned by the ordinary, he does not repent within the predetermined time;⁸ d. irregularity from delict.⁹

¹ Council of Trent, sess. 24, can. 9, De sacr. matrim. Cn. 1072: Clerics constituted in sacred orders invalidly attempt matrimony.

² Cn. 214, 1.

³ Lehmkuhl, Th. mor. II, n. 749 (n. 981).

⁴ Cf. Matharan, n. 251.

⁵ Benedict XIV, De synodo, l. 12, c. 4, n. 2. Wernz IV, n. 298.

⁶ Cn. 2388, 1.

⁷ Cn. 188, 5.

⁸ Cn. 2388, 1.

⁹ Cn. 985, 3.

581. Nature of the Impediment. The impediment of vow consists in this, that those cannot enter valid matrimony who have spontaneously emitted a solemn vow of perfect chastity in a religious order, or even only a simple vow to which, nevertheless, by special privilege, there is attached the force of dirimently impeding matrimony.¹

a. A solemn vow: for a simple vow of perfect chastity emitted in religion impedes matrimony, but does not dirimently impede it. b. In a religious order: for a simple vow of perfect and perpetual chastity emitted in some congregation likewise does not dirimently impede matrimony. c. Of perfect chastity: for a solemn vow not of perfect chastity but only of conjugal chastity, which is emitted in some equestrian orders, does not constitute an impediment. d. Spontaneously: for, in order that a solemn vow dirimently impede matrimony, religious profession must be valid; but it is not valid if it is not entirely free, but was extorted by fraud or grave and unjust fear.

Therefore a solemn vow of chastity emitted in religion has a twofold effect with regard to matrimony: of dissolving matrimony already contracted, if it has not yet been consummated, and of dirimently impeding future matrimony.

1. The impediment of vow is of ecclesiastical law only: for if the vow itself by its nature produced this effect, a simple vow also, since in its internal nature it does not differ from a solemn vow, would dirimently impede matrimony. Therefore it dirimently impedes insofar as it is solemn; but a vow has solemnity from the Church; therefore it also has from the Church the force of dirimently impeding matrimony.

a. Hence it follows that the supreme pontiff can dispense one who has emitted solemn profession for entering matrimony. This dispensation, although granted rarely and with difficulty, has nevertheless sometimes been granted by supreme pontiffs both formerly and again recently by Leo XIII.²

b. One dispensing in a solemn vow for entering matrimony properly exercises a twofold and diverse power: one by which he removes the solemnity of the vow, or the incapacity for contracting annexed to the vow; another by which he relaxes the vow itself. The solemnity of the vow is of ecclesiastical law and renders matrimony invalid; the obligation of the vow is of divine law and renders matrimony only illicit.

2. From the special privilege of the supreme pontiff, the simple vows of scholastics and coadjutors of the Society of Jesus dirimently impede future matrimony, unless the general has dispensed, or so long as they have remained in the Society.³

From the old law, the spouse remaining in the world, whose other party with that spouse's consent had entered religion or received sacred orders, had to emit a simple vow of chastity. This vow made matrimony entered after the death of the spouse, according to some, illicit, according to others, invalid.⁴ Today this question is obsolete, since a spouse cannot validly be admitted to the novitiate while the matrimony endures.⁵

¹ Council of Trent, sess. 24, can. 9, De sacr. matrim. Cn. 1073: Religious who have professed solemn vows invalidly attempt matrimony, or simple vows to which, by special prescription of the Apostolic See, the force of invalidating nuptials has been added.

² S. Office, February 20, 1888.

³ Constitution Ascendente Domino of Gregory XIII, May 25, 1584; constitution Dolentes of Leo XIII, July 13, 1886.

⁴ Cf. Wernz IV, n. 320, 395. Benedict XIV, De synodo, l. 13, c. 12, n. 1.

⁵ Cn. 542, 1.

584. Nature of the Impediment. 1. The crime which dirimently impedes matrimony consists in the injury which both who intend to enter matrimony inflict on the already existing matrimony of one of them. In reality the impediment of crime contains three impediments diverse among themselves:

a. The first is contracted by those who, by mutual physical or moral work, even without adultery, brought death upon a spouse.¹

b. The second is contracted by those who, during the same legitimate matrimony, consummated adultery between themselves and one of whom committed spouse-killing.²

c. The third is contracted by those who, during the same legitimate matrimony, consummated adultery between themselves and mutually gave faith to each other concerning entering matrimony, or attempted matrimony itself, even only by a civil act.³

Therefore the impediment of crime is contracted in a threefold case: a. because of spouse-killing alone; b. because of spouse-killing with adultery; c. because of adultery alone with promise or attempted matrimony. This threefold impediment, taking its denomination from spouse-killing alone, is also customarily presented in this way, so that it is said to be contracted because of a crime committed a. with both perpetrating; b. with one perpetrating; c. with neither perpetrating.

2. These three impediments are of ecclesiastical law.⁴ Moreover, the Church, in establishing these impediments, intends: a. to provide for conjugal fidelity and the lives of spouses; for when all hope of contracting matrimony with an accomplice either of killing or of adultery has been removed, it at the same time removes the occasion of committing these crimes; b. to punish spouses because of the crime committed, by which injury is inflicted on matrimony and on the innocent spouse.

3. Therefore the Church can dispense from these impediments; but it does not dispense in all of them. Namely, if the impediment arises from adultery with promise of matrimony, it dispenses when a canonical cause exists. If the impediment arises from spouse-killing, whether perpetrated by each or by one party, and the spouse-killing is occult, it dispenses rarely and only from a most urgent cause. But if the spouse-killing is public, it does not dispense "because of the enormity of scandal."⁵

Whether those who are ignorant of this impediment incur it. The affirmative opinion is now certain, since Cn. 16, 1 of the Code establishes: "No ignorance of invalidating or incapacitating laws excuses from the same, unless something else is expressly said"; but nothing else is said anywhere concerning this matter.

¹ Caius, joined in marriage with Bertha, conspires with Sempronia to kill Bertha, in order that he may marry Sempronia.

² Caius, joined in marriage with Bertha, commits adultery with Sempronia and then kills Bertha in order that he may marry Sempronia.

³ Caius, joined in marriage with Bertha, commits adultery with Sempronia (whether unmarried or married) and promises her matrimony to be entered after the death of Bertha, or attempts matrimony itself with her.

⁴ Cn. 1075, which presents the impediment in the words related above.

⁵ Cf. Gasparri I, n. 653 ff.

585. In Order That an Impediment Arise from Spouse-Killing Alone, or from the crime with both perpetrating, these three things are required:

1. Mutual conspiracy for the killing of the spouse of either of them. Now conspiracy is had both in the case of cooperation, even remote, whether physical, e.g., by giving poison, or moral, e.g., by corrupting a doctor so that he does not ward off death, and in the case of inducement, by which one party moves the other to killing by counsel, prayers, or consent alone.

If therefore one of them alone schemes the death of the spouse, while the other party is ignorant, and no adultery has intervened between them, the impediment is not contracted, even if the ignorant party afterward approved the death of the spouse. Likewise it is not contracted if one party indeed consented to the killing, and nevertheless the consent in no way moved the other to the killing.

2. That the spouse-killing was committed at least by one party from the intention of entering matrimony with the accomplice of homicide, with this intention externally manifested. Although this condition is not expressed in the new law, nevertheless it is rightly presumed from the end of the law and is commonly required by interpreters.

If therefore the killing was done not from the intention of contracting matrimony with the accomplice, but from another motive, e.g., revenge, or of sinning more freely with the accomplice, the impediment is not present, since it was established by law lest spouses be killed from desire for another's matrimony.

3. Death really followed from the physical or moral action of one of the accomplices, not from another cause.

Therefore attempted homicide does not suffice, but real killing is required, whether the accomplices of the crime carry out the killing by themselves or through another.

586. In Order That an Impediment Arise from Spouse-Killing with Adultery, or from the crime with one perpetrating, these three things are required:

1. True adultery, formal on the part of each, perfect, actually committed before the spouse-killing.

a. True, which supposes valid matrimony at least on the part of one adulterer. Therefore the impediment is not contracted if the accomplice of adultery thinks the other party is married, when he or she is not; or if the other party is commonly held to be married, when nevertheless he or she is not, because, e.g., that person's matrimony is invalid because of an occult impediment.

b. In order that the adultery be formal on the part of each, it is required that the married state of the one with whom adultery is committed be known. If therefore only one of the adulterers is married, it is required that the unmarried person know that he or she sins with a married person; and if both adulterers are married, it does not suffice that each know himself or herself to be married, but it is required that one of them know the accomplice of adultery to be married. Namely, in order that formal adultery be committed, it indeed suffices that the adulterer know either himself or his accomplice to be married; but for inducing the impediment of crime, it does not suffice that each know himself to be married, because injury must be inflicted by each adulterer upon the same matrimony.

c. Perfect, that is, of itself apt for generating offspring. Besides, if copula has in reality intervened, it is presumed perfect unless the contrary is established.

d. Actually committed before the spouse-killing. If only schemes of spouse-killing preceded the adultery, the impediment is contracted; but if the death itself of the spouse precedes, it is not contracted, because after the death of the spouse adultery is no longer committed.

2. Spouse-killing perpetrated by one party, even while the other party is ignorant or even unwilling, with the intention of entering matrimony with the accomplice of adultery. Therefore it is not required that both conspire in the killing, but it suffices that either one accomplishes it, either by himself or through another.

Therefore neither the intention of perpetrating homicide nor the intention of perpetrating homicide in order to enter matrimony must be manifested to the other party, but it is necessary that the intention of entering matrimony with that same party be known to the other party.

3. The death of the spouse really followed from the physical or moral action of the spouse.

587. In Order That an Impediment Arise from Adultery Alone with Promise or Attempted Matrimony, or from the crime with neither perpetrating, these things are required:

1. True adultery, formal on the part of each and perfect, as was explained above.

2. A promise of entering matrimony with the adulterer, true (a feigned one does not suffice), absolute (a conditional one does not suffice), and mutual, that is, made by one party and accepted by the other with a counter-promise.

a. The question whether the impediment is present if, in the promise of matrimony, the conditions prescribed by the decree Ne temere are not observed, seems so much the more to have to be answered affirmatively because the new Code does not require betrothals for contracting the impediment, but only a simple promise of matrimony.

b. Concerning the promise of entering matrimony after the death of the spouse, the Code has nothing; therefore this condition is no longer required.

c. If the promise of matrimony is revoked before adultery has been committed, no impediment arises; but if it is revoked after adultery has been committed, the impediment already contracted does not cease.

d. Attempted matrimony also constitutes an impediment, although it is only clandestine (before a heretical minister, before a civil magistrate, between the delinquents alone), provided the one attempting knows that the other party is married or, when the error has been discovered, perseveres in the union. If someone, therefore, after having entered valid matrimony, obtains a civil divorce and then contracts a new civil matrimony and consummates it while the prior spouse is living, he contracts the impediment of crime. Wherefore, when the prior spouse has died, he cannot without dispensation enter matrimony with the civil spouse, unless this latter had previously been ignorant of the matrimony.

e. It not rarely happens that those who have obtained either dispensation in a ratified and non-consummated matrimony, or a document of liberty because of the presumed death of the spouse, wish to contract matrimony with a person with whom, while the prior bond existed, they had contracted civil matrimony and had consummated it.

But since a dispensation from the impediment of crime arising from adultery with attempted matrimony is rarely sought, Pius X, lest matrimony be exposed to danger of nullity, established that dispensation from this impediment is to be judged granted through the given dispensation either in ratified and non-consummated matrimony or through permission of passing to other nuptials.¹

f. Hitherto the question was disputed whether a promise accepted by the other party alone suffices for contracting this impediment, or whether a counter-promise is also required. Now one must say that a promise with counter-promise is required, since Cn. 1075, 1 says: those who have mutually given faith to each other concerning entering matrimony.

3. The adultery and the promise must be made during the same marriage: for in order that the impediment arise, the whole injury must be inflicted on one and the same marriage. Moreover, it makes no difference whether the promise precedes or accompanies or follows the adultery, and likewise it makes no difference by how much time the adultery and promise are distant from each other, provided they were made during the same marriage.

If Caius promises matrimony to Bertha while his spouse Anna is living, and after Anna's death marries Sempronia, during whose life he commits adultery with Bertha, he contracts no impediment.

¹ S. C. de Sacr., June 3, 1912. Cn. 1053.

588. The Impediment of Crime Can Be Multiplied both by reason of the delict and by reason of the marriage.

1. If the impediment arises from homicide alone, a twofold impediment is had when both conspirators are married and the spouse of each is killed by them.

2. If the impediment arises from homicide with adultery, a twofold impediment is had when both adulterers are married and each kills his or her spouse.

3. If the impediment arises from adultery alone, a twofold impediment is had a. when both adulterers are married and both know this circumstance; b. if Caius, joined in marriage with Bertha, commits adultery with Sempronia and promises her matrimony, then after Bertha's death marries Anna and during this marriage knows Sempronia again with promise of matrimony.

589. Nature of the Impediment. The impediment of consanguinity consists in this, that persons consanguineous in some certain degree cannot validly enter matrimony with each other.

a. Consanguinity is the nearness of persons descending by natural generation from the same proximate stock; therefore it arises from participation of the same blood. It is said proximate: for those who descend from a common remote stock (beyond the third generation) are no longer accustomed to be called consanguineous.

b. Consanguinity is legitimate if it arises from legitimate matrimony, and illegitimate if it arises from fornicary union; it is simple if it arises from only one source, and multiple if it arises from a double or multiple source.

c. It is clear that an impediment of matrimony arises equally from legitimate and from illegitimate consanguinity. Moreover, with regard to consanguinity which constitutes an impediment of matrimony, it makes no difference whether both parents or only one parent is common.

590. Declarations. In order that the impediment of consanguinity be rightly understood, three things must be explained: what stock is, what line is, what degree is.

1. Stock is said to be that person from whom others descend by natural generation, and in whom they come together as in a first root. Thus brothers have their father as stock; the children of two brothers have their grandfather as stock.

a. Ordinarily two persons, namely the parents, constitute the common stock; but it can also happen that one person constitutes it (whether man or woman), if this person had offspring not with one person but with several.

b. Because those born from the same stock share the same blood, they are called consanguineous. Consanguineous persons in the first degree of the collateral line are full or not full, according as they have both parents or only one parent in common. Those not full are called uterine if they have the same mother but a diverse father, and they are called consanguineous only if they have the same father but a diverse mother.

2. Line is the series of persons descending from the same stock through various generations. Line contains diverse degrees and is twofold, direct and oblique.

a. Direct line is the series of persons of whom one descends from the other, whether immediately, as a son from parents, or mediately, as a grandson from grandparents. Direct line is divided into two, one of which is of ascendants, from whom someone has origin, namely father, grandfather, great-grandfather, etc.; the other is of descendants, who have origin from someone, namely son, grandson, great-grandson, etc.

b. Oblique line (collateral, transverse) is the series of persons of whom one does not descend from the other, but nevertheless all have a common stock, as brothers, cousins.

The collateral line is either equal, if the persons placed in each line are distant from the common stock by the same degree, or unequal, if the persons placed in each line are distant from the common stock by a diverse degree. Thus two brothers are of an equal line, but a brother and a brother's daughter are of an unequal line.

3. Degree is the measure of the distance of one person from another in the same line. Degree can be simple or mixed.

591. Principles.¹ 1. In the direct line of consanguinity, matrimony is invalid between all ascendants and descendants, both legitimate and natural.

Therefore consanguinity dirimently impedes matrimony in any degree, by positive law at least, probably also by natural law.

Authors who affirm that consanguinity dirimently impedes matrimony indefinitely by natural law use this argument: all descendants owe to progenitors almost the same reverence which children owe to parents; therefore progenitors are accustomed to be called by the name parents, descendants by the name children. For this reason, consanguineous persons in the direct line are not judged to have received from God the power of handing over to each other the right over their bodies.

But those who affirm that consanguinity by the positive law now in force dirimently impedes matrimony indefinitely teach that the supreme pontiffs (Callistus I and Nicholas I in the responses to the consultation of the Bulgars) received into ecclesiastical law the dispositions of Roman law invalidating matrimony between consanguineous persons in any degree whatever.

2. In the collateral line, matrimony is invalid up to the third degree inclusively, but not beyond, even if a more remote degree is mixed with a nearer one, e.g., the fourth with the second.

The impediment, which formerly extended up to the seventh degree, was restricted by the Fourth Lateran Council under Innocent III, and afterward by the Council of Trent,² to the fourth degree, because of the great difficulty of observing the prohibitions of so many degrees, and by the new Code to the third degree. Therefore the fourth degree of consanguinity and the fourth touching the third no longer dirimently impede matrimony.

3. Matrimony is never to be permitted if a doubt remains whether the parties are consanguineous in some degree of the direct line or in the first degree of the collateral line, because the doubt is either certainly or probably of divine law.

¹ Cn. 1076.

² Sess. 24, c. 4, De reform. matr.

592. Origin of the Impediment. 1. In the first degree of the direct line (between father and daughter, mother and son) the impediment is certainly of natural law; in other degrees of the direct line marriages likewise seem to be invalid by natural law (secondarily), although some authors say that they are valid but illicit.

The reason of the first: by the natural light of reason itself we understand that the use of matrimony between consanguineous persons in the first degree of the direct line is contrary to the singular reverence owed to parents. Therefore almost all peoples not depraved in morals detest nuptials in the first degree of the direct line as wicked.¹ Wherefore, because of the natural baseness which inheres in marriages of this sort, consanguineous persons in the first degree of the direct line are judged by natural law to lack the power of handing over to each other the right over their bodies.

The reason of the second: all descendants indeed owe reverence to their progenitors, yet in a more remote degree this need not be so great as in the first. Wherefore nuptials between consanguineous persons also of a more remote degree of the direct line are opposed to natural law; but this repugnance does not seem to be so great that nuptials of this sort must be said to be absolutely invalid by natural law, but only by secondary natural law.

2. In the first degree of the collateral line (between brother and sister) the impediment is of natural law;² in the other degrees of the collateral line it is certainly of merely ecclesiastical law.

a. Several authors, both ancient and recent, deny that matrimony between brother and sister is invalid by natural law. And rightly indeed, if this is understood of primary natural law: for that singular reverence owed to parents, because of which nature itself forbids matrimony between parents and children, is founded chiefly in this, that parents are the principle of children. But in the collateral line this chief reason does not have force. Therefore nature does not absolutely forbid matrimony between brothers and sisters as it does between parents and children.³ Wherefore at the beginning, because of the most grave necessity of propagating the human race, which God willed to descend from one man, marriages between the sons and daughters of Adam were valid by divine disposition; but afterward, when the human race had already been sufficiently propagated, they became invalid by natural law.

b. Therefore concerning marriages which consanguineous infidels enter within the degrees prohibited by the Church, these things must be held:

a. Marriages entered between consanguineous persons in the first degree of the direct line are certainly invalid. The same must be said of marriages of consanguineous persons which are invalidated by civil law.

b. Matrimony entered between grandfather and granddaughter, and matrimony entered between brother and sister, is likewise invalid. If spouses of this sort are converted to the faith, they can enter a new matrimony according to the practice observed by the Holy See. If doubt remains concerning the value of a matrimony contracted in infidelity, one must stand for the nullity of the matrimony in favor of the faith.⁴

c. Marriages of consanguineous persons in the second and further degree, if nothing else stands in the way, are valid; and if the spouses are converted to the faith, they can remain in the contracted matrimony without dispensation.

3. The reason for prohibiting marriages to be contracted between consanguineous persons is chiefly threefold: one social, that mutual charity and friendship may be extended more widely; another moral, that, once hope of matrimony has been taken away, carnal love among members of the family may be restrained; and finally another physical, that provision may be made for offspring. For it is established that marriages of consanguineous persons are either unfruitful or that offspring often suffer from diseases and defects.⁵

¹ The Assyrians and Persians are to be excepted, who did not reject marriages between a son and his own mother; the Egyptians permitted marriages between brother and sister.

² Council of Trent, sess. 24, c. 5, De reform. matr.

³ Gen. 20, 12.

⁴ S. Office, May 18, 1872.

⁵ Cf. Wernz IV, n. 413 ff.

593. Canonical Computation of Degrees.¹ For computing degrees of consanguinity in canon law, three rules are established: one for the direct line, another for the equal collateral line, another for the unequal collateral line.

1. In the direct line there are numbered as many degrees as there are persons, the stock being removed, or there are as many degrees as there are generations.

Descendants          Titius.          Ascendants

1                                      1
Son                                    Father

2                                      2
Grandson                               Grandfather

3                                      3
Great-grandson                         Great-grandfather

Therefore father and son are consanguineous in the first degree, grandfather and grandson in the second, great-grandfather and great-grandson in the third.

In the appended schema Titius is consanguineous in the direct line with his father and son in the first degree, with his grandfather and grandson in the second, and with his great-grandfather and great-grandson in the third.

2. In the equal collateral line there are numbered as many degrees as there are persons on one side, the stock being removed. Therefore two persons are consanguineous in that degree by which they are distant from the common stock.

                 Claudius.

1                         1
       Anna                     Titius

2                         2
     Iacobus                   Theresia

3                         3
      Maria                    Iulius

Therefore brother and sister are consanguineous in the first degree of the equal collateral line; the children of a brother and the children of a sister (paternal and maternal cousins) in the second; the grandchildren of a brother and the grandchildren of a sister in the third.

In the appended schema, Iulius and Maria are consanguineous in the third degree, Iacobus and Theresia in the second, Titius and Anna in the first degree of the equal collateral line.

3. In the unequal collateral line there are numbered as many degrees as there are persons on the more remote side, the stock being removed. Therefore two persons are consanguineous in that degree by which the more remote person is distant from the common stock.

                 Sempronius.

1                         1
      Flavia                    Lucius

2                         2
       Anna                     Petrus

3                         3
      Caesar                    Victor

4
                                Melania

If therefore on one side there are three persons, and on the other side four persons, the stock being removed, the last two persons are consanguineous in the fourth degree of the unequal collateral line. A mixed degree of this sort is customarily expressed in this way: A and B are consanguineous in the fourth degree mixed with the third, or also in the fourth degree touching the third.

In the appended schema Melania and Caesar are consanguineous in the fourth degree touching the third. Victor and Anna are in the third degree touching the second, Petrus and Flavia in the second degree touching the first of the unequal collateral line.

¹ Cn. 96.

594. Names of Consanguineous Persons. 1. Names of ascending consanguineous persons in the direct line on the part of the father and mother:

First degree: pater, Vater; mater, Mutter.

Second degree: avus, Grossvater; avia, Grossmutter.

Third degree: proavus, Urgrossvater; proavia, Urgrossmutter.

2. Names of descending consanguineous persons in the direct line on the part of the father and mother:

First degree: filius, Sohn; filia, Tochter.

Second degree: nepos, Enkel; neptis, Enkelin.

Third degree: pronepos, Urenkel; proneptis, Urenkelin.

3. Names of descending consanguineous persons in the collateral line on the part of the father:

First degree: frater, Bruder; soror, Schwester.

Second degree: patrueles, Geschwisterkinder, when the two fathers are brothers; amitini, Geschwisterkinder, when the father of one and the mother of the other are siblings.

Third degree: patrueles magni, amitini magni, other Geschwisterkinder.

4. Series of descending consanguineous persons in the collateral line on the part of the mother:

First degree: frater, Bruder; soror, Schwester.

Second degree: consobrini, Geschwisterkinder whose mothers are sisters.

Third degree: consobrini magni, other Geschwisterkinder.

5. Names of ascending consanguineous persons in the collateral line on the part of the father:

First degree: patruus, Onkel (father's brother); amita, Tante (father's sister).

Second degree: patruus magnus, Grossonkel (grandfather's brother); amita magna, Grosstante (grandfather's sister).

Third degree: propatruus, great-grandfather's brother; proamita, great-grandfather's sister.

6. Names of ascending consanguineous persons in the collateral line on the part of the mother:

First degree: avunculus, Oheim (mother's brother); matertera, Muhme (mother's sister).

Second degree: avunculus magnus, Grossoheim (grandmother's brother); matertera magna, Grossmuhme (grandmother's sister).

Third degree: proavunculus, great-grandmother's brother; promatertera, great-grandmother's sister.

595. On Multiple Consanguinity. From multiple consanguinity there arises a multiple impediment of consanguinity. Now consanguinity is multiple if two persons come together in several stocks.¹

        Aloisius              Stanislaus

Caius        Leo - Agnes        Bertha

Cornelius       Petrus  Anna       Maria

Cornelius, the betrothed man, and Anna, the betrothed woman, descend from a double stock (Aloisius and Stanislaus). Therefore they are consanguineous in the second equal degree both from the stock Aloisius and from the stock Stanislaus.

Double Diverse Stock.

                         Carolus

Petrus          Maria          Anna

Iacobus          Henricus

Felix           Lucia

Felix, the betrothed man, and Lucia, the betrothed woman, descend from a double stock (Petrus and Carolus). Therefore they are consanguineous in the second equal degree from the stock Petrus and in the third equal degree from the stock Carolus.

Two Causes in One and the Same Marriage.

                         Iulius

Pius                      Leo

Caia      Flavia   Titus        Paulus

Linus                 Anna

Linus, the betrothed man, and Anna, the betrothed woman, are consanguineous in a double second degree, because they descend from a double stock (Pius and Leo); moreover, in the third degree, because they descend from the common stock Iulius.

¹ Cn. 1076, 2: "The impediment is multiplied only as many times as the common stock is multiplied"; formerly it was multiplied also when two persons descended from the same stock by a multiple way.

596. Note 1. In order to detect whether, and what kind of, impediment of consanguinity exists between two betrothed persons, the more apt method, namely where the stock is unknown, seems to be this: that above the names of the betrothed man and woman there be written the names of father and mother, grandfather and grandmother, and so on up to the fourth generation. If among the ascendants of each, thus described, no common stock is found, no kinship intervenes between them; but if among the ascendants a common stock is found, the degree by which each is distant from it must be computed. Once this has been done, it will be established what kind of consanguinity exists between them.

Note 2. From what has been said it is clear that between the law hitherto in force and the new Code there is a twofold difference with regard to the impediment of consanguinity:

a. Hitherto consanguinity dirimently impeded matrimony in the direct line indefinitely in any degree whatever, in the collateral line up to the fourth degree; now it dirimently impedes matrimony in the direct line indefinitely, in the collateral line up to the third degree inclusively. Therefore consanguinity in the fourth degree and in the fourth degree touching the third no longer dirimently impedes matrimony.

b. Hitherto the impediment was multiplied both from plurality of stocks and from plurality of ways through which one could ascend to the stock; now it is multiplied from plurality of stocks only.

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.

There are four prohibitory impediments of marriage according to modern ecclesiastical law: the prohibition of the Church, close time, betrothal, and simple vows. Something must be said on each of these.

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.

During close time, or the periods between the first Sunday of Advent and Christmas Day, and from Ash Wednesday to Easter Sunday, the solemnization of marriage is forbidden by the common law of the Church. The solemnization of marriage consists especially of the Mass Pro Sponso et Sponsa, the nuptial blessing, and outward pomp and feasting in connection with the marriage. A simple and private marriage without these solemnities during close time is not against the common law (Can. 1108).

Betrothal between two persons prevents the parties from lawfully marrying any third party unless the betrothal is legitimately broken off. In other words, betrothal is a prohibitory impediment of marriage with any other person than the betrothed, as we saw above.

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.

The power of dispensing from the impediments of an absolute and perpetual vow of perfect chastity taken after completing the eighteenth year of age, the vow of entering religion with solemn vows, and the proof of Liber status when it is not altogether certain, are reserved to the Holy See.

Bishops can dispense in banns and in yows that hinder marriage and are not reserved to the Pope. Regular and secular confessors have specially delegated faculties for dispensing in vows that are not reserved,

IMPOTENCE is the incapacity to have carnal intercourse such as is required for the procreation of children. It is absolute if the incapacity extends to all persons of the other sex, otherwise it is relative. Temporary impotence exists only for a time, and may be cured by lapse of time or by some lawful operation which does not endanger life; perpetual impotence lasts for life. It is antecedent if it precedes marriage, otherwise it is subsequent.

Antecedent and perpetual impotence annuls marriage by the law of nature, for the matter of the marriage contract is in that case impossible. This is true whether the impotence be absolute or only relative, but in the former case marriage is out of the question, while in the latter a valid marriage may be contracted with someone else, though it is impossible with a person with respect to whom the party is impotent. Subsequent impotence, which has supervened on marriage, cannot, of course, annul the marriage already contracted, but if it is altogether certain it makes the use of marriage unlawful (Can. 1068).

This, however, is not to be lightly presumed, for the right is in possession, and for its lawful exercise it suffices if there be any probability of its not being impossible.

Neither does antecedent but temporary impotence annul marriage, for a contract is valid if the matter is possible or by using ordinary means can be made possible.

When it is doubtful whether a spouse is impotent or not the decision must be in favour of the validity of the marriage, and since all such questions belong to the forum externum, they fall under the cognizance of the bishop, nor can they be settled by the confessor.

Mere barrenness or sterility is not impotence, nor does it make marriage impossible or unlawful. There is a controversy among experts as to whether removal of the ovaries or of the womb or of both organs makes a woman impotent or only sterile. The decisions which have been given by the Roman Congregations in particular cases are quoted in defence of both opinions, and as yet no general solution of the question has been given. Until this happens, a woman who has undergone such operations should not marry without consulting the bishop, but if she is already married the more favourable opinion should be followed. This impediment is recognized by English law.

Males under sixteen years of age and females under fourteen are presumed not to have that maturity of judgement which is requisite for entering the married state. The Church has made them incapable of marrying by requiring the age of sixteen complete in males and fourteen complete in females for the validity of marriage (Can. 1067). The age of puberty varies according to race.and climate; in northern latitudes it is not reached till the age of about fifteen in girls and seventeen or eighteen in boys. Even though the parties may not yet be capable of having children, they may marry validly if they are of the age required by the Church, though it is desirable not to marry before full maturity. Those who are not baptized are not subject to the ecclesiastical impediment of age, but in this matter English law agrees with the old canon law, which fixed the age of valid marriage at fourteen and twelve respectively,

One who is already married cannot validly contract a second marriage unless the former bond is dissolved by one of the means described above, or by the death of the other spouse. Previous marriage, then, is a diriment impediment of a second marriage as long as it subsists, by the law of nature and by positive divine law. This impediment, therefore, binds all men, whether Christian or heathen. It is not lawful for one who has been married before to contract a second marriage, unless there is certain proof that the first marriage has been dissolved by lawful authority or by the death of the former spouse (Can. 1069).

If the decease is proved by a certificate of death or some similar authentic document, or by two witnesses who are above suspicion, or by any other legitimate means, the parish priest may allow the second marriage. If, however, there is no certain - proof to be had, and it is doubtful whether the party in question is free to marry, the case must be referred to the bishop, who will investigate the circumstances, and if any prudent doubt remain he will not allow the second marriage without consulting the Holy See. Sometimes in special circumstances the Pope allows a second marriage, even when strict proof of the death of the former spouse is not obtainable, as he did in the case of the wives of the Italian soldiers who perished in the battle of Adoua.¹

¹ S.0., July 20, 1898.

If a person has unlawfully contracted a second marriage without the necessary certainty concerning the death of a former spouse, it does not follow that the second marriage is invalid, and that the parties must separate. If there is only slight doubt about the death of the former spouse, after making fruitless inquiries, the parties may live together as man and wife. If only one of the parties is in bad faith and is not certain of the death of a former spouse, while the other knows nothing of the difficulty, he should render the marriage debt, but he has no right to ask it as long as he remains in bad faith. If both parties are in bad faith, they cannot lawfully use marriage as long as they are in that state. Inquiries should be made, and if probable reasons can be discovered for thinking that the former partner is dead, they may use marriage, according to a probable opinion. For even in this case the marriage has been contracted, it is probably valid, and it is not certain that anyone else has a prior right, so the parties should be allowed to use it. If the second marriage was contracted in good faith, and a doubt about the death of a former spouse arises subsequently, inquiries should be made, and if they are fruitless the parties may live as man and wife. Of course, in all cases when it is found out for certain that a former spouse is alive, the second marriage is invalid, and the parties must separate, or at any rate must not live as man and wife together.

English law enforces this impediment, but if a former spouse has not been heard of for seven years or more, it will not punish the other party as guilty of bigamy if he marries a second time, although he must separate if the former spouse appear subsequently.

Consanguinity is the bond of relationship by blood existing between those who are descended by carnal generation from one and the same near stock. The relationship, therefore, arises from community of blood derived from a common and not too remote ancestor. That common ancestor is called the stock; the distance in descent between one person and the other is called the degree of relationship; and the series of persons who descend from the same stock is called the lie, which is direct if they descend from one another, otherwise it is collateral. The degrees are equal in the collateral line if the persons are equally distant from the common stock; otherwise they are unequal.

It is immaterial whether both parents of the common stock are the same or only one, and whether the birth be legitimate or not.

The method of computing the degrees differs somewhat in canon law from that adopted by modern English civil law, which here follows the Roman civil law. The following are the rules for reckoning the degree of relationship according to canon law, which is followed in moral theology:

(a) To find the degree of relationship in the direct line, count the persons, leaving out the common stock.

(b) In the collateral line, when the degrees are equal, count the persons in one of the lines of descent, leaving out the common stock.

(c) When the degrees are unequal, count the longer line, leaving out the common stock in the same way, and add the number of persons in the shorter line. Thus, an uncle and niece are related in the second degree, touching the first, or mixed with the first (Can. 96).

According to the English method of computation, which is also followed in most States of the Union, all the persons are counted both in the direct and collateral lines, leaving out the common stock. According to this method, an uncle and niece are in the third degree.

Consanguinity in the first degree of the direct line annuls marriage by the natural law; and in further degrees indefinitely, but more probably only by ecclesiastical law. In the collateral ‘ line it is disputed whether consanguinity in the first degree annuls marriage by the law of nature or not; it certainly does so to the third degree by ecclesiastical law.¹

This impediment, therefore, is partly of natural, partly of ecclesiastical law, and although in the more remote degrees of both the direct and collateral line it does not bind those who are not baptized, yet even among them there is a natural bond in blood relationship which after Baptism becomes a diriment impediment of marriage within the prohibited degrees. One who is baptized is subject to the laws of the Church, and cannot, without the necessary dispensation, marry a relation within the forbidden degrees, even if the latter is not baptized.

English law follows in this matter that of Leviticus, and according to its method of computation consanguinity is a diriment impediment of marriage to the third degree inclusive, but not beyond. Thus an uncle cannot marry a niece, but two cousins may marry, by English law.

¹ Council of Lat. 4 (1215); can. 1076.

The impediment of consanguinity may be multiple from various causes, but it is only multiplied as often as the common stock is multiplied (Can. 1076, sec. 2).

(a) If two near relations marry, their offspring will be related in several different ways: [diagram in the original]. In this scheme G and H are descended from the common stock C=F, and so they are in the second degree mixed with the first in the collateral line. Both G and H are also descended from A=B through C and through F. On this account they are in the third degree of relationship. Thus there is a double relationship between them, and if a dispensation were required for G to marry H, mention should be made of this fact.

(b) Similar results will follow if two relatives marry two relatives: [diagram in the original].

In this scheme G and H are descended from both A and B, and they are in double second degree of relationship.

(c) Similarly, if one man successively marries two who are related to each other: A D=B’ ‘C+D E F G H G and H are in the second degree from the common stock D, and in the third from the common to marry his deceased wife’s sister.

Affinity

Affinity is the relationship which one contracts with the relatives by blood of a person with whom he has contracted a ratified marriage only or a ratified and consummated marriage (Can. 97, sec. 1).

It has its origin in positive ecclesiastical law with regard to the collateral line and more probably also in the direct line. Affinity annuls marriage in the direct line in every degree, in the collateral line to the second degree inclusively (Can. 1077). The degrees in affinity with the husband are the same as the degrees of consanguinity with the wife and vice versa.

As this impediment is of ecclesiastical origin, the Church can dispense from it, but she does not dispense in affinity in the first degree in the direct line.

The impediment of affinity is multiplied as often as the impediment of consanguinity from which it proceeds is multiplied, and by marriage with a relative of a dead spouse (Can. 107", SEC, 2).

Affinity, however, does not generate affinity, so that two brothers may marry two sisters, and a father and son may marry a mother and daughter.

English law only acknowledges affinity arising between those who are married, and it extends only to the same degrees, computed in the same way, as does consanguinity. e

Spiritual relationship arises by ecclesiastical law from the administration of Baptism and Confirmation, but only that which arises from Baptism is a diriment impediment of marriage (Can. 1079). According to modern discipline, it annuls marriage between the minister of the sacrament and the recipient, and also between the sponsors and the recipient. As it has its origin in ecclesiastical law, it does not affect those who are not baptized, and the impediment is doubtful and consequently non-existent when Baptism is doubtful or only probable. The impediment, as far as it affects sponsors, does not arise if Baptism was administered privately without sponsors and afterward the ceremonies with sponsors are supplied in the Church.

By adoption a person becomes in law the child of another, though he is not such by nature. Legal adoption, according to Roman law, was a diriment impediment of marriage between certain parties, and in this matter the civil law was canonized by the law of the Church.

(a) It annulled marriage between the adopter and the adopted and those descendants of the latter who were under his authority at the time of the adoption.

(6) It annulled marriage between the adopted and the children of the adopter as long as they were under his authority.

(c) Finally, it annulled marriage between the adopter and the widow of the adopted, and between the adopted and the widow of the adopter.

Roman law, as such, is nowhere in force at present, and the Code has made new provisions for the circumstances. ,Canon 1059 prescribes that in those countries where by the civil law legal relationship arising from adoption makes marriage unlawful, marriage is also unlawful by canon law. Moreover, Canon 1080 prescribes that those who are held incapable of marrying each other by the civil law on account of legal relationship arising from adoption, cannot validly contract marriage and this by force of canon law.

In England the Adoption Act, 1926, sanctions adoption by order of the Court, but it does not seem to make it an impediment of marriage. In most of the States of the Union there seems to be a form of adoption recognized by law sufficient to make it the basis of the ecclesiastical impediment.¹

¹ Smith, Marriage Process, n. 263.

Before the issue of the new Code the impediment of public propriety arose by ecclesiastical law from valid and certain betrothal, and from ratified, not consummated, marriage.

The Code has made a great change in this impediment. According to Canon 1078, the impediment of public propriety arises from invalid marriage, whether consummated or not, and from public and notorious concubinage; and it annuls marriage in the first and second degree of the direct line between the man and the relations by blood of the woman and wice versa. Merely civil marriage by itself will not produce this impediment since it produces no canonical effects. But the impediment of public propriety will arise from the public and notorious concubinage which will be associated with merely civil marriage.

A solemn vow of chastity, taken in a religious order, strictly so called, or taken implicitly when sacred Orders are received in the Latin Church, is a diriment impediment of marriage by ecclesiastical law. This has long been the practice of the Western Church, and it was solemnly enunciated by the Council of ‘Trent: “ If anyone saith that clerics constituted in sacred Orders, or regulars who have solemnly professed chastity, are able to contract marriage, and that being contracted it is valid, notwithstanding the ecclesiastical law or vow; and that the contrary is nothing else than to condemn marriage; and that all who do not feel that they have the gift of chastity, even though they have made a vow thereof, may contract marriage; let him be anathema: seeing that God refuses not that gift to those who ask for it rightly, neither does he suffer us to be tempted above that which we are able.”¹

In the Eastern Church marriage may be contracted before receiving sacred Orders, and those who have married may use their marital rights after receiving sacred Orders, but sacred Orders are a bar to contracting a new marriage. This shows that sacred Orders, apart from the vow, which in the Latin Church is taken when they are received, are a diriment impediment of marriage. By a special privilege, the simple vow of chastity taken by members of the Society of Jesus at their first profession is also a diriment impediment of marriage.

¹ Sess. xxiv, C. 9; can. 1072, 1073.

As this impediment owes its origin to ecclesiastical law, the Church can dispense in it, but she seldom does so except for grave reasons which concern the public weal. Leo XIII granted bishops the faculty of dispensing, by themselves or through some trusty ecclesiastic, the sick who are in great danger of death so that there is not time to have recourse to the Holy See, from all, even public, impediments which annul marriage by ecclesiastical law, except the priesthood and affinity in the direct line arising out of the lawful use of marriage.¹ This was confirmed and extended by Canons 1043, 1044.

¹ S.0., February 20, 1888.

When a man and woman marry, they enter upon the closest possible union for mutual help and for the rearing and education of a family. Religion should be at the base of that union, and should furnish the fundamental principles for the education of their offspring. This, however, is hardly possible if husband and wife profess different religions, so that the very nature of marriage excludes difference of religion in husband and wife. If both the parties are baptized Christians, but only one is a Catholic, difference of religion is only a prohibitory impediment; if one of the parties is not baptized, and the other has been baptized in the Catholic Church or has been converted to it, it constitutes a diriment impediment. The first is commonly called a mixed marriage, and we will devote to it the following section.

Mixed marriages are forbidden by the natural, divine, and ecclesiastical law. For the parties are ministers to each other of the sacrament of Marriage; but it is unlawful for a Catholic without grave necessity to communicate in religious rites with a non-Catholic, and to receive a sacrament from him. Besides, it usually happens that in marrying a non-Catholic the Catholic party exposes himself to the danger of either losing his faith altogether, or at least of suffering its purity and brightness to be tarnished. The Church has forbidden mixed marriages from the earliest ages, and the Popes and bishops have issued innumerable instructions and warnings against them. It is without doubt a grave sin to contract a mixed marriage without a dispensation, and the Church shows her detestation of it by prohibiting any religious function at the marriage, even when a dispensation for it has been obtained (Can. 1060, 1102).

However, in countries where Catholics and non-Catholics live together, and especially if the latter greatly outnumber the former, as they do in Great Britain and in the United States, it is almost impossible to avoid mixed marriages sometimes, and the Holy See grants the necessary dispensation, Certain conditions must be fulfilled before the dispensation for a mixed marriage is granted. In the first place, there must be a grave canonical cause, or a good reason such as the Church recognizes to be sufficient for a dispensation in this matter. In order to remove as far as possible the danger connected with mixed marriages, the Church requires that the non-Catholic party shall promise to leave the Catholic the free exercise of his religion, and that both parties promise to bring up all the children in the Catholic faith. Moreover, the Catholic party must undertake to do his best to bring about the conversion of his spouse to the Catholic religion. The necessity of these promises is founded in the natural and divine law, and the common law of the Church requires that there should be moral certainty that they will be fulfilled and that as a rule they should be in writing (Can. 1061).

If one of the parties be a baptized Catholic, but one who has given up the practice of his religion without going over to any heretical sect, there is no strict impediment to his marrying a Catholic, but of course efforts should be made for his conversion, and if he remain indifferent the Bishop should be consulted (Can. 1066).

In England, when a dispensation has been obtained for a mixed marriage, some Bishops allow the priest to assist at it at the altar rails vested in surplice and stole.

The banns should not be published unless the local Ordinary judge that they may be permitted, taking the necessary precautions to avoid scandal, and omitting all mention of the difference of religion (Can. 1026).

A sermon before or after the function is not prohibited. Mass, however, should never be said nor the nuptial blessing given at a mixed marriage.

The Church does not allow the Catholic party to go through any marriage rite before a non-Catholic minister acting as such. If the non-Catholic minister acts as a civil magistrate, and Catholics are obliged to go through the marriage ceremony in his presence in order to have their marriages recognized by the State, it is permitted (Can. 1063).

According to Canon 1070, sec. 1, marriage contracted by a person not baptized with a person baptized in the Catholic Church or converted to the same from heresy or schism is null.

Sec. 2. If one party at the time of contracting marriage was commonly regarded as a baptized person,-or if his baptism was doubtful, in accordance with the rule of law that doubtful marriage is to be deemed valid until the contrary be proved, such marriages are to be held valid until it is proved for certain that one of the parties was baptized and the other was not baptized.

Such a marriage, as is clear from St Paul, has been unlawful from apostolic times, but in the first centuries of the Christian era it was not invalid, and there are several well-known instances of saints being married to pagans. Gradually, however, a marriage between a baptized Christian and a pagan came to be looked upon as invalid, unless contracted in virtue of the Church’s dispensation, and this has been the settled rule from about the beginning of the twelfth century. As the impediment is of positive law it can, of course, for grave reason be dispensed with, and then even the apostolic prohibition will cease¹ if the dangers which are common to mixed marriages and to difference of religion can be avoided.

¹ 2 Cor. vi 14.

Before the new Code came into force the impediment of difference of religion affected baptized non-Catholics as well as Catholics; By the common consent of commentators the effect of Section 1 is to restrict the impediment to those who have been baptized in the Catholic Church or converted to it from heresy or schism. Those are baptized in the Catholic Church who are baptized with the intention of incorporating them as members into the bodily communion of the Catholic Church. So that an infant who in danger of death was secretly baptized to procure its eternal salvation only, would not be baptized in the Catholic Church in the sense of this Canon.

By ecclesiastical law certain crimes committed by married people which are specially opposed to the sanctity of marriage constitute a diriment impediment of a second marriage. These crimes are: adultery together with a promise of marriage or attempted marriage with the adulterer, murder of a spouse with the machination of the other party, adultery and murder of a spouse. In order that these crimes may constitute a diriment impediment of another marriage, certain conditions explicitly or implicitly contained in canon law must be fulfilled. These will be described in the following sections (Can. 1075).

When husband or wife commits adultery with a third person and promises to marry that person after the death of the other spouse, the Church makes the adulterers incapable of contracting a valid marriage even after the first has been dissolved by death. The aim of the Church is to protect married people, to guard the sanctity of marriage, and to punish crime. A law, however, which restricts the liberty of marriage must be strictly interpreted, and so Doctors require the following conditions in the adultery and in the promise in order that the impediment may arise:

(a) The adultery must be real, formal on both sides, and complete. It must be real, or one at least of the parties must be united in a true, valid marriage. That fact must be known to both the adulterers, or else they are not guilty of formal but merely material adultery. If each party knows that the other is married and the other conditions are verified, there will be a double impediment between them. The adultery must be complete, so that it would be possible for it to produce its natural result in offspring.

(6) The promise, too, must be real, not fictitious, accepted by the promisee, absolute, not conditional, made with knowledge of the present marriage, and undertaking to contract marriage after the death of the other spouse. For one of the objects of the law is to remove the temptation to plot against the life of husband or wife.

Both the adultery and the promise must have place during the continuance of the same marriage, but it is immaterial whether the promise be made before, after, or at the same time as the adultery is committed.

This impediment of crime also exists between parties who have committed adultery with each other and attempted to marry during the lifetime of the spouse of one of them. The adultery must have the same qualities as in the preceding case, and the marriage must be really and truly attempted, not merely feigned. It is immaterial whether the attempted marriage precede or succeed the adultery. It is obvious that those will lie under this impediment who, after a civil divorce from a spouse, marry again and consummate the attempted marriage.

Murder by a man and a woman of the spouse of one of them constitutes a diriment impediment to their marriage. This impediment does not arise unless death really ensues; attempted murder is not sufficient. Moreover, the murder must be committed not by one of them alone, even if the other afterward approve of it, but by both, either by mutual physical help, or by moral persuasion of some sort. Death must also be inflicted with the intention of marrying the other when free, as Doctors gather from the end of the law, which is to prevent murder of a consort with a view to marrying someone else. This intention must at least be manifested in some way to the other party, though it is not necessary that it should openly actuate both of them to the perpetration of the crime.

Thirteen diriment impediments are established in Canon Law, namely: age, impotence, bond, disparity of cult, sacred Order, solemn vows and sometimes simple vows, abduction, crime, consanguinity, affinity, public propriety, spiritual relationship, legal relationship.

Impediments can be: 1. a promise made to the partner not to use marriage; 2. a vow of chastity; 3. impotence for intercourse; 4. doubt concerning the validity of marriage.¹

¹ Affinity, taken in the sense in which it was formerly accepted, sometimes impeded the use of marriage by force of ecclesiastical law; it no longer stands in the way of that use.

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).

Sinfulness of Marrying with an Impediment.—(a) If the impediment is certain, grave sin is committed; for deception and disobedience are committed in a grave and sacred matter, and, if the impediment is diriment, the marriage contract is made null. Great necessity, however, would sometimes excuse.

(b) If the impediment is uncertain, no sin is committed when the impediment is one of ecclesiastical law and the doubt is one of law, for in such a case the legislator removes the obligation (Canon 15); nor when the impediment is impotency (Canon 1068), in view of the fact that the general law of propagation of the race leaves a natural presumption against impotency, which can be overcome only by a certain impediment. It would be an intolerable hardship if marriage were made impossible by a doubt where proof is so difficult. There is a serious sin, however, in other cases, because one is either exposing the Sacrament to nullity or is refusing, contrary to a serious command of the Church, to seek a dispensation.

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.

Resolutions: Hence, if after marriage has been contracted the woman certainly detects a diriment impediment, by force of which there was no marriage, she cannot ask the debt, nor render it, even if she were compelled to this by the threat of death, because the union would be fornication, which in no case is licit. Except probably, unless the woman were merely passive, so that she would cooperate in an altogether material way in such an act, if she is compelled to this by fear of death, with danger of consent always excluded.

How many and which are the impedient impediments? - Today four are numbered: prohibition of the Church, time, betrothals, vow. Formerly six were numbered. For there were also the impediments of catechism and crime. But these two impediments, by the consent of all theologians and canonists, are now held as obsolete. - The impediment of catechism was contracted by him who answered for an infant in the profession of faith which precedes the conferral of baptism, and constituted an impedient impediment in the same degrees as with the sponsor of baptism and confirmation. - The impediment of crime was a certain penalty imposed by the old law on certain graver crimes, by which namely the guilty person was prohibited from contracting any marriage with any person, either altogether, if he was unmarried, or after the death of the spouse, if married. - Schmalzgrueber, l. 4, t. 11, n. 59 ff.; t. 13, n. 3, 27-29; t. 16; Sanchez, l. 7, d. 15; De Iustis, de Dispensat. Matrim., l. 2, l. c., n. 58 ff.

What is the prohibition of the Church? - It is a prohibition, whether general or particular, made by the Church or some ecclesiastical superior, that some marriage not be celebrated. - Particular prohibition is had when, from a just and special cause, marriage is interdicted to someone, whether by the parish priest, or by the Bishop, or by the Pope, who last can also add invalidation to the prohibition. C. Tua 4, de Sponsa duorum. The Pope and Bishop can furthermore attach a censure to the prohibition. C. ult., de Matr. contracto contra interd. - Three just causes, because of which marriage can be interdicted according to the common opinion of the doctors, are chiefly numbered: 1. complaint concerning betrothals by which either of the spouses first bound himself or herself with another person; 2. not vain suspicion of a hidden impediment, either diriment of the union between them or even merely impedient; 3. not empty fear lest from that marriage grave quarrels, enmities, scandals, or other inconveniences should follow. - A general prohibition, which namely regards marriage specifically, is had: 1. that marriage not be contracted without the consent of parents. Cf. 928, 940; 2. without banns. Cf. 949 ff.; 3. clandestinely. Cf. 1026; 4. with a non-Catholic. Cf. 1010. - Schmalzgrueber, l. 3, t. 16, n. 1; Pirhing, l. 4, t. 16, n. 1; Benedict XIV, Instr. 80.

What is time? - It is some determined time through the course of the year, which is called forbidden time, and during which the Church forbids solemnities of nuptials. Trent, sess. 23, c. 11, C. 10, de R. M. But now such time is that which flows from the first Sunday of Advent up to Epiphany inclusive, and from Ash Wednesday up to the Octave of Easter likewise inclusive. - Now; for before the Tridentine Synod the forbidden time was 1. from the first Sunday of Advent up to Epiphany; 2. from Septuagesima Sunday up to the Octave of Easter; 3. from the second feria of Rogations up to the Octave of Pentecost; 4. two or three weeks before the Nativity of St. John the Baptist. Besides, Trent prohibits in the aforesaid time only the solemnities of nuptials, namely to bless the spouses, together with the Mass for the bridegroom and bride in which that solemn blessing is had; to lead the bride home with noise; to prepare more solemn nuptial banquets. But it does not forbid the parish priest to make the proclamations, or even to join the spouses privately, although in various places because of custom this also is prohibited. Namely the custom of certain places has it, not indeed that proclamations not be made, or that the contract of marriage not be celebrated, or that this not be consummated through forbidden times, but that nuptials not be celebrated unless either some necessity urges, or the license of the Ordinary has been obtained, even, if it can be done, in a case of necessity; to this custom it is certainly fitting that parish priests accommodate themselves. Nor indeed, according to the ancient canons, must one abstain from consummation of marriage, whether from precept or from counsel. For those canons speak only of the solemn leading of the bride, not of the consummation of marriage; and thus it is not necessary to explain them as mere counsel and not precept, for that solemn leading is in reality interdicted by precept. - Roman Ritual, de Matr.; S. R. C., August 14, 1855, Mont. Alb., n. 3079, 3380, 3922; Schmalzgrueber, l. 4, t. 16, n. 27, 31-41; Benedict XIV, Instr. 80; L. 983, 984; St. Thomas, Suppl. q. 64, a. 10.

From the Constitution of Leo XIII Trans oceanum, April 19, 1897, for Latin America it was conceded "that Indians and Blacks can receive the nuptial blessing at whatever time of the year, provided that in those times in which nuptials are prohibited by the Church, they do not use an apparatus of pomp."

What are betrothals? Any betrothals, whether ecclesiastical or private, seriously contracted, unless they have been legitimately dissolved either by mutual consent of those contracting or by another just cause, are an impediment impeding marriage. This is clear from natural law; for there exists a grave obligation of justice to preserve a pact from an onerous contract. But if someone, notwithstanding that impediment, contracts nuptials, the marriage will indeed be valid, since this impediment is only impedient, yet it will not be licit. C. Duobus 1, de sponsa duor.

What is vow? A fourfold vow impeding marriage is distinguished, namely a vow of chastity; a vow of not marrying; a vow of entering Religion; a vow of receiving sacred orders.

A vow of chastity. - He who has emitted such a vow sins gravely by entering marriage with the intention of consummating it, because he breaks the vow. - He also sins gravely, even with this intention excluded, because he exposes himself to danger of violating either the vow or the right of the other spouse. Once marriage has been contracted, he can neither ask nor render the debt during the first two-month period, because by divine privilege spouses are exempted during this time from the obligation of the conjugal debt. But when this time has elapsed, he can indeed render the debt and satisfy the right of the other, but he cannot ask without dispensation from the vow, or without suspension or indirect irritation of the vow made by the other spouse. - He must altogether abstain if the other consents, or has lost the right of asking, for example, because of adultery or incest. But if he can abstain with difficulty, he must as soon as possible request dispensation, or seek the aforesaid irritation from the other spouse. - If the other spouse dies, he cannot fly to new nuptials unless he has obtained dispensation from his vow also to this effect. - St. Thomas, Quodl. 3, a. 18; Quodl. 10, a. 11; La-Croix, l. 3, n. 564.

A vow of not marrying, or a vow of virginity. - He who, after emitting this vow, contracts marriage sins gravely, as is manifest. - Once marriage has been contracted, he can render and even ask the debt, because the observance of the vow has now been made impossible. For the same reason, when the spouse has died, he can at least probably contract a new marriage. - In practice it is sometimes doubtful whether someone strictly vowed virginity or only bodily integrity, virginity or celibacy, or rather chastity universally. The penitent will have to be asked whether he was led by love of the aureola of virginity, or by intention of freeing himself from the burdens of marriage and serving God more holily, or solely by love and affection of purity. In the first case he is to be judged to have vowed virginity, which is lost only by voluntary emission of seed in a man and voluntary laceration of bodily integrity in a woman; in the second case celibacy, which merely prohibits marriage; in the third case truly chastity. La-Croix 57.

A vow strictly of virginity, namely of preserving bodily integrity only, is not violated by the mere contract of marriage, but is violated because, by contracting marriage, someone exposes himself to danger of losing virginity in it. But once it has been lost, since the vow has now been made impossible, he can ask and render the debt.

A vow of entering Religion. - He who has emitted such a vow sins gravely by entering marriage, both because he deceives the other and because he exposes himself to danger of violating the vow. - Before the consummation of marriage he is bound to enter Religion; and therefore he sins mortally when for the first time, either by asking or rendering the debt, he consummates the marriage, because he must fulfill the vow when he can. But he can fulfill it by not consummating marriage in the first two-month period, since then by divine privilege either party can enter Religion, and the other party, when the spouse solemnly professes, is freed from the bond of marriage. - After consummated marriage he can ask and render the debt, because execution of the vow has been made impossible, and the asking of the conjugal act is not against the vow itself, since he did not vow chastity, but Religion. - Even after marriage has been consummated, of itself he is bound to enter Religion as often as he can do this without injury to the right of the other party, for example, if the other consents, or loses the right of asking the debt in perpetuity, or if the marriage is dissolved by death; because the obligation of the vow always subsists. But in practice in these cases it is more expedient that recourse be had to dispensation. More expedient; for in practice the circumstances by reason of age, of offspring perhaps received from marriage, of the state of fortunes, and also of suitability for religious duties, are so changed that because of change of matter the obligation of the vow almost of itself ceases, and there is no need of dispensation.

A vow of receiving orders. - He who has emitted that vow sins gravely by entering marriage, as is well known. - He is bound to receive orders if he can, for example, if he obtains the consent of the other. According to several he is bound to enter Religion before the consummation of marriage, even against the will of the other, so that he can fulfill the vow. But others more probably deny this. - Once marriage has been entered, he can consummate it if he can no longer fulfill the vow. - When the wife has died, or when separation has legitimately been made, he is bound to receive sacred orders, unless he is dispensed. For the vow does not cease. St. Thomas, Suppl. q. 53.

Who can dispense in impedient impediments? - No one can dispense, except the Supreme Pontiff and from a just cause, from an impediment arising from valid betrothals, since in this matter there is question of a strict debt of justice, which no one besides the supreme Prince can take away. The same must be said concerning the necessity of the consent of parents, which is to be referred back to natural law; nevertheless this naturally ceases if the parents dissent unjustly. - Bishops, or Ordinaries, Pastors of souls, enjoying full jurisdiction in the external forum, can dispense 1. in the obligation of banns; 2. as regards the contract during forbidden time, where custom also interdicts this; 3. in a vow of temporary chastity, and of virginity or of not marrying. - But they cannot dispense 1. as regards a vow of perpetual chastity; 2. as regards a vow of entering Religion; 3. as regards the impediment of disparity of worship between Catholics and heretics; 4. as regards clandestinity, or marriage to be contracted in the face of the Church; 5. as regards the solemnities of nuptials, S. R. C., August 14, 1858, Mont. Alb., ad 2; 6. as regards proof of free state. For these impediments are reserved to the Pope. - Regulars by their privileges are able to dispense merely for the internal forum in a vow of virginity, or of not marrying; for they have the same power of dispensing from vows in the internal forum which belongs to Bishops by ordinary right, according to the common opinion of the doctors. L. 987, 1119, 1128; Benedict XIV, Instr. 80, n. 15; Sanchez, l. 1, d. 61.

Note: The Bishop, when necessity urges, namely when there is danger in delay, can dispense in a vow of chastity for contracting marriage. Likewise, once marriage has been contracted, the Bishop can dispense, when necessity urges, in the same vow of chastity, for asking the debt; and the Bishop can also do this absolutely by force of quinquennial faculties, and a confessor having the schedule of the S. Penitentiary. Cf. the respective Formulas. - The Bishop can do the same in a vow of continence by which either spouse has obliged himself or herself after marriage has been contracted. For since by force of this vow one is indeed prohibited from demanding the debt, but nevertheless can and even must render it, it is not a vow of perfect chastity, and therefore is not reserved to the Supreme Pontiff. Otherwise it must be said if by common consent each spouse had vowed perpetual continence. L. 986, 987, 1126.

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 impotence and of age? - For contracting marriage there is essentially required a thing suitable for contracting: for the substantial elements of a contract are thing, cause, consent. The thing is the right of coming together in order to the generation of offspring, to be handed over and accepted on both sides. Therefore impotence for coming together, so that man and woman cannot become one flesh, constitutes a diriment impediment of marriage, which is called impotence. C. 1, section 1, de Frigid.; Sanchez, l. 7, d. 92, n. 7. Wherefore those who are impotent for the aforesaid act "cannot satisfy even the secondary end, which is the remedy of concupiscence, for that must be had not through any intercourse whatever, but through that which from its nature is apt for the generation of offspring." Schmalzgrueber, l. 4, t. 15, n. 32.

Hence they cannot contract even as a remedy for concupiscence, since the secondary end supposes the primary; and marriage cannot be for a remedy of concupiscence unless it is marriage. For marriage "is principally for the office of nature." St. Thomas, III, q. 73, a. 2, apud Cajetan. And an accessory cannot exist without the principal. And certainly marriage instituted secondarily as a remedy for concupiscence is not another marriage of its own kind; but it is that same marriage instituted before sin, so that to that institution for the office of nature there afterward acceded another institution as a remedy for concupiscence. St. Thomas, ibid., in c., ad 2, ad 3. If therefore marriage is impossible according to the first institution, how can marriage be had according to its secondary institution? Indeed, how can a natural union, or union according to nature, of man with woman any longer be had, once the possibility of offspring and the ordering of that union to offspring has been removed? "The union," says the Angelic Doctor, Suppl. q. 55, a. 3, c., "of husband and wife is called natural principally because of the production of offspring." And this union according to the same Angelic Doctor is at the same time so natural and principal that it is what constitutes the first perfection or essential perfection of marriage. "It must be said," he says, q. 73, a. 4, c., apud Cajetan, "that integrity is twofold; one is attended according to first perfection, which consists in the very being of the thing. The other is attended according to second perfection, which consists in operation. Since therefore carnal union is a certain operation, or use of marriage, through which faculty is given for this, therefore carnal commingling will be of the second perfection of marriage and not of the first"; and faculty for it will be of the first. Wherefore, immediately ad 1, speaking of the first institution of marriage, and of those words, "they shall be two in one flesh," the holy Doctor says: "It must be said that Adam set forth the integrity of marriage as regards each perfection, because a thing is made known from its act." Whence this also appears, that according to the Angelic Doctor the aforesaid carnal commingling is commingling apt of itself for generation, or, as the same holy Doctor speaks, a commingling of seeds which can be the cause of generation. Suppl. q. 55, a. 3, ad 3. And Cajetan in cited q. 75, a. 1, defining conjugal intercourse, says: "For that is what is ordered of itself to one kinship and the education of one offspring, and one domestic life." Therefore by this intercourse the remedy of concupiscence can be sought, not by another. Intercourse from which, according to itself and not according to some accident, as in the sick, the sterile, and the elderly, generation cannot follow, is, according to the Angelic Doctor, an act against nature, and therefore in it it is altogether absurd to seek the remedy of concupiscence. "That act," says the holy Doctor, "is against nature in the genus of lust from which generation cannot follow according to the common species of the act; but not that from which it cannot follow because of some particular accident, as old age or infirmity." QQ. DD. de Malo, q. 15, a. 2, ad 14, and a. 1, c.

Therefore it is impossible to enter the contract of marriage, as certain moderns assert, by intending its secondary end, with the primary end positively excluded, in which alone that secondary end is to be sought.

Impotence is one thing natural, another accidental. The first is that which is naturally inherent, as frigidity of the man, by which intercourse of itself apt for generation cannot be perfected at all; or excessive heat, by which the man always emits seed outside the vessel before he can penetrate. The other is what is from accident, for example, from abhorrence of the man toward the woman, from disease, from cutting off, from sorcery. Likewise one is temporary, another perpetual. If it can be removed either by some licit remedy without danger of life, or by the progress of years, it is temporary; otherwise perpetual. C. 1, de Frigid.; St. Thomas, 4, d. a. 24, a. 2. And thus impotence of excessive heat is temporary, and the impotence of a sick man even in danger of death. Perpetual impotence is one thing absolute, if namely the impotence is of coming together as regards all, another relative, if it prohibits commingling only with someone.

Only perpetual impotence, if it is antecedent to marriage, whether absolute or relative, dissolves marriage, and this by natural law, and therefore even if unknown; but temporary impotence does not stand in the way of marriage. C. 1, 2, 3, 6, de Frigid.; Sanchez, l. 7, d. 92, n. 6; d. 97, n. 2; St. Thomas, Quodl. 11, a. 10, 11. - Therefore there is no marriage contracted with a castrated man or eunuch lacking both testicles, who does not have true seed, Sixtus V, Const. Cum frequenter; Sanchez, l. 7, d. 92, n. 20; with one frigid, or so worn by disease or old age that there is no power for the conjugal work; otherwise one is by no means prohibited from marriage even by extreme old age. Consequently there is no marriage, as it seems, contracted with a woman absolutely lacking both ovaries, or a uterus, or having a closed uterus; there is no marriage with her from whom someone is restrained either by sorcery, or natural repugnance, or because of excessive narrowness. C. 4, c. 33; C. 1, 5, 6, de Frigid.; Dominic Benetti, Opus Medico-Morale, Canon Eleventh, Annotations, num. 1, 2, 3.

Consequently; because in the same way as with the impotence of the man, when the impotence of the woman intervenes, an act per se apt for generation, or a conjugal act, cannot exist. Then neither husband nor wife can exist. For marriage is a marital union, or a union ordered to those things which the office of a husband requires. St. Thomas, Suppl., q. 44, a. 3, ad 1. And there, in the body, speaking of the essence of marriage and of the definition which touches the essence of marriage, namely that it is a marital union, the Angelic Doctor says that the specific difference is contained in that word "marital," "because since marriage is a union ordered to one thing, such a union receives its species from that to which it is ordered, and this is that which pertains to the husband." And there, a. 1, the Angelic Doctor says that marriage "is ordered to one generation and education of offspring, and again to one domestic life." According to that union one is and is called husband and wife; and according to this ordering there is and is called marriage, in the body and ad 3. "I wish to beget children, and therefore I have taken a husband." C. 1, de Frigid. Nor is one pubescent unless he can generate. C. Puberes 3, de Despons. impub. And L. 320, § 3, ff. de Verborum significatione: "Nature also teaches us that pious parents take wives with the intention and desire of procreating children." And L. 9, C. de Nuptiis: "If, with neighbors or others knowing it, you had a woman at home as a wife for the sake of procreating children... although no nuptial tablets were made, the reality of marriage nevertheless has its own force." And Auth. Coll. IV, tit. 1, Nov. XXII, Pref., marriage is called honorable from the procreation of children. And there, chap. VI, a man is called potent who is able to minister to the procreation of children. Therefore also a woman. Cf. Commentary, n. 150. If it were otherwise, the definition of marriage, and the object of the matrimonial contract, would indeed have to be changed.

Nor is it valid to object that the woman contributes nothing essential in generation. For this, especially at present, after the latest studies of physiology, is altogether false. For generation, on the part of the man, a zoosperm is essentially required; on the part of the woman, an ovum; and the mingling of the seed of both, as the ancients speak. And, as a consequence, on the part of the man testicles are required, by which that zoosperm is elaborated, and the penis by which the same zoosperm is ejaculated into the woman's vagina. But on the part of the woman, besides the vagina, which receives the male penis, ovaries are required, by which ova are elaborated, and the uterus, in which generation takes place, and therefore communication of the vagina with the uterus; otherwise the fertilization of the ovum in the uterus is physically impossible. Cf. the paragraph on Impotence.

Nor likewise can it be objected that nature intends nothing other than sensible copulation, with no account taken of those things which are not sensibly evident; and therefore impotence is present if copulation appears impossible, but potency is present if the possibility of material copulation is established, without inquiry into the virtue and efficacy of the copulation itself. But since eunuchs, if removal of the testicles takes place after puberty, retain the capacity of erecting the member and of coeundum, their marriage then would be wholly valid, contrary to the cited Constitution of Sixtus V.

And as regards the substance of the matter, the doctrine of the Angelic Doctor on generation agrees with this. For in it he fully recognizes as essential not only the part of the man but also the part of the woman. Speaking of affinity, Suppl., q. 55, a. 4, ad 2, St. Thomas says "that man and woman become one flesh in carnal copulation through the mingling of seeds." And this mingling of seeds, namely of the man and of the woman, is, according to the Angelic Doctor, the cause of generation. Hence there, a. 3, ad 3, he says: "It must be said that intercourse against nature does not have a mingling of seeds which can be the cause of generation; and therefore from such intercourse affinity is not caused."

Moreover St. Thomas, speaking of generation, Suppl., q. 58, a. 1, ad 6, says "that the male is active, but the female is passive." Yet she is not passive in such a way that she does nothing and contributes nothing in generation. Hence there he immediately adds: "And therefore greater heat is required in the male than in the female for the work of generation." And III, q. 15, a. 1, ad 2: actively generation is from the man, because he supplies the seminal principle; passively from the woman, because she supplies the corporeal substance. And Quodl. 5, a. 8: "Since in the generation of man," he says, "as also of other animals, the seed of the father is active, but the matter supplied by the mother is as passive, from which the human body is formed, etc." Likewise Quodl. 8, a. 5, ad 3: "For the conception of a human body two things concur: namely the matter from which the conceived body is formed, and again the formative power which forms the conceived body. The first of these Augustine calls the corporeal substance, the second the seminal principle. We are therefore said, according to both of these, to have been in Adam originally, inasmuch as the matter of the conceived body is prepared by the generative power of the mother, but the formative power is in the seed of the father." Cf. also I-II, q. 81, a. 5; II-II, q. 26, a. 10, ad 1. If the seminal principle is called the zoosperm of the man, which fertilizes the ovum of the woman, and the corporeal substance is called the ovum on the part of the woman, in what does this doctrine disagree with the opinions of recent physiologists? Besides, since according to the Angelic Doctor something essential to generation is supplied both by the man and by the woman, although principally by the man, as regards the substance his doctrine on generation in no way differs from the doctrine altogether certain among physiologists, especially after more recent observations have been made. And when physiologists say that generation is had from the fusion of the substance of the zoosperm with the germinal vesicle of the ovum in the uterus, can this not rightly be understood in other words as that mingling of seeds by which, according to the Angelic Doctor, man and woman become one flesh, and by which the production of offspring is had, Suppl., q. 55, a. 8, in the body, and a. 4, ad 2, the seed of the man descending to the womb of the woman, Quodlib. 6, a. 18?

Equally it is nothing to object that according to St. Thomas, Suppl., q. 58, a. 1, ad 1, of the essence of marriage there is not potency for the act of generation, but potency for carnal copulation. Certainly, according to the Holy Doctor, there does not pertain to the essence of marriage potency for copulation or carnal union, or union of bodies, of any sort whatever; otherwise even sodomitic copulation could be understood. Rather, it is potency for conjugal carnal copulation; and this, from the whole doctrine of the Angelic Doctor in the Supplement, is no other than that which is ordered to generation. "It must be said," says the Angelic Doctor, Suppl., q. 49, a. 2, ad 1, "that in offspring there is understood not only the procreation of offspring, but also its education, to which, as to an end, the whole communication of works which exists between man and wife, insofar as they are joined in marriage, is ordered... And thus in offspring, as in the principal end, the other is included as secondary," namely the communication of works. If the communication of all other works has no principal end except offspring, is not carnal copulation per se ordered to offspring according to the Angelic Doctor? Therefore, although this Holy Doctor does not repeat this in the cited place, nevertheless it is understood, and so that carnal copulation is copulation per se apt for generation. Nor could it be otherwise at all; for nature does not intend that copulation for its own sake, so as to stop in it, but for something else, for generation. "Nature intends offspring" in marriage. St. Thomas, Suppl., q. 49, a. 5, ad 1. And Contra Gentiles, book 3, chap. 122: "coitus," says the Angelic Doctor, "is ordered to the utility of generation... Thus, therefore, the emission of seed ought to be ordered so that both fitting generation and the education of the one generated can follow." Therefore, if generation is positively excluded, that carnal copulation is already illicit. And so also, if in marriage itself a condition is positively placed of offspring to be positively impeded, if you avoid the generation of offspring, L. 891, if you procure poisons of sterility, St. Thomas, Suppl., q. 43, a. 1, the marriage is null, because that condition is repugnant to the substance of the contract. C. fin. de Cond. appos. in despons.

Nor is it valid to press the answer of the Holy Doctor in that same article 1, q. 58, ad 1: "that old persons, although sometimes they do not have sufficient heat for generating, nevertheless have sufficient heat for carnal copulation. And therefore marriage is conceded to them insofar as it is a remedy, although it does not belong to them insofar as it is an office of nature."

For those old persons, according to the Angelic Doctor, are not impotent for an act per se apt for generation, since the Angelic Doctor says only that they sometimes do not have that power. Hence, according to the Angelic Doctor, if generation does not in fact follow from that act, as it can follow and sometimes does follow, this is only per accidens. And this fact of generation, according to the same Angelic Doctor, is sometimes lacking not because of impotence, but because of sterility; for it is lacking because of a defect of sufficient heat, which indeed does not pertain to the very physiological cause of generation, which consists in the organs of generation themselves and in copulation performed in the natural manner, cf. 995, but to sterility, namely to those favorable conditions in which that cause, like all causes, must be found in order to produce its effect.

But these favorable conditions in human generation are very many and hidden, and they depend not on the human will, but on nature itself. Hence the same Angelic Doctor, Quodl. 11, a. 11, ad 1, says that old persons are not cold with respect to the act of generation, but with respect to the generation itself of offspring.

Potency of generating, joined with the effect, fails regularly in women from the age of 45-50, and is regularly diminished in men from the age of 50. There are, however, cases in which even sexagenarian and septuagenarian women generate; and septuagenarian men generate more easily with a younger woman. But detriment to the offspring is not absent when there is a notable inequality in the age of the spouses. Antonelli, Medicina Pastoralis, 2nd ed., vol. 2, nn. 340, 363.

Hence, according to the Angelic Doctor, marriage "is conceded" to old persons and to the sterile "insofar as it is a remedy, although it does not belong to them," namely, does not in fact belong to them, "insofar as it is an office of nature"; but by no means although it cannot belong to them insofar as it is an office of nature, while there is physical impotence for generation. For this, according to the Angelic Doctor, renders marriage impossible. For, speaking of the threefold good of marriage, offspring, fidelity, and sacrament, he says that the good of offspring is more principal and more essential, indeed the most principal and most essential: "Offspring is the most essential thing in marriage." How would that most essential thing be present, if in marriage copulation per se unfit for generation sufficed? Therefore marriage can belong to old persons and to the sterile as a remedy in such a way that this most essential thing is not wanting, namely not in act, but in potency. Indeed this most essential thing is again so truly such that neither those old persons, nor all others joined in marriage, can licitly, according to the Angelic Doctor, intend the remedy in carnal copulation unless they simultaneously intend the office of nature. What then if they positively exclude it, by positively rendering that office impossible, both as regards the liceity of copulation after marriage has been contracted and as regards the validity of the marriage itself to be contracted? "When spouses," says the Angelic Doctor, "come together for the sake of procreating offspring, or in order to render the debt to each other, which pertains to the end, they are wholly excused from sin... And therefore in only two ways do spouses come together without any sin, namely for the sake of procreating offspring and of rendering the debt; in other ways there is always at least venial sin... If someone through the act of marriage intends to avoid fornication in the spouse, there is no sin, because this is a certain rendering of the debt, which pertains to the good of fidelity. But if he intends to avoid fornication in himself, then there is excess there, and according to this it is venial sin; nor was marriage instituted for this except according to indulgence, which concerns venial sins." Suppl., q. 49, a. 5, corpus and ad 2. For it was instituted for the procreation of offspring, to which that carnal copulation, constituting the conjugal debt, is per se ordered, and in which the remedy of concupiscence is constituted secondarily; so that "without the intention of offspring there cannot be marriage," ibid., a. 3, corpus, nor consequently the conjugal debt and the remedy of concupiscence. "From the principles of St. Thomas," says Billuart, diss. 7, a. 9, "you will gather, third, that for the consummation of marriage, by which man and woman are judged to be one flesh, there is required a mingling of seeds, or of those things which are in place of seed on the part of the woman." Therefore, from the principles of St. Thomas, for a ratified marriage there is required potency, natural and physical potency, Billuart, l.c., ibid., ad 1, for the aforesaid mingling of seeds, by which the spouses can become actually one flesh. Therefore a ratified marriage as a remedy, without the aforesaid potency, namely for an act per se apt for generation, cannot subsist from the principles of St. Thomas. "From this it is clear that every emission of seed in such a manner that generation cannot follow is against the good of man... But I call that manner from which generation cannot follow according to itself, as every emission without the natural mingling of male and female; for which reason sins of this kind are called against nature. But if per accidens generation cannot follow from the emission of seed, it is not for this reason against nature, nor a sin, as, for instance, if it happens that the woman is sterile." Contra Gentiles, book 3, chap. 122.

And as regards old persons, St. Thomas himself expressly tells us that that copulation of the old is not, according to itself, impotent for generation, but only per accidens, and therefore both marriage and conjugal copulation are permitted to them. Indeed, still more clearly, the Angelic Doctor tells us that that copulation of old persons is not, according to its intrinsic nature or species, impotent for generation, and therefore is per se apt for generation, although from a merely particular accidental cause generation does not follow. Let his words, brought forward above, be reported again here: "That act is against nature in the genus of lust from which generation cannot follow according to the common species of the act; but not that act from which it cannot follow because of some particular accident, such as old age or infirmity." Quaestiones Disputatae de Malo, q. 15, a. 2, ad 14. Hence, when that particular accident has been removed, generation follows even in old persons and in the infirm. Now, when ovaries and uterus are perfectly and absolutely lacking, or when the uterus is entirely closed, can the copulation which is had in such circumstances be called an act according to its common species from which generation can follow, and consequently one in which, when that accidental cause of the defect of the uterus, ovaries, and closure of the vagina is removed, generation in fact follows? If so, then indeed impotence is not had from it; but if it is not so, according to the Angelic Doctor impotence is had.

Lastly, the well-known Responses of the Sacred Penitentiary and of the Holy Office, that marriage is not to be impeded in the case of excision of an ovary and uterus, do not stand in the way at all. For, as was expressly declared to me by His Eminence Cardinal Lucido M. Parocchi himself, Secretary of the Holy Office, those Responses, given only for particular cases, supposed that generation could still per se follow in those cases, namely insofar as there had not been perfect and absolute excision and absence of the uterus and ovaries. And the same opinion was embraced, as regards matrimonial dispensations to be granted or denied, both by His Eminence Cardinal Aloisi-Masella and by His Eminence Cardinal Di Pietro, Datary of His Holiness and both belonging to the Holy Office. And, omitting other cases, the Sacred Congregation of the Council, December 19, 1899, because of a defect of the uterus, declared a marriage invalid, although the defender of the bond ex officio had sharply maintained the contrary in the Monasterien. cause. And in the Collectanea of the S.C. de Propaganda Fide, 2nd ed., 1907, n. 1733, to the Response of the Holy Office, "It is not to be impeded," there is added the note: "This response concerns the particular case with which it was dealing." And the same Congregation of the Holy Office, January 16, 1895, declared that in cases of this kind recourse must be had in each individual case, since thus far no response had been given except for particular cases. Collectanea, cited, n. 1907.

Nor is the most recent Response of the Sacred Congregation of the Sacraments, April 2, 1909, in any way decisive. For the Sacred Congregation, referring to the Response already given elsewhere by the Holy Office, June 23, 1890, answered with the usual formula: Marriage is not to be impeded.

Therefore, when a practical case occurs, recourse must be had to the Sacred Congregation, since the matter has not yet been defined. And in practice marriage is indeed not to be impeded, since it cannot be denied that the natural sciences can still progress, and that other things necessary and sufficient for generation can be found. As it was reported to me by a certain Official of the Sacred Congregation, the Supreme Pontiff Pius X said that marriage is not to be impeded; for it is not known what is within, what happens within.

There is likewise another question concerning vasectomy in the man, or the cutting of the canals which carry the male seed. And as regards impotence, the matter likewise is not altogether certain; for some say that perpetual impotence is had from it, since the potency for emitting seed cannot be restored, and consequently the marriage is null; others, on the contrary, say that the aforesaid potency can be restored, and consequently, since the impotence is only temporary, the marriage is valid.

Impotence, on the contrary, is not had from mere shortness of the vagina, because carnal copulation can still be had; and it can sufficiently receive and retain the male seed as much as is enough for generation, for which one zoosperm suffices, fertilizing one ovum in the uterus, in which it is then developed. It is developed; whether, taking the matter properly and strictly, the ovum is also fertilized in the uterus, or is fertilized in the tubes or in the ovaries, we leave to physiologists to define, since this does not pertain to us, nor does it change anything with respect to the moral doctrine on impotence, with which we are dealing.

Many and weighty doctors assert that it is enough if the man can pour out seed at the opening and entrance of the vagina, and the woman can receive it within herself; for experience itself establishes that this suffices for generation. Gury-Ballerini, 885; D'Annibale, 3rd ed., n. 431. Yet others deny this. Indeed, it is one thing for generation to be able to be had by that act; it is another thing for marriage to be able to be had by that act, or by potency only for an act of that sort, since it is not the marital act in a natural manner. And if that most imperfect act sufficed for marriage, it no longer appears how frigidity can be reckoned an impediment of marriage, as is commonly handed down. And thus La Croix, book 6, part 3, n. 793, says: "If the man cannot penetrate the female vessel, although he pours out seed at its entrance..., impotence must be judged present, because such insemination does not suffice per se for such spouses to be judged to become one flesh in the natural manner." Cf. Sanchez, book 2, disp. 21, nn. 2, 5; St. Thomas, Quodl. 6, a. 18; A.S.S., vol. 26, p. 534 ff. And this seems to be held from causes often decided by the Sacred Congregation of the Sacraments, for dispensation from a ratified but non-consummated marriage, in such a case.

This impediment of impotence, of natural and divine law, is altogether irrationally and unjustly not admitted by the French Civil Code. The Italian Civil Code admits it, 107; the Spanish Civil Code, 83; the Austrian Civil Code, 60. But it is had only implicitly and in a limited way in the German Civil Code, 1333, 1334. Moreover, since all Codes must admit the invalidity of marriage from error of person, and since, when impotence stands, there would be a substantial error in the person, marriage, according to the same Codes, if not directly, at least indirectly, must also be held null in civil law. Cf. French Civil Code, 146, 180.

Now, if a marriage is null because of this impediment of impotence, the spouses are separated by the authority of the ecclesiastical judge; other nuptials are forbidden to the impotent party, and another marriage is permitted to the potent party. C. 5, 6, 7, de Frigid. In such a case recourse must be had to the Ordinary and to the Sacred Congregation of the Council.

Only by positive law is the marriage of the impubes invalid, because they are presumed to labor under a certain natural impotence for generation, although only temporary. Puberty is had by the same canon law for males when the fourteenth year has been completed, for females when the twelfth year has been completed, because the proximate potency of generating usually begins and ceases sooner in females than in males. For the capacity of generating begins with puberty, namely when in males the testicles begin to elaborate zoosperms, which happens between the thirteenth and sixteenth year of age; and ovulation likewise begins in females, which is regularly had with menstruation, and this begins around the twelfth year. Therefore the marriage of impubes is valid if they can already generate and coire, and sufficiently understand the burden of the conjugal bond; and the marriage of an impubes who already can, with a pubescent person who cannot yet coire. Nevertheless it would always remain illicit to contract marriage without the license of the Ordinary before the lawful age. Likewise valid is the marriage of impubes who have the use of reason among unbelievers, who are not subject to the laws of the Church. C. 2, 3, 6, 7, 9, 10, 11, 14, de Despons. impub.; Benedict XIV, Const. Magnae nobis, June 29, 1748; Sanchez, book 7, disp. 104, n. 9; Schmalzgrueber, book 4, tit. 2, nn. 48-60.

For a just cause the Supreme Pontiff can dispense the faithful in this impediment, and at times has in fact dispensed. Schmalzgrueber, book 4, tit. 2, nn. 50-52; Navarrus, Cons. 4, 5, tit. de Despons. impub.; de Iustis, book 8, n. 55.

The Austrian Civil Code, 48, and the Spanish Civil Code, 83, agree with canon law as regards the required age. But since full and perfect puberty is had as regards the man in the eighteenth year, and as regards the woman in the fourteenth year, hence other more recent Codes require the eighteenth year in the man and the fifteenth in women, Italian Civil Code, 55; French Civil Code, 144. According to the German Civil Code, 1303, a man before majority and a woman before the sixteenth year cannot contract marriage. Before the eighteenth year for men and the fifteenth for women, they either are still sterile or beget only weak offspring. And in order that good effects may follow from marriage, besides the faculty of generating, it is necessary that the body of the spouses be fully developed; this happens for both woman and man after the twentieth year of age. If marriage is contracted at a lower age, not a few inconveniences for the spouses and for the children will easily follow. Antonelli, vol. 2, p. 180, nn. 360, 361, 362. L. 1064-1066, 1094-1104; St. Thomas, Suppl., q. 58; E.M.

Note: In doubt concerning antecedent impotence, one must stand for the validity of the marriage, and the spouses must be permitted to try copulation. Indeed, for this purpose a three-year period is conceded to them by canon law, notwithstanding greater probability for perpetual impotence. C. Laudabilem, de Frig. et malef. Therefore, when antecedent impotence appears with certainty, the experiment must already cease, and the marriage must be declared null. But if even after the three-year period the doubt persists, the marriage must be judged valid, for one must stand for the validity of the act. In doubt concerning consequent impotence, it is likewise lawful for the spouses to try copulation until they are certain that it can in no way be completed, "although often or always they pour out seed outside the vessel." L. 1103. "Excessive heat can scarcely be a perpetual impediment." St. Thomas, Suppl., q. 58, a. 1, ad 2. "Continuators of Tournely and Cabassut probably judge that spouses of this kind, if they are young, are not to be separated, because in the course of time that ardor diminishes, and thus they can become apt." L. 1096.

Impotence is not to be confused with sterility. Impotence, as the word itself indicates, consists in an essential defect of the physiological generative cause, which remotely is in the organs of generation of the man and the woman, and proximately in the carnal copulation itself perfected in the natural manner, namely with the pouring out of seed on the part of the man into the vagina of the woman, and reception on the part of the woman, so that generation can follow, or they can truly become one flesh.

Sterility: It is wrongly confused with impotence by certain moderns. Sterility is not impotence. For the latter regards the very cause of generation, and consequently imports a substantial defect of the members necessary for the conjugal act and for generation. Sterility, on the contrary, regards the effect itself of generation not having followed, because of an accidental defect of the due conditions by which the generative cause can produce its effect. This is established by the most common opinion, for all permit marriage to the sterile, and all forbid it to the impotent. The same is also established from the very meaning of the words; for impotence is a defect of power, sterility is a defect of effect.

But it is altogether illicit by a direct intention to procure the sterility of a woman. Holy Office, May 22, 1895.

Sterility consists only in some accidental impediment of fecundation and generation, whence either there is an obstacle to the entrance of the zoosperm into the ovum and to the contact of both elements essential for generation, or, once that contact has been posited, there is an obstacle to the action of the fecundative power of the zoosperm upon the ovum, or finally there is a temporary absence of spermatozoa in men or of ova in the woman. Hence it happens that, when that impediment is removed, as often occurs, generation follows in act. For this reason copulation in circumstances of this kind is and always remains per se apt for generation, but only per accidens, namely from an accidental impediment, remains frustrated of its effect, through defect of those favorable dispositions in which that cause must be found in order to produce its effect. And this defect is per accidens, for a time, indeed even for a moment, and regularly hidden. Physiologists themselves do not have fully perfected knowledge of all those dispositions which are in fact necessary for generation to be had. In general this can be said to be required: that the zoosperm be sound and mature, that the ovum be sound and mature, and that both arrive at a suitable and fitting contact. Therefore impotence concerns the conjugal act itself; sterility concerns its effect. Sterility is hidden; impotence is manifest.

Hence in human generation there are as it were two acts. The first is in copulation, which depends on the human will, and which, in order to be licit, need only be per se apt for generation, and consequently must take place in this manner and in these circumstances of aptitude; and therefore nothing is done which is positively against generation, or which obstructs generation contrariwise, as is the most common opinion of the doctors. The other act, which is the continuation of the first, depending on nature itself and not on the human will, is the meeting of the sperm through the vagina and uterus with the ovum, and the fusion of that sperm with the substance of the ovum, whence its fecundation, or generation, is had. And this is to become one flesh. "They shall be two in one flesh," that is, "in one perfect and due principle of carnal generation," as Cajetan says, Ientac. 9, q. 1, who then explains the matter thus: "And indeed that one perfect carnal principle of generation intervenes here is clearly evident: for although the flesh of the woman and of the man are two, and each is a partial principle of generation, nevertheless both concur to make up one numerically complete principle of generation." Therefore in those words "the discourse is about the flesh of the spouses themselves, and about the numerical unity of the perfect and due principle of carnal generation." Cajetan, ibid. That the perfect principle of generation is had by the mingling of bodies, Cajetan says there; certainly by that mingling which is per se apt for generation, both on the part of the man and on the part of the woman; otherwise how will there be able to be one perfect principle of carnal generation?

Therefore, since sterile persons are not impotent for the conjugal act, they can licitly coire; indeed they can also enter marriage. Although generation does not follow per accidens, nevertheless, once copulation is duly perfected, the act is still per se apt for generation. And thus old persons who are able to consummate marriage validly contract, as also men lacking one testicle; likewise women who can receive the seed, even if they do not retain it, Gousset, 791; L. 1095, and women lacking one ovary.

What is the impediment of ligamen? On the part of the thing, another impediment is had, that of ligamen: namely if the right over one's own body is no longer had, because by a preexisting marriage it has already been handed over to another; hence it can in no way be transferred to another, and it is a diriment impediment. Therefore ligamen is the bond of a prior marriage, which by force of unity and indissolubility impedes another marriage for as long as the preceding marriage itself endures. French Civil Code, 147, 184; German Civil Code, 1390, 1326. Cf. ibid., a. 1348. But if the right over one's own body has only been promised to another by betrothal, then only an impedient impediment is had, since, without injury to the other, the right of coeundum cannot be transferred to another; except in the case in which there is question of blood relatives of the betrothed woman in the first degree, for then there is had the diriment impediment of public honesty. Cf. 1014. Hence if doubt is had concerning the death of a prior spouse, then it is not lawful to contract marriage; because, since the preceding marriage is certainly established, another cannot be entered with prejudice to the prior spouse, if perhaps he or she has not died; rather, the death must be morally certain. C. Dominus 2, de Secund. nupt.; C. In praesentia 19, de Sponsal.; L. 901, 902; Holy Office, May 6, 1891: A.A.S., vol. 2, p. 198 ff. According to the German Civil Code, 13 ff., an absent person can be declared dead after some years determined by the law itself for various cases. But this is only a certain mere presumption of law. This presumption of law is had after 30 years from the time when absence has been declared by the office of the judge, according to the Italian Civil Code, 10 ff.; French Civil Code, 112 ff.; Austrian Civil Code, 34. St. Thomas, Suppl., q. 62, a. 5; q. 65; q. 67; Schmalzgrueber, book 4, n. 4 ff.; E.M.

The death of an absent spouse, in order that the other spouse may be able to contract marriage, must be proved positively, by authentic documents, or by trustworthy witnesses, or by convincing supporting evidence.

If no marriage has been entered because of some diriment impediment, it is not lawful to enter a new marriage before it is established in the external forum by a legitimate sentence that the prior marriage was null. In such a case recourse must be had to the Ordinary. Collectanea S.C. de Propaganda Fide, n. 1225. L. 1101.

The cause of nullity of marriage in the ecclesiastical forum is admitted even after the death of a spouse, but not for temporal gain, and therefore it is very rarely admitted; for example, if there is question of the legitimacy of offspring or of some other spiritual harm. Cf. A.S.S., vol. 41, p. 779 ff.

What is the impediment of consanguinity? In contracting marriage the thing must not only be possible, whence the impediments of impotence and ligamen arise; but it must also be honorable, whence, on account of reverence for joined persons, the impediments of consanguinity, affinity, and public honesty arise, and on account of reverence for religion the impediments of order and vow are had. Now these impediments partly rest on natural law, partly on canon law. Those which are constituted by canon law do not touch unbelievers. But if, having been converted to the faith, they wish to enter marriage, then the natural bond of consanguinity and affinity, which existed before baptism and certainly endures after baptism, stands in the way of marriage. C. ult. de Divort.; St. Thomas, IV Sent., d. 41, q. 1, a. 1, q. 1; Sanchez, book 7, disp. 65, n. 4.

Consanguinity is the bond of certain persons among themselves from the fact that they descend by carnal generation from one and the same nearest common stock; and therefore it arises from the unity and participation of the same blood. Three things are to be distinguished in consanguinity: namely, 1. the stock, or the person from whom others take their origin and in whom, as in one root, they come together; 2. the degree, or the measure of the distance of one person from another, which distance is counted from the stock in which they are joined; 3. the line, or series of persons descending from the same stock. The line is twofold: one is direct, and the other collateral or transverse. The former is the series of persons of whom some descend from others, either immediately, as children from parents, or mediately, as grandchildren from grandparents, or from great-grandparents, etc. The latter is the series of persons who, although they have a common stock, nevertheless do not descend from one another, such as brothers, cousins, etc. The collateral line is equal or unequal, according as the blood relatives are equally or unequally distant from the common stock, as will be explained below. Cf. 998.

Marriages between blood relatives bring grave physical inconveniences for offspring, unless the blood relatives enjoy perfect health. The inconveniences are more grave in proportion as the degree of consanguinity is nearer. Antonelli, vol. 2, p. 181 ff.

Consanguinity dirimently impedes marriage in the direct line indefinitely, Nicholas I to the Bulgarians, C. 37, 39, and by natural law at least in the first degree. At least, for the other degrees are disputed; L. 470, 1029; Sanchez, book 7, disp. 51, n. 7; Schmalzgrueber, book 4, tit. 14, n. 30. In the collateral line, it impedes up to the fourth degree. C. 8, Non debet, de Consanguin. But whether by the law of nature marriage is dirimently impeded at least in the first degree, namely between brother and sister, is controverted. Yet it seems more true that it is impeded only by canon law, from Genesis 20:12. But this is certain, that the Church has never dispensed in this degree. Benedict XIV, Const. Aestas anni, October 11, 1754; Schmalzgrueber, book 4, tit. 14, nn. 42-48; L. 470; Lugo, Responsa Moralia, book 1, disp. 40, n. 9. As regards the other degrees, according to all, marriage is dirimently impeded only by ecclesiastical law.

Indians and Blacks. In Latin America they can contract marriages within the third and fourth degrees both of consanguinity and of affinity. To the indigenous Catholics of the three Apostolic Vicariates of the Island of Madagascar an extension was granted of the privilege of the Indians and Blacks of Latin America, namely of the impediment of consanguinity and affinity restricted to the first and second degree, yet in such a way that, as long as the said privilege for Latin America endures, it should at the same time be in force for the island of Madagascar, so that both in Latin America and on the aforesaid island the duration of the privilege may be the same. Leo XIII, Const. Trans Oceanum for Latin America, April 19, 1897; Sacred Congregation of the Sacraments, April 1, 1911, from the Audience of April 2, 1911.

Consanguinity dirimently impedes marriage also between those who were born only from the same father or only from the same mother; that is, between blood relatives only through the male line or only through the female line; as also between blood relatives born from illegitimate births. The reason is that diversity of father or mother, i.e. that the common stock is only the father or only the mother, or the illegitimacy of birth, does not prevent carnal consanguinity from truly existing. C. Pertuos, de Probat.

Consanguinity can arise between the same persons from a double or even multiple source, and then there is a double or multiple relationship, or impediment, to be disclosed in the petition for dispensation. This happens from the fact that among near ascending blood relatives either some have contracted marriages among themselves, or someone has contracted successively with several persons who are blood relatives among themselves, or blood relatives from one stock have contracted with blood relatives of another stock. And thus: 1. If someone marries a woman who is his blood relative, e.g., his cousin, their children are at once the children and grandchildren of each parent, and among themselves they are at once siblings and second cousins. 2. If someone marries a blood relative of his wife, e.g., her sister, the children of each wife will be among themselves at once consanguineous brothers and cousins. 3. If two brothers marry two sisters, the children proceeding from each marriage will be blood relatives among themselves in a double way, namely they are at once paternal cousins and maternal cousins. This circumstance of multiple consanguinity must necessarily be declared. Cf. De Iustis, de Dispens. matrim., book 2, chap. 3, n. 31 ff. But it must be noted that multiplicity of kinship is not caused by the fact that two persons are from the same father and mother. For the father and mother are considered as one stock.

And it is one thing to be brothers or paternal cousins, another thing to be blood relatives in a double way.

Therefore a distinction must be made between the quality and the quantity, or multitude, of the degrees of kinship. Quality is the first, second, third, fourth degree; a pure or mixed degree. Quantity is a simple, double, triple degree, etc. Trent, sess. 24, chap. 3; L. 1029; St. Thomas, Suppl., q. 54.

A degree of consanguinity or affinity is called simple or mixed: 1. insofar as simple excludes the admixture of an unequal degree from the other side; and thus Titius and Titia are blood relatives in the third simple degree if they are equally distant from the stock, whether they are blood relatives from one source or from a double source. On the contrary, they are blood relatives in a mixed degree if they are unequally distant from the stock, Titius in the third degree and Titia in the fourth; and then they are called blood relatives in the fourth degree touching the third, if they are blood relatives from one source. Or again, if they are unequally distant from the stock, Titius in the third degree and Titia in the fourth, Titia in the second and Titius in the third, then they are called blood relatives in the fourth degree touching the third on the part of one contracting party, and in the third degree touching the second on the part of the other contracting party, if they are blood relatives from a double source. 2. It is called simple insofar as it excludes multiplication of the same degree from any cause whatever. 3. It can be called simple insofar as it excludes the admixture of another different impediment, e.g., consanguinities mixed with affinity. 4. Finally it is called simple insofar as inequality of degrees, multiplication of the same degree, and any other impediment whatever are excluded.

There are some who hold that in consanguinity account must be taken only of the nearer stock, Gallo, Suppetiae Evang. Praecon., vol. 4, p. 149 ff. But others hold that account must also be taken of the more remote stock when marriage has intervened in the higher degrees; since then, if this marriage had not intervened, they would still be blood relatives from the more remote stock. And thus, for example, Caius, grandson, and Caia, granddaughter, of Titius the grandfather, are blood relatives to each other in the second degree in the collateral line. These contract marriage with each other. Their grandson and granddaughter, Sempronius and Sempronia, are likewise blood relatives to each other in the second degree from the nearer stock, Caius and Caia; and they are also blood relatives in the fourth degree from the more remote stock, Titius, and that doubly, namely through the paternal and maternal line, or through Caius and Caia. The Holy Office approved this second opinion on March 11, 1896, and decreed that three impediments are to be declared, namely the impediment coming from the nearer stock, and two impediments coming from the more remote stock through the lines joined in the intermediate stock. E.M. "But lest marriage be contracted within the prohibited degrees, you must publicly prohibit it, and punish presumptuous persons by ecclesiastical severity, notwithstanding custom, which must be called corruption." C. Quod per his 5, de Consanguin. et affin.

What are the rules for computing the degrees of consanguinity? Three rules are assigned from Canon Law.

First Rule. In the direct line as many degrees are counted as there are persons, the stock being removed, or there are as many degrees as there are generations. Hence between father and son there is one degree, because there is one generation, or one person of the son, the father being excluded as the stock. Between grandson and grandfather two degrees are counted, because there are two generations, although three persons intervene, namely grandfather, father, and his son, or grandson with respect to the grandfather. Similarly suppose a great-grandfather or great-great-grandfather, and you will have three or four degrees.

Second Rule. In an equal collateral line there are as many degrees as there are persons on one side, the stock being removed. Hence brother and sister are in the first degree, because if the common stock or father is set aside, one person remains on each side; and since each is distant by one degree from the stock, they are also distant by one degree from each other. Likewise paternal cousins, or children of brothers, and maternal cousins, or children of sisters, are each distant by two degrees from the common stock, or from the grandfather, and therefore are blood relatives to each other in the second degree. So also must it be said of others.

Third Rule. In an unequal collateral line there are as many degrees as there are persons on the more remote side, always with the stock removed. Hence, if one is distant from the common stock by two degrees and his blood relative by three, they will be blood relatives to each other in the third degree, according to the saying: the more remote degree draws the nearer to itself. Therefore Bertha will be a blood relative in the second degree with her paternal uncle, or the brother of her father, because she is distant by two degrees from the common stock, namely from her grandfather, although the uncle himself is separated by one degree from the same stock, since he is the son of the stock, or the brother of Bertha's father. So also must judgment be made concerning any others. Therefore no impediment is present if consanguinity is in the fifth degree touching the fourth. C. Vir qui fin., de Consang. et affin.; St. Pius V, Const. Sanctissimus, March 20, 1566; Benedict XIV, Const. Etsi pastoralis, September 30, 1755.

There are as many consanguinities as there are different ways of ascending to the same stock, or to different stocks.

The rule from Civil Law is one. For computing degrees according to Roman Civil Law, the number, or sum, of all the persons in each line is taken, the stock being removed. Therefore in the direct line they are computed in the same way as canonical degrees; in the equal collateral line, the canonical degrees are doubled; in the unequal collateral line, the lesser line is doubled and the excess of the greater is added. C. 2, c. 35, q. 5; L. 1029; St. Thomas, Suppl., q. 54, a. 2; Schmalzgrueber, book 4, tit. 14, nn. 15, 19, 60, 107.

It must be noted here that in an unequal transverse line, in the petition for dispensation, the nearer and more remote degree must be expressed on both one side and the other. If the nearer is kept back, "the marriages are indeed valid, but illicit, provided that the dispensation does not touch the first degree; and therefore, until declaratory letters, or, as they call them, letters perinde valere, are issued, the spouses must be separated." Holy Office, December 12, 1748. The first degree is excepted, because in that first degree the Pope does not intend to dispense unless it is expressed. St. Pius V, Const. Sanctissimus, August 20, 1566; L. 1031; Benedict XIV, Quaest. can., 183; De Iustis, book 1, chap. 4, n. 121 ff.

It must likewise be noted that according to the Austrian Civil Code, 41, 65, degrees are computed as in Roman Law; but marriage is not prohibited according to all the degrees constituted by Canon Law, which must be followed. The Spanish Civil Code, 84, 915, also follows Roman Law as regards computing degrees of consanguinity, except in marriage, in which, as regards matrimonial impediments, it follows Canon Law, except that it restricts the impediment of consanguinity from illegitimate copulation to the second degree in the collateral line. Therefore in this matter also Canon Law must be followed. For Trent changed nothing concerning this impediment with respect to the ancient Law, although it contracted affinity to the second degree. Schmalzgrueber, book 4, tit. 16, n. 9.

The French Civil Code, 161-164, 735 ff., and the Italian Civil Code, 48 ff., 59, 68, preserve the same rule of Roman Law in computing degrees of consanguinity. But as regards the impediments of marriage they depart from Canon Law, as also does the German Civil Code, 1310, 1327, 1589. But in this matter Canon Law alone is to be observed. And let this also be said for the other impediments.

What is understood by cognate and agnate? Cognation is nearness between persons of a different family, joined to one another through the female line. Agnation is nearness between persons born to the same family, and therefore joined to one another through the male line. Therefore persons are called cognates if they descend through the female line; they are called agnates if they descend through the male line. "Because those who are born follow the family of the father, not of the mother." Institutes, book 1, tit. 15, § 1; Schmalzgrueber, book 4, tit. 14, n. 10.

Who are blood relatives in the direct line? Staying within only four degrees, above the father and below the son, they are the following, in this order, beginning from the fourth higher degree: 1. great-great-grandfather (trisavolo); 2. great-grandfather (bisavolo); 3. grandfather (nonno); 4. father (padre); 1. son (figlio); 2. grandson, granddaughter (nipote); 3. great-grandson, great-granddaughter (pronipote); 4. great-great-grandson, great-great-granddaughter (terzo nipote, terza nipote).

Who are blood relatives in the transverse or collateral line? Collateral blood relatives on the father's side are: 1. propatruus, paternal great-granduncle (terzo zio paterno), brother of the great-grandfather; proamita, paternal great-grandaunt (terza zia paterna), sister of the great-grandfather; 2. patruus magnus, great-uncle on the father's side (prozio paterno), brother of the grandfather; amita magna, great-aunt on the father's side (prozia paterna), sister of the grandfather; 3. patruus, paternal uncle (zio paterno), brother of the father; amita, paternal aunt (zia paterna), sister of the father; 4. brother, sister. Brothers are called consanguineous if they have only a common father, but a different mother; uterine if they have only the mother in common and a different father; full siblings if they have a common father and mother; 5. patrueles, paternal cousins (cugini paterni), sons or daughters of the father's brother; 6. sobrini, second paternal cousins (secondi cugini paterni), sons or daughters of patrueles; 7. children of the sobrini, third paternal cousins (terzi cugini paterni).

Collateral blood relatives on the mother's side: 1. proavunculus, maternal great-granduncle (terzo zio materno), brother of the great-grandmother; promatertera, maternal great-grandaunt (terza zia materna), sister of the great-grandmother; 2. avunculus magnus, great-uncle on the mother's side (secondo zio materno), brother of the grandmother; matertera magna, great-aunt on the mother's side (seconda zia materna), sister of the grandmother; 3. avunculus, maternal uncle (zio materno); matertera, maternal aunt (zia materna), sister of the mother; 4. brother and sister; 5. consobrinus, maternal cousin (cugino materno), son of the mother's sister; amitini, paternal and maternal cousins (cugini paterni e materni), two children of whom one was born from a brother and the other from a sister; 6. sobrini, second maternal cousins (secondi cugini materni), children of consobrini; 7. children of the sobrini, third maternal cousins (terzi cugini materni). Institutes, book 3, tit. 6; L. 1 ff., de Grad. et adfin.

In the following scheme of consanguinity the various degrees and lines can be seen. Persons who are joined by a line are among themselves in the direct line; with the others they are in the collateral line. On the right side, where the brother is placed, are placed male blood relatives, and females joined through the male sex. On the left, where the sister is placed, are placed female blood relatives, and males joined through the female sex. The empty cell with the letter N is the person whose kinship is in question, and who wishes to contract marriage with another. It must be seen in which other cell this person is to be placed; and, once the proper cell has been assigned to him or her, one must ascend up to the cell in which the lines are joined, for there the stock is had. The number written in the cell indicates the degree of consanguinity, and always designates the more remote degree with respect to N.

Translated scheme of consanguinity:

| Degree | Direct line | Paternal collateral side | Maternal collateral side | | --- | --- | --- | --- | | 4 above | Great-great-grandfather / great-great-grandmother | Great-grandfather's brother: propatruus; great-grandfather's sister: proamita | Great-grandmother's brother: proavunculus; great-grandmother's sister: promatertera | | 3 above | Great-grandfather / great-grandmother | Great-uncle / great-aunt on the father's side; their children | Great-uncle / great-aunt on the mother's side; their children | | 2 above | Grandfather / grandmother | Paternal uncle / paternal aunt; their children | Maternal uncle / maternal aunt; their children | | 1 above | Father / mother | Brother | Sister | | N | Person whose kinship is being examined | Paternal cousins / amitini; nephews and great-nephews through the brother | Maternal cousins / amitini; nephews and great-nephews through the sister | | 1 below | Son / daughter | Brother's children | Sister's children | | 2 below | Grandson / granddaughter | Brother's grandchildren | Sister's grandchildren | | 3 below | Great-grandson / great-granddaughter | Brother's great-grandchildren | Sister's great-grandchildren | | 4 below | Great-great-grandson / great-great-granddaughter | Their children | Their children |

What is the impediment of affinity? Affinity is the relationship which one contracts with the blood relatives of the person with whom he has carnal intercourse, or it is the relationship which arises from carnal copulation between one person and the blood relatives of the other, e.g., between the man and the blood relatives of the wife, and vice versa. From carnal copulation, namely one apt of itself for generation, although generation does not follow. Affinity from licit copulation dirimently impedes marriage in the transverse line up to the fourth degree, and further also in the direct line, C. Non debet 8, de Consanguin.; from illicit copulation, up to the second, Trent, sess. 24, chap. 4, de R. M., and therefore from public concubinage and from merely civil marriage it does not extend beyond the second degree. Does it also arise from a null marriage? Some affirm this, whether the man and woman have coeundum in good faith or in bad faith. Carriere, de Matr., p. 163. According to others, if the man and woman have coeundum in good faith, it extends up to the fourth degree; but if in bad faith, according to many, says Scavini, Milan, 1874, 12th ed., book 3, n. 794, it extends up to the fourth degree, according to others up to the second. And this seems more true according to Trent. The degrees and lines of affinity are taken from consanguinity, and as in consanguinity; so that one who is related by affinity to one party is in the same line and the same degree in which he is a blood relative of the other party. Hence he who is, for example, a blood relative of the wife in the first degree, whether of the direct or of the transverse line, is related by affinity to the husband in the same degree of the direct or transverse line. And as in consanguinity, so in affinity the distance is taken from the more remote degree. Therefore there is no need of a dispensation from affinity because of illicit copulation when one party is distant from the stock in the first degree and the other in the third. German Civil Code, 1310, 1327, 1590.

According to the certain opinion of all, affinity dirimently impedes marriage by ecclesiastical law alone in the collateral line, and much more probably also in the direct line, if perhaps the first degree is excepted. Concerning the first degree of the direct line, there is controversy among doctors. Yet there is no room for doubt concerning the power of the Pontiff to grant a dispensation in the first degree of affinity in the direct line, even from licit copulation between stepfather and stepdaughter. Holy Office, September 4, 1743; Schmalzgrueber, book 4, tit. 14, nn. 82-84, 101-105; Benedict XIV, Epistle Aestas anni, October 11, 1757; de Syn., book 9, chap. 13. But the Church has never dispensed in affinity arising from legitimate marriage, although she has dispensed in affinity arising from illicit intercourse, e.g., if someone marries a woman after having fornicated with her daughter or mother. For affinity from fornicarious copulation arises only because of the union of bodies; from consummated legitimate marriage it arises both because of carnal copulation and because of conjugal society in a common and individual life. St. Thomas, IV Sent., d. 41, q. 1, a. 1, q. 3; q. 4, ad 2; Lugo, Responsa Moralia, book 1, disp. 40, 43. Therefore if two unbelievers, related by affinity in the first degree of the direct line from a legitimate marriage, after contracting a legitimate marriage with each other, were converted to the faith, they could not be separated without pontifical dispensation. But cf. the following case, n. 1002 bis.

Affinity from marriage, whether it is a diriment impediment by natural law or by ecclesiastical law, is certainly a natural affinity. Therefore an unbeliever converted to the faith cannot contract with the daughter, mother, or sister of that wife whom he legitimately had during the time of unbelief. The reason is that the natural bond arises even among unbelievers from marriage, and because it perseveres after baptism, it then becomes subject to the invalidating law of the Church. Does the aforesaid natural bond also arise from illicit copulation? Sanchez, book 7, disp. 65, n. 9, Lugo, l.c., and others deny it; but many other grave doctors more truly affirm it from St. Thomas, IV Sent., d. 41, q. 1, a. 1, q. 3. For if a man and a woman, although coeundum illicitly, nevertheless necessarily and naturally become one flesh, necessarily and naturally one enters the limits of the other's kinship and is joined to that person's blood relatives. Therefore an unbeliever converted to the faith cannot, without dispensation, enter marriage with the mother, daughter, or sister of her whom he had previously known fornicariously. And this is also established from the Response of the Holy Office, August 26, 1891.

Affinity also can be multiple, namely if someone has had carnal intercourse with several blood relatives, or with a person who is related by blood to the spouse in multiple ways, but by no means if he has done so several times with the same blood relative. For affinity is multiplied not by acts, but by persons. Sanchez, book 8, disp. 24, nn. 4, 5; L. 1067, 1069; St. Thomas, Suppl., q. 55; Schmalzgrueber, book 4, tit. 14, n. 67 ff.; E.M.

1002 bis. The following case was very recently solved: "John T. and Rebecca St. of the diocese of Hagulstadensis and Novocastrensis (Hexham and Newcastle), prostrate at the feet of Your Holiness, very humbly ask for dispensation so that they may licitly contract marriage with each other, notwithstanding the impediments of affinity in the first degree and of public honesty. "The matter stands thus: "John T. contracted marriage with a woman named St., already the mother of a daughter from dishonorable copulation, named Rebecca St. "From these nuptials three or four children were born, and the wife of John T. died. But in the year 1907 John contracted a civil marriage with Rebecca St., in good faith as regards the diriment force arising from affinity. "It is certain and can be proved that Rebecca is not the daughter of John. From these second nuptials two children were born. "The causes are: 1. The legitimation of offspring. 2. The greater good of the offspring, who, still infants, are greatly in need of the care of father and mother. 3. To regularize the state of John and Rebecca. 4. To quiet the scandal arising from the cohabitation of the parties, who now can scarcely be separated because of the education of the offspring." "The Sacred Penitentiary, having maturely considered the peculiar circumstances set forth in the case, by special and express Apostolic Authority, with Our Most Holy Lord Pius X graciously thus assenting, grants to you, beloved in Christ, the Ordinary of the petitioners, the faculty, if things are so, of graciously dispensing the petitioners from the impediments listed in the prayers, so that they, the proclamations being omitted but scandal being removed, and the remaining canonical prescriptions being observed, may licitly and freely be able to contract marriage and remain in it, and of declaring and respectively announcing as legitimate the offspring either to be received thenceforth. All things to the contrary notwithstanding. But these present letters, with the attestation of the execution imparted, are to be carefully kept in the episcopal chancery, so that for any future event there may be proof concerning the validity of the marriage and the legitimacy of the offspring. Given at Rome in the Sacred Penitentiary on December 2, 1911." It is asserted that on another occasion already the same dispensation had been given.

Note: When there is question of one who wishes to marry a daughter after having fornicated with the mother, the condition is usually added in the dispensation, provided that copulation with the mother did not precede the birth of the daughter, namely so that the danger may be guarded against that someone marry his own daughter. But the condition can be judged sufficiently fulfilled if copulation with the mother preceded at such a time that that danger is entirely absent.

For contracting affinity it is certain that insemination by the man is required; but is insemination also by the woman required? Pontius and others deny it, because female seed is not necessary for generation. St. Bonaventure and others affirm it, "both because according to the opinion of many others the seed of the woman is also required for generation, and because, and this reason presses more strongly, affinity is not contracted unless those coeundum become one flesh; but they do not become one flesh unless the seeds are mingled. And this opinion is greatly strengthened from the authority of St. Thomas.... In doubt one must presume for perfect copulation (of the man), because from things that commonly happen it is prudently presumed to have been present.... And so also the insemination of the woman is always presumed when she felt great pleasure in coitus, even if she did not advert to the insemination. Indeed, in the external forum, where coitus is established, judgment must always be pronounced for the impediment of affinity contracted, and thus one must also judge in the internal forum, which must always conform to the presumption of the external forum, and it is not established that this presumption is false." L. 1075; Schmalzgrueber, book 4, tit. 14, nn. 71-73. These are the words of St. Thomas, IV Sent., d. 41, q. 1, a. 1, q. 4, ad 2: "Man and woman become one flesh through the mingling of seeds. Hence however much someone may invade the barriers of modesty, unless mingling of seeds follows, affinity is not contracted from this." And Pyrrhus Corradus, Praxis Dispens. Apost., book 7, chap. 1, n. 18: "For causing affinity the concurrence of both seeds is required." But since the seed properly so called in the woman is not that humor which is secreted in the heat of pleasure and even shows itself externally, but the ovum, which is insensibly secreted from the ovary from venereal excitation, and also without any sense of pleasure, naturally, almost every month, descends into the uterus and is fecundated in the uterus by male seed, if the man has inseminated within the female vessel, it will indeed be difficult to pronounce that the act on the part of the woman has not been consummated. Cf. Joseph Antonelli, de Conc. imp. et sterilit., Rome, 1900.

Affinity contracted between spouses cannot dirimently impede their own marriage, since it supervenes upon this marriage already indissolubly contracted; nevertheless it impedes the use of the same marriage as a punishment of the adulterous and incestuous spouse, by depriving the guilty party of the right of asking the debt. C. Si quis, de Eo qui cognovit, etc. But this, since it is from illicit copulation, by force of the decree of Trent, sess. 24, chap. 4, de R. M., is not contracted except from copulation with the blood relatives of the other in the first and second degree. This is confirmed from the express Declaration of Gregory XIII in St. Alphonsus, 1070. But it probably does not impede imperfect acts, provided the danger of pollution is absent. For since the law is penal, it must be understood strictly, and is not to be extended also to these acts. L. 933.

The Italian Civil Code, 52; the French Civil Code, 162; the Austrian Civil Code, 40, do not seem to acknowledge any affinity except from marriage, whence under it the bond of public honesty also is comprehended. But it is otherwise according to the Spanish Civil Code, 84, which rightly distinguishes legitimate affinity from merely natural affinity; and under that, public honesty also is comprehended. As regards Roman Law, cf. Schmalzgrueber, book 4, tit. 14, n. 70.

Resolutions: Persons who are carnally joined are not properly related by affinity between themselves, but are the principle of affinity, and hold, as it were, the place of the stock. Affinity cannot exist between two persons neither of whom has had copulation with a blood relative of the other; therefore the blood relatives of one spouse have no affinity with the blood relatives of the other. No one is prohibited, after his wife has died, from marrying the widow of her brother; or from successively marrying the widows of two of her brothers. Two brothers can marry two sisters; father and son can marry mother and daughter; indeed the son can marry the mother, and the father can marry her daughter. A stepfather can marry the widow of his stepson; and a stepmother the widower of her stepdaughter. For affinity does not beget affinity. C. Non debet 8, de Consang.; Schmalzgrueber, book 4, tit. 14, nn. 74, 75. One who has sinned with two sisters, or with full cousins, or with mother and daughter, can marry none of these. A man who has sinned with the sister, cousin, or paternal aunt of his spouse is bound to render the debt to the one asking, although he himself cannot ask.

The reason is that, since there is question of a law merely prohibiting, the innocent party ought not to suffer from the fault of the guilty. He who sins with his own blood relatives is not deprived of the right of asking the debt, because from this he contracts no affinity with his wife. If each spouse has contracted affinity with the other through incest, neither is bound, indeed neither can render the debt to the other. L. 1068, 1069; St. Thomas, Suppl., q. 55; E.M.

Has a wife, known by force or fear by a blood relative of the husband, lost the right of asking the debt? R. Negatively, if the force was absolute; for that impediment of asking the debt, as regards incestuous spouses, has only the nature of a penalty, but there can be no penalty where there is no fault. Negatively also when the wife who suffered force or fear did not sin gravely, because a grave penalty is not proportionate to a light fault. Indeed it seems more probable that it must also be denied if that wife sinned gravely, because grave fear excuses from human laws, even if it cannot excuse from the natural law; therefore, since in our case it excuses from the law insofar as it is ecclesiastical, it ought also to excuse from the penalty inflicted by that law. Schmalzgrueber, book 5, tit. 39, n. 79; L. 1071.

Does ignorance excuse from the impediment of asking the debt? R. More probably affirmatively, if there is ignorance of law, namely of the human law prohibiting this. The reason is that just as ignorance excuses from the transgression of a human law, so also from the penalty. If there is ignorance of fact, namely that this woman is a blood relative of the wife, it is common that the impediment is not incurred. The reason is that where the fault of incest is lacking, the penalty is also lacking. This is clear also from C. Si quis 1, de Eo qui cognovit, etc., where this impediment is imposed on one sinning knowingly. Ignorance of the penalty also excuses with sufficient probability, since it is an extraordinary penalty. L. 1072, 1074.

Who can dispense in this impediment concerning the asking of the debt? "They very commonly teach that the Bishop can always and absolutely dispense.... The reason is that, granted that the Bishop could not do this from the disposition of the Law, nevertheless he can well do it by reason of custom. And he can well delegate this faculty of dispensing to another, not only in particular, but also in general. Moreover, all mendicant regular confessors, deputed by the provincial for this office, can also dispense in this impediment from several privileges." L. 1076. Bishops can indeed do this by force of the quinquennial faculties, and also approved confessors having the Form of the Sacred Penitentiary. Cf. that Form.

Who are relatives by affinity? The principal relatives by affinity by reason of licit copulation are the following: 1. Socer, socerus, father of the husband, to whom corresponds the nurus, the wife of the son. Socer magnus, grandfather of the husband, to whom corresponds the pronurus, wife of the grandson. Socer is also the wife's father, to whom corresponds the son-in-law, husband of the daughter; socer magnus or prosocer is likewise the grandfather of the wife, to whom corresponds the pro-gener, husband of the granddaughter. Socrus, mother of the husband, to whom consequently corresponds the nurus, or wife of the son. Socrus magna, the husband's grandmother, to whom the pronurus corresponds. Socrus is also the mother of the wife, to whom the son-in-law corresponds. Socrus magna or prosocrus, grandmother of the wife, to whom the pro-gener corresponds. 2. Vitricus, husband of the mother; noverca, wife of the father, to whom correspond privignus and privigna, son and daughter from the first marriage of the father or mother. 3. Levir, brother of the wife, brother of the husband; glos, sister of the wife, sister of the husband; fratria, wife of the brother; sororius, husband of the sister.

What is spiritual kinship? Spiritual kinship is a certain nearness of persons which arises from baptism and confirmation. It dirimently impedes marriage by ecclesiastical law: 1. between the minister of the sacrament and the subject, and the subject's parents; 2. between the godfather or godmother and the goddaughter or godson, and their parents. Trent, sess. 24, chap. 2, de R. M. Therefore it is contracted neither by the spouse of the one baptizing, nor by the spouse of the godfather, St. Pius V, Cum illius vicem, nor among the godparents themselves. Hence the godfather and godmother can enter marriage with each other.

For contracting kinship, baptism is a necessary condition as regards all; therefore if either the one baptizing or the parents of the baptized person are unbelievers, although catechumens, kinship is not contracted by them. Therefore both a believer who baptized the offspring of an unbeliever, and one who received that offspring from the sacred font, could contract marriage not indeed with the baptized offspring, but with that offspring's parents after they had been converted to the faith. Schmalzgrueber, book 4, tit. 11, nn. 32-35. But it is certain that this kinship is contracted even by a heretic, both if he baptizes and if he holds at the sacred font, and also if another baptized person, whether heretic or Catholic, either baptizes or holds his offspring. The reason is that whoever has the baptismal character is capable of this kinship and is subject to the laws of the Church. Sanchez, book 7, disp. 60, n. 2; Pirhing, book 4, tit. 11, n. 40. Likewise in confirmation, in order that sponsors contract kinship, it is necessary that they be confirmed. This kinship too can be multiple. It is multiplied from the sacraments, e.g., if someone held Caius in baptism and confirmation, but not if he held several sons of Titius in baptism or confirmation. Holy Office, April 29, 1894. Likewise it is multiplied from persons, if two have mutually held the other's children, etc. Reiffenstuel, book 4, tit. 21, app. de Disp., n. 201; Schmalzgrueber, book 4, tit. 16, n. 208; Sanchez, book 7, disp. 54, n. 17; De Iustis, book 1, chap. 4, n. 170; Corradus, book 8, chap. 8, n. 16. St. Thomas, Suppl., q. 56. Cf. 442 ff.; E.M.

Note: Parents baptizing their children in necessity or in good faith contract no spiritual kinship by which they are prohibited from the use of marriage; for this prohibition has the nature of a penalty, which is not incurred without fault. Indeed, probably they do not seem to contract the same kinship even if, deliberately and apart from necessity, they baptized their offspring. Truly, the doctors disagree, and some affirm, others deny. Therefore, although they contract spiritual kinship, this nevertheless does not have the effect of depriving them of the right of demanding the debt. The reason is "because the cause for permitting the use of marriage in such a case to each spouse was most just, namely the evident and manifest danger of incontinence...; which danger rightly proves that the deprivation of the right of asking the debt in this case is not to be asserted without an open text of law, such as, however,... none is found." Schmalzgrueber, book 4, tit. 11, n. 48. C. 2, de Cogn. spir.; La Croix, book 6, part 1, n. 358; L. 150; Schmalzgrueber, book 4, tit. 11, n. 42 ff.; E.M.

What is legal kinship? Legal kinship is the nearness of persons which arises from legal adoption. Adoption is a legitimate act by which one who is not such by nature is assumed as a son or grandson. In common law adoption is distinguished as twofold: 1. Perfect, which is also called arrogation, and this is that by which an outside person who is sui iuris, by Rescript of the Prince, passes into the power and family of the adopter, acquires all the rights of a legitimate son, and becomes a necessary heir. 2. Imperfect, which is called simple, is that by which an outside person who is not sui iuris, but remains in the power and family of his natural father or grandfather, by the authority of any competent judge, is assumed as a son or grandson; nevertheless he does not pass into the family and power of the adopter, and for that reason does not become his necessary heir from a testament, although he succeeds to him ab intestato. Cf. vol. 1, n. 663.

Legal kinship, namely perfect adoption, constitutes a diriment impediment by ecclesiastical law, approving Roman Law, by which this impediment was first introduced. This is drawn from the Response of Nicholas I and Paschal II, C. Ita diligere 1, c. 30, q. 3; C. Post susceptum 5, l.c.; C. un., de Cogn. leg. And the reason is that kinship stands in the way of nuptials because of the dangers of cohabitation. St. Thomas, IV Sent., d. 42, q. 2, a. 3, ad 2. Hence this impediment is in force where adoption is preserved: in Roman Law, not in the more recent law, by which the adopted person does not pass into the family of the adopter and under his paternal power. Thus Gury, 809; D'Annibale, 3rd ed., part 1, n. 65, compared with part 3, n. 433, and others, against others who hold that imperfect adoption also, and therefore also by more recent law, dirimently impedes marriage. "More probably," says St. Alphonsus, 1027, "St. Thomas, Suppl., q. 57, a. 2, Sanchez, book 7, disp. 73, n. 9, Salmanticenses, n. 41, with others, say that (legal kinship) arises only from perfect adoption." This indeed follows from L. Adoptivus 14, ff. de Adoptionib.; L. Si paterfamilias 15, ibid.; L. Quin etiam, § 2, ff. de Ritu nuptiarum, etc.

But in order that a canonical impediment be had by adoption, it must have been legitimately entered. Sacred Penitentiary, May 16, 1826. Adoption entered privately, with no solemnity of law, produces no impediment. Holy Office, April 16, 1761.

Legal kinship, after the likeness of natural kinship, dirimently impedes marriage by Roman Law between the following persons: 1. as if in the direct line, between the adopter and the adopted person and this person's children, while they are constituted under paternal power; 2. between the adopted person and the children of the adopter, as if in the collateral line, while the latter's children are under paternal power and are not emancipated; 3. between the adopter and the wife of the adopted person, and, conversely, between the adopted person and the wife of the adopter, as if in the direct line by way of affinity, as is established from the declaration of the Sacred Congregation of the Council in the Hortana case, September 25, 1734.

These kinships differ among themselves, and consequently also the impediment arising from them, in that the first and last are perpetual. Therefore the adopter, for example, cannot take an adoptive daughter or granddaughter as wife, even if the adoption has been dissolved by emancipation; nor can the stepson or daughter-in-law, understand adoptive, be joined in marriage with the stepmother or father-in-law, although the adoption has ceased either by emancipation or by the death of the adopter. Therefore a dispensation of the Apostolic See would be required, which, however, even in the last case is granted with very great difficulty. But the second, in the collateral line, lasts only as long as the adoption lasts. Lugo, de Poenit., disp. 16, n. 327.

According to Roman Law adoption is dissolved in six ways: 1. by the natural death of the adopter; 2. by the civil death of the same; 3. because of incestuous nuptials; 4. because of dignity, e.g., episcopal; 5. by sentence; 6. by emancipation.

Since this impediment is of common law, only the Supreme Pontiff can dispense. In the direct line and in legal affinity he dispenses with very great difficulty and from a grave cause. In the transverse line a dispensation is rarely sought, since this impediment is removed by emancipation, and thus without any dispensation the adopted person can contract marriage with the natural daughter of the adopter. Schmalzgrueber, book 4, tit. 12, n. 37.

Italian Civil Code, 213, etc.; French Civil Code, 353, etc.; Austrian Civil Code, 181; Spanish Civil Code, 178, 179: adoption is made by intervention of a public magistrate, and with the other prescriptions of law observed. Italian Civil Code, 211; French Civil Code, 349: adoptive parents are bound to procure, if there is need, the education of the adopted person, and to supply him the necessary supports and sustenance. But the adopted person is held by the same obligation as regards sustenance toward the adopter. The Spanish Civil Code, 176, establishes the same concerning sustenance. Italian Civil Code, 737, 806; French Civil Code, 350; Austrian Civil Code, 183, 755: the adopted person with his descendants is heir of the adopter together with legitimate children, and succeeds to him ab intestato. Nevertheless he has no right to the goods of the blood relatives or cognates of the adopter. Spanish Civil Code, 177: the adopted person acquires no right to inheritance except by testament or by special agreement. Italian Civil Code, 210; French Civil Code, 347; Spanish Civil Code, 175; Austrian Civil Code, 182: the family name of the adopter is conferred on the adopted person, who adds it to the name of his own family. Italian Civil Code, 210, 212; French Civil Code, 348, 349: the adopted person remains in his natural family and preserves in it all his rights and obligations. Therefore the adopted person does not pass into the family of the adopter, nor is he subject to his paternal power, as in perfect adoption, or arrogation, of Roman Law. Austrian Civil Code, 183; Spanish Civil Code, 177: the adopted person indeed preserves his rights in his own proper family, but passes under the paternal power of the adopter, the prior paternal power being dissolved. Nothing concerning the dissolution of adoption is contained in the Italian Civil Code and the French Civil Code, and therefore it seems to endure perpetually until death. According to the Austrian Civil Code, 185, adoption can be dissolved. According to the Spanish Civil Code, 180, an adopted minor can impugn the adoption within four years after attaining majority. Italian Civil Code, 60; French Civil Code, 348: marriage is forbidden between the adopter and the adopted person and this person's descendants; between the adopter and the spouse of the adopted person; between the adopted person and the spouse of the adopter; between the adopted person and the children of the adopter who are born after the adoption; between adopted children of the same person. Spanish Civil Code, 84: the adopting father or mother and the adopted person cannot contract marriage as incapable persons; nor the spouse of the adopting father or mother and the adopted person; nor the adopting father or mother and the spouse of the adopted person; nor the legitimate descendants of the adopter and the adopted person, while the adoption remains. German Civil Code, 1311: the adopter cannot contract marriage with the adopted person and his or her descendants as long as the adoption endures.

According to the Italian Civil Code and the French Civil Code, adoption is only imperfect, since the adopted person does not pass into the family of the adopter, nor is he placed under his paternal power. Hence more probably no diriment impediment is had from it, until the Church certainly counts an adoption of this kind among diriment impediments, as she counted perfect adoption or arrogation of Roman Law. For more probably only perfect adoption or the arrogation of the Romans is, by Canon Law, a diriment impediment. On the contrary, for the opposite reason, adoption according to the Spanish Civil Code and the Austrian Civil Code seems to be a diriment impediment. And as regards Austria, in the Instruction of Cardinal von Rauscher, commended by the Pronuncio, it is said, § 29: "Adoption of the Austrian Empire... dirimently impedes marriage whenever the adopted person is subjected to the paternal power of the adopter, or is received into his house to dwell after the manner of children of the family."

Benedict XIV, de Syn., book 9, chap. 15; Schmalzgrueber, book 4, tit. 12, nn. 3, 10, 26 ff.; L. 1027; St. Thomas, Suppl., q. 57; E.M.

Does legal kinship dirimently impede marriage up to the fourth degree between the adopter and the descendants of the adopted person, or vice versa? It is certainly restricted to the first degree as regards the adopted person and the descendants of the adopter. This is established from Canon Law. It is controverted as regards the adopter and the descendants of the adopted person. Probably the kinship does not extend beyond the first degree, or beyond the adopted person, unless he has descendants constituted under his power. For according to the more common opinion of Sanchez, book 7, disp. 63, n. 34, from Roman Law the impediment extends to those who, together with the adopted father of the family, pass into the power of the adopter. L. 1027.

Resolutions: Therefore, while adoption endures, marriage can subsist: 1. between the adopter and the mother and sister of the adopted person; 2. between the adopter and the daughter of an adopted woman, because this daughter is not in the power of the mother, and therefore does not pass into the power of the adopter; 3. between the adopter and the illegitimate daughter of the adopted person, because illegitimate children are not in the power of the father, and therefore the daughter of the adopted person in the case does not pass into the power of the adopter; 4. for the same reason marriage will subsist between the illegitimate son of the adopter and his adopted daughter; 5. between the son and daughter of two adoptive brothers, because these are bound by no bond of kinship among themselves; 6. between two adopted persons of one adopter, for this is forbidden by no law; 7. between the adopted person and the sister or mother of the adopter. Schmalzgrueber, book 4, tit. 12, n. 31 ff.; L. 1027; St. Thomas, IV Sent., d. 42, q. 1, a. 2, ad 5.

What is public honesty? Public honesty is a certain quasi-affinity from the union of minds. It arises: 1. from valid and certain betrothals, but by no means from invalid and uncertain ones, C. un., de Spons., in VI; Trent, sess. 24, chap. 3, de R. M., although occult, Holy Office, August 11, 1852; Sacred Penitentiary, September 10, 1834; A.S.S., vol. 2, p. 381; Schmalzgrueber, book 4, tit. 1, n. 108. Although occult; but now, after the decree Ne temere, occult betrothals can no longer exist by law, but only in fact. If betrothals were entered under a resolutive condition, since they are immediately valid, the impediment of public honesty arises and perseveres, although they are dissolved. But if they were entered under a suspensive condition, while that condition is pending there are neither betrothals nor an impediment; but when it has been fulfilled, if consent has not been revoked, they are valid without new consent and produce the impediment. But if marriage is contracted in the meantime, and then the condition is verified, they can neither dissolve the marriage nor impede its use. It is contracted between the betrothed man and the blood relatives of the betrothed woman, and between the betrothed woman and the blood relatives of the betrothed man, whether legitimate or illegitimate, C. 8, de Spons. et matr., only in the first degree of both the direct and the oblique line, Trent, ibid.

It arises: 2. from ratified marriage, even invalid marriage, namely because of some diriment impediment, e.g., impotence, kinship, disparity of cult, crime, ligamen, provided that it was not invalid from defect of consent, from error, from fear, from simulated consent, although the defect is occult; nor from the prior impediment of public honesty from betrothals validly contracted to the prejudice of prior betrothals; and therefore the impediment is in force if those betrothals had been dissolved before the marriage. There is no explicit text of law, but it is deduced a fortiori; for the bond of ratified marriage is stronger than that which arises from betrothals. C. un., de Spons., in VI; St. Pius V, Const. Ad Romanum Pontificem, sec. 35, July 1, 1568; Schmalzgrueber, l.c., nn. 101, 104-106. Hence if Titius, for example, after entering betrothal with Bertha, leaves her and marries her sister, he can and must return to the first, and he does not need dispensation unless he has consummated the marriage. Ratified; for when it has been consummated, it passes into perfect affinity and produces no other impediment. For public honesty is a certain inchoate affinity. Benedict XIV, de Syn., book 9, chap. 13, n. 3. From ratified marriage, not from civil marriage, in places where the decree of Trent concerning contracting marriage before the pastor and witnesses has been promulgated. Leo XIII, March 17, 1879. And much less now, after the decree Ne temere, is the impediment contracted from merely civil marriage. Is it also not contracted from clandestine marriages, namely those contracted without pastor and witnesses? Sanchez, book 7, disp. 70, n. 13, thought so; Pontius, book 7, chap. 35, n. 5, held the contrary. Many indeed supported Sanchez, far more Pontius. Nevertheless, after the cited Decree of Leo XIII, the opinion of Sanchez consequently must be altogether preferred. And the reason for each is that civil marriage, where Trent has been promulgated, and now after the decree Ne temere has been promulgated, and clandestine marriage, do not have the form of marriage; and form gives being to the thing. Hence they are altogether nothing in the being of marriage, and therefore from them, as from an invalid marriage, the impediment of public honesty cannot arise. Cf. 919, 923. If a marriage is null from defect of age, since by interpretation of law it passes into betrothals, the impediment must be considered as from betrothals, not from marriage. Cf. n. 923. But again, now after the decree Ne temere, the aforesaid marriage in no way passes into betrothals.

This impediment, arising from marriage whether ratified or invalid, advances up to the fourth degree of the direct and collateral line. C. un., de Spons., in VI; L. 1061. And this impediment of public honesty, once contracted, is perpetual and endures after betrothals and marriage have been dissolved. It has no natural bond for its foundation, no natural kinship, from betrothals or from ratified marriage, whether invalid or valid. Therefore unbelievers converted to the faith are not bound by it. L. 1061-1064; Mansella, de Impedim., etc., p. 66; E.M.

What is the impediment of vow and order? The vow which dirimently impedes marriage is only the solemn vow of chastity, emitted by profession in an approved religion. C. 10, de Conv. Coniug.; C. un., de Voto, in VI. Chastity, not a religious vow as such, because religious profession dirimently impedes marriage for this reason and to this extent, insofar as it includes the solemn vow of chastity. Therefore vows, although solemn, of certain Equestrian Orders do not dirimently impede marriage, since these profess only conjugal chastity. Schmalzgrueber, book 4, tit. 6, n. 45. Solemn; for a simple vow of chastity, even perfect and perpetual, even emitted in religious Congregations of men and women, does not dirimently impede marriage, but only impedes it. By special privilege of Gregory XIII, the simple vows which are emitted after two years of novitiate in the Society of Jesus are to be excepted.

Order dirimently impeding marriage is sacred order, namely priesthood, diaconate, and subdiaconate. C. De Diacono 1; C. Ex Litterarum 2, Qui cler. vel vov.; Extravag. Antiqua, de Voto; Trent, sess. 24, chap. 9. Sacred order even among the Greeks and Italo-Greeks, Ruthenians and Maronites, dirimently impedes marriage. But the certainty is not the same for all. For as regards Italo-Greeks, Benedict XIV declared invalid such a marriage attempted by subdeacons, deacons, and priests. For Ruthenians, the Synod of Zamosc in 1720, approved in specific form by the Apostolic See, and for Maronites, the Synod of Lebanon in 1736, likewise approved by the Apostolic See, declared invalid, the former the marriage of a priest, the latter that of a deacon, priest, and bishop. As regards other Greeks, there is not yet an express definition of the Apostolic See; but the opinion is consonant both with the opinion of the Tribunals of the City and with the ancient Law itself of the Eastern Church. Benedict XIV, Const. Eo quamvis tempore, secs. 38, 39; Const. Anno vertente, sec. 13; Const. Etsi pastoralis, sec. VII, n. 27; Sacred Congregation de Propaganda Fide, March 24, 1858. Collectanea S.C. de Propaganda Fide, n. 1572. As regards Ruthenians in North America and in the Canadian Region, cf. here nn. 97 and 377.

Now as regards the vow, it must have been emitted: 1. voluntarily and deliberately; 2. with the true intention of obliging oneself; otherwise the vow would not be valid. As regards order, it is required: 1. that it have been received validly; 2. that it have been received voluntarily, and therefore not from grave fear.

The impediment of order, according to the common opinion, dirimently impedes only by ecclesiastical law. The reason is that on the one hand order of itself is not repugnant to the conjugal state; nor, on the other hand, is there any divine prohibition which is found in the Scriptures or in Tradition. L. 1059. But since the solemnity of a vow is of ecclesiastical law, for that very reason the Pope can dispense, provided that there is a sufficient cause, that is, one proportionate to the gravity of the matter. That the Pontiff can dispense from this impediment is the very commonly received opinion of the doctors, whom Sanchez, de Matr., book 8, disp. 8, n. 7, alleges in a long series; and examples of this dispensation having been granted are everywhere available, as can be seen in Schmalzgrueber, book 3, tit. 35, n. 48; Albitus, de Inconst. in fide, chap. 36, n. 132 ff. This is confirmed from the Decree of the Holy Office, February 20, 1888, by which Leo XIII granted to Bishops the faculty of dispensing, "either by themselves or through an ecclesiastical person well pleasing to them, the sick established in the gravest danger of death, when there is not time to have recourse to the Holy See, from impediments, however public, dirimently impeding marriage by ecclesiastical law, except the sacred order of priesthood and affinity of the direct line arising from licit copulation." Benedict XIV, de Syn., book 2; L. 808, 1025, 1026, 1059, book 3, n. 256; Mansella, de Impedim., etc., p. 92 ff.; St. Thomas, II-II, q. 88, a. 11; Suppl., q. 53.

Modern laws are those which admit even those ordained in sacred orders to marriage. There is indeed no law forbidding this in the Italian Civil Code and the French Civil Code. Hence they leave a free way for such persons to most shameful and sacrilegious concubinages. But it is otherwise in the Austrian Civil Code, 63, and the Spanish Civil Code, 83. E.M.

What is the impediment of disparity of cult? If the cause of marriage is considered, marriage was instituted for the mutual help of life. Lest from this there should rather be danger to the spouses in religion and life, provision has been made for each danger by the impediment of disparity of cult and of crime, by keeping Catholics away from nuptials with non-Catholics, and the criminal spouse, after the spouse has died, away from nuptials with the partner in the crime.

Disparity of cult is one thing between a Catholic and a non-Catholic, and is called mixed marriage; another is between a Christian and an unbeliever. A non-Catholic, namely from a sect, whether heretical or schismatic, whether born and educated in it, or having defected from the Catholic faith and given his name to it. A non-Catholic; not a Catholic free-thinker; nor a Catholic Mason. As regards the marriages of Masons, cf. E.M. 976, 1029.

The first disparity of cult, between a Catholic and a non-Catholic, impedes marriage, but does not dirimently impede it. Benedict XIV, Const. Singulari nobis. It belongs only to the Holy See to permit mixed nuptials, or nuptials of mixed religion between Catholics and non-Catholics. Pius VII, Letter Vix nova, February 17, 1809, to the Bishops of France. It permits them only for a grave cause, provided that nothing is to be feared for the faith of the Catholic spouse, that this spouse procure according to his or her strength the conversion of the non-Catholic, and on this express condition, that both spouses promise that they will educate all children to be born in the Catholic Religion. Gregory XVI to the Archbishop of Freiburg, May 23, 1846. The exhibition of these cautions must be established with moral certainty, and, for removing scandal, must be notorious. If the heretical party, after dispensation has been obtained, afterwards refuses to acquiesce that the children be educated in the Catholic religion, the marriage is valid, because from this the nature of a merely impedient impediment is not changed. And the Catholic party is permitted to remain in such a marriage, lest greater harm come to the offspring.

But if a Catholic contracts mixed nuptials either without having obtained a dispensation, or without observing the aforesaid law of the dispensation, he is kept from the sacraments until he has promised the confessor that he will educate the children in the Catholic Religion, and repair the scandal given to the other faithful. Pius VI, Epistle to Cardinal de Frankenberg, July 23, 1782. After dispensation has been obtained with the usual clauses, the pastor can assist at this marriage, Holy Office, December 20, 1838, the banns being omitted, unless they seem necessary and opportune in the judgment of the Ordinary for detecting impediments, with mention omitted in them of the religion of those who are to contract nuptials. Sacred Congregation de Propaganda Fide, May 11, 1871. The celebration of this marriage must take place before the pastor and two witnesses according to the prescription of the Council of Trent, and now of the decree Ne temere, but outside the church and without the blessing of the pastor. It can nevertheless be celebrated in the sacristy. Holy Office, January 17, 1877; Monit. Eccles., vol. 12, p. 469. Hence it is clear that the priest cannot then wear stole and surplice. Yet, where graver evils would be present, it is committed to the judgment of the Bishops that, with the other necessary cautions observed, "they judge when the mentioned conditions concerning contracting these mixed nuptials outside the church and without the blessing of the pastor can by no means be fulfilled, and when, in entering these mixed marriages, the custom can be tolerated of employing the rite legitimately prescribed in the Diocesan Ritual for contracting marriages, always excluding, however, the celebration of Mass." Pius IX, Instruction, November 15, 1858. Collectanea S.C. de Propaganda Fide, nn. 908, 1429, 1430, 1434, 1444.

The pastor cannot assist at the marriage: 1. If, without dispensation having been obtained, mixed nuptials are contracted, although the law prescribes his assistance, unless the pastor intervenes as a civil magistrate. Holy Office, December 20, 1838. Nevertheless the Supreme Pontiffs are accustomed to permit only the material assistance of the pastor where necessity requires it, after the promise of each party concerning the offspring to be educated in Catholicism has first otherwise been altogether required. Thus Pius VII granted the faculty to pastors living in Russia and Germany of assisting, if they were compelled, at mixed marriages entered without dispensation having been obtained. The aforesaid assistance is permitted for avoiding greater evils, lest marriage be contracted invalidly, lest the parties go to a heretical minister, etc. Nevertheless the presence of the pastor does not prevent the spouses contracting in this way from sinning gravely. Gregory XVI, May 22, 1841.

2. If each spouse is unwilling to consent to the Catholic education of the offspring, but the heretical party absolutely requires that the offspring of his or her sex follow his or her religion. Holy Office, June 17, 1829. But in the Instruction which was added to the Letters of Gregory XVI to the Primate and Bishops of Hungary, April 20, 1841, these things are contained: "His Holiness declared that it can be tolerated that, whenever from the condition of times, places, and persons the marriage of a non-Catholic man with a Catholic woman, and vice versa, although the necessary cautions have been omitted, cannot be impeded without graver danger, and moreover it seems to be expedient for the utility of the Church and the common good if that marriage, although forbidden and illicit, be contracted before a Catholic pastor rather than before a non-Catholic minister, to whom the parties would easily have recourse, the same Catholic pastor, or another priest acting in his place, may be present at the marriage itself by merely material presence, with no ecclesiastical rite employed, just as if the parties were treating him only as a mere qualified or authorizable witness, as they say; namely in such a way that, after hearing the consent of each spouse, he may afterwards, by his office, enter the validly performed act in the book of marriages." In Roskovany, vol. 2, p. 818.

3. If after the marriage the spouses also contract in a Protestant church, by Protestant rite. Holy Office, April 21, 1847. If already before marriage they contracted before a heretical minister, the pastor cannot assist at the marriage unless the Catholic party, repentant of the act, is absolved and repairs the scandal.

The other disparity of cult, which is between a baptized person and an unbeliever, dirimently impedes marriage, not from written law, but from custom having the force of universal law. Therefore it binds all who are received into the Church, even if they are in those places in which the Christian Religion is first preached. Benedict XIV, Const. Singulari nobis, sec. 10; Sanchez, book 7, disp. 71; Schmalzgrueber, book 4, tit. 6, nn. 121-124. And it dirimently impedes marriage although a baptized man marries a catechumen woman, or a non-baptized man marries an apostate or heretical woman. Benedict XIV, Const. Singulari nobis, February 9, 1749.

The conditions to be observed in dispensations as regards marriages between Christians and unbelievers are found prescribed from several Instructions of the Sacred Congregation de Propaganda Fide as follows: 1. That cohabitation with the unbeliever bring either no insult to the Creator or danger of perversion. 2. That the offspring be instructed in the Christian religion. 3. That dispensation be granted only in places, understand province, vicariate, etc., not the village in which perhaps there would be many Christians, where there are more unbelievers than Christians. 4. That the dispensation be granted only for grave causes, so that rather dispensation should be granted in the impediments of consanguinity or affinity, if in this way marriages with unbelievers would be avoided. 5. Sometimes it is added that there be a probable hope concerning the conversion of the contracting unbeliever. Collectanea, cited, nn. 1261, 1263, 1270, 1301. This dispensation is granted with far greater difficulty with Jews.

But betrothals between a baptized person and one still a catechumen are valid, just as the betrothals of impubes are valid. For betrothals concern the future, and in the future marriage can subsist between them. Schmalzgrueber, book 4, tit. 6, nn. 130-131. But the form to be observed is that established in the decree Ne temere. Lugo, de Poenit., disp. 16, nn. 336, 343; St. Thomas, Suppl., q. 59, a. 1; E.M.

It seems that the faithful who are so separated from others that they can neither marry a Christian nor ask for a dispensation are to be excepted from this impediment. Holy Office, June 4, 1851; Collectanea S.C. de Propaganda Fide, n. 1275.

Doubtful baptism, whether by doubt of law or doubt of fact, in relation to entering or having entered marriage, is to be held as valid baptism. E.M. And the marriage is valid, either insofar as this case is not comprehended in the law by legitimate epikeia, or insofar as the Church supplies the defect and tacitly dispenses.

1016 bis. Note: "A dispensation from the impediment of disparity of cult is never granted unless all the conditions or cautions have been expressed." Holy Office, April 16, 1890. "1. Whether a dispensation from the impediment of disparity of cult, imparted by one having power from the Holy See, when the prescribed cautions were not required or were refused, must be held valid or not? And insofar as negatively: "2. Whether in these cases, namely when it is evidently established concerning a dispensation thus invalidly granted, the Ordinary himself can declare by himself the nullity of the marriage from this head, or whether it is necessary each time to have recourse to the Holy See for a definitive sentence? "R. To 1. The dispensation, imparted as set forth, is null. "To 2. Affirmatively to the first part; negatively to the second part." Holy Office, June 21, 1912.

From the decree Ne temere and from the Sacred Congregation of the Council, July 27, 1908, the consent of the contracting parties must be sought and received by the Ordinary or the Pastor, for the validity of marriage, even in mixed marriages. Nevertheless, "The prescription of the decree Ne temere, n. IV, sec. 3, concerning the consent of the nupturients to be required and received by the pastor for the validity of marriage, in mixed marriages in which the parties obstinately refuse to furnish the due cautions, is not hereafter to have place; but one must stand strictly by the preceding concessions and instructions of the Holy See, and especially of Pope Gregory XVI of happy memory, Apostolic Letter of April 30, 1841, to the Bishops of Hungary, concerning the matter: after word had been had with the Most Holy." Holy Office, June 21, 1912. Cf. n. 1016.

If there is question of a marriage between one Catholic party and another who has defected from the faith, or has been enrolled in a condemned sect, the Bishop will be able to permit the pastor to be passively present at the marriage as an authorizable witness, if the marriage can in no way be impeded, and if from the marriage there is no grave scandal or harm to be feared, provided that provision has been made for the Catholic education of all the offspring and that the danger of perversion for the Catholic party is absent, every ecclesiastical rite being excluded, and the celebration of Mass being altogether excluded, unless circumstances suggest otherwise. Thus from the Holy Office, February 21, 1883; April 23, 1873. But at present, unless there is place for the aforesaid exception, the consent must be sought by the pastor, as was just said, from the decree Ne temere.

What is the impediment of crime? Crime dirimently impeding marriage is threefold, namely: 1. adultery; 2. homicide of a spouse; 3. both together, provided that certain conditions concur, which we set forth below. This impediment is an impediment only of ecclesiastical law.

What is required for adultery alone? For incurring the impediment from this head it is required: 1. That the adultery be true, formal, consummated. True, that is, that at least one of the fornicators be joined by a marriage not merely putative, but legitimate and valid, even if perhaps not consummated. Formal, and indeed on the part of both, that is, that each know that one or the other is married. Therefore it suffices that someone knowingly approach a married woman, nor is it necessary that this married woman know that the one with whom she commits adultery is also married. Formal adultery is not present, even if only from culpable and gross ignorance the accomplice does not know that the other is married, provided that the ignorance was not affected. For malicious fraud is required for formal adultery. L. 44, ad Leg. Iul. de adult. Consummated, namely with perfect carnal copulation per se apt for generation intervening. In the external forum this is always presumed if the man inseminated within the vessel. But in the internal forum it will be difficult to define otherwise in the case; for the consummation of marriage is had through the mingling of seeds. St. Thomas, IV Sent., d. 41, q. 1, a. 1, q. 4, ad 2. But seed on the part of the woman is properly the ovum, which even without any sense of lust descends from the ovary into the uterus, almost every month. And this is proper insemination on the part of the woman. But that humor which in the act of copulation is usually secreted by the woman, but not always, is improperly seed; it is indeed very useful for fecundation, but not necessary. And from this there is had insemination improperly so called; the defect of which consequently does not prevent husband and wife from being able truly to become one flesh. Sanchez, book 7, disp. 79, n. 38; De Iustis, book 2, chap. 16, n. 38; Schmalzgrueber, book 4, tit. 7, n. 55; L. 1036.

2. That there be a promise of marriage made by one adulterer and accepted by the other at least by some sign, whether this promise precedes, accompanies, or follows the adultery; but if it precedes, it is required that it was not retracted before the adultery. Both the promise and the acceptance must be true, and therefore a feigned one does not suffice. L. 1039; Schmalzgrueber, book 4, tit. 7, nn. 22-24, who confirms this from C. Significasti 6, de Eo qui duxit, etc. Moreover a conditioned promise or acceptance does not suffice so long as the condition does not yet exist. It must be said otherwise if the added condition is fulfilled before the death of the spouse, and much more if before the adultery was perpetrated. Schmalzgrueber, l.c., nn. 25-28. But because injury is needed for incurring the impediment, it is therefore necessary to have knowledge of the marriage of both parties or at least of one or the other; and ignorance excuses provided that it was not gross or supine. C. 2, de Constit., in VI. Therefore both things, adultery and promise, must be understood formally. Hence adultery committed in ignorance does not avail, although afterwards a promise knowingly followed; nor adultery committed knowingly after a promise made in ignorance, so long as the promisor has not ratified it. This is the truer opinion. Sanchez, book 7, disp. 79, n. 34; Schmalzgrueber, book 4, tit. 7, n. 13, and others think otherwise, holding that, just as marriage, of which we must speak immediately, so also a promise entered in ignorance is tacitly confirmed by adultery afterwards knowingly committed. But the same reason does not hold, and just as a shameful promise is not easily presumed, so neither is a shameful ratification. Indeed, not even ratification suffices if it was made while the other was unaware. But more probably a renewed promise is not required. C. 6, 8, de Eo qui duxit.

Nevertheless, since probability is not lacking also for the opposite opinion, Schmalzgrueber, book 4, tit. 7, n. 30, in doubt whether a renewed promise has been added, the impediment can be judged merely probable, and therefore uncertain, which is the same as nothing. This is confirmed from the Praxis of the Apostolic Datary, n. 151, where it is said: "faith having been given to each other."

3. That both the promise of marriage and the adultery be made while the prior spouse is living, or while the same marriage remains. Namely, both the adultery and the promise of marriage must yield to the injury of one and the same spouse; this would not happen if Bertha, for example, while her first husband was living, promised marriage to Titius, but committed adultery with him when, after the death of the first husband, she had married Caius.

Adultery by Law dirimently impedes marriage, not only when a promise of future marriage is added, namely of contracting after the death of the spouse, for if marriage to be contracted while the other spouse was still living were promised, the reason for the impediment would cease, as Schmalzgrueber notes with the doctors, book 4, tit. 7, n. 9; but also if the adulterer, while the spouse is still living, contracts a marriage de praesenti with the adulteress, or rather truly and from the heart, not fictitiously, attempts it. This is clear from C. Cum haberet 5, de Eo qui duxit, etc. Nor does it matter whether they attempt to contract marriage before the pastor and witnesses, or clandestinely, and whether by civil marriage. Holy Office, December 22, 1880; Collectanea S.C. de Propaganda Fide, n. 1544. For in establishing this impediment, attention is not paid to the value of the marriage or of the betrothals, if only a promise intervenes, which are contracted invalidly, as is clear, but to the character of the crime. But if the accomplice did not know the legitimate marriage of the other when he or she entered marriage with that person; or, after learning of the other's marriage, commits adultery without retracting the marriage, then the impediment is introduced, because if after receiving knowledge he perseveres in the marriage and then adds adultery, he ratifies the marriage, which, joined with adultery, provokes no less to seizing upon the death of the other than if it had been contracted knowingly from the beginning. Or if he retracts the marriage before adultery, or also ceases from adultery, which previously had existed as material and not formal, as soon as he learns of the marriage of the other, then the reason for the impediment is absent. Schmalzgrueber, l.c., nn. 12, 15. C. Si quis vivente, c. 31, q. 1; C. 1-8, de Eo qui duxit, etc.; L. 1031 ff.

German Civil Code, 1312, 1328: marriage cannot be contracted by a spouse juridically separated by divorce because of adultery with the person with whom the adultery was committed. A marriage of this kind is null. E.M.

What is required for homicide alone? Three conditions are required so that from this there be an impediment: 1. Mutual conspiracy, by command, counsel, etc. Hence it does not suffice that a spouse kill his or her spouse if the person with whom he or she is about to enter marriage is ignorant of this action or contradicts it. Nor does it suffice that someone, hearing of the killing of the spouse, and much less by mere negligence, e.g., in caring for the sick person, approve and ratify it. Nor does consent alone seem to suffice, because the Laws require machination. C. Laudabilem 1, de Conv. infidel.; L. 1033.

2. Intention of marriage. Thus commonly, although it is not expressed in the Law. The reason is that the end of the law is lest someone, in hope of marriage, kill his own spouse or another's spouse. This intention is not required on the part of both, but more truly it is required that that intention, had by one, be manifested in some way to the other. But St. Alphonsus says, 1034, that it suffices that certain indications of this intention preceded, e.g., familiarities, love letters, etc. Therefore the impediment is not present if Titius, with Caia cooperating, kills his wife in order that he may enjoy Caia more freely, or marry her daughter.

3. Death really following from the physical or moral action of one or the other accomplice. C. 1, 3, 6, de Eo qui duxit; C. 1, de Conv. infid.; L. 1031 ff.; E.M.

What is required for both together? When the crimes of adultery and spouse-killing are found joined, mutual conspiracy for spouse-killing is not required, nor a promise of marriage, but these things suffice: 1. Adultery, such as was explained above. But it must precede the spouse-killing, although it is not necessary that it precede the machination of death. It must precede the spouse-killing; for if the death of the spouse precedes, adultery, which consists in copulation with the spouse of another, will no longer be able to have place. For it is required that there be adultery both material and formal with respect to the spouse killed. Schmalzgrueber, book 4, tit. 7, nn. 49, 51; Sanchez, book 7, disp. 18, n. 12.

2. Machination of death by one of the adulterers from intention of marriage. But it suffices that this intention be had by one. Gousset, 824; Carriere, 739. St. Alphonsus moreover requires, more probably, that this intention be manifested to the other.

3. Death following from the machination of one of the adulterers, in the same way as was said above concerning homicide alone. L. 1036.

4. Adultery and spouse-killing committed while the same marriage remains. This impediment, which because of the double crime united is called "both together," constitutes one impediment. On the contrary, if both adultery and homicide separately have their own proper conditions, as they have been set forth, they introduce a double impediment. C. 1, 3, 6, de Eo qui duxit; C. 5, c. 31, q. 1; L. 1031 ff.

Note: The impediment of crime is an impediment and a penalty. Insofar as it is an impediment, since it is an impediment of ecclesiastical law, it has no place among unbelievers, even if they afterwards come to the faith. Baptism wipes away all crimes. The same must be said, as regards adultery alone, if either one of the two things, namely adultery or only the promise, was made after baptism, Schmalzgrueber, book 4, tit. 7, n. 3; likewise, if the believer was not a participant in the killing which the unbeliever perpetrated; for then he does not incur the impediment from homicide alone. Or if he himself did not perpetrate the same things, but the unbeliever did, who is free from such an impediment, although he himself committed adultery, because adultery without homicide does not introduce the impediment "both together." Schmalzgrueber, ibid., n. 46. On the contrary, if a believer, having promised marriage, commits adultery with an unbeliever, and likewise if the believer was a participant in the machination or killing, or also perpetrated the killing with adultery, he incurs the impediment, by which consequently, although indirectly, the unbeliever too is bound, not otherwise than happens in the impediment of disparity of cult. Indeed this has place even if the believing wife did this for the reason that the unbelieving husband, after afterwards entering marriage with her, might be converted to the faith, as is expressly contained in C. Laudabilem 1, de Convers. infid., where the Pontiff gives this reason, that the Church does not wish to compensate such loss by such gain. Schmalzgrueber, l.c., nn. 46-48.

Insofar as it is a penalty, since it certainly is an extraordinary penalty, ignorance of the impediment more probably excuses from the impediment. Yet more commonly they deny this, "but with principles neither certain nor evident." D'Annibale, 3rd ed., part 3, n. 442; Gury-Ballerini, 788; Krimer, in Decretals, book 4, nn. 1011-1029; Sanchez, book 9, disp. 32, nn. 17, 21. Nevertheless it can not without reason be denied that this impediment was constituted, at least more principally, as a penalty for the crime; but rather because, by the public sense of morality, it is indecent and dishonorable that marriage be contracted between these criminal persons. Schmalzgrueber, book 4, tit. 7, n. 61.

This impediment can be multiple, and therefore then it must be set forth in the supplicatory petition for dispensation. It is multiple by reason of adultery, if each party is married; by reason of homicide, if the spouse is killed by each; by reason of both together, if the circumstances just commemorated concur together.

Benedict XIV, Epistle Aestas anni, 1756, says that it is established by no example that the Pontiff dispenses in the public impediment of both together. "If the impediment arises from adultery, with both or one or the other plotting, and is occult, the Major Penitentiary indeed has the faculty of dispensing, but rarely, and always only for the internal forum, with these things also observed: that a grave necessity occur, or a grave danger threaten, and that the case be proposed in the full Congregation or signature of the Penitentiary." But dispensation is regularly given from the crime of adultery alone, whether public or occult. Bishops also have the faculty of dispensing from the occult impediment of crime, provided it is without any machination, by force of the quinquennial faculties; and approved confessors by force of the faculties of the Sacred Penitentiary, which see in the respective Forms. E.M. "It not rarely happens that those who have obtained from the Apostolic See a dispensation from a ratified and non-consummated marriage, or a document of liberty because of the presumed death of a spouse, wish, in order to consult the salvation of their soul, to celebrate a new marriage in the face of the Church with those with whom, while the prior bond remained, they contracted a merely civil marriage, adultery having been committed. "Now since a dispensation from the impediment arising from adultery with attempted marriage, which stands in the way in the case, is for the most part not usually sought, Our Most Holy Lord Pope Pius X, lest marriages be exposed to the danger of nullity, after consultation with the Most Eminent Fathers of this Sacred Congregation concerning the discipline of the Sacraments, has established that in the future dispensation from the said impediment in the case is to be judged granted through the dispensation given by the Holy See either from a ratified and non-consummated marriage, or through the permission of transition to other nuptials. "But as regards the past, the same His Holiness has graciously deigned to revalidate and sanate marriages which perhaps were invalidly entered from this head. "And he ordered this to be promulgated by the present decree of the same Sacred Congregation, all things to the contrary notwithstanding." Sacred Congregation of the Sacraments, June 3, 1912.

What is the impediment of error, condition, and fury? As regards consent, there are impediments of marriage from error, condition, fury, fear, and abduction. Error dirimently impedes marriage by natural law if it is concerning the person, since it is a substantial error in the present matter, even if it is gross and concomitant, e.g., if Titius, falsely thinking that he is marrying Caia, says within himself: I would marry this woman even if she were not Caia. It is otherwise if he said: I wish to marry this woman, even if perhaps she is not Caia. Error concerning the qualities of the person, or concerning the nature and properties of marriage, provided that it is not concerning the thing itself of the contract, does not dirimently impede marriage. For it is very much in the interest of the public good that marriages not be dissolved because of any other error besides a substantial one, e.g., if someone contracts marriage with an error of fact, thinking that he is marrying a virgin, healthy, noble woman, and on the contrary marries a prostitute, a leprous woman, one born in the street, although he errs through the efficacious fraud of the spouse and certainly would not have contracted with such a woman; for this is an interpretative will, which, since it does not exist, can effect nothing. The same is to be said if someone errs with an error of law, thinking, for example, that marriage can be dissolved. And the same must be said if someone contracts while ignorant of the nature of the use of marriage. For for the validity of the contract of marriage it suffices to wish to contract as others contract, to wish to enter marriage as it was instituted by God and by Christ the Lord. A certain confused knowledge of marriage suffices, the general will of marriage prevailing and absorbing the aforesaid ignorance or error. Benedict XIV, de Syn., book 13, chap. 22, n. 7.

Three cases of accidental error must be excepted, which dirimently impedes marriage. The first case is when the quality is a condition under which consent is given; for it is manifest that when the condition is lacking, the conditioned thing, that is, consent, is also lacking.

The second case is when the quality is determinative of the person with whom one intends to contract; or when he does not know or determine the person with whom he contracts except from the indication and mark of that quality. Concerning this matter Pirhing, book 4, tit. 1, n. 163, says: "If by the quality in which there is error a certain and individual person is designated and conceived in the mind, who was previously unknown by sight, then error redounds into error of person." Likewise Sanchez, book 7, disp. 18, n. 38, says rather clearly: "To explain when error concerning a quality redounds into error of person dirimently impeding marriage, I say briefly that this happens when there is error concerning a quality which designates a certain person who was not previously known to the contracting party apart from that quality, namely except from that quality; and it is not established that the mind of the contracting party was to consent to the person present to him, whoever that person may be."

The third case is error concerning the servile condition of the spouse, which dirimently impedes marriage by ecclesiastical law, as is established from book 4 of the Decretals, tit. 9. This impediment no longer has place in Europe, not because the law ceases, but because the occasion is commonly lacking, unless perhaps in parts of the Turkish empire, or if some persons still bound to slavery should come from elsewhere into other parts of Europe. But error in this matter, according to the common opinion of doctors, dirimently impedes marriage even if it was gross. L. 1019; Schmalzgrueber, book 4, tit. 9, nn. 29-31.

But if the contracting party knows the servile condition of the other, or if a marriage contracted in ignorance is afterwards ratified after the error has become known, according to the opinion of all it is certain that the marriage is valid. But from the disposition of Canon Law, C. Si viduam 15, d. 34, one knowingly contracting with a female slave becomes irregular, L. 1018; Schmalzgrueber, l.c., nn. 15-18. And in the second case consent would have to be renewed before the pastor and witnesses, unless perhaps the nullity of the preceding contract were so altogether occult that it could not be proved; for then consent again emitted by the free party would suffice. Schmalzgrueber, book 4, tit. 3, n. 121, and tit. 9, n. 18. This impediment, moreover, as is clear, has force only as regards the marriage of a free person with a slave; for, and this must be carefully noted for places in which slavery still flourishes, marriages between slaves, beyond controversy, Schmalzgrueber, l.c., n. 7, are to be held valid, cf. C. 2, q. 2, c. 29, and St. Thomas, II-II, q. 104, a. 5, even if they are contracted without the consent of the master, C. Dignum 1, de Coniug. serv.; Schmalzgrueber, l.c., n. 10. Therefore just as a slave licitly contracts marriage even against the will of his master, so the master sins gravely against justice if he either positively impedes a slave from marriage, or treats him more harshly for this reason after he has contracted. Leo XIII, Letter, May 5, 1888; Sanchez, book 7, disp. 21, n. 15; Schmalzgrueber, l.c., nn. 13, 14. Italian Civil Code, 105; French Civil Code, 180; Austrian Civil Code, 57-59; German Civil Code, 1332-1334. "It must be said that madness either precedes marriage or follows it. If it follows, it in no way dirimently impedes it; but if it precedes, then either the madman has lucid intervals, or he does not. If he has them, then although, while he is in that interval, it is not safe for him to contract marriage, because he would not know how to educate offspring, nevertheless if he contracts, it is marriage. But if he does not have them, or if he contracts when he does not have them, then because there cannot be a contract where the use of reason is lacking, it will not be a true marriage." St. Thomas, Suppl., q. 58, a. 3. German Civil Code, 1325; L. 1009 ff.; St. Thomas, Suppl., q. 51, q. 52.

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.

Laws establishing impediments of matrimony are of two kinds: some are only prohibiting, while others are invalidating. Impediments of the former kind merely render matrimony illicit; the latter also render it invalid. For these directly and primarily affect the matrimonial contract itself and render it null and invalid because of the absence of a condition absolutely required for valid contracting. - Hence there is a twofold article.

We must treat: first, diriment impediments in general; second, diriment impediments in species; third, dispensation from these impediments.

794. • Fifteen impediments diriment of matrimony are enumerated, expressed in these verses:

Error, condition, vow, relationship, crime, Disparity of worship, force, Order, bond, propriety, Age, affinity, if clandestine, and impotence, Or if the woman has been abducted and not restored to a safe party: These forbid marriages to be joined and retract those already made.

We shall treat each separately.

61. Raptus can be taken in two ways. First, it can be taken insofar as it is an impediment diriment of marriage, and is: the violent abduction of any woman from a safe place into another, where she is detained under the power of the abductor, for the sake of entering marriage. In the other way it is a species of lust; and it is the abduction of any person, whether male or female, whether virgin or corrupted, whether married or unmarried, from place to place, with violence brought either upon the one abducted or upon those under whose power the person is, namely parents or guardians or husband, but not if they are brothers and the woman is of her own right, for the sake of fulfilling lust. Wherefore in the first way a person is abducted for the sake of contracting marriage; but in the other way for the sake of lust. Concerning raptus in the first way there is speech in the treatise on Marriage; here we treat of raptus in the second way. - Moreover it is clear how raptus taken thus differs from stuprum. For stuprum has place only with an unwilling virgin, but raptus with any person; stuprum involves only violence or fraud, but raptus also abduction from place to place; stuprum brings violence only upon the virgin, raptus upon the person abducted or those under whose power the abducted person is, or even both. "Whence you see that raptus of a virgin, once the base effect has followed, differs from stuprum only very accidentally." Sporer, de Matr., 603. "If, however, a woman should depart willingly with her lover, the parents not knowing, it will not properly be raptus, but flight, not adding a malice distinct in species from fornication." - L. 443. Therefore the proper malice of raptus consists in the injury which is inflicted in violent abduction for the sake of lust. Wherefore as stuprum perfectly such, so raptus, besides the sin of lust, contains a sin of injustice; but in raptus that injustice is against both the person herself, who is violently abducted, and also the parents or any others under whose power that person is placed. Here it must be noted that by raptus even of one willing the right of paternal power is violated, but not by the defloration of the same, since as regards the use of her own body she is not subject to her parents. - Schmalzgrueber, l. 5, p. 2, t. 16, de Adulteriis, etc., Sect. II, de Stupro, n. 19; St. Thomas, 2.2, q. 154, a. 7; L. 444.

62. Note. Billuart, diss. 6, art. 4, par. 1, has these things about flight: "Flight can be reduced to raptus, because although it is done without violence, nevertheless it is not done without injury to parents, insofar as especially girls are committed to their custody by nature and law for a definite time, regularly until the twenty-fifth year of age, by which they become of full age, and beyond which the abduction of a girl voluntarily consenting, even with parents resisting, must no longer be called raptus, either properly or improperly, because then injury is done to no one."

63. What ought a woman oppressed by force to do, so that she may be immune from sin?

R. 1. She must guard against inwardly assenting to pleasure; otherwise she sins mortally, although force is externally brought upon her. - 2. She must also defend herself externally as much as she usefully and reasonably ought; otherwise she is already judged to consent. But whether she is also bound to cry out, several affirm; but others very probably deny, if there would be danger of notable harm, whether of infamy or of excessive shame, because then, if she already resists otherwise as much as she can, she is not bound with so great inconvenience to herself to repel force. Except if there is present a proximate danger of consenting. L. 430.

But in the supposed case whether it is lawful to kill the invader of modesty, Bishop Bouvier denies, but others commonly affirm. The reason is that if this is lawful for protecting honor and resources, much more must it be said to be lawful for protecting modesty, when no other remedy is at hand. Lugo, Roncaglia, etc., observe that it will be lawful for a girl not only while she is actually being violently touched by another, but also immediately after, to strike him with slaps, fists, a stick, and even non-dangerous blows. The reason is that unless in such a way she shows her constancy and displeasure, he will not easily depart. Hence always, if this is not done for vengeance, it is not only to be permitted, but also to be counseled to the woman, so that the other may at least come to his senses and not solicit her another time. L. 386.

Finally, whether a woman oppressed by force is bound rather to suffer death, by repelling with force the invader of modesty, than to permit intercourse, there is a twofold opinion. "The first says that, although she can, nevertheless a woman is not bound to suffer death, but can then bear herself permissively while intercourse occurs, provided she resists positively by the will and the danger of consent is absent; because, as they say, that permission is not then moral cooperation, but only material, and therefore is sufficiently excused on account of danger of death. The second teaches that this is altogether illicit, because, since the woman can impede intercourse, if induced by fear she rests, then her cooperation becomes truly moral and voluntary; for in the woman that rest in intercourse is reckoned as action. Yet this reason does not convince, because that rest of the woman truly cannot be called action, since it is in no way positive; therefore the first opinion, speculatively speaking, does not seem to lack its probability. Nevertheless it must not be denied that the second opinion is altogether to be recommended in practice, at least on account of the danger of consent which can easily be present in that permission." L. 368, 430, 433. - Hence above in R. 2 it was said: "as much as she usefully can and reasonably ought, certainly without danger of her life or reputation; for then she is not bound to kill, mutilate, or wound the invader, even though she could by right." Sporer, 605; Elbel, de Act. hum., Conf. 2, Cas. 1.

64. Can a girl violently oppressed lawfully expel at once the semen of the man that has been injected, lest she conceive?

R. Negatively. The reason is that this expulsion of semen now existing in the womb is per se and directly against generation from the positive action itself of the woman. But if the semen had not yet been injected into the womb, "she could lawfully turn herself and interrupt coitus, although the semen of the man would have to be poured forth, because this would happen per accidens and on account of the malice of the man alone." L. 394 and l. 6, n. 954. - Nevertheless there are not lacking authors who permit that, if it is done immediately after intercourse, before conception has been made, because, they say, the semen then bears itself in the manner of an unjust aggressor, whom it is lawful to repel. But if it is lawful immediately after intercourse, before conception is made, to expel semen by washing or by another means, as St. Alphonsus excellently says in the cited n. 394, the same would be lawful afterwards, which would be altogether illicit. Is not the fetus already conceived then more the aggressor, the continuer of the aggression? Besides, how can semen be expelled after it has been received, before conception takes place? For "the womb of a woman is closed as soon as it receives the semen." L. 394. - But observe here that generation is not impeded by simple washing, if it is done at least some hours after intercourse.

65. What are the penalties against abductors?

R. The penalties are of detention, imprisonment, forced labors, according to various cases, Italian Penal Code, art. 340-344; French Penal Code, l. 3, art. 354-357. But as regards Canon Law, from Trent, sess. 24, c. 6, de Ref. Matr., the abductor is bound "whether he has married her or has not married her, decently to endow the one abducted according to the judgment of the judge," unless she is a prostitute or of evil reputation; and this is not so much a penalty as just compensation. But as regards penalties properly so called, whether he who abducts a woman for the sake of lust, or for another evil end than marriage, if he does not incur the impediment, at least incurs the other penalties established by Trent, sess. 24, c. 6, de Ref. Matr., some affirm, because the Tridentine in that special chapter speaks generally; but others more truly deny, because Trent intended only to favor the liberty of marriage. For the rest, except excommunication, the other penalties established there are ferendae sententiae. Scavini, Milan 1874, l. 3, n. 808.

149. When spouses cannot have copulation of itself apt for generation, impotence is had; and if it precedes marriage and is perpetual, whether absolute and toward all, or respective and toward one or only some, it dirimently impedes marriage. The reason is that a contract cannot be valid when the thing promised will never be able to be furnished, according to the rule of law: one unable to pay is also unable to promise. It is said, if it precedes marriage and is perpetual; for it will be otherwise if impotence, even perpetual, supervenes after marriage has been validly contracted, since marriage once validly contracted is indissoluble; or if it indeed precedes marriage but is temporary, for it is not of the nature of marriage that perfect copulation can always be had, but that it can be had at some time. Yet except the impotence of impubescent age, which, as is clear, is temporary; for by ecclesiastical law it dirimently impedes marriage. By the name of puberty is designated the age at which a man and woman become apt for generation. Puberty in males is in the fourteenth year of age, but in females in the twelfth year. Sporer 525. and following.; Milne Edwards, t. 9. pp. 85-89. 100. 104. 105.

150. Note. Four cases of impotence are listed in men. The first is if they lack both testicles, or have both crushed, because they are incapable of prolific semen. The second is the perfect absence of the penis, so that not even the little extremity of the male member remains, which could at least bring semen into the exterior genital parts of the woman. The third is imperforation of the penis, or a perforation of it which reaches no interior cavity, so that human semen cannot be emitted outside. The fourth is frigidity, or such weakness of the male member, whether it arise from disease, or from a natural aversion of the other spouse, or even from malefice, that by no art and remedy can he experience erection, nor can he penetrate the feminine vessel, nor can he pour forth semen. Excessive heat also is customarily listed by the older theologians, by which the man pours forth semen so prematurely that he cannot wait for conjugal copulation itself; this indeed can very rarely constitute a true diriment impediment. For if, approaching the first time, he cannot do this, it is very difficult that, attempting copulation a second and third time, he would be unable to complete the act.

But three cases chiefly of perpetual impotence in women are listed: first, the absence of both ovaries; second, the absence of the uterus and vagina; third, perfect obliteration of the uterus and vagina. But generally that impotence is judged perpetual which cannot be removed without a miracle, or sin, or danger to life; hence although such impotence is removed, the marriage nevertheless was null and therefore must be repeated. Debreyne, l. c. Sect. 1.; Milne Edwards, t. 8. p. 383.; t. 9. p. 21., etc.; Sanchez, de Matr. l. 7. D. 92. n. 1. 7.; Reiffenstuel, L. 4. Decret. Tit. 15. n. 3.

There are several modern authors who hold that perfect absence of the uterus and ovaries, as well as occlusion of the vagina, does not constitute the impediment of impotence in a woman. They rely chiefly on the fact that marriage is also for the remedy of concupiscence. Certainly for the remedy of concupiscence, but nature first already presupposes marriage, which is principally and essentially for generation. For in what other thing is that remedy to be sought, except in marriage? Is it to be sought otherwise than by the conjugal act? Therefore marriage is presupposed, and consequently the natural power for marriage, which by its nature is instituted for generation.

Nor truly does it avail to say that power for coiting suffices and not also power for generating offspring; for this must be proved. Coitus is not the end of marriage, but the natural means to its essential end, namely generation. And if impotence for generation were on the part of the woman, then equality would be lacking in the contract of marriage; for the man would hand over that power, but the woman in turn would not be able to hand it over. Eminent Cardinal Gasparri, in his Tr. de Matr., Paris, 1891., vol. 1. p. 119. num. 205., explaining the definition of marriage, excellently says: "The companionship of life signifies in the first place a mutual right, with relative obligation, over the body of the other in order to generate and educate offspring, or THE RIGHT OF COITING, as they say.... Therefore marriage brings to each party an exclusive and perpetual right, with relative obligation, over the body of the other in order to generate and educate offspring." And if marriage is valid with a woman impotent for generation, why then is marriage not also valid with a man impotent for generation, with a eunuch, with a castrated man? For these could use marriage well, not indeed for generation, but for the remedy of concupiscence, for taking pleasure. But it is objected: they cannot take the greatest and full pleasure from marriage. But is pleasure the end of marriage? And if they cannot take full pleasure, nevertheless they take as much as they can take, and this fully suffices for them as a remedy of concupiscence, if, for there to be marriage, it suffices, as they say, that it be for restraining, or rather satisfying, concupiscence. Castration, or the removal of both testicles, brings perpetual inability for generation, but by no means inability for copulation, nor does it carry with it the absence of venereal sense.

Lastly, there are indeed several modern authors who oppose the common opinion of the ancient doctors, but there are also several modern doctors who still hold it and support it by reasons.

R. P. Lehmkuhl, in his very recent Compendium Theol. Mor., year 1907, num. 1019., defines marriage as: "The individual association of male and female, BY WHICH THEY ARE MUTUALLY COMPLETED for constituting by right ONE PRINCIPLE OF GENERATION." And num. 1052 he says that impotence "renders one incapable of consummated copulation, or copulation of itself apt for generating.... Sterility is distinguished from impotence; it supposes the possibility of copulation, but offspring is not generated because, whether on the part of the male semen or on the part of the woman, something stands in the way so that the male semen may not fecundate THE MATERNAL EGG." And num. 1054 he says: "Whether she who lacks both ovaries or even the uterus is judged impotent is disputed. The Holy Office, indeed, having been asked whether a woman rendered sterile by the defect of both excised ovaries can and lawfully may be permitted to enter marriage, on February 3, 1887, responded: Having considered the matter maturely and for a long time, that the marriage of the woman in the case should not be impeded. It answered the same on July 30, 1890, concerning excised ovaries and uterus. But in those cases there was no certainty about complete excision, nor about absolute impossibility of conceiving."

"If a woman," says Noldin, ed. 2, 1908, de Matr. n. 577., "lacks both ovaries or the uterus, impotence is had. Today indeed many theologians think that the woman who lacks both ovaries or the uterus is not impotent, but sterile. Namely, they define impotence not as inability for generating, but as inability for coiting. But theoretically the opinion once common seems altogether to have to be retained, because according to the mind of the authors it seems certain that impotence is present where there is inability for copulation of itself apt for generation. Nevertheless, since doctors dispute among themselves whether marriage entered with a woman lacking ovaries is valid, and ecclesiastical authority has not yet defined this question, the Holy See recently still declared that practically it did not seem opportune to institute a process for declaring the nullity of a marriage from defect of ovaries in a woman. Holy Office, December 10, 1905."

It was declared to me myself by His Eminence Cardinal Parocchi, Secretary of the Holy Office, that the responses given refer only to particular cases, and suppose that generation could still of itself follow in those cases. It is indeed certain that pregnancy has sometimes been had after the ovaries were removed, because according to the operative method employed, namely the operation performed through the vagina, the removal was not certainly total, or, if total, there was a supplementary ovary. Antonelli, v. p. 148. 154. 155. His Eminence Cardinal Aloisi Masella, Pro-Datary, adhered to the same opinion by unanimous judgment of the Congress. And recently His Eminence Cardinal Di Pietro, now Datary, on May 18, 1908, when a dispensation was sought from the impediment of consanguinity in the first degree mixed with the second of the collateral line, by the unanimous judgment also of the Congress ordered that it be answered negatively, because this cause was adduced: "The physical infirmity of the petitioner, who has undergone a surgical operation by which she is rendered incapable of conceiving." Cf. Institutiones Morales, ed. 5. n. 994. 995.; Appendix n. 958.; Cas. Consc. ed. 5. vol. 2. n. 146.

Nevertheless, since the genital apparatus of the man is wholly apparent and sensible, while the genital apparatus of the woman is only in part apparent and sensible, perhaps from the very institution of nature, by this constitution of nature itself, God permits marital copulation without further and more intimate inquiry being made concerning the intrinsic force of that copulation in order to generation. And it is not to be doubted that several women who enter marriage and who are afterward found sterile are perhaps sterile because they are impotent, their impotence remaining hidden. From this it easily follows that marriage in cases of this kind is not to be impeded. And, since the Supreme Pontiff can well declare doubts pertaining to natural law, he will certainly be able to declare even such a doubt, if he himself judges it necessary and opportune.

151. Corollaries. 1. Those who lack only one testicle are not impotent, because they can penetrate and emit prolific semen. 2. Generally speaking, old men are not to be held impotent, since even in advanced age they can both penetrate and pour forth semen, as is clear concerning several who at the age of eighty, ninety, and even one hundred years have begotten offspring. And it is lawful for them to come together, although sometimes semen is poured forth by accident. L. 954. 1067. Cf. here n. 136. 3. Sterile women are not impotent, because although they do not conceive, nevertheless they can perform an act of itself apt for generation. For they can be penetrated through marital congress and receive male semen. But that generation does not follow is by accident. Sterility can never be held as absolute and perpetual. A woman can be sterile for several years and afterward become fertile, Debreyne, p. 281. Therefore sterility is only in a certain accidental impediment to generation, whether on the part of the man or on the part of the woman. St. Colette V was born from a sterile and sexagenarian mother. Moreover sterility properly so-called, insofar namely as it differs from impotence, is situated in this: that either the male semen, or the ovule, or both fail for a time, or do not come to due maturity, or other physical conditions are lacking by which both the ovule and the male sperm may arrive at due contact; and thus generation is frustrated. Cf. Milne Edwards, T. 8. pp. 359. 360. 383.; t. 9. pp. 114. 115. etc.; Antonelli, V. 2. p. 155. and following. 4. Women who bring forth fetuses only dead, or only with danger to their own life, are not considered impotent; for in reality they generate. 5. Those about to die shortly are not impotent, because their impotence is only accidental and extrinsic, and regards only the use of the thing, not the power of using. Laymann, l. 5. Tr. 10. p. 4. c. 11. n. 6.

152. Does the narrowness of a woman, by which she cannot be penetrated by a man, constitute impotence?

Resp. There are not lacking those who deny it. For, to have power for marriage, power simply for generation suffices. But it is now known that a woman can conceive when the semen of the man is poured forth near the vagina. For the smallest quantity of semen can suffice for generation, and because of the attractive force which is present in the genital parts of the woman, it can reach all the way to the uterus. And indeed only by the commixture of seeds do spouses become one flesh. But hence, according to the aforesaid opinion, the question which was raised by theologians concerning this narrowness of the woman seems no longer to have place: namely, whether a wife unfit for copulation because of narrowness is bound to suffer incision with danger of grave disease. Physicians note, however, that incision is done in vain, because after the wound has healed the narrowness returns; and other means are now used to correct that narrowness by art, which in no way display danger of grave disease. Debreyne, l. c. Sect. 2.

But others more commonly affirm, and it seems it must be affirmed. For the power for marriage is the natural power for generating by natural copulation. The power for generating without copulation is not according to the order of nature. Therefore generation without copulation is had by accident. St. Alphonsus, l. 6. n. 1097., judges that marriage is null if the woman could not be made capable except by a grave and dangerous incision. And n. 1099. he says: "The very common and more probable opinion ... says that the woman is bound to suffer incision even with grave trouble and pain, but not with danger either of death or of grave disease ... because a woman is never judged to have wished to oblige herself to endure so great a danger, nor by force of the contract of marriage does she seem to be bound to such a burden. But that she is bound with grave trouble and pain to render herself apt for copulation is proved, because the woman seems to be obliged to this by force of the contract, since this is necessary for preserving the right of copulation which she transferred to the man.... But it is very probable ... that if the incision could not be done except by the hand of a surgeon, the woman is not bound to suffer this incision with so much shame, which would be a burden more than most grave." Acta S. Sedis, vol. 12. pp. 629. 630.; vol. 14. p. 68.

153. What is to be done in the case of impotence?

Resp. 1. If the impotence is certain and perpetual, and preceded the marriage, "one must by no means wait, but separation must immediately be made; for in that case the marriage is certainly null.... Hence, once certain and perpetual impotence is known, the spouses can immediately be separated, even by their own authority, if this can be done without scandal; indeed they are bound, if there is danger of incontinence. And the party not laboring under the impediment can also pass to other nuptials, as Sanchez and the Salmanticenses say with Candidus. But if there is danger of scandal, as commonly there is, then they must make complaint before the ecclesiastical judge, by whom they are to be separated, at least as to bed; and if the other should ask, even as to habitation, without awaiting the triennial experience, which is given for doubtful impotence, not for certain impotence: thus Sanchez and the Salmanticenses with Pontius, Guttierrez, and Dicastillo. And it is clear from c. Laudabilem, de Frig. etc., where: If frigidity cannot be proved, let them cohabit for three years. Therefore, if the impediment is proved, three years are not given. But if they wish to cohabit as brother and sister by mutual consent, provided the danger of incontinence is absent, this is permitted from the same text; but Merbesius rightly warns that this must never be permitted if the spouses are not old." L. 1101. "From the present discipline of the Church, it is now no longer permitted to them to cohabit as brother and sister, especially if the spouses are young, although they have not insisted on a declaration of nullity of marriage. Hence Sixtus V, by letters to the Bishop of Novara, legate of the Apostolic See in Spain, commanded that such contracting persons should not cohabit together." Scavini, Tr. 12. D. 3. C. 2. art. 5. q. 1.

2. If the impotence again is certain and perpetual, but supervenes after marriage has been validly contracted, it seems that it must then be said that all and only those acts are lawful to the spouses which of themselves do not tend to produce pollution. The reason is that the impossibility of conjugal copulation of itself apt for generation indeed renders illicit the consummation of the act from the other side, which perhaps is potent, since this consummation of the act then has the true notion of pollution; but it by no means renders illicit other incomplete acts, which remain of the same nature whether the spouses are potent or impotent. Reiffenstuel, l. 4. Decret. tit. 15. n. 65: "Spouses rendered perpetually impotent are bound to abstain from every attempt at copulation, but not likewise from touches, kisses, embraces." And Lehmkuhl, Comp. cit. num. 1055., has these words: "If the spouses were potent, whatever supervenes, the marriage is not dissolved; but if there is no longer any hope of completing the matrimonial act, they must abstain from those acts which expose either one to danger of pollution." But cf. here n. 134.

3. If the impotence is doubtful, "and the doubt precedes marriage, he who doubts about his impotence cannot enter nuptials until, after the matter has been diligently investigated, he lays aside the doubt, because of the grave injury which he would otherwise inflict on the other, who is potent, as Sanchez, Mazzotta, and Palaus rightly say with Guttierrez. But if, notwithstanding the doubt, he has contracted, he will lawfully be able to render and to ask; for then at least triennial experience is given to him.... But Dicastillo apud Croix and Elbel with Cardenas and Viva say that if someone is doubtful about his impotence because of some positive indication, he can lawfully contract marriage if, with regard to the expertise of physicians and experiences, it is at least probable that he is potent; because in doubt the presumption favors him, that he is naturally potent. And this seems sufficiently probable; for since it is most probable that it is lawful to administer a sacrament under condition if a just cause is present ..., here he has a sufficiently just cause for marrying under condition, if he is able, lest in such a doubt he be forced to remain perpetually celibate. Nevertheless before marriage he ought to warn the spouse about such a doubt. Moreover, apart from circumstances and experiences, everyone is presumed able, even if he has lived most chastely." L. 1102.

4. "But if the doubt of impotence supervenes after marriage, then triennial experience is given from the cited c. Laudabilem, de Frig. etc. While this lasts, spouses can lawfully attempt copulation, although often or always they pour forth semen outside the vessel, as Sanchez, l. IX. d. 17. n. 20., and several others commonly teach." L. 1103. "But this time, according to the truer opinion, begins from the time of attempted copulation; but it must be morally continuous, namely so that the spouses cohabit with each other for the greater part of the year." Scavini, tr. 12. D. 3. C. 2. art. 5. q. 1. Moreover Sanchez has these things in the cited place: "Where there is probable hope of seminating within the vessel, it is lawful to strive for it, although by accident and besides the intention the semen is poured outside the vessel. This is clear, first, because that spouse gives work to a lawful thing, procuring copulation possible and permitted to himself, and that external effusion follows besides the intention. Second, because by c. Laudabilem ... triennial experience is conceded to spouses doubting whether the impotence is perpetual, and therefore whether the marriage was valid; and nevertheless during that space it is clear that it will always or often happen that the semen falls outside the vessel; and while such danger stands, it is lawful to strive for copulation, and it is approved by law. Because, while that doubt remains, the spouses have the right of persevering in the marriage and of investigating that impediment, which cannot sufficiently be done unless by applying themselves to conjugal work. Therefore much more strongly in our case this will be lawful, where the validity of the marriage is certain, and consequently the spouses have a more certain and stronger right to apply themselves to conjugal copulation and to try whether that impotence of seminating within the vessel is perpetual." And n. 24 he adds these things: "Finally you will ask for how long a space of time it is lawful to strive for copulation and to make trial, where there is doubt about the aforesaid impotence? Briefly I say that this is lawful as long as there is probable hope of seminating within the vessel.... But when that probability would not be present, but, all circumstances considered, there would be complete doubt about the perpetuity of the impotence, we can prescribe no other more certain delay than that which was prescribed in c. Laudabilem, namely that triennial experience be conceded. And although in that case the discussion concerns where there is doubt about impotence preceding marriage, and consequently about its validity, whereas in the present case the marriage is certain and there is doubt only about supervening impotence; nevertheless, since in each case there is doubt about the perpetuity of impotence, in the prior case for entirely dissolving the marriage, but in the latter for dissolving it only as to copulation, by merit a lawful and sufficient experience will be taken in each case over that space of three years, whether the impotence is perpetual or temporary." Cf. here n. 136.

5. The triennial experiment is no longer required today. But a dispensation is granted from a ratified and non-consummated marriage by the Sacred Congregation for the discipline of the Sacraments, to which recourse must be had. Judgment about impotence in the external forum pertains neither to the confessor nor to the parish priest, but to the ecclesiastical judge. Cf. L. 1103. 1104. Since marriage is contracted in the face of the Church, so that because of impotence or another impediment spouses may be separated and pass to other nuptials, the nullity of the marriage must first be declared by the same Church, or a dispensation must be given concerning a marriage that is only ratified and not consummated. When antecedent perpetual impotence certainly appears, the experiment must now cease, and the marriage is to be declared null. But if even after three years the doubt persists, the marriage must be judged valid, for one must stand for the validity of the act. "In an equal doubt on either side, whether impotence preceded or followed marriage, it must be presumed in favor of marriage that it followed it. Cap. fin. de Sent. et re judic. and Cap. Si quis acceperit, 33. q. 1." Billuart, de matr. Diss. 7. art. 9. Petes 6. Cf. here n. 192.

6. If the impotence of generating is from defect of age, although the spouses have already reached the year of puberty constituted by law, which for females in Canon Law, as has already been said, is the completed twelfth year, for males the completed fourteenth, "some say that two or three years must be given to them for experiment, but more commonly they judge that one must wait in the man up to the eighteenth year and in the woman up to the fourteenth, because then nature is strong with perfect vigor, nor here does the rule of three years in c. Laudabilem, de Frig. et malef., proceed; for that proceeds when impotence arises from frigidity or another impediment, but not when it can arise from weakness of age." L. 1067. But D. Bouvier has these words, Supplem. ad Tr. de matr. quaest. 1. q. 6: "If during the time conceded for experience it happens that the parties of the lustful matter are unable to be active for a notable interval, because of a long illness or long absence, it is lawful, according to the more common opinion, to supply that time.... But where spouses have contracted marriage immediately after one has reached puberty, and are unable to consummate it, the time of probation must be computed not from the day of the contract, but from the day of full puberty, because before full puberty there is always doubt whether the impotence arises from a perpetual cause, or rather from weakness of strength. Thus Sanchez, l. 7. D. 110. n. 10.; Collet; Andeg.; Pontas; Collet, etc. But the age of perfect puberty is fourteen years for females and eighteen for males."

154. Note. "Where a woman could not retain within the vessel the semen received, but would altogether expel it, and no hope of retaining it remained ... I judge that the use of marriage must in no way be forbidden, because often the womb retains the semen necessary for generation, the superfluous being expelled." Sanchez, l. 9. d. 17. n. 22. 23.

155. Are there truly hermaphrodites?

Resp. Debreyne denies it, saying that hermaphroditism is not given except as apparent from some defect of organization; but one determinate sex really always prevails, in which case marriage will be possible; or that no determinate sex capable of generation exists, although there is coexistence of the organs of male and female, and then by reason of impotence marriage is impossible. 2. P., Ch. 1. Sect. 1. at the end. But according to Milne Edwards, not only apparent hermaphroditism is possible, but also the coexistence of organs of male and female, Tom. 9., pp. 80. 81. 23.; Tom. 8., p. 369. But where the coexistence of organs of male and female is had, although perhaps in some case marriage could still be possible, nevertheless it is impossible that one and the same individual himself alone should be naturally fecundated and generate. Antonelli, l. c. v. 1. c. 20. Cf. here following n.

156. Can a hermaphrodite validly receive orders, be professed in a religious order, and enter marriage?

Resp. If the feminine sex prevails in him, he is considered a woman, and cannot validly receive orders, be professed in a religious order of men, and take a wife, just as any other woman could not; but he can validly be professed in a monastery of nuns and marry a man.

If the male sex prevails in him, he is considered a man, and cannot validly be professed in a monastery of nuns or marry a man, just as any other man; but he can validly receive orders, although not lawfully because of an irregularity imposed by positive law, be professed in a monastery of men, and marry a woman.

If neither sex prevails, but each appears equal after examinations and the testimonies of physicians or of experienced matrons, Antonelli judges that the hermaphrodite cannot then enter marriage, v. 2. p. 168. n. 322. But the doctrine of the ancients is that he himself ought to determine which sex he wishes to use, and to promise by oath that he will not use the other sex; and then he can, according to the sex chosen by himself, contract marriage; for he is capable of it. Nevertheless he will not be able validly to receive orders, for he is truly a woman; which doctors also extend to profession in religion, whether of men or of women, so that it too would be invalid. For since there is grave indecency and danger of grave abuses, it must be believed that the Church does not admit such a profession. Lugo, Resp. mor. l. 1. d. 31.; Sanchez, de matr. l. VII. disp. 106.; and Cons. mor. l. 7. c. 3. dub. 31.; La-Croix, l. IV. n. 23.; L. 784. 1095.

157. Can a hermaphrodite, in whom the male sex prevailed and who was validly ordained and professed religion, or accepted a wife in marriage, if afterward the female sex prevails, validly celebrate, and does the bond of religious profession or of marriage endure?

Resp. Negatively. The first reason is that, although the sacramental character remains in the soul, nevertheless, since the use of sacerdotal power must be exercised not by the soul alone, but by the soul informing the body, and, in order to be valid, by the soul informing a male body, since the body is now female, that use will be invalid; and thus, although by force of the character sacerdotal power remains in the soul, because of an invalidating impediment existing on the part of the body, its use becomes null. The second reason is that religious profession, both on the part of the one professing and on the part of the one accepting, was the profession of a man; when the subject of the profession is destroyed, the very bond arising from that profession is destroyed; and thus such a person is not bound to enter a monastery of nuns. The third reason is the same, because the matrimonial bond is not a bond of just any persons whatever, but of male and female; therefore, when the bound subject perishes, the bond perishes.

1. Sabinus, wishing to contract marriage, asks the confessor whether he can effect this. The reason for his doubting is his natural debility, by force of which, although he himself can pour forth seed, nevertheless he experiences no erection. Without any hesitation the confessor responds affirmatively, because, he says, on the authority of many and grave theologians, it suffices that seed can be poured forth at the mouth of the vagina, which Sabinus can certainly accomplish.

It is asked: What is to be said to the case?

R. The confessor's undoubting response does not seem to be approved. For Sabinus first does not seem able licitly to contract marriage. For the wife could be wholly unwilling as to that imperfect mode of coming together. Then also, once marriage has been contracted, scandals can easily arise. For, with that imperfect mode of coitus standing, if dissensions arise between the spouses, they will immediately seek divorce, and will institute a lawsuit, and will introduce the cause from the head of the impotence of the man, as is evident from the fact itself. But neither does he seem able validly to enter marriage. For Sabinus labors under the impediment of impotence, which is called the impediment of frigidity. For this impediment, in impotence, is not in the impotence of generation, nor is it in the impotence of pouring forth seed, but it is in the impotence of coition, as is to be seen through almost the whole title de Frigidis et Maleficiatis. The impediment of impotence surely exists when there is impotence for consummating marriage. But then marriage is properly said to be consummated when it is established that copula sufficient for generation has intervened, as the S. C. C. teaches in the Nuscana marriage case, Sept. 11, 1880. Where, therefore, impotence is had for accomplishing that copula, an impediment is had to the marriage itself. Most clear on this matter is the doctrine of St. Thomas: "Although the act of carnal copula is not of the essence of marriage, nevertheless potency for this is of its essence, because through marriage there is given to each spouse power over the body of the other with respect to carnal copula." 4, D. 34, q. 1, a. 2, ad 1. Hence the Angelic Doctor then concludes, ibid. ad 6, that with respect to the impediment of marriage "the same judgment is to be made concerning the narrowness of the woman and the frigidity of the man," namely, because of impotence of coition in both cases.

2. Fabia, wishing to contract marriage with Fabius, asks her confessor whether she can; for she has purposely undergone the excision of an ovary, namely, so that, after marriage is then entered into, she may not have children. There is no difficulty, says the confessor. And he responds thus because he judges that marriage pertains also to the mutual assistance of life and to restraining concupiscence. D'Annib., p. 3, n. 431, note 9, ed. 3. Nevertheless the parish priest raises a difficulty, and requires the attestation of a surgeon, by which it may be established that generation is not physically impossible, with attention to the manner in which that excision of the ovary was accomplished. And when Fabia did not acquiesce in this decision, the matter was brought to the bishop, who wholly approved the decision of the parish priest.

It is asked: What is to be said to the case?

R. Certainly the most prudent manner of acting of the parish priest and the decision of the bishop are to be approved. For if it is established that the ovaries were altogether perfectly excised, so that generation is physically impossible, marriage is impossible. But otherwise, if that excision was wholly imperfect, of part of an ovary or of only one ovary. Likewise it is impossible that marriage be also for mutual assistance of life and for quieting concupiscence, unless it is marriage. But marriage is essentially a conjunction in order to offspring. Hence Augustine, praised by the Angelic Doctor, "says against Faustus that a woman ought not to marry for any other thing, except that she be a mother." But where offspring is physically impossible, conjunction in order to that offspring is impossible. S. Th., 3 p., q. 75, a. 2, apud Cajetan. Likewise from the same Angelic Doctor, apud the same Cajetan, q. 76, a. 1, the conjunction which is the sacrament in marriage is a conjunction which is for the office of nature. A conjunction which would not be for the office of nature cannot be marriage as a sacrament, and therefore neither a remedy of concupiscence. And once the office of nature has been excluded, neither can the assistance of life be had in a wife, namely such as nature itself intends. "Woman was made principally for this, that she might be a help to man for offspring; but man was not made for this." S. Th., ib., q. 75, a. 2, ad 1. And in the Council of Florence, Decree for the Armenians, marriage as sacrament is said to have been instituted by Christ Our Lord so that the Church may be CORPOREALLY INCREASED through it. Once the physical possibility of offspring has been excluded, and, on the contrary, the physical impossibility of offspring established, how can it any longer be true that this sacrament IS ORDERED TO THE MULTIPLICATION OF THE CHURCH, as the same Council of Florence has it? I. M. 994, 995.

3. "1. A certain woman, after she had waited in vain for two or three years for the return of her husband, was united in marriage to another man, notwithstanding the admonitions which the missionary made to both; now the second husband of this woman, repenting of the deed, would wish to leave her and pass to other vows. - 2. Another woman, since she also had waited in vain for the return of her husband, after three years, judging that he was already dead, in good faith joined herself in marriage to another man; and since it is now impossible to investigate whether the first husband is still living or is in reality dead, it is asked whether she herself can be left in the use of the second marriage contracted until certainty is had concerning the life of the first husband?"

R. The Holy Office, March 24, 1865, responded: "As to the first, that the spouses are to be separated, and that the man cannot enter second nuptials until it is morally certain that, at the time when he himself entered marriage with the woman in question, the first husband of that same woman had already died. As to the second, that they are to be left in good faith." Cf. E. M. 996.

4. There is a husband who, after 14 years, has not yet been able to have information concerning his wife. Can he enter other nuptials?

R. Negatively. "A lapse of time, of whatever length, is not sufficient for spouses to be permitted to enter new nuptials, unless first it has been established with moral certainty that the former spouse has died, as from c. In praesentia 19, de Sponsalibus." S. C. de P. F., Apr. 21, 1788; Collect. n. 1365, 1366, 1368; I. M. 996.

1. Aloisius is the son of Caius and Caia from illicit intercourse. Aloisia is the daughter of Sempronius and Sempronia from likewise illicit intercourse. Caius and Sempronia, Sempronius and Caia, after the aforesaid children were born, entered marriage between themselves because of the exhortation of the parish priest, who often warned them to cease from sin and to establish an upright life. But after these marriages had been celebrated, Aloisius wishes to take Aloisia as wife. But the parish priest refuses because of the impediment of consanguinity.

It is asked: What is to be said to the case?

R. The reverend parish priest is deceived in the proposed case. For no consanguinity is present between Aloisius and Aloisia. And first, there can be no question of affinity, since Aloisius had no carnal intercourse with the blood-relatives of Aloisia, nor, vice versa, did Aloisia have carnal intercourse with the blood-relatives of Aloisius; for nothing is said about this in the exposition of the case. Now as to consanguinity, that this is absent is clear from the fact that Aloisius and Aloisia do not have a common stock. For Aloisius is the son of Caius and Caia; and Aloisia is the daughter of Sempronius and Sempronia. - I. M. 997, 1002.

2. Ioseph, the parish priest, is called to administer the sacraments to Emmanuel, dying, who in the house of Carmela had already lived for several years, applying himself to studies of Law. Emmanuel, seized by love for Carmela, had promised marriage to her; and, this promise having been made to her, had conceived three children from her, still living. Although Carmela is of an honorable family and of equal condition with Emmanuel, who now has the age of twenty-six years, the mother of Emmanuel always opposed the marriage, the father already being deceased. Since Ioseph found Emmanuel excellently disposed, and time was pressing, given the gravity of the illness, he celebrated the marriage before witnesses. For Emmanuel and Carmela belonged to his parish. But, once the marriage had been celebrated, Emmanuel and Carmela were found to be blood-relatives in the fourth degree in equal line. Without delay the parish priest asks for and obtains a dispensation, and proceeds to Emmanuel, so that he can convalidate the marriage. With Carmela present and with the witnesses present, the parish priest addresses Emmanuel, that he renew his consent. But Emmanuel, placed in the lethargy of agony, did nothing other than turn his eyes to the parish priest and emit a sigh several times; and after four hours he died. Immediately after his death, new investigations having been made, it appeared that Emmanuel's grandfather had been the brother of Carmela's great-grandmother. But Emmanuel's mother, hearing of the death of her son and of his marriage, contends that the marriage of the son was altogether invalid, whence she vindicates for herself the rich inheritance of the son.

It is asked: 1. Whether the parish priest acted rightly by celebrating the marriage? - 2. Whether the aforesaid marriage was valid? - 3. Whether the mother of Emmanuel is bound to restore the inheritance of the son to his widow and children?

R. To the 1st. There is no doubt that the parish priest acted rightly by celebrating the marriage. Emmanuel was duly disposed, and he was bound to repair the scandal and the damage inflicted on Carmela, by taking counsel for the good reputation and honor of Carmela, as well as for the legitimacy of the children, in the best way in which it could be done. But from the very common opinion of doctors, the damage in the case cannot conveniently be repaired except by marriage. But nothing could stand in the way of this marriage. For both were consenting spontaneously, and Carmela was of an honorable family and of equal condition. Nor could the dissent of Emmanuel's mother evidently stand in the way of the validity of the marriage, nor of its liceity, since, with the circumstances of the case attended to, it is altogether irrational, and there is question of a most grave obligation of justice to be fulfilled and of scandal to be repaired. And since Emmanuel had already exceeded the twenty-fifth year of age, that consent is no longer required even by civil law. Cf. St. Alph., l. 3, n. 641 seqq.; I. M. 920.

To the 2nd. From the circumstances of the case it is clearly apparent that Emmanuel and Carmela were ignorant of the impediment and contracted the first marriage in good faith. Therefore from this head no difficulty can arise for the invalidity of the marriage. For, since Emmanuel is said to have been duly disposed and to have entered marriage in order to satisfy his own conscience, and since the man himself is not uncultivated, so that he could have been ignorant that the impediment of consanguinity renders marriage null, it must consequently be said that Emmanuel and Carmela were ignorant of their own consanguinity. And as regards Carmela, it certainly was very much in her interest not to contract a null marriage; whence it must altogether be said that she too was wholly ignorant of the impediment.

When the impediment had been discovered, the parish priest acted wholly well by asking for a dispensation, namely so that the marriage might be convalidated. But the dispensation was altogether valid in the case. For if Emmanuel's grandfather was the brother of Carmela's great-grandmother, then the common stock is Emmanuel's great-grandfather, who at the same time is Carmela's great-great-grandfather; and therefore Emmanuel and Carmela were blood-relatives in an unequal line, that is, in the fourth degree touching the third. But from the Motu Proprio Sanctissimus of St. Pius V, Aug. 26, 1566, a dispensation obtained without mention of the nearer degree cannot be marked with the defect of subreption or obreption, provided that the nearness is not of the first degree of consanguinity or affinity; nevertheless declaratory letters upon the nearer degree are to be obtained afterward, for removing the scandals of the people, who think, on account of ignorance, that a dispensation made upon only the more remote degree is not valid. Benedict XIV, C. Etsi pastoralis, Sept. 30, 1755; St. Alph., l. 6, n. 1136; I. M. 998, 1001, 1038.

But since Emmanuel spontaneously and entirely consented to the marriage the first time, it is permitted to presume that also the second time he consented to the marriage; indeed, those acts of Emmanuel, that is, the turning of the eyes toward the parish priest and the sighs several times repeated, can and must also be held as true and sufficient expressions of consent. And although, because of the gravity of the illness, Emmanuel could not have manifested his will the second time, the nullity of the marriage does not therefore certainly follow. For from the opinion of grave theologians, the party ignorant of the impediment does not necessarily have to renew consent for a valid reintegration of the marriage. The reason is that the prior consent, although it lacked its effect because of the impediment placed by positive law, nevertheless by the law of nature was valid, since it was furnished by a person capable by the law of nature toward a person capable by the law of nature of contracting. Therefore, the impediment having been removed, the prior consent suffices, which virtually perseveres. Gury, Comp. n. 896; I. M. 1050.

Lastly, in the present matter there is not question of a marriage to be contracted, or of a marriage contracted, but of a marriage already dissolved by death, and of the effects of a marriage of this sort. Now for sustaining the value of a marriage already dissolved by the death of either or both spouses, as regards the acquired rights of the widow and children, lighter proofs suffice, as the Rota has in Decis. 668, n. 21, part. 19, tom. 2, recent. These proofs certainly are not lacking in the case.

To the 3rd. It is certainly known to all that children, although born from a condemned union, that is, procreated by those between whom marriage cannot stand, are considered not spurious nor incestuous, but simply natural as regards the right of succession, if either or both of the parents were ignorant of the diriment impediment existing between them. Rota, Decis. 325, n. 7, part. 12, recent.; Decis. 376, n. 5, part. 16, recent. But as ignorance of incest makes it so that children arisen from a condemned union are considered not incestuous but natural, in exactly the same way an irrit and invalid marriage makes children legitimate no less than a true marriage, if both or one of the spouses is in good faith. Rota, Decis. 367, n. 9, 10, 18; I. M., v. 1, n. 680. But further, the marriage in the case must be held as altogether valid. For, the marriage having first been celebrated invalidly, and a dispensation of the marriage immediately obtained, Emmanuel, stirred by the parish priest to renew consent into marriage, furnished it in the best way he could, with sighs issued several times and with a turning of the eyes toward the parish priest; whence it is established that he understood those things which were being said to him by the parish priest and agreed. Besides, there is no need here of an altogether certain demonstration, since lighter proofs ought to suffice in the case. Nor indeed, as has already been said, was renewal of consent certainly necessary in the case for revalidating the marriage, given the ignorance and good faith in which the marriage had been contracted; for that ignorance and good faith does not prevent someone from truly and sincerely consenting to marriage. It is indeed understood only with difficulty how someone sincerely consents to marriage who knows that the marriage is null. Whence consent must then be renewed. But he can consent very well who, although through error, nevertheless thinks that no diriment impediment intervenes. Hence, the impediment having been removed by dispensation, that consent produces its natural effect. But the dispensation was asked for immediately after the marriage had been celebrated; whence also ceases another reason why consent should be renewed, namely the danger lest in the intervening time the prior will had been changed. Likewise, there is no question here of living spouses, who could renew consent in order to prevent grave damages which otherwise could arise; but there is question of a union already dissolved by the death of one party, for whose validity, if renewal of consent were altogether required, grave damages, on the contrary, would follow for the widow and children. Whence the Sacred Rota, in controversies of this sort, namely when there is question of a union dissolved by the death of one of the spouses, perpetually proclaims that it is valid, even if in the revalidation a new consent had by no means intervened. Decis. 455, part. 1; Decis. 687, part. 2, recent., etc. - A. S. S., v. 26, p. 407 seqq.

Since these things are so, it is clear that, since the rights of Carmela and of the children are certain in the case, Emmanuel's mother cannot retain the inheritance of the son for herself, but must restore it entire to the children of Emmanuel and to his widow.

3. Franciscus and Dominica entered civil marriage; and now they have several children. But publicly they are held as truly married. Converted to God, they approach the parish priest so that they may duly be joined by the sacrament of matrimony; but secretly, lest infamy and scandal arise. While the proper investigations are being made to the aforesaid effect, a grave doubt arises whether Franciscus and Dominica are brother and sister between themselves from the illicit intercourse of Titius and Caia, whose children Franciscus and Dominica are affirmed to be by two persons whom the parish priest interrogated.

It is asked: What is to be said to the case?

R. The office of the parish priest as regards marriages to be contracted is to investigate whether some impediment stands in the way, c. 3, de Cland. Desp., and he must report it to the bishop, and meanwhile abstain from the banns. For the matter is one which pertains to the external forum. Therefore the parish priest, in the case, cannot render a definitive judgment, but must remit the business to the bishop, with the witnesses, documents, and indications having been given.

Now the office of the Ordinary is to judge from the acts and proofs whether the impediment really exists. Here even a single witness is admitted, if he is worthy of faith, Lig. 996, 997, 998, and reputation. It is necessary that the witness depose concerning the impediment under oath and from his own knowledge, excepting impediments of kinship, in which witnesses from hearsay also are admitted. Lig. 997. But the reputation must be of that place, and not only rumor, provided that this is not weakened by the oath of the blood-relatives or of the contracting parties. Lig. 999.

Therefore those two persons who depose concerning the impediment are duly to be examined; and if they are worthy of faith and not base persons, although otherwise they are not greater than every exception, the aforesaid marriage must altogether be impeded. And although the impediment appears doubtful or only probable, the marriage cannot be permitted because of the danger of scandal which lies beneath. But if those persons deserve no faith, the marriage, on the contrary, cannot be impeded for that reason. Lig. 902; I. M. 1031.

And here it must be noted that apostolic missionaries to whom, by indult, the faculty is conceded of dispensing in degrees of consanguinity not prohibited by divine law, can in no way dispense with an infidel converted to the faith upon the impediment of the first degree of consanguinity in the transverse line, so that he can marry his own sister, with whom he had entered betrothals in infidelity; for it is not permitted to presume that the Supreme Pontiffs delegated an authority which they themselves have never used. Zitelli, de Dispens. matr., Rome, 1887, p. 55.

1. Paulus, hearing the confession of Titius, came to knowledge of the nullity of his marriage from an occult impediment of affinity. Reasonably fearing that, if he were warned, he would withdraw from the marriage with public scandal, he is silent and dismisses him absolved. But afterward he asks from the Sacred Penitentiary a dispensation in the root.

It is asked: 1. What is the impediment of affinity? - 2. What is a dispensation in the root? - 3. Did Paulus act rightly?

R. To the 1st. Affinity is "the association of two kinships through the conjunction of man and woman." L. 4, § Affines de Gradib. It is contracted from intercourse, whether licit or illicit, by which man and woman become one flesh, c. 3, 5, cau. 33, and therefore from perfect intercourse. Therefore all blood-relatives of the man become affines to the woman, and consequently all blood-relatives of the woman become affines to the man. Hence affinity does not go beyond the persons themselves joined by intercourse. Affinity of this sort dirimently impedes marriage up to the fourth degree from licit copula, c. 8, de Consanguin., and up to the second from fornicatory copula, Trent, sess. 24, c. 4, de Ref. Matr.

To the 2nd. A dispensation in radice is a dispensation by which there is removed not only the incapacity of the person for contracting, or the defect of the form of the contract itself, but also the defect of consent, which is the root of marriage, is healed; whence, by that dispensation, no renewal of consent is needed, and it can be applied while either spouse or even both spouses are ignorant of it. Then by it offspring is rendered legitimate just as if it had been born from a legitimate marriage.

To the 3rd. Paulus did not act rightly; for he used knowledge from sacramental confession to the burden of the penitent himself. To the burden; for here one does not attend to whether the burden is irrational or rational, but the fact itself is inspected, namely that the penitent is in some way burdened; for the aforesaid burden is whatever could happen to the penitent that is not only harmful, but also troublesome or unwelcome, whether by right or by injury. Now it is clear that the revalidation of the marriage was altogether burdensome in the case for the penitent. Then the inconveniences of this revalidation, with each spouse ignorant of it, are clear; for if Titius, making confession with another confessor, comes to knowledge of the impediment, he will in reality be able to withdraw from the marriage, judging it null; which, if the circumstances have changed, and if there is no scandal and no damage to a third party, he could also licitly do.

2. "Doubt 2. Paulus, a Christian widower, took Balbina, an infidel, as wife, who desires to be enrolled in the number of Christians, so that she may contract marriage with him in the Christian manner. Meanwhile Demetrius, the son of Paulus, born from the former wife, declares that he has had relations with Balbina. It is asked whether, through copula of this sort with an infidel woman, there results an impediment of affinity in the first degree.

"Doubt 4. A faithful man took in marriage an infidel woman, whose blood-relative in the second degree, also an infidel, he had known previously. It is asked whether, after his wife has embraced the Christian faith, she needs a dispensation upon the second degree of affinity, so that she may be able to contract with him sacramentally.

"R. To the 2nd. Two things are to be distinguished: 1. whether Paulus took Balbina, an infidel, as wife with a previous apostolic dispensation upon disparity of cult, or without an apostolic dispensation; 2. whether Demetrius had relations with Balbina before Paulus took her to himself as wife, or afterward. If Paulus took Balbina with a previous apostolic dispensation, even if the copula of Demetrius with the same Balbina had preceded, the marriage must now be held as valid; since the impediment of affinity, especially from illicit copula, as in the case, since it is not held as of divine or natural law, but only of ecclesiastical law, does not affect infidels according to the mind of the Church, because they are not subjects of the Church; and the Church, by dispensing with the Catholic party upon disparity of cult, so that he may contract with an infidel, is understood also to dispense from those impediments from which the infidel party is exempt, so that, on account of the indivisibility of the contract, this exemption remains communicated also to the other party. Hence it follows that a marriage of this sort cannot be repeated after Balbina's conversion to the faith. For, once valid, it always perseveres in its validity; nor would it be weakened by subsequent copula which Demetrius might have had with Balbina, because the conjugal bond, which is indissoluble, would not thereby be dissolved. Therefore in this first case let missionaries take heed not to admit spouses of this sort, asking to contract in the Christian manner, to a new furnishing of consent; indeed let them warn them of the validity of the preceding marriage, so that they may know that through the sacred ceremonies of the nuptial blessing they are not entering a new marriage, but only sanctifying what they have already entered and what stands firm.

"But the contrary must be said in the second case, namely if Paulus contracted with Balbina without an apostolic dispensation upon disparity of cult. For then, since the marriage was null and void and as if it had not been contracted, Balbina herself, after baptism, would be bound by the impediment of affinity. Nor does it matter that Balbina, when she was carnally known by Demetrius, was still remaining in infidelity, and for that reason was not subject to an ecclesiastical impediment. For affinity in itself and regarded physically must be distinguished from the impediment of affinity. Now affinity is contracted even by infidels, because even among infidels it is true that man and woman are made one flesh through carnal copula. Therefore, as is had in cap. Fraternitas, 35, quaest. 10: 'If they shall have been one flesh, how will some relative of them be able to pertain to the one, unless he pertains to the other?' Therefore, because Paulus the father pertains to Demetrius the son, he must be said also to pertain to Balbina; and Balbina, because she has been made one flesh with Demetrius, must pertain to Paulus. The only difference is that affinity does not produce an ecclesiastical impediment for infidels, but it does produce one for the faithful. Therefore, since through baptism her affinity, already physically contracted with Paulus, is not removed from Balbina, this same affinity, radically inhering in her, which for that same infidel was not an impediment to contracting, becomes an impediment after baptism, by which she becomes subject to the Church, and consequently subject to its laws; and indeed an impediment in the first degree, and in the direct line, because Paulus the father and Demetrius the son touch one another in such a degree and line, and the degrees of affinity are taken from the degrees of consanguinity.

"To the 4th. From those things which were said in response to the 2nd doubt, the response to the 4th is clear. For in each case there is question of the impediment of affinity from illicit copula, except that there the discussion was of the somewhat passive affinity of Paulus the faithful, which namely he had contracted with Balbina, not from his own act, but from the act of another, namely Demetrius; but here there is question of active affinity, of which namely the Catholic man himself is the author, who wishes to contract with a woman whose blood-relative in the second degree he carnally knew. Therefore all the more must it be said that the impediment results on the part of the man, and indeed in the second degree, because consanguinity and affinity proceed and are computed in the same degree, and that the woman too is similarly held by the same impediment when she has embraced the Catholic faith. Therefore, if an apostolic dispensation upon disparity of cult preceded the marriage contracted by the faithful man with the infidel woman, it must be held as valid, and therefore, after the baptism of the woman, it must not be repeated by a furnishing of new consent; but if it was entered without a dispensation of this sort, because then it would have been null and void, the impediment of pre-existing affinity would affect, after the reception of baptism, the woman also, so that she too would need a dispensation for contracting validly and sacramentally." S. O., Sept. 16, 1824; Enchir. Moral. 1002; I. M. 1002.

1. "A certain Christian was sponsor of a certain infant baptized at home because of danger of death; afterward he took the infant's mother as wife. Because of the diverse opinions of theologians concerning the impediment of spiritual relationship, what must be judged concerning this marriage?

"R. The Most Holy One must be consulted for a dispensation of the marriage, insofar as there is need, upon the impediment of spiritual relationship, and also for sanation in the root." S. C. de P. F., March 18, 1817; Collect. n. 1250; I. M. 459.

“Can the woman N. N., rendered sterile by the defect arising from the excision of both ovaries, be permitted lawfully to enter into Matrimony or not?—Response. The matter having been maturely and long considered, the Marriage of the woman in question is not to be impeded.” Holy Office, 3 February 1887.

“Can the woman N. N., whose two ovaries and uterus were removed by a surgical operation, be admitted to contracting Matrimony?—Response. The Marriage is not to be impeded.” Holy Office, 30 July 1890.

The prohibition which the Sacred Congregation places upon an impotent party, in causes of impotence, against contracting other nuptials without having obtained permission from the same Sacred Congregation, does not introduce an invalidating impediment. Cf. A. S. S., vol. 6, p. 518; vol. 11, p. 595.

“...Moreover, the Most Eminent Fathers observed that the missionaries, with respect to the Marriages of the unbelievers of that region, seem also to have come to this opinion: that in doubt one must stand for the invalidity of the Marriage, and indeed to such an extent that the party who seeks Baptism ought to be repelled from Baptism unless that party either separates from the other party or renews the Marriage with that party, even if the one who seeks Baptism is in good faith and it does not stand in that party’s way that the Marriage cannot be renewed. These things certainly cannot easily be approved. For you know that in Marriages the contrary principle is in force, namely: in doubt one must stand for the validity of the Marriage. Although it is sometimes equitable to depart from this principle—namely, when, as very often happens in Marriages of unbelievers, the question concerns a fact, whether the Marriage was ever contracted or not—nevertheless, even in this case one must not immediately hasten to the contrary principle. For first it must be seen whether the Marriage concerning whose existence the missionary doubts can deservedly claim possession in its favor. If this occurs, the missionary would judge wrongly that he ought to stand for invalidity, since the rights of possession are to be preserved until the contrary is clearly established. The Most Eminent Fathers wished this to be observed all the more because, from the things which you relate, it appears that cases of this kind are very frequent. For you say that it often happens that the woman who seeks Baptism is in good faith and therefore judges herself to be a true and legitimate wife; and likewise that the others suffer no scandal from her union with her husband, and therefore they too judge her to be in a just union; while the unbelieving man, although he says nothing openly, nevertheless neither contradicts the opinion of the woman nor that of the people, and deals with her as with a true wife. These things, moreover, are of such a kind that they seem to vindicate for their union the name and possession of Matrimony.” Instruction of the Holy Office, 18 December 1872; C. 1300.

“Moreover, in this matter let the judge know that Matrimony is of itself a certain solemn and public fact which must always be judged valid unless evident reasons demonstrate its nullity. Therefore, every effort and diligence must indeed be employed so that those reasons may be collected, but a judgment against a Marriage is never to be pronounced unless their totality excludes every prudent doubt concerning the existence of the impediment.” Instruction of the Sacred Congregation for the Propagation of the Faith, 1883, no. 40; A. S. S., vol. 18, p. 381.

A doubt having been proposed concerning the Marriage of polygamous unbelievers—whether it was to be regarded as valid, since it was not sufficiently established that consent to a true Marriage had been given—the Holy Office responded on 17 August 1898: One must stand for the Marriage, whether consummated or non-consummated, which was celebrated first in time with those ceremonies employed according to the custom of the country which, according to the common estimation of the region, sufficiently express the mutual present consent of the spouses. But if, after suitable investigations have been made, it is not established that the contracting parties or the young women in question gave true present matrimonial consent, and therefore the validity of the Marriage celebrated first in time is prudently doubted, provision was made by the Decree of 18 May 1892, response to 2, which reads as follows:

“If, after a diligent examination has been instituted, the Marriage with the first woman, who has already been baptized, is found valid, the pagans in question are altogether bound to return to her. But if she has not been baptized, by force of article 2 of Formula I it will suffice to interpellate her as to whether she wishes to be converted. But where she is unwilling to be converted, or the validity of the Marriage with the first woman is seriously doubted, they can marry any woman, provided that she is baptized, consent having been renewed.”

“We prohibit unions of blood relatives from being made, because both divine and secular laws prohibit them. For the divine laws, treating of this matter, not only cast out those who proceed from such unions but call them accursed; while the laws call such persons infamous and repel them from inheritance. Therefore We, following Our Fathers, mark them with infamy and judge them to be infamous.” First Ecumenical Lateran Council, year 1123, canon 5.

This is against the heresy of the incestuous. Those were so called who contended that the unions of relatives were not unlawful and who reckoned the degrees of consanguinity according to the norm of civil law. Against them, Leo IX in the First Roman Synod and at Rheims, Nicholas II at Rome, Alexander II at Rome in 1063 and especially at Rome in 1065, in which he issued the Decretal which is found in cause 35, question 5, chapter 2, Urban II at the Synod of Troyes, and the Second Ecumenical Lateran Council, canon 17, defend the canonical law and doctrine: “We altogether prohibit unions of blood relatives from being made; for the statutes of the holy Fathers and the sacrosanct Church of God detest incest of this kind, which, at the instigation of the enemy of the human race, has almost passed into use.” But the Fourth Lateran Council reduced the prohibited degrees to the number four.

“In the case of an intermediate stock (of the second degree) constituted by two persons who are themselves blood relatives (in the second degree), whether there exists and must be declared in the supplicatory petition for a dispensation one impediment of consanguinity, namely, only that which proceeds from this nearer intermediate stock; or whether, in addition, there are and must be declared two other impediments arising from the more remote common stock (of the fourth degree) through the lines joined in the intermediate stock.—Response. Negative to 1; affirmative to 2.” Holy Office, 11 March 1896.

“1. When two betrothed persons stand in the equal second degree of consanguinity, and their grandfather and grandmother themselves had contracted Matrimony in the second degree of consanguinity, so that the betrothed persons are also bound in the fourth degree of consanguinity, must a dispensation necessarily be sought and obtained from a triple impediment, namely, in the second and in the double fourth degree? ... 3. When two brothers married two sisters, are their offspring bound by a double or quadruple bond of consanguinity in the equal second degree?—Response. To 1: Affirmative, as in the decision of 11 March 1896.—To 3: Only by a double impediment of consanguinity in the equal second degree.” Holy Office, 22 February 1899; M. E., vol. 1, p. 53.

“Whether the provision of the Council of Trent, chapter 2, session 24, On the Reformation of Matrimony, decreeing that in the Sacrament of Baptism spiritual kinship is contracted between the sponsor and the father and mother of the one sponsored, has place in a Baptism which, on account of necessity, was performed without solemnities? “Response. Affirmative.” Sacred Congregation of the Council, 5 March 1678. Cf. Marc, Alphonsian Moral Institutions, 2nd ed., no. 2022. Cf. no. 459.

“Sponsors who are employed in supplying the solemnities of Baptism do not contract the impediment of spiritual kinship.” Instruction of the Sacred Congregation for the Propagation of the Faith, 11 September 1779; Sacred Congregation of the Council, 13 April 1669; 2 October 1687.

An unconfirmed sponsor at Confirmation “does not contract spiritual kinship.” Sacred Congregation of the Council, 13 June 1654; Lucidi, C. 2, § 3, no. 142.

Sponsors do not contract with the parents as many impediments invalidating Matrimony as the number of their children whom they sponsor in the same Sacrament; they are bound with them by only one impediment, unless they sponsored the same child, or several children, both in Baptism and in Confirmation. Sacred Penitentiary, 14 January 1881, according to the practice of the Curia; Holy Office, 29 April 1894.

“Whether, in the Formulas by which the faculty of dispensing from the impediment of spiritual kinship is customarily granted, the case of spiritual kinship between the baptizer and the baptized, not foreseen in those Formulas, is comprehended?—Response. Negative; that is, those who enjoy the faculty granted through the aforesaid Formulas cannot dispense from the impediment of spiritual kinship between the baptizer and the baptized; and this is to be communicated to all whom it may concern and henceforth expressly stated in the Formulas. But if any Marriages have perhaps hitherto been contracted with a dispensation of this kind granted by force of those same Formulas, in order to settle every question concerning their validity, petition is to be made to His Holiness that he may deign to declare those Marriages sanated in the root.” Holy Office, 3 December 1902.

“Is adoption to be regarded as a canonical impediment invalidating Matrimony in the kingdom of Tonkin, when, according to the laws and customs of that kingdom, a person not yet of his own right can adopt, nor is it required that the adopter be more than twenty-five years old, just as little account is taken of whether the person is male or female; eunuchs themselves also can adopt, and no account is taken of the age of the adopter relative to the person adopted; nor is the presence of the adopted person required, or that person’s consent in the adoption, so that even absent boys and girls incapable of true consent can be adopted as sons and daughters?—Response. Negative.” Sacred Congregation for the Propagation of the Faith, 14 January 1802.

“Since in the kingdom of France the right of adoption has now been legally received, it is asked whether the canonical impediment of adoption which renders Matrimony null ought also to have place?—Response. Affirmative, if the question concerns an adoption legitimately entered into.” Sacred Penitentiary, 17 May 1822.

The Holy Office judged the same on 23 February 1853 for the Kingdom of the Two Sicilies, and the Sacred Penitentiary for France.

“Whether the impediment of public propriety is contracted from clandestine betrothals.—Response. Affirmative.” Sacred Penitentiary, 10 September 1834.

“Whether a ratified but non-consummated Marriage of pagans produces public propriety, or is judged to be an invalidating impediment after their conversion? For example, Titius, a pagan, married Maevia, a pagan, but did not consummate the Marriage; after the death of Maevia, Titius becomes a Christian: can he marry Bertha, the sister or female cousin of Maevia, who has become a Christian from being a pagan? And is the same true of the betrothals of pagans as of a ratified Marriage?—Response. The impediment does not subsist.” Holy Office, 19 April 1837.

“...1. I ask whether, in relation to the validity or nullity of a contracted Marriage, the conferral or non-conferral of Baptism, when it is unknown, is to be determined from the principle of presumption?...—2. When the conferral of Baptism is unknown, is the principle of presumption rightly applied, in relation to the validity of a contracted Marriage, in the following articles?

“1. If the non-Catholic party or parties had parents belonging to a sect which rejects Baptism, Baptism is not to be presumed.

“2. The same is to be resolved if they had parents belonging to a sect which does not admit the Baptism of infants, or in which it is not conferred except upon adults—for example, upon those who have already attained the thirtieth year of age—as is the case in the sect of the Baptists.

“3. The same is likewise to be resolved if they had parents who, while living, professed that they wished to belong to no sect and that they honored the Supreme Being, as they say, by upright morals rather than by any particular worship.

“4. If they had parents belonging to a sect which regards Baptism as necessary, or in which it is at least ordinarily administered, and if those parents were zealous in their sect, Baptism is to be presumed. But what if the parents were negligent in their sect, or belonged to a sect which indeed does not reject Baptism but does not regard it as necessary and in which it is not ordinarily administered? In either or both cases, is Baptism to be presumed or not?

“5. If, according to the sect of only one parent and that parent’s zealous disposition of mind as described above, the presumption favors Baptism, and that parent in fact and undoubtedly had the principal part in the education of the offspring, Baptism is to be presumed.

“Resolve the same if, after an inquiry has been made, it is unknown or is not sufficiently established whether that parent had the principal part; for Baptism is to be presumed in relation to Matrimony, since a union once entered into is to be judged valid so long as an obstacle does not disclose itself. But what if it is certainly established that the sect and disposition of mind of the parent who in fact and undoubtedly had the principal part in the education did not favor Baptism, while the sect and disposition of mind of the other parent favored it?

“6. In a case in which no presumption militates in favor of Baptism, the rule is to be applied: a fact is not presumed, but must be proved. The application of this rule in these United States, where among non-Catholics there are very many who care little or nothing about conferring Baptism upon their infants, ought perhaps with greater reason to have place than in many other regions.

“The aforesaid questions are proposed as principal ones for this reason: that from their solution there may be had a norm according to which it is possible to proceed safely, especially in these cases: 1. When, of two non-Catholic parties separated from each other as above, one requests to be received into the bosom of the Church and desires to pass to other nuptials. 2. When the Catholic party, separated as above from the non-Catholic party, requests to be joined to another, or, already joined to another, desires to be admitted to the Sacraments.

“Response. To 1: Affirmative, but after an investigation has been carried out in each case.

“To 2, namely: When the conferral of Baptism is unknown, is the principle of presumption rightly applied, in relation to the validity of a contracted Marriage, in the following articles? They responded: Affirmative with regard to the first, second, and third articles, and with regard to the first part of the fourth and the first part of the fifth number; but in this last article, after the words had the principal part, let there be added: and the other spouse is not known to have been positively opposed to the conferral of Baptism, Baptism is to be presumed. In the remaining cases noted in the second part of number five, recourse is to be had to the Holy See, with all the circumstances of things, places, and persons, and the other matters relevant to the affair, having been set forth. To 6: Provided for in the preceding responses.” Holy Office, 1 August 1883, to the Bishop of Savannah.

“As Pickler explains according to the sacred canons, book 4 of the Decretals, title 7, in order that adultery may induce an invalidating impediment, it is required that there be joined to it either a promise of future Marriage or a contract of present Marriage with the adulteress or adulterer while the prior spouse is still living. But to contract, or attempt, a present Marriage is to enter nuptials—invalidly, of course—through words of the present tense or through some other sign which includes a promise of consent. It makes no difference, however, whether the adultery preceded the attempted Marriage or followed it.... In order that the taking of a concubine—or rather, an adulteress—may be regarded in the case as a true attempted Marriage, it is necessary that it include a promise of Marriage, whether in the present or in the future.” Sacred Congregation for the Propagation of the Faith, 14 January 1844.

“When a certain I., bearer of the present letter, had a lawful wife named A., he committed adultery with M.; and when he had been summoned to law concerning this, he forswore the adulteress, and afterward, having despised his oath, while his lawful wife was still living, he presumed to contract Marriage with the adulteress and to cohabit with her for a long time. Finally, after the aforesaid A. was taken from the present light, the aforementioned I. remained with the adulteress for ten years and begot ten sons by her. We therefore give this response to your consultation: let them be altogether separated and, penance having been imposed upon them, let perpetual continence be enjoined, especially since both have advanced in years and, knowingly persisting for so long publicly in adultery and perjury, they have disturbed the Church with grave scandal. For you know that Pope Leo established that no one is to take in Marriage a woman whom he has defiled by adultery; and that here matters proceeded further than if a pledge had merely been given to the adulteress that, after the lawful wife had died, he would take her as his wife, since the same man presumed, even while the first wife was living, to adhere to the adulteress almost matrimonially as an adulterer and rashly to violate his oath. This union—which both Pope Gregory and the Synod of Tribur detest, even where no sacred obligation of an oath intervened—they command that each person joined in this manner be subjected to public penance and remain perpetually without any hope of Marriage,” etc. Chapter Cum haberet, 5, On Him Who Took in Marriage, etc.

“No one is admitted by law to challenge a Marriage under this title—force and fear—except the person who is said to have suffered violence and coercion; but a person who has lived in the Marriage for a long time is rejected, provided that freedom and opportunity to protest were not lacking to that person; so that, if, now free from fear, that person remained of his own accord in the conjugal home and did not refuse the matrimonial duties, he ought no longer to be heard.” Instruction of the Holy Office, 20 June 1883, no. 35; Instruction of the Sacred Congregation for the Propagation of the Faith, 1883, no. 36.

"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.

"By the words of the Ritual, the sponsor holding the infant, absolute taking up is by no means required, since to hold is equally understood and it suffices if the Sponsor, as is customary, joins himself with the infant by physical contact, together with the one in whose hands he is held, and accompanies the carrier to the infusion of the water, without there being need that the Sponsor or the Sponsor-woman only, with the carrier removed, receiving the infant into his or her own hands, present him to the Priest to be baptized." S. C. de P. F. 21 Jan. 1856.

Spiritual relationship is not contracted by the procurator but by the mandator. S. C. C. 20 Apr. 1586; 15 March 1631; 15 Sept. 1721; 11 June 1881. Cf. Acta S. Sed. Vol. 14, p. 411 ff.

"Whether the disposition of the Council of Trent, sess. 24, ch. 2, de R. M., decreeing that in the Sacrament of Baptism spiritual relationship is contracted between the one receiving and the father and mother of the one received, has place in Baptism performed without solemnities because of necessity? Resp. Affirmatively." S. C. C. 5 March 1678. Cf. Marc, Inst. Mor. Alph., ed. 2, n. 2022.

"Sponsors who are employed in supplying the solemnities of Baptism do not contract the impediment of spiritual relationship." Instr. S. C. de P. F. 11 Sept. 1779; S. C. C. 13 Apr. 1669; 2 Oct. 1687.

"Titius baptized his own son; he did it ignorantly; fearing, but with vain fear, lest he should die; whom he baptized in the presence of some women. The Confessor rebuked the same man, but absolved him. He now asks from the Sacred Penitentiary, with Titius unaware, whom he left in good faith, dispensation from the impediment of spiritual relationship, so that he can ask for and render the debt." Year 1869.

Resp. "The Sacred Penitentiary grants to the Ordinary of the orator the faculty, either by himself or through the proper Parish Priest of the orator, of absolving the orator himself, if it is so, his sacramental Confession having been heard, from ecclesiastical censures and penalties if he has incurred any on account of the premises, and from the guilt of incest, if perhaps after the contracted spiritual relationship he has not abstained from the use of marriage, by apostolic authority, with salutary penance. And of declaring that the same orator, if no other canonical impediment stands in the way, can remain in his marriage, and can and must render the conjugal debt. And of mercifully dispensing with the same man, over the recounted supervening impediment of spiritual relationship, so that notwithstanding it he can licitly and freely demand the conjugal debt from his wife, by apostolic special and express authority. For the forum of conscience; so that the present grace, if and when there shall be need, may avail the orator and his wife also for the external forum." Cf. Scavini, l. 3, n. 850.

A sponsor in confirmation "if not confirmed does not contract spiritual relationship." S. C. C. 13 June 1654. Lucidi, ch. 2, § 3, n. 142.

"Whether from clandestine betrothals the impediment of public honesty is contracted? Resp. Affirmatively." S. Poenit. 10 Sept. 1834.

If a consummated Marriage was not valid, two distinct impediments are had: of public honesty from the null ratified marriage, and of affinity from fornicatory copula. S. C. C. in Brixien., 5 Dec. 1667. Cf. Scavini, l. 3, n. 791, Milan 1874; Benedict XIV, de Syn., l. 9, ch. 13; De Justis, de Dispens. Matrimonial., l. 1, ch. 8.

"As Pickler explains according to the Sacred Canons, l. 4, Decretals, tit. 7, that adultery may induce a diriment impediment, it is required that there accede to it either a promise of future marriage, or a contract of marriage de praesenti with the adulteress or adulterer while the prior spouse is still living. But to contract, or to attempt, marriage de praesenti is to enter nuptials, certainly invalidly, by words de praesenti, or by some other sign which includes the promise of consent; yet it makes no difference whether the adultery preceded the attempted marriage or followed it.... That the taking of a concubine, or rather of an adulteress, be had in the case as a true attempted marriage, it is necessary that it include a promise of marriage, either de praesenti or de futuro." S. C. de P. F. 14 Jan. 1844.

"Since I., bearer of the present letters, had a legitimate wife by the name A., he perpetrated adultery with M.; and since he had been summoned into court over this, he abjured the adulteress, and afterwards, the oath having been contemned, while the legitimate wife was living, presumed to contract marriage with her and to cohabit with her for a long time. Finally, after the aforesaid A. was taken away from the present light, the mentioned I. lived with the adulteress for ten years, by whom he procreated ten sons. Therefore we give such a response to your consultation, that they be altogether separated, and, penance having been enjoined upon them, perpetual continence be indicated, especially since both have advanced in their days, and, enduring so long publicly in adultery and perjury from certain knowledge, have disturbed the Church in grave scandal. For you know that Pope Leo established that no one should take in marriage her whom he polluted by adultery; and that here there was more process than if faith had merely been pledged to the adulteress, that, when the legitimate wife was dead, he would take her as wife, since even while the first was living, as adulterer with adulteress, he presumed to adhere to the same woman as if matrimonially, and rashly to violate his sacrament; which union indeed, where also no religion of oath intervened, both Pope Gregory and the Synod of Tribur detests, and ordered each person joined in this way to be subjected to public penance and to remain perpetually without any hope of marriage." etc. Chap. Cum haberet 5, De eo qui duxit in matrim., etc.

"No one is admitted by law to impugn marriage from this head, force and fear, except the one who is said to have suffered violence and coercion; but he is to be rejected who has lived for a long time in marriage, provided that liberty and opportunity of protesting were not lacking to him; so that if, already free from fear, he of his own accord has persisted in the conjugal house and has not refused matrimonial offices, he ought no longer to be heard." Instr. S. I. C. 20 June 1883, n. 35; Instr. S. C. de P. F. 1883, n. 36.

"... Moreover the Most Eminent Fathers observed that Missionaries, as to the marriages of infidels of that region, seem to have fallen into this opinion also, that in doubt one must stand for the invalidity of marriage; and this to such an extent that the party who seeks Baptism must be repelled from Baptism unless either he separates from the other party, or renews the marriage with the same, even if she who seeks Baptism is in good faith, and it does not stand through her that the marriage cannot be renewed: which things indeed cannot easily be approved. For you know that in marriages the contrary principle flourishes, that is: in doubt one must stand for the validity of marriage. But although it is sometimes equitable to recede from this principle, namely when, as for the most part happens in the marriages of infidels, the question concerns the fact, whether indeed marriage was ever contracted or not; nevertheless even in this case one must not immediately hasten to the contrary principle. For first it must be seen whether the marriage concerning whose existence the Missionary doubts can deservedly put forward possession for itself. For if this happens, the Missionary would wrongly judge that he must stand for its invalidity, since the rights of possession are to be observed until the contrary is clearly established. But the Most Eminent Fathers wished this to be noticed all the more because from those things which you narrate it appears that cases of this sort are very frequent. For you say that it often happens that the woman who seeks Baptism is in good faith, and therefore judges herself to be a true and legitimate wife; and likewise that the others suffer no scandal from her union with her man, and therefore they also judge that she is in a just marriage; but the unbelieving man, although he says nothing openly, nevertheless does not contradict either the opinion of the woman or that of the people, and deals with her as with a true wife: and these things moreover are of such a kind that they seem to vindicate for their union the name and possession of marriage." Instr. S. O. 18 Dec. 1877. Zitelli, De Dispens. Matrim., Rome 1884, p. 112.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

³ Generally civil laws hold such marriages as invalid.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

II. On the Impediment of Error.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

III. On the Impediment of Servile Condition.

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

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

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

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

IV. On the Impediment of Force and Fear.

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

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

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

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

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

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

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

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

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

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

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

² Code, c. 1014.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

¹ Ap. Collect. P. F., n. 1575.

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

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

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

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

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

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

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

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

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

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

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

II. On the Impediment of Vow.

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

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

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

² Trent, sess. XXIV, can. 9.

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

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

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

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

¹ Thus Code, c. 2388.

² Code, c. 2229.

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

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

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

⁴ Code, c. 1043.

III. On the Impediment of Order.

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

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

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

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

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

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

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

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

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

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

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

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

² Code, c. 1043.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Diagram:

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

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

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

According to the laws of most of our States, marriage is nothing but a legal contract. As such the State prescribes for it the conditions under which it shall be valid or invalid. In many States marriages between close relatives, or marriages between white people and negroes, are null and void. In other words the States set up impediments to the marriage contract.

The Catholic Church also recognizes in marriage a contract, but a contract elevated to the dignity of a Sacrament; and because marriage is a Sacrament, the Church alone, under whose jurisdiction Christ placed all the Sacraments, has the power to make rules and regulations with regard to this sacred contract, and to set up impediments which render it unlawful or invalid also as a Sacrament.

Some of these impediments, however, have been changed or modified in the course of centuries, as the needs of the time demanded. Especially is this the case in the new Code of Church laws promulgated by our Holy Father Benedict XV, in 1917, and of binding force since Whitsunday, 1918. In Canons 1036-1058, which form Chapter II of the section on the Sacrament of Matrimony, "Of the Impediments of Matrimony in General," these impediments are laid down with great clearness.

First of all they are divided into (i) forbidding, (2) nullifying, (3) public, (4) occult, (5) impediments of minor and (6) of major grade. The four last divisions are made principally to facilitate dispensations, and this treatise will not suffer if we disregard them entirely. But we must say a few words about the forbidding and nullifying impediments as modified by the new Code.

— Summary enumeration. A diriment impediment can arise either from the natural or legal inability of the parties, or from a vice of consent, or from defect of solemn form. Although an intrinsic vice of consent, such as error concerning the person, or defect of solemnity, is not strictly to be called an impediment, and they are treated in separate chapters in the Code. In Chapter IV of the Code it is a question only of those impediments which arise from the inability of persons.

With some changes of great moment having been made concerning certain others, the impediments of affinity from illicit intercourse, of public honesty from sponsals, and of spiritual kinship from confirmation have been suppressed.

But there remain defect of age (c. 1067); antecedent and perpetual impotence (c. 1068); ligamen (c. 1069); disparity of cult (c. 1070); sacred order (c. 1072); solemn vow or privileged simple vow (c. 1073); abduction (c. 1074); crime (c. 1075); consanguinity (c. 1076); affinity (c. 1077); public honesty (c. 1078); spiritual kinship (c. 1079) and legal kinship (c. 1080).

— I. Whereas by the old law the age of fourteen years in the man and twelve years in the woman, as in Roman law, was only required, now a man before the completed sixteenth year and a woman before the fourteenth are unable to contract marriage (c. 1067).

Before the Code, malice itself was said to supply age: that is, those were permitted to be joined in marriage before the canonical age who were capable in body, at the same time were sufficiently conscious of sexual matters, and sufficiently developed in mind that they could prudently be joined in marriage. Today this exception has been removed. And since in foreign missions age is frequently unknown, and the necessity of hastening marriage occurs, provision is made for the Ordinaries of those places through indults of the S. C. P. F. Yet the permission is not contained in the general formulae.

This impediment is of ecclesiastical law insofar as it requires more than ability to consent (in sane persons). As ecclesiastical, it does not affect infidels who contract among themselves, nor an infidel contracting with a baptized party who has completed the legitimate age. But an infidel can be touched by his own civil law, often more severe.

The Code c. 1067, §2, opportunely added this warning: "Although a marriage contracted after the aforesaid age is valid, nevertheless pastors of souls should take care to turn young persons away from it before the age at which, according to the received customs of the region, marriage is usually entered."

According to physicians themselves, a young man who has not passed the twenty-third year of age, and a girl who has not passed the twentieth year of age, in our European regions, is not fully mature of himself for marriage. Nor is an end always happily imposed on concubinage itself by marriage, as if inconstancy and hence civil divorces are too greatly to be feared.

— II. Antecedent and perpetual impotence. The Code adds that the impediment is diriment by the law of nature, both in the woman and in the man, whether the impotence is known to the other party or not, so that it can be removed by no consent of the parties, whether it is absolute or relative. Absolute impotence is said to be that which renders one impotent with respect to all persons of the other sex; relative, that which renders one impotent with respect to one or a few persons. At the same time it declares that the marriage of one who is doubtfully impotent is not to be impeded, whether the doubt is of law, that is, doctrinal concerning the very ratio or essence of impotence, or of fact, that is, of application. Yet we require a serious doubt by which moral certitude is excluded (Wernz, IV, 2, note 35), and we have narrowed the exception to absolute impotence. He who probably doubts concerning his relative potency with other persons, if he desires to be joined in marriage, can and must contract a certain marriage¹. Finally, as c. 1068, §3 warns, sterility neither invalidates nor impedes marriage.

What impotence excludes marriage, cf. T. IV, n. 40-42.

Since marriage is indissoluble, it is clear that an impediment can be constituted by antecedent impotence alone. But temporary impotence stands in the way neither of any end of marriage nor of its validity. Does it prohibit the use of marriage? (cf. t. IV, n. 54).

¹ Yet authors, except De Smet, n. 471, are not accustomed to limit the exception thus. But the reason which they propose falls only upon absolute impotence. Cf., for example, Wernz, IV, 2, p. 148, note 35, who admits that very grave authors such as Sanchez and Schmalzgrueber required that a positive doubt concerning potency be set aside before marriage.

— III. Ligamen, or the bond of a prior valid marriage, even non-consummated. As long as the preceding marriage subsists, another is attempted in vain. But as long as it is not established certainly, by moral certitude, and legitimately, that is, in that way which the law wills, concerning the dissolution or nullity of the prior marriage, another is illicitly attempted or contracted. The dissolution of the prior marriage, especially the death of the spouse, must be proved by the best means which are at hand. Yet no means of proof is excluded, so that recourse can be had even to various indications and presumptions.

Where an authentic document of death is had, nothing of itself compels the pastor to consult the Ordinary (Gasp., I, 723). In more difficult cases of less perfect proof, the Ordinary must recur to the Holy See. The mode of proof is governed chiefly by the Instruction of the Holy Office, 1868. If, after another marriage has been celebrated, even legitimately, the prior spouse appears, conjugal life must be restored with this one.

Concerning the privilege of faith, which is excepted here because it permits other nuptials while the former ones have not been dissolved, discussion will be made below.

That a long absence of the spouse for several years, and a fruitless, although most diligent, inquiry do not suffice for other nuptials to be permitted, but that it is necessary that positive judgments bring moral certitude, had already been defined by Clement III in c. 19, De sponsalibus et matr. (IV, 1). But the praised Instruction of the Holy Office wills that first an authentic document of death be diligently sought; this failing, that at least two approved and immediate witnesses be interrogated; nevertheless the testimony of one witness is not absolutely rejected, provided at least this is established concerning him, that nothing is found in his testimony which is not congruent and probable; even things said from the mouth of another can be admitted; finally, when other means are lacking, proof of death from conjectures, presumptions, indications, and any circumstances whatever will have to be pursued. And suitable investigations then to be made, and questions to be asked, are added.

Even an extrajudicial inquiry can suffice, if it brings certitude to the Ordinary; nor is the sworn testimony of the surviving spouse altogether excluded.

Sometimes after general calamities the Holy See itself declares what presumption of death can suffice (cf. examples in Gasp., I, 724).

It can also be asked whether a marriage contracted by him who was persuaded that his spouse was surviving, while nevertheless in reality the spouse was dead, could have been valid objectively. The difficulty is drawn from the part of consent, whether it could be seriously given. Yet the Sacred Congregations admit that this is not repugnant. And it suffices that, as much as depends on his will, he wills to hand over and accept the conjugal right. Moreover he can conceive this will either by prescinding from the invalidating law, or by a certain simplicity of an erring mind, or even by a certain obstinacy. Cf. Gasparri, n. 906, 907 with several, for example De Smet, 470, against several. Besides, the Code itself, c. 1085, pronounces this: "Knowledge or opinion of the nullity of marriage does not necessarily exclude matrimonial consent."

— IV. Disparity of cult. 1. "A marriage contracted by a non-baptized person with a person baptized in the Catholic Church or converted to the same from heresy or schism is null" (c. 1070, §1).

Of itself no baptism makes one a heretic or schismatic; but every baptism destines the baptized person for the true Church. Yet by a broader usage, to which the Code accommodates itself, he is baptized in heresy or schism who, attention being paid to the intention of the one baptizing and of the one seeking baptism, is directed toward a non-Catholic community.

Because one must respond according to those things which are of themselves, baptism must be presumed to have been done in the Catholic Church, unless something else is established. Here there prevails the intention of the adult to be baptized, or, for an infant, the intention of the parents who order baptism and in whose power the child remains for education. A Catholic person baptizing in necessity confers baptism in the Catholic Church. Outside necessity, he would baptize illicitly without hope of Catholic education.

Vlaming, I, 284 bis, warns that today baptism is rejected by many sects; and he indicates Methodists, the Free Church, the Salvation Army; and that it is little cared for by Protestants who are called Moderns, especially by the "Remonstrants."

By this canon we have the first written law concerning an impediment which before rested upon universal custom, obliging everywhere. Insofar as it is diriment, the impediment is of ecclesiastical law, but by divine law itself the faithful person is prohibited from rashly exposing himself to the danger of perversion and the offspring to the danger of non-Catholic education.

General faculties of dispensing are conceded by the Holy See if in the place there are more infidels than Catholics.

But before, the impediment had force for those baptized in whatever way. Today it is restricted to those who have been baptized in the Catholic Church or converted to it from schism or heresy.

Now immune from the impediment are all those who never, either by baptism received in the Catholic Church or by profession of the Catholic faith, belonged to it.

By this wise provision the Church permits very many marriages to be valid which, without her dispensation, heretics contract with non-baptized persons.

But those seem to be affected by the impediment who, born from non-Catholics, were indeed baptized in the Church, but by the fault of parents or tutors, from infancy grew up in heresy or schism or infidelity or without any religion. For the Church dispenses these from the solemn form of marriage, but not from this impediment.

2. Whenever the baptism of either party is doubtful, or the party, at the time of the contracted marriage, was commonly considered as baptized, baptism will be judged valid or conferred, or invalid, according as it matters for the validity of the marriage, which presumption favors. Thus c. 1070, §2.

In this paragraph it can be asked why it is not simply said "if the baptism of either party had been doubtful," but there is added: "if the party at the time of the contracted marriage was commonly considered as baptized." The reason can be this: in doubt concerning conferred baptism, it is required, for the presumption itself, that the party was commonly considered as baptized, so that the words "or his baptism was doubtful" merely look to the case in which baptism certainly conferred was of doubtful validity. Yet there are some who take the words "doubtful baptism" in a more universal signification, and at the same time think that the rule of c. 1070, §2 pertains only to marriages already made.

You should observe that the presumption thus yields to the truth, so that if afterward it is discovered that the person had been baptized who was thought not to have been, or in the contrary hypothesis, a pronouncement concerning the validity of the marriage must be made according to the facts now explored. Before the Code this was controverted. Thus C. Gasparri, I, 687, 688, judged that in these cases a virtual dispensation from the impediment of disparity of cult was had.

3. But in granting the dispensation, the same cautions are to be required for the validity of the dispensation which are demanded in mixed nuptials (c. 1071).

4. Corollaries: a) before the marriage itself, the doubt must be seriously explored, if perhaps certitude may be reached;

b) if one party is Catholic, lest the contract or sacrament be exposed to nullity, the doubt must be removed either by baptism certainly conferred or by a dispensation as a precaution from the impediment of disparity of cult. De Smet, n. 588, p. 102, note 3, recalls such a dispensation granted in the diocese of Bruges on February 19, 1920. Only if excessive difficulty stands in the way can it be permitted, for a proportionate cause, that the contracting parties be content with the presumption. Therefore practically it is to be advised that to a dispensation from the prohibiting impediment of mixed religion there be joined, as a precaution, a dispensation from disparity of cult.

Yet for a heretic, unless he wishes to be converted, it is not licit to repeat baptism conditionally (cf. Wernz, IV, 507, note 29). For he is not worthy of baptism.

Before the Code, when dispensation was made in the impediment of disparity of cult, the Catholic party was considered at the same time dispensed from impediments from which the infidel party was exempt, unless it was an impediment of divine law, or of clandestinity, or an impediment from which the Church is not accustomed to dispense. Contrary to what Cappello, III, n. 422, thinks, since that virtual dispensation is not confirmed, it seems tacitly abrogated, especially since the Code c. 1036, §3 does not of itself admit communication of exemption from an impediment; and expressly, in c. 1053, it states the virtual dispensation which it grants.

Who can dispense has been said above. A dispensation from the impediment of mixed religion, unless the clause "and from disparity of cult as a precaution" has been added, today contains no tacit dispensation from disparity of cult, if the non-Catholic party is not baptized (cf. Cappello, III, 423).

c) If neither party has ever belonged to the Catholic Church, no invalidity of marriage from disparity of cult is now to be feared.

— V. Sacred order (c. 1072). From the disposition of the Church, "clerics constituted in sacred orders invalidly attempt marriage." They are affected by this impediment even if they neglected or refused to emit the vow of chastity. Therefore the law of the Church immediately invalidates marriage, and at the same time imposes the vow of perfect chastity, without which they could not, through internal sins of lust, become guilty of sacrilege (cf. what was said in n. 30).

The impediment of contracting marriage after sacred order also exists in the Greek Church, except that the subdiaconate is not there a sacred order; but those who, before ordination in sacred orders, were married, are not prohibited from using marriage.

How the law is tempered in favor of those who were ordained in boyhood or through force and fear, we saw in n. 31 and 699.

— VI. Profession of solemn vows, or also of those simple vows to which the Holy See has specially joined this invalidating force. Concerning this matter cf. n. 136, 137.

By him who has made profession fictitiously, the impediment is not contracted (against Cerato, n. 68, who thinks that the impediment exists in each forum until a sentence of the judge has declared the profession invalid); but in the external forum the fiction will have to be proved so that he can be considered free from the impediment.

— VII. Abduction (c. 1074). This impediment, introduced by the Council of Trent, was defined: the violent abduction of a woman from a safe place into another, for the sake of entering marriage. But by the present law the violent detention of a woman in the place where she is staying or to which she has freely approached is equated with abduction.

But violent abduction or detention supposes the woman unwilling. And although even a youth can be abducted, the impediment is constituted only for the abduction of a woman. Moreover, the abduction of any woman whatever, even of a betrothed woman, as is now certain, gives rise to the impediment. For she who assents to a future marriage does not on that account admit abduction, nor does she will to contract marriage at every time. And if a girl minor in age is abducted, the abduction is presumed violent and clear proofs concerning her consent are required so that marriage can be celebrated.

But the impediment does not cease unless after the woman has recovered her liberty, even if meanwhile she herself, by free persuasion, has consented to marriage; and it affects the marriage of a faithful person with an infidel. For if the woman is faithful, she must be protected from violence by canonical law through an impediment; if the man is Catholic, his guilt is touched by a canonical sanction (cf. Epitome, II, 326).

By abduction of seduction (or to which the woman consents), the impediment is not contracted (Epitome, l. c.; Cappello, III, 462).

— VIII. Crime (c. 1075). A. By a threefold ratio of crime a diriment impediment is constituted.

1. The first ratio is called that of adultery alone. It supposes that, while the same legitimate marriage endures, both parties of whom it is a question have consummated adultery between themselves, and have mutually given each other faith concerning entering marriage, or have attempted marriage itself, even by a civil act only (c. 1075, 1).

Therefore the impediment is not contracted: a) if mutual faith was given before the legitimate marriage of one or both parties with another person, or after its dissolution; or if, after it had been given, it was sincerely and externally retracted before adultery (Creusen, Epitome, II, 327); c) if adultery was committed with another person and not that one with whom mutual faith was given or marriage attempted; d) if faith was not mutually given; e) if adultery was not consummated by true conjugal intercourse: therefore onanistic or sodomitic intercourse does not suffice; f) if adultery was not formal on the part of both, but one or the other was ignorant of the other's marriage: yet affected ignorance is equated with knowledge. But knowledge of the bond suffices, even if the impediment is formally unknown. And since the impediment of bond remains until the death or dissolution of the prior marriage is morally established, some think that the impediment of crime is contracted also by him who attempts marriage with doubt concerning the dissolution of the prior bond; but this seems to have to be denied.

Nor does he have knowledge of the bond who merely doubts whether or not a prior bond had been contracted, unless he affects ignorance.

He who fictitiously gave faith is presumed in the external forum to have given true faith. The promise seems to be required as injurious to marriage, whose other spouse is unwilling.

But for the impediment there suffices the violation of a marriage even merely legitimate, and mutual faith given concerning contracting marriage after the prior marriage has been dissolved. But what if the promise had been otherwise conditioned: for example, if such a fat inheritance should come to you? The matter seems to be estimated from the day on which the condition arrives. For once the condition has been fulfilled, the promise then passes into an absolute one. If the condition has become impossible, the promise is considered never to have been made. And if it was fulfilled only after the marriage had been dissolved, the mutual faith was not, during the bond, perfectly given.

Moreover marriage can be attempted either in ecclesiastical form (with the prior marriage kept silent) or even in merely civil form. Nor does it matter in what order the mutual faith or attempted marriage preceded or followed the adultery. Wherefore a frequent case will be of those who, after obtaining a civil divorce, consummate nuptials celebrated afterward merely civilly.

2. The other ratio of crime is adultery with killing of the spouse. With the various doubts of the prior law removed, it suffices that adultery, consummated and formal on the part of both, concur, during the same legitimate marriage, with spouse-killing which one has perpetrated, even while the other is unaware (cf. c. 1075, 2).

Adultery must be formal in such a way that each knew the marriage which the other dissolved by spouse-killing (Vlaming, Praelectiones iuris matr., I, 320). Whether the efficacious will of spouse-killing preceded or followed adultery, once the effect has followed, it will bring forth the impediment. Approved authors add that it is required that the spouse-killing be perpetrated from the intention of marriage. But that intention is presumed in the external forum.

3. The third ratio of crime is spouse-killing committed by mutual physical or moral cooperation. In order that the impediment be contracted, it is required that both were authors by formal conspiracy, for mutual cooperation is understood as principal, therefore of one commanding, ordering, executing. Mere counsel separated from conspiracy does not suffice. It is also necessary that death from the common deed or conspiracy of each accomplice truly followed, and not from the inexperience of a physician badly treating the inflicted wound.

Before the Code, several required spouse-killing perpetrated with a view to marriage. The Code is silent about that intention. Yet the interpretation of the superior law remains probable. Wherefore spouse-killing from the intention, at least of one or the other and manifested to the other, of entering marriage with the accomplice can also be added to the conditions.

B. This impediment can exist as multiple: a) if the conditions of two or three cases are fulfilled at the same time, as if adultery and attempted marriage concur with spouse-killing: the impediment will be twofold; but threefold if the legitimate spouse was killed while each machinated. Yet we do not think, contrary to what De Smet, n. 666, thinks, that the impediment is duplicated because there is had at the same time (with adultery) a promise of marriage and its attempted celebration. For promise or attempted celebration are conditions of one ratio by which the impediment of the crime of adultery is contracted; b) if injury has been inflicted upon several marriages, as if the adulterers were both married, if both killed the spouse; if Titius successively in two marriages was guilty of crime with the same person. But because not all things are equally certain, it will be safer in seeking dispensation to indicate the multiplicity, with the case described.

C. Since baptism washes all crimes, if the crime was committed by two infidels, it does not affect them after baptism; nor if one party was faithful, provided it is a question of spouse-killing which was committed by the infidel party alone, without the conspiracy of the other.

D. Before the Code, several thought that the impediment was not contracted by those ignorant of it. But now, from c. 16, those ignorant are not immune from this impediment.

We warned above, at the end of n. 760, that virtual dispensation from crime (without spouse-killing) is contained in a dispensation over a ratified and non-consummated marriage, and in the faculty of passing to other nuptials because of the presumed death of a spouse.

— Consanguinity, or the kinship of carnal consanguinity.

1. It is a bond of propinquity induced by generation between persons who descend from the same proximate stock, whether one has been generated from another, or whether they merely come together in one common author. For persons who have been generated one from another, the direct line is constituted, which is called ascending or descending, according as the computation is made from the offspring or descendants to the authors, or from the authors or generators to those generated; or according as the relation of filiation or paternity is formally considered. The oblique, transverse, or collateral line comprises persons who, without a mutual relation of paternity and filiation, have a proximate common stock. A proximate stock, I say, because all of us, at some time finally, have common first parents and pertain to one human family.

2. The distance by which persons are separated makes them less or more proximate. But it is computed by degrees. In the direct line, there are as many degrees as generations, or as persons, the stock (common author) being removed (c. 96, §2).

Thus in every law, both canonical and civil.

In the oblique line, if the persons between whom comparison is made are separated by equal distance from the common stock, that is, "if each tract is equal, there are as many degrees as generations in one tract of the line; if the two tracts are unequal, as many degrees as generations in the longer tract" (c. 96, §3). That is, in canon law, the degree of proximity, even in the collateral line, is estimated by distance from the common author; but by the longer if both persons are unequally distant from the common stock. Why proximity is defined by the greater distance, Ballerini, VI, 661, after Schmalzgrueber, gives this reason: that, since the ratio of propinquity is taken from the stock, one collateral cannot be nearer to another than he is joined to the common stock. Yet sometimes mention of the lesser distance is useful or even necessary. Then persons are said to be consanguineous, for example, in the third degree, touching either the first or the second. Modern civil laws, on the contrary, imitating Roman law, compute the whole distance by which two persons are separated from each other, so that the sum is made of the degrees by which each is distant from the common stock, and there are as many degrees as persons are numbered, one being removed. That is, after the ascent to the common author, descent is made to the other kinsman. In this way it happens that, if the tracts are equal, the civil distance is double the canonical. Thus two brothers are canonically in the first degree, civilly in the second degree; two sons of brothers (first cousins) are canonically in the second degree, civilly consanguineous in the fourth degree. Nor, civilly, is there speech of unequal degrees.

Titius's consanguines in the first three degrees.

In the direct line:

Ascending: father and mother (1 degree); grandfathers and grandmothers (2 deg.); great-grandfathers and great-grandmothers (3 deg.).

Descending: sons and daughters (1 deg.); grandsons and granddaughters (2 deg.); great-grandsons and great-granddaughters (3 deg.).

In the oblique or collateral line:

In the first degree: brothers and sisters (stock: father and mother).

In the second degree: the sons and daughters of brothers and sisters (or his nephews and nieces of the collateral line); his paternal uncles and paternal aunts (brothers and sisters of the father); his maternal uncles and maternal aunts (brothers and sisters of the mother); his paternal cousins (patrueles and amitini or amitinae, that is, sons and daughters of paternal uncles and paternal aunts); his maternal cousins (consobrini and consobrinae amitinae), or the sons and daughters of maternal uncles and maternal aunts (stocks: father, mother, grandfathers, grandmothers).

In the third degree: the grandsons and granddaughters of his brothers and sisters; his greater paternal uncles and paternal aunts; his greater maternal uncles and maternal aunts (that is, brothers and sisters of grandfathers and grandmothers); their sons and daughters, grandsons and granddaughters; finally his sobrini and sobrinae, or great-grandsons and great-granddaughters of his grandfathers and grandmothers (stocks: father, mother, grandfathers, grandmothers, great-grandfathers, great-grandmothers).

Since a paternal uncle, paternal aunt, maternal uncle, and maternal aunt are distant by only one degree from the grandfather or grandmother, from whom Titius is separated by two degrees, Titius is their consanguine in the second degree touching the first; while with the sons of a paternal uncle or maternal uncle his consanguinity is in the second equal degree.

3. Consanguinity can exist as multiple. But after the Code, only that plurality is attended to which is had from a multiplied common stock (c. 1076, §2). Therefore it is multiple when, besides the singular or paired stock and its ascendants, whom all consanguines have, they come together also in another stock within the degrees which exclude marriage.

This happens: a) when persons, consanguineous between themselves, have arisen from two persons consanguineous between themselves who have been joined with two persons consanguineous between themselves. Then each parent communicates his own consanguinity to his descendants. Suppose, which is a frequent case, that two sisters are taken as wives by two brothers. The children of each marriage come together both in the parents of the father and in the parents of the mother; that is, in each line they have a common author or stock; b) when the same person begets offspring from several persons consanguineous among themselves. Suppose someone successively married two or three sisters. The children of the individual marriages come together both in the common father and in the common grandfather who was the father of the three sisters; and therefore their children are consanguineous between themselves in the second equal degree on the part of the grandfather, in the third on the part of the great-grandfather (their children, I say, because brothers and sisters cannot be joined in marriage); c) when a common ascendant has begotten children from a person consanguineous to himself. The descendants will have a common author, besides the ascendant, the common stock of the ascendant and of the person from whom he begot.

But it is no longer multiplied by the fact that one can ascend by diverse ways to the same common author.

This is had when, for example, the daughter of parents consanguineous between themselves wishes to marry a consanguine. For then this daughter, both through her father and through her mother, comes together in one common stock with her spouse. Therefore, if both spouses descend from parents consanguineous between themselves, they will necessarily have a double common stock: to one they will reach by one way, to the other by a double way; if only one or the other of the spouses descends from parents consanguineous between themselves, he ascends only by a double way to one common stock with the spouse.

4. Consanguinity is distinguished as legitimate and illegitimate. Which children are canonically legitimate will be said later.

Besides this, it can be bilateral or full, and unilateral or half. Full consanguinity joins those who communicate both from the father and from the mother. Brothers, sons of the same father and mother, are called full brothers (germani); sons of the same father but not of the same mother are called consanguine brothers; but uterine brothers are those who have only the mother in common. Formerly relatives through the paternal line were called agnates; through the maternal line, however, cognates.

You should observe that a double common author is had by all who are joined by full consanguinity; but, since this is the normal and more frequent condition, father and mother are taken after the manner of one stock, so that the consanguinity is called simple. Therefore do not confuse full consanguinity with multiple.

Multiple consanguinity can be set forth graphically thus.

Iacob                                      Ioseph

Ioannes             betrothed to           Maria

The betrothed parties come together in Iacob and Ioseph in the 3rd degree.

Laban

Iacob marries Rachel and then Leah, sisters.

Iuda                betrothed to           Athalia

The betrothed parties have the common stock Iacob in the 2nd degree,
and Laban in the 3rd.

Franciscus
├─ Antonius
│  └─ Gallus
│     └─ Alexander
└─ Petrus
   └─ Catharina

Antonius also, by spouse Catharina, has Lucia.

Alexander           betrothed to           Lucia

In this example, it is supposed that Antonius, son of Francis, generated Gallus, the father of Alexander, from another woman; but from his spouse Catharina (granddaughter of Francis) he generated Lucia. Alexander is consanguineous with Lucia in the second degree touching the first, by reason of Antonius; and in the third equal degree, by reason of Francis.

The more apt and safer mode of detecting impediments, especially to be used by those to whom these matters are not familiar, is this: that the bridegroom and bride indicate the names to be written down of their parents, grandfather and grandmother, great-grandfather and great-grandmother. If no common one is found, they will not be consanguineous even in the collateral line. For collateral consanguines in the third degree are only those who have as common author at least a great-grandfather or great-grandmother.

5. By today's law, consanguinity invalidates marriage infinitely in the direct line, or between all ascendants and descendants, whether they are legitimate or not. In the collateral line marriage is not invalid except within the first three degrees of consanguinity, legitimate or not.

This impediment in the first degree of the direct line is certainly of natural law, because the relation of equality between spouses cannot be composed with the reverence which a son and daughter owe to their parents. This opposition between conjugal equality and the reverence which is owed to ascendants perseveres in the other degrees. But whether it is so great that by the law of nature itself it invalidates marriage, this seems doubtful to many. Wherefore the impediment, as prohibiting, is of the law of nature; but it is less established that it is of the same law as diriment.

But in the collateral line, natural reason itself dictates that familiarity between brother and sister must be protected from impurity through the prohibition of marriage. Yet this reason could yield to the greater necessity of the general order at the beginning of the human race. Now, therefore, marriage in the first degree is certainly prohibited from natural law. It is less established that it is invalid. In other degrees, the impediment is of merely ecclesiastical law, yet well founded upon reasons of preserving reverence and the custody of purity.

Before the Code, consanguinity invalidated marriage in the collateral line up to the fourth degree inclusive; but it was multiplied also when one arrived at the same common author by several ways, or when there were several titles of the same consanguinity.

6. Since the bond is especially natural, converted and baptized infidels are held by this impediment no less than Catholics with all relatives, baptized or not.

For marriages contracted in infidelity, attention must be paid to divine law, and also to the civil law, written or customary, of the places. Civil law omitted, concerning only marriage in the first degree of the direct line is it established that it is and was perfectly null, and that the pseudo-spouses are to be separated. But those who are found joined in the first degree of the collateral line will be able after conversion, before the marriage is consummated after baptism, to be separated by pontifical authority and rendered capable of another marriage (cf. De Smet, 608).

— X. Affinity, with attention to c. 97, is defined as the bond of propinquity which a valid marriage, whether ratified only or ratified and consummated, induces between either spouse and the consanguines of the other spouse.

And it is computed thus, that in whatever line and degree the consanguines of one spouse are, they become affines of the other spouse (c. 97, §3).

You should observe that the spouses who by their marriage found affinity are not affines between themselves; but their peculiar proximity is designated by the proper name of marriage; nor does one spouse become an affine of the affines of the other spouse: affinity does not generate affinity; nor are the consanguines of one affines of the consanguines of the other spouse: affinity does not go beyond those joined, that is, affinity is terminated at the spouse who is affine. Wherefore the brother of one spouse is not an affine of the sister of the other spouse, so that two brothers can marry two sisters, and similarly a father and son can marry a mother and daughter. Nor is marriage prohibited between the son already born of a widower marrying a widow, and her daughter already conceived before those new nuptials. Nor are the husbands of two sisters affines between themselves.

Before the Code, affinity was founded in carnal commingling, and there was distinguished affinity from licit intercourse, that is, conjugal, which invalidated marriage up to the fourth degree, and affinity from illicit intercourse, whose diriment force was circumscribed by the second degree. Besides this, a spouse, through incestuous intercourse with a consanguineous man or woman of his spouse, contracted supervening affinity, by which he was prohibited from the petition of intercourse. No illicit affinity is now had.

Marriage is not ratified except of the baptized. Therefore canonical affinity does not arise from the marriage of infidels. Thus Cerato, De Smet, n. 613, Aertnijs, n. 764; Cappello, III, 538, although Noldin, 576 extends the impediment to every legitimate marriage. This pleases Vlaming, I, 353, if the impediment proceeds from a marriage consummated in infidelity.

But thus one recedes from the propriety of the words of the canon. But with the baptism of both infidel spouses, their legitimate marriage becomes ratified, and from this moment will found the impediment.

But since a marriage between a baptized and non-baptized party is far more probably not ratified (or a sacrament), it gives rise only to a very uncertain impediment of affinity.

2. Affinity can be simple and multiple. It will be multiple: a) with consanguines who are united with the other spouse by a multiple bond of consanguinity; b) with a spouse who is a consanguine of the prior spouse: as if someone successively married two sisters. For then the cause of affinity is multiplied: affinity is contracted because of two marriages with the same persons.

3. Affinity invalidates marriage infinitely in the direct line; in the oblique line up to the second degree inclusive (c. 1077, §1).

4. Rather than natural, the bond of affinity seems to us to be connatural, insofar as its fittingness, once marriage has been made and especially consummated, is seen so clearly that it is confirmed by that law of nations which occupies a middle place between natural law and positive law. Wherefore in no degree or line is the impediment of natural or divine law. An argument is lacking. The best reasons for the law, which partly are duties of piety, partly the excessive danger of sin to be forestalled from familiar association, do not have that force so as of themselves to exclude a valid marriage.

Yet in the first degree of the direct line the Church does not dispense. Once, on December 2, 1911, it permitted a widower to marry the daughter whom the deceased spouse had begotten before the marriage from fornication.

5. Civil laws conceive affinity in the same way as the Code. But there are laws, for example the present French and the very recent Belgian law of February 11, 1920, which remove the impediment from the point at which, by the death of the spouse (but not by divorce), the marriage from which it arose has been dissolved.

— XI. Public honesty, 1. designates that ratio of public decency which counsels a certain extension of the impediment of affinity. By the present law, c. 1078, the diriment impediment of public honesty arises a) from an invalid marriage, whether consummated or not, and b) from public or notorious concubinage; but it invalidates nuptials in the first and second degree of the direct line between the man and the consanguineous women of the woman, between the woman and the consanguineous men of the man.

a) It arises from every invalid marriage, whatever the cause of nullity may be, even if it is defect of consent.

b) With attention to c. 2197, public is what has already been divulged or, with attention to the circumstances, can and must prudently be judged as easily going to be divulged; notorious adds openly divulged knowledge, so that it can no longer be concealed by any tergiversation (notoriety of fact), or a sentence which has passed into a judged matter, or a confession made in judgment according to the norm of c. 1750 (notoriety of law). Concubinage means the habitual commerce of one with another, with a certain imitation or external appearance of conjugal life.

A frequent case will be of those who, subject to ecclesiastical form, after contracting a civil marriage, live as husband and wife. If that marriage were valid and they were baptized, it would found affinity.

You should observe that the diriment impediment is circumscribed by the direct line alone.

2. Before the Code, the impediment of public honesty arose from every ratified marriage, both valid and invalid, unless defect of consent stood in the way of validity, and from validly contracted sponsals. Arising from sponsals, it invalidated in the first degree of the direct and collateral line; arising from ratified marriage, in the first four degrees of each line. And it remained after sponsals and marriage had been dissolved.

3. This obstacle is neither generated by the law of nature nor founded upon a natural relation. Wherefore it does not affect infidels, not even after baptism, if the marriage or concubinage preceded baptism.

— XII. Spiritual kinship is the bond which arises from baptism and confirmation between certain persons. Today the impediment of marriage arises from baptism alone and invalidates marriage a) between the baptized man or woman and the one baptizing; b) between the baptized man or woman and the godfather or godmother.

It requires valid administration of baptism; and if it has been conditionally repeated, it is not contracted by the godparent unless the same godparent was used in each. Is it then contracted by the one baptizing? We judge that one must respond in the same way.

Then only can it be multiplied, if the same one is baptizing and, through a procurator, is at the same time godparent.

Cf. what was said concerning baptism, where we explained the antecedent law.

— XIII. Legal kinship from adoption, where civil law has established that impediment as diriment (cf. what was said in n. 766).

— I. Impedient impediments. 1. There are five simple vows: of virginity, of perfect chastity, of not marrying, of receiving sacred orders, of embracing the religious state.

2. Adoption, prohibiting nuptials according to the provision of civil law.

3. Mixed nuptials, which are most severely prohibited. Besides, if there is present danger of perversion of the Catholic spouse and of the offspring, the marriage is prohibited by divine law itself. In order that dispensation be made, besides just and grave causes, there is required a caution, that is, a formal promise of the non-Catholic spouse concerning the removal of the danger of perversion from the Catholic party, and of both spouses concerning all offspring to be baptized and educated only in a Catholic manner, and moral certitude concerning the fulfillment of the cautions. If the pastor knows certainly that the spouses have violated or will violate the prohibition of approaching a non-Catholic minister as such, he is not to assist at their marriage except for grave causes, scandal having been removed, and the Ordinary having first been consulted. One must abstain from sacred rite, unless the Ordinary has permitted one for avoiding graver evils, with the celebration of Mass always excluded.

The pastor cannot assist at nuptials with notorious apostates or with members of a condemned sect except after consulting the Ordinary.

If a public sinner or one bound by censure refuses confession, the pastor is not to assist at their marriage unless a grave cause urges, concerning which, if it can be done, he should consult the Ordinary.

II. Diriment impediments. 1. Defect of age: 16 completed years in men, 14 in women. Nor does malice now supply age.

2. Antecedent and perpetual impotence, whether absolute or relative. Impotence, according to the more common opinion, is said to be impotence for intercourse of itself apt for generation.

3. Ligamen, or the bond of a prior valid marriage. As long as, by moral certitude and legitimately, that is, in the manner which the law wills, it is not established concerning the dissolution or nullity of the prior marriage, another marriage is illicitly attempted.

The mode of proof is governed chiefly by the Instruction of the Holy Office, 1868. In the more difficult cases of less perfect proof, recourse must be had to the Holy See.

4. Disparity of cult, in the marriage of a non-baptized person with a person baptized in the Catholic Church or converted to it from heresy or schism. Therefore immune from the impediment are all those who have never belonged to the Church. According as it matters for the validity of marriage, which presumption favors, baptism certainly conferred is judged valid or not valid, and the party who is commonly considered as baptized is presumed baptized or not. Yet no virtual dispensation is contained in that presumption. Therefore practically, unless excessive difficulty stands in the way, provision must be made for the certitude of the contract or sacrament by baptism certainly conferred or by a dispensation as a precaution. In dispensation from this impediment, the same cautions as in mixed religion must be prescribed for validity.

5. Sacred order, even if the ordained refused to emit the vow of chastity.

6. Profession of solemn vows, or also of simple vows to which the Holy See has specially joined this invalidating force.

7. Abduction, or, by today's law, violent abduction of a woman (not of a man) from a safe place into an unsafe place, or detention in the place where she is staying, for the sake of entering marriage. The abduction of a minor girl is presumed violent. The impediment does not cease except after liberty has been recovered.

8. Crime, whether: a) of adultery alone, when, during the same marriage, both parties adulterous between themselves have mutually given faith concerning entering marriage, or have attempted marriage even by a civil act only. In what order each occurred does not matter; b) of spouse-killing, of which both were authors by formal conspiracy. Probably the intention of marriage conceived by one or the other and manifested to the other can be required; indeed, according to some, the intention conceived by each and manifested to the accomplice; c) of adultery concurring with spouse-killing, during the same marriage. Mutual machination of death is not required; but, in the killer, several require the intention of marriage with the other party, and indeed manifested to this other.

This impediment is contracted even by one ignorant of it. It can be multiple. Crime before baptism is washed away by baptism; nor does spouse-killing committed by an infidel alone harm the faithful party, unless the civil law itself urges the impediment for the infidel party.

9. Consanguinity, or propinquity arisen from generation, between persons of whom one has been generated by another (direct line), or who come together in one sufficiently proximate common author (stock) (oblique or transverse line). It is computed by degrees, which, in the direct line, are as many as generations; in the oblique line, canonically, are as many as the generations in the longer tract of distance from the stock. Where the tracts are unequal, mention of the shorter tract is sometimes useful, indeed necessary. The nearer degree is then said to be touched. Civilly, the whole distance by which both are separated from each other is customarily computed, as in Roman law.

Multiple consanguinity is had because of a multiplied common stock, with attention paid to the fact that one stock is made from two spouses.

Consanguinity is distinguished as legitimate and illegitimate. It is bilateral or full, which joins those who communicate both from the father and from the mother; and unilateral or half, on the part of the father alone or of the mother. Full brothers are called germani; consanguine brothers, those who communicate through the father alone; uterine, those who communicate through the mother alone. Formerly relatives through the paternal line were called agnates; through the maternal line, cognates.

Moreover consanguinity invalidates marriage infinitely in the direct line; but in the oblique line, within the first three degrees of consanguinity, legitimate or not. In the first degree of the direct line it is of natural law; in the collateral line, marriage between brother and sister is now at least prohibited by natural law. In other degrees it is of ecclesiastical law, well founded upon reasons of preserving reverence and purity of morals.

Converted and baptized infidels are held by these impediments with all relatives, baptized or non-baptized.

10. Affinity, which is now defined as the bond of propinquity induced through a valid marriage, whether ratified, or ratified and consummated, between either spouse and the consanguines of the other. But in whatever line and degree the consanguines of one spouse are, in the same they become affines of the other spouse. Since only the marriage of the baptized is ratified, affinity does not arise from the marriage of infidels. Multiple affinity will be with consanguines who are united with the other spouse by a multiple bond of consanguinity; or with a spouse who is a consanguine of the prior spouse.

Affinity is not proved in any degree to be an impediment of divine or natural law. Nor does it hold infidels after baptism, unless by the conversion and baptism of both their marriage has certainly been made ratified.

But by ecclesiastical law, affinity today invalidates marriage infinitely in the direct line; but in the oblique line, within the first two degrees.

11. Public honesty is a certain extension of the impediment of affinity, founded upon the ratio of public decency, which now, arising from every invalid marriage, whether consummated or not, and from public or notorious concubinage, invalidates nuptials in the first and second degree of the direct line, between the man and the consanguineous persons of the woman, between the woman and the consanguineous persons of the man.

Public here is what has been divulged or will easily be divulged; notorious adds openly divulged knowledge (notoriety of fact) or a sentence which has passed into a judged matter, or a judicial confession (notoriety of law).

Infidels, not even after baptism, because of prior facts, are in any way held by this impediment.

12. Spiritual kinship, from baptism, between the baptized person and the one baptizing; between the baptized person and godfather or godmother. And legal kinship from adoption, insofar as civil law establishes that impediment as diriment.

A high regard for Christian marriage which they are about to contract, and an ardent zeal to make their union resemble as closely as possible its arch-type, the union between Christ and the Church.

Unfortunately they are not, because Protestants deny the sacramental character of marriage.

Four centuries of Protestant teaching have established two convictions in the consciousness of the English-speaking world. The first is that the marriage of Christians is in no sense a sacramental union, and the second, that marriage is not a lasting, but a terminable, union. . . . It is a contract which can be terminated at will by the parties concerned, provided that they fulfil the conditions prescribed by the State.¹

¹ America, January 17, 1931, p. 350.

The Holy Father is very far from granting that other assumption of the profaners of marriage, namely that Catholics may marry persons of any other religion, or of no religion at all, or even professed atheists, without concerning themselves in the least about the religion of their chosen partner, and without any regard to ecclesiastical authority. On the contrary, the Sovereign Pontiff emphasizes¹ the just aversion which the Church professes for mixed marriages, and recalls to mind the words of the Code (Canon 1060) : “Everywhere and with the greatest strictness the Church forbids marriages between baptized persons, one of whom is a Catholic and the other a member of a schismatical or heretical sect.”²

¹ Pp. 47, 48.

² Experience only confirms the wisdom of this judgment. Compare Rev. P. Ter Haar, C.SS.R., De matrimoniis mixtis eorumque remediis.

For the parties themselves, a less complete accord of thought, sentiment, and action, flowing from the fundamental disagreement on the question of religion.¹ Also, the greater difficulty of fulfilling the task of mutual sanctification; less assurance of peace and cordial understanding; and a fatal tendency toward religious indifference. For the children there is reason to fear apostasy, or religious indifference, which is next door to loss of faith and ungodliness.

¹ See the convincing and popular exposition of this subject in “Marry Your Own” by D. A. Lord, S.J. (St. Louis, The Queen’s Work.)

Yes, she sometimes does, for grave reasons based on religious interests; for example, when in an exceptional case a well-grounded hope of the other party's early conversion makes the disadvantages and dangers more remote; and when a reason of a political nature demands such a concession.¹ Sometimes, too, the reason for the dispensation is hardness of heart; it is given to prevent a still greater evil. But when she does dispense, the Church imposes conditions dictated by the spiritual interests of the parties and of the children. She requires that the Catholic party work for the conversion of the other; that the non-Catholic party agree in writing to allow the Catholic party full liberty to practise his or her religion devoutly. Moreover both parties must promise in writing to educate in the Catholic Faith all the children that may be born of the marriage.²

¹ [Translator’s note: This latter reason would seem to have application only in countries, such as many of those of Europe, where matrimonial alliances between royal families have political importance.]

² See Code of Canon Law, Canons 1061, 1062.

It is a matter of natural and Divine law if there is danger of perversion for the Catholic spouse or for the children. (Canon 1060).

It is in fact more severe on marriages with unbaptized persons, because for these it promulgates a more severe sanction: such marriages are null and void if contracted without a dispensation.

The uses of the scalpel which chiefly pertain to our subject are especially these in the man:

50. - Circumcision, which cuts away an excessively narrow prepuce, or phimosis, is very useful for removing excessive irritation arising from various things gradually collected under the skin. The less good habits of boys are often to be imputed to phimosis.

51. - Castration consists essentially in the removal of both testicles.

Sometimes, as among the Turks, the penis itself is removed from those who serve in the "harem." These were called carsamatia. The effects of the cutting short vary according to the age at which it was done.

Those who are castrated before the seventh year of age retain a body greatly altered physically; they are impotent for completing copulation, and generally, though not always, remain immune from sexual libido. They are also affected not a little morally as a result, and are not accustomed to possess a virile spirit. In adulthood, however, this mutilation has little influence upon the exterior appearance of the body; at least for a long time, if the penis has been preserved, it permits the faculty of copulation to remain. Nor is libido quieted by this operation. Sacred Scripture itself testifies to the libidinous affection of eunuchs when it says, "The lust of a eunuch shall deflower a young maiden" ¹; and to their impatient impotence when it adds, "Seeing with his eyes and groaning, like a eunuch embracing a virgin and sighing" ². The comic poet Terence also reports it in this verse: "But, by Pollux, I had heard that they were the greatest lovers of women, but could do nothing" ³.

¹ Ecclesiasticus 20:2.

² Ibid., 30:21.

³ Eunuchus, act 4, scene 3.

Castrated boys are also deprived of the secondary signs of virility: beard, hair, and masculine voice.

Wherefore, since a stable sexual depravity can scarcely be established before adulthood, since the operation is otherwise gravely harmful, and since its very efficacy upon venereal appetite is uncertain, castration cannot be recommended as a remedy for perverted appetite ⁴.

⁴ Compare Féré, op. cit., pp. 9-11; Forel, op. cit., p. 24; Moll, op. cit., pp. 154, 156, 157, 673.

When it must be done because of disease, physicians are accustomed to supply artificial testicles, lest the castrated man be too greatly afflicted by a visible sign of impotence.

52. - Vasectomy or deferentectomy resects the vas deferens above both testicles, by which the sperm properly so called is conducted to the urethral canal. Since only the exterior secretion of the testicle is removed, sexual appetite remains, so that the faculty of intercourse by no means ceases; but, since nemaspermata are lacking, copulation necessarily becomes sterile.

There are some, especially in America, who proclaim this operation most effective for tempering an excessively burning libido; and they declare at the same time that it can be brought about without great difficulty that the canal is afterwards restored. But a true demonstration of its efficacy is still lacking ⁵; and other physicians entirely deny that the separated parts of the vessel can easily be joined well again. Compare the Reverend Father Ferreres, De vasectomia duplici, etc.

⁵ Because of the things which we noted above concerning the twofold secretion, a diminution of sexual libido, if there is any, would have to be explained by a certain hidden alteration of the testicles.

53. In the woman, moreover, besides:

1. Certain operations which pertain here, so that the opening of the vagina may be dilated or opened; or, contrariwise, that the labia dilated by intercourse may be contracted and virginity apparently restored, even with the hymen repaired; we must mention:

2. Castration, by which the ovaries are removed. Observe, however, that the perfect excision of both ovaries can be established with certainty, at least when a certain manner of operating has been employed.

3. Sometimes the uterus itself is excised together with the ovaries; this operation is called Porro from the physician who originated it.

Note well. Among uncultivated peoples, incisions are sometimes made in the exterior labia of the sexual parts, which, because they imitate male circumcision, are called by the same name of circumcision.

4. By the general name laparotomy are designated operations by which the abdomen is opened.

5. To obtain sterility, some physicians merely bruise the ovaries, or ligate the oviduct, so that it can no longer communicate with the uterus.

6. Conversely, so that a living fetus can be brought forth by another route than that of the uterus, the Caesarean operation is available, namely, a longitudinal section of the abdomen; while by

7. Symphysiotomy the very space through which the fetus can emerge through the opening of the vagina is enlarged.

8. A part of the clitoris can sometimes be cut away with sufficient usefulness for diminishing libido.

54. - Puberty in the man signifies the production of nemaspermata in the testicles. These testicles at the same time produce the element essential to fecundity, or sperm strictly understood, and possess an internal secretion whose fluid, mingled with the blood, fosters sexual appetite; and, as we have seen, induces the secondary marks of virility: beard, pubic hair, and changed voice.

In the woman, puberty is had from the time of ovulation, which is customarily revealed by menstrual flow, occurring almost every 28 days and following the discharge of a mature ovule.

55. Yet a man is not fully mature for marriage, nor is a woman to be judged fully marriageable, before they have fully matured, or have perfectly attained strength.

It is therefore desirable of itself that, in our regions, a daughter not marry unless she has passed the twentieth year of age, and a son unless he has passed the twenty-third year.

Hence the Code of Canon Law also wisely distinguishes, in canon 88, the age at which someone is deemed pubescent, namely, the completed fourteenth year for males and the twelfth for females, from the age at which one can validly contract marriage. Canon 1067, moreover, requires the completed age of sixteen years in males and fourteen years in females for the validity of the nuptials themselves. As is evident, dispensations will frequently have to be granted in warmer regions, for example African ones, especially since the exception "unless malice shall have supplied the age" is no longer in force.

56. "In the woman," thus the Reverend Father Gemelli ¹, "ovulation ceases in the twenty-eighth or thirtieth year after puberty; at that time the ovaries and adjoining organs undergo the process of involution; the menstrual flow ceases, and thereafter the whole organism also is subjected to the process of involution."

¹ Non moechaberis, p. 20.

The age at which the woman is thus changed is customarily comprised between the forty-fifth and fiftieth year; and it is called critical because the woman then has dangers of health to overcome. Observe, however, that perfect degeneration of the ovaries, upon which conception becomes impossible, is not had until some years, from two to four, after the menstrual flow has ceased. In practice, scarcely any woman can conceive after completing fifty years of age. But the customary order of nature is that, at least a few years after the menstrual flow has been suppressed, the ovaries are deprived of their function.

The man, however, probably produces living nemaspermata up to sixty years of age. Thereafter the probability decreases, and at the age of eighty years it becomes minimal.

Compare Lawson, Tait, and Peuch, cited by Luciani, Fisiologia, vol. 2, p. 770; Mangiagalli, Ann. di ostetr. e ginecol., 1895.

57. We conclude this introduction with a question which, being fairly recently disputed, affects the validity of marriage and its connected rights and duties too greatly for it to be capable of being ignored by a moral theologian. Hence it also obtains a place in the moral treatise on chastity and marriage, although it pertains properly to the anthropological elements which ground and prepare the moral treatment.

58. - The distinction received formerly and today. To begin from the common judgment of the present and preceding age, from antiquity even to our own day a twofold impotence of the sexual order is distinguished: impotence for intercourse and impotence for generation. Hence a grave suspicion of falsity falls upon the opinion which abolishes this distinction or preserves it only apparently.

Come now, the impotence which obstructs a valid marriage is called, in law and by the best authors, impotence for intercourse; and the name impotence is more properly reserved for it.

Thus it is done in all the chapters of C. XXXIII, q. 1, of the Decree of Gratian, which, moreover, in its dicta, inquires into the impossibility of the office, that is, of rendering the debt. Thus also in the chapters of title XV of the fourth book of the Decretals, which is inscribed Concerning the Frigid, the Bewitched, and Impotence for Intercourse. In the other books of the Corpus of Law, however, the argument is no longer touched upon.

Now to call upon the authors, Tancred, in his celebrated Summa de matrimonio, has this: "Among the other impediments of marriage, the impossibility of intercourse obtains the greatest place." The same words occur in St. Raymond, the author of the Decretals, in his Summa. St. Thomas ¹ calls the power for carnal copulation essential. "Natural impotence for intercourse," says St. Bonaventure, "if perpetual, then impedes contracting and invalidates the contract, namely, marriage... because... it is necessary to consent to mutual power over the bodies; but this consent is null, nor is there such an obligation in one who does not have the power to exercise that act" ².

¹ Supplementum, III, q. 58, art. 1.

² In IV Sent., art. 2, q. 1, conclusion and ad 1.

"The twelfth impediment," says Cajetan in the Summula, "is impotence for intercourse." Laymann uses these explicit words ³: "One impotence is for generating offspring, which is called sterility; and this, if it exists alone, brings no impediment to marriage. Another, however, is impotence for carnal copulation, concerning which let this be the assertion: perpetual impotence for perfect copulation renders a subsequent marriage invalid." From contemporary authors we shall cite Feije of Louvain ⁴, who has this: "Impotence for intercourse by perfect copulation... must be distinguished from impotence for generating, or sterility: the former obstructs the validity of marriage, but the latter does not." The Most Illustrious Doctors Freisen ⁵, De Becker ⁶, and the Most Eminent Cardinal Gasparri ⁷ speak in an entirely similar manner, so that the Reverend Father Ojetti ⁸ could propose these two things as certain: "Antecedent and perpetual impotence for intercourse by the very law of nature invalidates marriage.... Impotence for generation, which is sterility, does not invalidate marriage."

³ Theol. mor., book 5, tractate 1, part 4, chapter II, no. 1.

⁴ De impedimentis, etc., no. 538.

⁵ Geschichte des Kanonischen Eherechtes, 30, 7, p. 330.

⁶ De Sponsalibus et Matrimonio, pp. 165-169.

⁷ De matrimonio, no. 573.

⁸ Synopsis, no. 2389.

Note well. Congenital impotence for intercourse in the man is also called frigidity.

59. - Origin of the confusion and obscurity. Roman law granted marriage to the spado, or to him who was incapable of copulation through natural infirmity, but denied it to him who had been castrated by the hand of men: "In the castrated man there is no marriage" (L. 23, 1, D. 23, 3; compare l. 26, D. 28, 2; l. 14, D. 4, 2).

Thus it came about that, concerning those who lacked both testicles, it was disputed in the Church herself whether or not they could contract a valid marriage. Ledesma ⁹ reports this controversy, which Sixtus V resolved by the celebrated motu proprio Quod frequenter, June 27, 1587, to the Apostolic Nuncio in the kingdoms of Spain, in which he at the same time relates that there were several eunuchs who, "boasting that they were capable of intercourse, had celebrated nuptials." The Pontiff then commands not only that those marriages be prohibited in the future, but also that those previously contracted be declared null; which appears to disclose quite clearly a conviction of nullity from the law of nature.

⁹ De magno sacramento matrimonii, q. 58, art. 1.

In order to take away from eunuchs the argument which they had drawn from the customary definition of impotence and sterility, several authors, after this act of Sixtus V, but not before it - which must be well noted - began to require, in order that marriage be valid, the power for "perfect copulation, that is, with the emission of true semen into the female vessel" ¹⁰; or even "for copulation apt for generation." Thus, for example, Gonzales Telles ¹¹ and St. Alphonsus ¹², at the place of Busembaum, where the latter says: "Marriage consists in the mutual handing over of bodies physically apt for generation."

¹⁰ Laymann, loc. cit., no. 3.

¹¹ In decret., book 4, title 15, no. 9.

¹² Book 6, tractate 6, no. 195.

Therefore, words of this sort, which are frequently employed today, take their origin from the motu proprio of Sixtus V and were employed by writers so that, by the very manner of speaking, they would exclude eunuchs from marriage.

Preliminary note. Since it has already been sufficiently proved above that the faculty of establishing impediments of matrimony belongs to the Church, and that in Christian marriages exclusively, that is, with civil power entirely excluded, we can immediately approach the explanation of the individual impediments, dividing this whole chapter into four articles: 1. on the notion and division of impediments; 2. on impedient impediments; 3. on diriment impediments; 4. on dispensation from impediments.

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.

1983. By IMPEDIMENT OF MATRIMONY is understood that which stands in the way so that matrimony is not entered into duly.

Impediments are of a twofold kind: some render matrimony only illicit, others render it moreover invalid. The former are called IMPEDIENT, or prohibiting, the latter DIRIMENT.¹³

1984. Besides mortal sin and excommunication, which render matrimony illicit, FOUR prohibiting impediments are numbered, comprehended in these little verses:

Prohibition of the Church, time, betrothals, vow,
Impede it from being made, permit what is made to stand.

To these impediments TWO others were formerly numbered, namely: - 1. The impediment of Catechism, which was contracted by him who answered for an infant, when the ceremonies were supplied after Baptism conferred in necessity; or, according to others, by him who recited the profession of faith in the name of the one to be baptized before Baptism. This impediment was removed by the Council of Trent (sess. 24, de reform. Matrim., cap. 2). - 2. The impediment of Crime, under which name were comprehended certain delicts, e.g. incest with one's own mother or daughter, abduction of another's bride, wife-murder, priest-murder, public penance as long as it endured, etc.; but this impediment has become obsolete by desuetude.¹⁴ - By others also the dissent of parents is reckoned among prohibiting impediments. See what was said n. 1951 and 1973, qu. 6.

1985. By PROHIBITION OF THE CHURCH, in the strict sense, is understood an interdict from man, and it is defined: A prohibition by which an ecclesiastical Superior forbids, for a just cause, matrimony to be contracted between certain persons, until that cause or reason has been removed. But under the name of ecclesiastical Superior here comes not only the Pontiff for the universal Church, and the Bishop for his diocese, or the vicar general; but also the pastor, who, although he does not judicially see to matrimonial causes as to other causes, nevertheless can place an INTERDICT as pastor, until namely the cause is discussed and decided by the ordinary judge.

The CAUSES of the prohibition can be: either betrothals entered with another, or suspicion of a latent impediment, or fear of disturbances, ignorance of the elements of faith, or another thing of this sort.¹⁵ If the prohibition was made on account of a grave cause, the contracting parties sin gravely in contracting matrimony; but lightly, if the prohibition is on account of a light cause, e.g. on account of the veneration of some feast.¹⁶

In a broader sense, PROHIBITION OF THE CHURCH comprehends moreover certain general prohibitions noted in law, such as: that matrimony not be celebrated when proclamations have been omitted; that it not be entered into clandestinely, which prohibition everywhere constitutes an impedient impediment, but where Trent has been promulgated, is a diriment impediment. Concerning these it will more conveniently be said below, where proclamations and clandestinity are treated (n. 2056 and 2040).

Among these prohibitions noted by law, the first place must be assigned to that by which MIXED MARRIAGES are forbidden, concerning which one must speak more fully.

1986. MIXED matrimony, or matrimony of mixed religion, is called that which is contracted between baptized persons, of whom one is Catholic, but the other non-Catholic.

Principles. I. "MIXED marriages are detestable unions, which Holy Mother Church has perpetually CONDEMNED and interdicted." - Thus Benedict XIV, in the Decree concerning marriages of heretics in Holland.¹⁷

But why they are to be detested Our Most Holy Lord Pope LEO XIII explains in a few words in the Encyclical Arcanum, saying: "This also must be guarded against, namely that marriages not easily be desired with those alien to the Catholic name: for it can scarcely be hoped that souls dissenting about the discipline of religion will be otherwise concordant in other things. Indeed, it is chiefly from this that one perceives that marriages of this sort must be abhorred, because they furnish occasion for forbidden association and communication in sacred things, create danger to the religion of the Catholic spouse, are an impediment to the good instruction of children, and very often impel souls to become accustomed to having equal regard for all religions, the distinction between true and false having been removed."

1987. II. Mixed marriages sometimes CAN BECOME LICIT, namely from pontifical dispensation conceded on account of a grave cause, with due cautions moreover being employed and certain conditions being observed. Thus it has been declared many times by the Supreme Pontiffs, and by name by Pius IX in the Instruction promulgated on 15 Nov. 1858.¹⁸

1. PONTIFICAL DISPENSATION is required, since it pertains to the Apostolic See alone to dispense in the general law of the Church.¹⁹ - This dispensation, if at times it concedes it through the Congregation of the Holy Office, it concedes only unwillingly, and solely for grave causes, e.g. on account of hope of gaining the non-Catholic family for the faith, or for avoiding scandals.

2. DUE CAUTIONS must be employed, "namely that a) not only can the Catholic spouse not be perverted by the non-Catholic;²⁰ indeed b) the Catholic spouse himself knows that he is bound, according to his powers, to draw the non-Catholic back from error; but also c) that all offspring of either sex to be procreated from these mixed marriages must altogether be educated in the holiness of the Catholic religion. These cautions indeed can never be remitted or dispensed, since they are founded in the natural and divine law itself, which the Church and the Holy See strive with every zeal to guard whole and intact."²¹ The required cautions formerly had to be confirmed in writing or even by oath; but today it suffices that there be "such a promise, reduced to an agreement, as furnishes a moral foundation concerning the truth of the execution, so that such execution can prudently be expected;" from the decision of the Holy Office, 30 June 1842.²² - But if, in some places, diocesan Statutes prescribe writing or oath, or even other cautions besides those enumerated, they must be obeyed.

3. CERTAIN CONDITIONS must be observed, which regard the celebration of matrimony, namely "that these mixed unions be celebrated outside the church, and without the blessing of the pastor, and without any other ecclesiastical rite." - Hence, only passive presence of the pastor is permitted; which ought to be such that he does not assist at the matrimony in a sacred place, nor with vestments which display a sacred rite. Moreover, he ought not recite liturgical prayers over the contracting parties, nor bless them in any way. - Yet it is right for him to question them concerning the will of entering matrimony. But it is not licit to make proclamations of such marriages, as is clear from the Letter of Pius VI to Cardinal de Frankenberg, 13 July 1782.²³

But the Church does not urge the observance of these conditions with the highest rigor; for, "if in some places the sacred Prelates know that the same CONDITIONS cannot be fulfilled without graver damages and evils arising from it: in this case only His Holiness commits it to the prudent judgment of the same sacred Prelates, for avoiding greater damages and evils of this sort, that they themselves, with the cautions always saved and firm and most diligently observed..., judge when the commemorated conditions concerning these mixed nuptials to be contracted outside the church and without the blessing of the pastor can in no way be fulfilled; and when, in entering these promiscuous marriages, the custom of employing the rite legitimately prescribed in the diocesan Ritual for marriages to be contracted can be tolerated; yet with the celebration of Mass always excluded, and all the circumstances of things, places, and persons most diligently weighed, and with the conscience of the Prelates themselves burdened concerning the truth and gravity of all the circumstances."²⁴

If ACTIVE assistance of the pastor is judged to be permitted, it can also be tolerated, when circumstances advise it, that the customary PROCLAMATIONS be made, with mention of the religion of the parties to be married being omitted, and that TESTIMONIAL LETTERS be conceded concerning the facts, which state only that nothing, besides the prohibition of the Church, stands in the way of arranging the matrimony, all words being omitted from which suspicion of consent or of any approval could arise.²⁵

And let these things have been said concerning MIXED marriages which have become licit. But since pastors are accustomed to be especially anxious concerning illicit mixed marriages, it comes aptly here to be inquired what must be done in such circumstances.

1988. Questions. Q. 1. Whether the pastor CAN ASSIST at a mixed matrimony which, on account of defect of dispensation, remains illicit?

Resp. Negatively, speaking regularly: because such assistance is material cooperation toward an illicit act, and therefore prohibited of itself.²⁶ "Nevertheless, if it is recognized that it can yield to the utility of the Church and the common good of souls that nuptials of this sort, however illicit and forbidden, be celebrated before a Catholic pastor rather than before a heretical minister, to whom the parties could easily flee: then the Catholic pastor himself, or another priest acting in his place, will be able to be present at the same nuptials only by material presence, every ecclesiastical rite being excluded, just as if he performed only the parts of a merely qualified witness, as it is commonly called, or one able to authorize."

That is, so that, after hearing the consent of each spouse, afterward according to his office he may record the act validly performed in the book of marriages.¹ Likewise, proclamations can be made and testimonial letters conceded, in the manner in which it was said above.² But the pastor, in this matter, should do nothing without consulting the Bishop.³

Q. 2. What if the spouses also wish to contract before a HERETICAL MINISTER?

Resp. 1. "When civil law commands it, it is not disapproved that the Catholic party together with the heretical party present themselves, before or after matrimony contracted according to the form of Trent, also before a minister addicted to heresy, only to fulfill the civil act, namely that they may be held civilly as honorable spouses, and that the offspring may be judged legitimate."⁴

2. "But truly, whenever the heretical minister is regarded as one devoted to sacred things and as performing the office of a pastor, it is NOT LICIT for the Catholic party together with the heretical party to furnish matrimonial consent before such a little minister; because he would be employed to complete a certain religious ceremony, and the Catholic party would associate himself with a heretical rite: whence there would arise a certain implicit adherence to heresy, and consequently an altogether illicit communication in divine things with heretics."⁵ Wherefore the PASTOR, if the spouses nevertheless wish to express consent before a heretical minister, should abstain from every intervention. - But in these most miserable circumstances, if every scandal can be removed, and a most grave cause accedes, e.g. the danger of concubinage, in those places where the impediment of clandestinity prevails, it seems that passive assistance of the pastor can be permitted.⁶

3. "Pastors should know moreover that, if they are questioned by the contracting parties, or if they know certainly that these are going to a heretical minister devoted to sacred things, to furnish matrimonial consent, they cannot be silent; but they are bound to admonish the same spouses concerning the most grave sin which they commit, and concerning the censures which they incur"⁷ (see n. 1314, 3). - "Nevertheless, for preventing grave evils, if, in some particular case, the pastor has not been questioned by the spouses whether it is licit now to go to the heretical minister; and no explicit declaration is made by the same spouses concerning going to the heretical minister; yet he foresees that they perhaps are going there to renew matrimonial consent, and moreover from the circumstances occurring in the case he foresees that admonition certainly will not be profitable, indeed that it will be harmful, and from this that a material sin is to be turned into formal fault: then LET HIM BE SILENT, scandal however being removed, and provided the other conditions and cautions required by the Church have been duly placed, especially concerning the free exercise of religion to be conceded to the Catholic party, and also concerning all offspring to be educated in the Catholic religion."⁸ Matrimony in such a case becomes licit, and the spouses, on account of good faith, sin only materially by going to the heretical minister.

4. "But if finally consent wishes TO BE RENEWED before the pastor after it has already been furnished before a heretical minister, and this is publicly known, or is notified to the pastor by the spouses themselves: the pastor will not be present at this matrimony unless, other things to be observed having been observed as is supposed, the Catholic party, repentant of the deed, after salutary penances have been premised, has first duly obtained absolution from the censures contracted."⁹ But cautions must be furnished by the spouses also in the external forum, and for this end recourse to the Bishop is required.¹⁰

5. Finally, when the spouses refuse to stand by the prescriptions of the Church, it must be said as concerning the case in which they pertinaciously intend to contract before a heretical minister (see above n. 2).

Note. In certain regions, Bishops obtain the faculty of dispensing their subjects over the said impediment of mixed religion, except Italians, concerning whom it is not established that they have altogether abandoned an Italian domicile.¹¹

1989. FORBIDDEN or closed TIME, as they say, is an impediment by which "from the first Sunday of Advent up to the day of Epiphany, and from Ash Wednesday up to the Octave of Easter inclusive, the solemnities of nuptials are prohibited."¹² The reason of the prohibition is that these solemnities vehemently draw souls away from spiritual things, to which the Christian faithful ought to attend especially in this sacred time: whence it obliges under grave sin of itself (cf. n. 1217, 5).¹³

But under the name of solemnities are understood: - 1) The blessing of nuptials, which is had in the Mass For the groom and bride: this solemn blessing is prohibited under grave sin. - 2) The solemn leading of the bride into the house of the groom, which namely is done with great pomp and great preparation: in this matter one can also sin gravely, if the solemnities are too immoderate: which is to be judged according to the customs of places, from common sense. - 3) More solemn banquets; but "these are not prohibited under grave sin, unless the excess is great: indeed, if they are done moderately, there will be no fault."¹⁴

Therefore by universal law there are NOT PROHIBITED either betrothals, or proclamations, or the celebration of matrimony, with only that blessing employed which is had in the Ritual; nor the leading of the bride itself without solemnities.¹⁵ Nevertheless, in some places, the celebration of matrimony, although not solemn, is prohibited by customary law or diocesan law, by which one must stand under grave sin, unless a dispensation of the Bishop intervenes.¹⁶ But it is not licit for him, without a special faculty, to permit the solemnities of nuptials, because he cannot dispense, by his own authority, in the universal law of the Church.¹⁷

1990. BETROTHALS validly entered and not legitimately dissolved induce a true and mutual obligation, so that it is no longer licit for either party, against the faith given, to enter another matrimony; although once celebrated, this would be valid. - Recall what was said n. 1952 and 1953.

1991. Under the name of VOW, which constitutes a prohibiting impediment of matrimony, comes a simple vow, whether of not marrying, or of preserving chastity, or of entering Religion, or of receiving sacred Orders.

Principles. I. A simple vow is an impediment prohibiting the celebration of matrimony UNDER GRAVE SIN. - The reason is that one contracting with such a vow either directly transgresses it, namely if it is a vow of not marrying, or exposes himself to the proximate danger of transgressing, as is evident: and therefore, since it is a question of a grave obligation, without doubt he sins gravely against the vow. Besides, he sins against justice, because the counterpart not admonished is gravely deceived. To these there is also added the positive declaration of law.¹⁸

1992. II. The OBLIGATION of the vow, after matrimony has been illicitly celebrated, IS NOT REMOVED, except insofar as its fulfillment has been made morally impossible. - The reason: because on the one hand no one ought to report advantage from his own malice, but on the other no one can be held to the impossible.

Hence: 1. He who enters matrimony, disregarding a vow of NOT MARRYING, or consummates matrimony, disregarding a vow of virginity alone, indeed sins gravely; but now he is held to nothing further, since the vow has been made simply impossible.

2. He who, after spurning a vow of CHASTITY, contracts matrimony, is held to all those things which can be observed in the conjugal state, namely: - 1) He cannot ask the debt, unless charity toward the counterpart placed in danger of incontinence advises it; but generally he can render it, because the right of the spouse asking prevails. But - 2) He cannot render when the counterpart does not have the right of asking, namely in the first two-month period, unless the matrimony has already been consummated: for once it has been consummated, he is bound to render, provided the spouse has not lost the right of asking for another cause, e.g. on account of adultery or incest. - 3) When the counterpart has died, he cannot hasten to new nuptials. But if, during matrimony, he commits adultery, by this very fact he also becomes guilty of violation of the vow.¹⁹

3. He who after emitting a vow of ENTERING RELIGION contracts matrimony, is held to the following: - 1) Within the first two-month period conceded for deliberating, he cannot consummate the matrimony, either by asking or by rendering the debt, but is bound to enter Religion. - 2) After the two-month period has elapsed, the obligation of the vow still endures, if the counterpart, whose will must be seriously explored, is willing to consent to its execution; but if the counterpart does not consent, he can not only render the debt, but also ask it. - 3) If the counterpart loses the right of asking perpetually, or consents to the observance of the vow, or has died, the obligation of the vow revives, unless perhaps the circumstances have been so changed that the vow now ceases intrinsically, e.g. if the one vowing has now grown old. If the vow had been of entrance into an Institute where simple vows are emitted, the obligation would comprehend only those things which we have just said under 3).

4. He who enters matrimony after emitting a vow of RECEIVING SACRED ORDERS can use matrimony, both by asking and by rendering the debt; but he is bound to fulfill the vow, if the counterpart consents, or if she has died, or if she has lost the right of asking perpetually.

Note. The things said concerning the fulfillment of a vow after contracted matrimony indeed hold of themselves, and in the rigor of law; but IN PRACTICE, for the most part, it will be more advisable that recourse be had to DISPENSATION.

1993. IT IS ASKED. Who can DISPENSE from the aforesaid vows?

Resp. 1. If the vow is not reserved to the Pope, e.g. a vow of not marrying or of receiving sacred Orders, the Bishop, by ordinary right, can dispense for a just cause.

Resp. 2. If the vow is reserved to the Pope, as is a vow of perfect chastity and a vow of entering Religion strictly so called, provided all the conditions for reservation are verified, one must distinguish: - 1) Before matrimony, the Bishop cannot dispense by ordinary right, unless there is danger in delay, and easy recourse to the Pontiff is not open (cf. n. 645, q. 2). - 2) After matrimony has been contracted, he can dispense from a vow of chastity, in order to asking the debt, since this faculty is conferred on Bishops by force of custom, which furnishes jurisdiction, from cap. Cum contingat, de foro competenti.²⁰ - Nevertheless, in a vow of chastity which spouses have emitted by mutual consent, the Pope alone can dispense, as Authors commonly teach.²¹

What Regular Confessors can do from privilege, see n. 2191, 2.

Note. There is a sufficient CAUSE for obtaining dispensation or commutation in a vow of chastity, or in a vow of entering religion, "if someone on account of grave temptation is in probable danger even of one fall, because through one fall chastity is already lost."²² - Likewise, if someone has violated a girl by force, or seduced a woman by promise of matrimony; if a girl, bereft of her father, has been left with a very poor mother, and can lead life only from her own labor and with difficulty; if the same, bereft of her mother, has a father who vehemently presses, grows angry, and impels her to nuptials, so that to live with him, unless she obeys, becomes most hard; if the one vowing labors under a disease which, by the counsel of physicians, cannot be met by other medicines, and it is more certain to use the remedy of matrimony, etc.²³

DIRIMENT IMPEDIMENTS, which namely stand in the way so that matrimony is not entered validly, have not all been constituted by the same authority: for some have their origin from natural law, others from positive divine law, and finally others from positive human law, i.e. ecclesiastical law, as we shall see in their places. But before we enumerate them, it must briefly be said both of the POWER by which they are constituted, and of the PERSONS whom their bond constrains. - Hence the following:

1994. Principles. I. The CHURCH, by proper and original right, CAN ESTABLISH diriment impediments of matrimony. - It is of faith, from Trent (sess. 24, can. 4), thus defining: "If anyone shall have said that the Church could not establish diriment impediments of matrimony, or that she erred in establishing them: let him be anathema." - For Christ, when he had renewed marriages to their primary excellence, "entrusted and commended the whole discipline of them to the Church. Which power she exercised in the marriages of Christians at every time and in every place in such a way that it appeared to be proper to her, and not sought by the concession of men, but obtained divinely by the will of its Author."¹

1995. II. The CHURCH ALONE can establish diriment impediments, as regards marriages OF CHRISTIANS. - For "since matrimony is sacred by its own force, its own nature, and of its own accord, it is fitting that it be ruled and governed 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, from the will of Christ, can and ought so to establish and command, that it is plainly absurd to wish even the smallest part of her power to have been transferred to the governors of the civil commonwealth."²

From today's discipline, and already for several centuries, the FACULTY of establishing diriment impediments has been made a greater cause reserved to the supreme authority, namely to the Roman Pontiff or to a general Council; and this seems to have been done for preserving uniformity in so arduous a business, in which difficulties can easily arise.³

1996. III. By diriment impediments of natural law, or of positive divine law, ALL MEN are bound; but by impediments of ecclesiastical law, ONLY CHRISTIANS. - And in very truth: 1. as regards impediments of the law of nature, the matter is evident, since the natural law extends itself to the whole human race. The same must be said as regards impediments of positive divine law; for the things which pertain to it were established in the marriage of our first parents, and therefore are valid for all their children.⁴ - 2. But that only Christians, and not infidels, are bound by impediments of ecclesiastical law is certain, since these are not subject to the Church. It is equally certain that all Catholics, in this matter, are held by the laws of the Church. But whether also non-Catholics are held by the same was more disputed; yet the common opinion now affirms it. The reason: because non-Catholics through Baptism have been made subjects of the Church; but she intends to oblige them, since she holds as invalid marriages contracted in heresy, to which nothing stood in the way except an impediment of ecclesiastical law (cf. n. 198). - An exception mercifully made by the Church, in certain cases, as regards the impediment of clandestinity, will be commemorated below, where the Celebration of matrimony is treated (cf. n. 2071).⁵

1997. Questions. Q. 1. Whether the CIVIL LEGISLATOR can establish impediments diriment of matrimony?

Resp. 1. Negatively, as regards marriages of Christians, since power over sacred and divine things belongs exclusively to the Church (cf. n. 149 and 2089). - 2. As regards marriages of infidels, it is disputed. Among the older Theologians the opinion which adjudicated such power to the civil legislator was indeed more received;⁶ but among more recent authors the denying opinion has become more common;⁷ and this pleases us more, since "matrimony is sacred by its own force, its own nature, and of its own accord," as Our Most Holy Lord Pope LEO XIII says⁸ (n. 1995).

Q. 2. Whether an INVINCIBLY UNKNOWN impediment renders matrimony invalid?

Resp. Affirmatively; because it induces inability, for contracting which knowledge is not required. And this is valid, according to the more common opinion, even concerning those impediments which seem to have the nature of a penalty, such as the impediment of crime seems to have.⁹ See what is to be said concerning this impediment (n. 2035 sqq.).

Q. 3. Whether an impediment invalidates matrimony, if this is entered FOR AVOIDING a most grave inconvenience?

Resp. Affirmatively; because the common good stands against the cessation of impediments on account of private convenience. For, after some grave fear had been inflicted, too easy a way to contemn them would lie open. Add that marriages would be rendered very uncertain, because it would not always be established concerning a sufficient inconvenience. Thus commonly the Doctors hold it as most certain.¹⁰

Q. 4. Whether it is licit to contract matrimony with a DOUBTFUL or PROBABLE impediment?

Resp. 1. Affirmatively, if the diriment impediment is of ecclesiastical law, and after diligence has been employed, there is had an opinion probable by probability of law concerning the absence of the impediment, provided that opinion is universally, or certainly by Authors, received as probable. Nor does it stand in the way that, in the confection of the Sacraments, it is not licit to use a probable opinion; "for it is answered that in this case the Sacrament of matrimony is not ministered with a merely probable opinion, but with moral certitude:" because, as the Doctors commonly hand down, when a probable opinion of law stands, that an impediment is not present, from most ancient custom the Church is judged to dispense in it, if perhaps it is present.¹¹ But this does not hold, if the probability is of fact: for example, if it is believed only probably that intercourse was not perfect, and therefore that affinity is not present; or that betrothals were not valid, and therefore that the impediment of public honesty is not present. - The reason is that in probability of this sort the Church is no longer presumed to dispense, and the opposite opinion is not commonly received as probable; and from another side too many inconveniences would follow if, after matrimony had been contracted, the error were discovered.¹²

Resp. 2. Negatively, speaking of itself, if the impediment is of divine law, whether natural or positive; and the reason is that it is illicit to minister a Sacrament with an opinion only probable concerning its validity; but the Church, in this case, cannot supply the probable defect, since the impediment does not depend on her. - "We said speaking of itself; for, when a most grave cause is urgent, matrimony can be contracted, provided there accedes a declaration of the Supreme Pontiff as the sole interpreter of divine law"¹³ (cf. n. 135).

1998. With these things generally said, one must now treat specifically of the individual impediments.

FIFTEEN are numbered, comprehended in these little verses:

Error, condition, vow, cognation, crime,
Disparity of cult, force, order, bond, honesty,
Age, related by affinity, if clandestine, and impotent,
Or if the woman has been abducted, and not restored to a safe party:
These forbid unions to be joined, retract those made.

These impediments draw their origin, some from defect of valid consent, others from defect of ability of the contracting parties, but one from defect of the form prescribed by the Church. Therefore under a diverse title, according to the variety of origin, we shall treat of each.

FOUR impediments are opposed to the validity of consent: on the part of the intellect, error and unknown servile condition; on the part of the will, force and abduction.

1999. A twofold ERROR is distinguished: substantial, which is concerned with the contracting person, or the nature of matrimony; and accidental, which is concerned with the qualities of the person.

Principles. I. Error CONCERNING THE PERSON invalidates matrimony by the law of nature; whether the error is antecedent, or giving cause to the contract, or merely concomitant, and this even if it is vincible and very crass. - The reason is that, since the persons of the contracting parties are the substantial object of matrimony, if the person is varied, there is error concerning the very substance of the contract. Nor does it matter that matrimony would have been contracted even after the error was known; since not even in this case does the one erring consent into the present person, but into the one whom he judged the person to be.¹⁴

II. Error CONCERNING THE NATURE OF MATRIMONY, e.g. concerning the mutual right in the body, concerning perpetuity, etc., sometimes invalidates, sometimes does not invalidate matrimony. It INVALIDATES, if the one erring positively intends to contract according to his erroneous concept, e.g. not to confer a right in the body, to reserve to himself the faculty of repudiation; for consent to true matrimony is lacking.¹⁵ It DOES NOT INVALIDATE matrimony, if that positive intention is lacking, since the one erring in such a case, by a certain general will, desires matrimony such as it has been instituted by Christ or ordered by divine law: wherefore this general will, as Benedict XIV says,¹⁶ in some way absorbs the private error. And this is the constant tradition of the Roman Congregations in judging causes of this sort.¹⁷

2000. III. Error CONCERNING THE QUALITIES or FORTUNE of the person does not invalidate matrimony, unless it is concerning a quality which redounds into the substance or into the person. - And this must be held, according to the common and truer opinion, even if the error gave cause to the contract. "The reason: both because then there is already simply voluntary consent concerning the substance of matrimony, namely concerning the person, although voluntary consent in a certain respect is lacking concerning the accidents, which are the qualities of the person; and because otherwise innumerable marriages would become doubtful and exposed to lawsuits."¹⁸

We said: unless the error is concerning a quality which redounds into the substance; because then, as the Doctors commonly and rightly teach, true consent is lacking, and therefore the matrimony is invalid.¹⁹ - But that it may become known when a quality passes into the substance, the following RULES are handed down:

A quality passes into the substance - 1): If someone actually intends not to contract, or if previously, his will not afterward having been changed, he had intended not to contract, except under the condition of that quality. - 2) If the quality is proper and individual to some determinate person, e.g. that she is the firstborn daughter of the king; but otherwise, if he intended to contract with one of the daughters of the king: because then the quality is not individual, but common to several; in which case, however, the following rule must also be kept before the eyes. - 3) If the contracting party principally intends the quality and less principally the person, for example if he wishes to contract with a noble woman, such as he judges Julia to be; otherwise, if he intended to contract with Julia, whom he believes to be noble.²⁰

Note. In the external forum, it does not suffice if the contracting party affirms that he has erred; due proof of the matter is required before a judge (cf. n. 2081).

2001. By the name of condition here is understood servitude strictly so called.

SERVILE CONDITION invalidates matrimony, if these two things are present at the same time: 1. if the other party is free; 2. if that party is ignorant of the servile condition of the counterpart.²¹

It is an impediment of ecclesiastical law introduced for this end, that the free party should not ignorantly enter a marriage in which, on account of the very disparity of conditions, innumerable inconveniences would be had.²² - But there is no reason that we should speak more fully of this argument, since slavery properly so called prevails today in very few regions, e.g. in the Turkish empire.

2002. By FORCE here is signified not absolute coercion, which altogether removes the voluntary; but fear, which does not remove it, but diminishes it. - Coercion can be inflicted only on external acts, and renders matrimony null on account of defect of consent; but fear affects the will, and vitiates consent really given.

Principles. I. FORCE, or GRAVE FEAR, invalidates matrimony. - That it invalidates it by ecclesiastical law, all acknowledge, and it is clear from the most open definition of law.¹ But whether it invalidates it also by natural law is disputed. Some deny it, because consent remains voluntary, nor are other contracts entered into from fear held invalid. Others, however, no less probably and perhaps more probably, affirm it, and bring forward the following reasons: 1. The law of nature ought to furnish a remedy against injury inflicted through fear: in other contracts, that remedy consists in the faculty of rescinding; but matrimony once valid cannot be rescinded. Therefore another remedy is required, namely that it be invalid from the beginning; otherwise the innocent person would often be compelled to lead a hard life, and the guilty person would report advantage from his iniquity: which things are not consonant with natural reason. - 2. Matrimony is a perpetual bond of mutual love between spouses; but mutual love cannot stand with force and fear, since no one is accustomed to adhere to a thing which he holds unwillingly; therefore matrimony which is contracted on account of fear must be null of itself.²

It was said: GRAVE FEAR, namely such as is described in the Treatise on Human Acts (cf. n. 285). For "matrimony entered from LIGHT FEAR is null neither by natural law nor by positive law. - Not by natural law, because he who contracted from light fear, which he could easily repel, is not judged to have contracted unwillingly. - Nor by positive law, for by this only marriages entered from grave fear are declared invalid, and deservedly: for otherwise, if they were rendered null even from light fear, innumerable marriages would be dissolved."³ As regards reverential fear, this itself does not invalidate matrimony unless it has conjoined with itself danger of grave evil.⁴

2003. II. That fear may invalidate matrimony, it is REQUIRED that it be inflicted FROM WITHOUT and UNJUSTLY, for EXTORTING matrimony. - Thus commonly, and it will be clear from what is to be said concerning each condition.

1. It is required that it be from without, i.e. inflicted by man; whence fear inflicted from within, or from a natural cause, does not invalidate matrimony. Nor does it matter for the thing whether it was inflicted by the counterpart herself, or by some third party.⁵

2. It is required that it be unjustly inflicted: for if it is justly inflicted, the one who suffered fear himself gave the cause, nor can he complain that another vindicates his right for himself. But fear must be called justly inflicted when he who inflicted it has a right both of demanding matrimony, and of threatening, and of executing what he threatens: on the contrary, it is inflicted unjustly whenever one of the said things is lacking.⁶

3. It is required that it be inflicted for extorting matrimony; for otherwise "matrimony is not so much contracted through fear, as a means is chosen for evading danger, and matrimony is simply voluntary."⁷ - Hence, if a father should find the violator of his daughter and should inflict threats of death on him for extorting matrimony, this indeed would be null, because the violator is not bound absolutely to marry the corrupted woman, but either to marry or to furnish a dowry. But the matrimony would be valid, if the father threatened death for avenging the injury, and the other entered nuptials in order to free himself.⁸

IT IS ASKED. Whether the COUNTERPART who induced the other party to matrimony by fear CAN WITHDRAW from that matrimony?

Resp. Negatively, from the more probable opinion, because no one ought to report advantage from his own crime. And this especially holds, "if fear cannot be proved; because then, since the Church compels the one who suffered fear to cohabit, such a most grave inconvenience is not reparable except through true matrimony; and so much the more, if the party who suffered fear was a woman, who otherwise, the matrimony being dissolved, would always remain marked with some infamy."⁹

Note. The penalty of excommunication was laid by Trent on lords and civil magistrates violating the liberty of matrimony (cf. n. 1358).

2004. ABDUCTION, insofar as it is a diriment impediment of matrimony, is defined: the abduction of an unwilling woman for the sake of entering matrimony. - It is an impediment of ecclesiastical law, introduced by Trent, for protecting the liberty of matrimony.¹⁰

Principles. I. ABDUCTION invalidates matrimony, provided that it truly is a violent abduction of a woman for the sake of entering matrimony. - Therefore it is REQUIRED: 1. that it be the abduction of a woman, not of a man; but it is all the same what kind of woman she is, honorable or corrupted, virgin, widow, or even the bride of the abductor. - 2. Abduction: under which name properly comes the deed which places the woman in a separated place under the power of the man; wherefore it also comprehends detention, namely if the woman of her own accord received herself into a place from which she is not permitted to depart. Nor does it matter whether the abductor perpetrated the crime by himself or through others; for he who acts through others is judged to act by himself. - 3. Violent abduction, i.e. which was done while the woman was resisting, whether through absolute coercion or grave fear, or through deceit by which she is retained in the place to which she has been enticed; for in this case deceit is equated with force.¹¹ But if the abducted woman consented to the abduction, with parents or tutor contradicting, it is ABDUCTION OF SEDUCTION, which, although it induces other penalties established against abductors of this sort, nevertheless does not induce, according to the more probable and common opinion, a diriment impediment¹² (cf. n. 780). - 4. For the sake of entering matrimony: whence, if the abducted woman is abducted for another cause, even for the end of fulfilling lust, the impediment is not incurred, since Trent intended by this impediment nothing other than to favor the liberty of matrimony.¹³

2005. II. Abduction invalidates matrimony between the ABDUCTOR and the ABDUCTED WOMAN, as long as she HAS REMAINED in the power of the abductor. - Nor does it suffice if the abducted woman, from unwilling, has become willing; but it is altogether required that she be constituted outside the power of the abductor, because otherwise it would not be sufficiently clear concerning consent free from every side. "But if the abducted woman, separated from the abductor and constituted in a safe and free place, shall have consented to have him as husband, let the abductor have her as wife."¹⁴

IT IS ASKED. What are the PENALTIES established against abductors?

Resp. "Let the abductor himself, and all those furnishing counsel, help, and favor to him, be by the law itself excommunicated, and perpetually infamous, and incapable of all dignities; and, if they are Clerics, let them fall from their own grade. Moreover let the abductor be bound decently to endow the abducted woman, whether he has married her or has not married her, according to the judgment of the judge." Thus the Council of Trent.¹⁵ The excommunication is incurred by the very fact (cf. n. 1357); the other penalties only after the sentence of the judge.¹⁶

2006. These impediments refer, some to DEFECT OF NATURE, and these are age and impotence; others to defect of FREE STATE, and these are vow, Order, and bond; others to the REVERENCE DUE to connected persons, and these are cognation, affinity, and public honesty; others finally to DANGER both of CONJUGAL FIDELITY and of CHRISTIAN FAITH, and these are crime and disparity of cult.

To one considering it, it is clear that the FIVE FORMER are absolute impediments, which invalidate matrimony with any person whatever as long as they subsist; but the FIVE LATTER are relative impediments, which invalidate matrimony with certain persons, by reason of whom the impediment exists.

2007. DEFINITION. The impediment of AGE consists in this, that both or at least one of the contracting parties has not yet attained the age of puberty; namely, if the MAN has not yet completed the fourteenth year, but the WOMAN the twelfth year.

DIVISION. A twofold puberty is DISTINGUISHED: natural, which consists in an expedited faculty of generating; and legal, which consists in the age determined by law, and which has just been defined. But the definition of law is founded on the presumption that at that age both sufficient discretion and the power of generating are had.

Principle. Defect of the age OF PUBERTY invalidates matrimony by ecclesiastical law, unless malice supplies for age. That matrimony is invalidated by this impediment has been defined many times in law; but that it is invalidated from ecclesiastical law, Benedict XIV declared in the Bull Magnae Nobis. The reason is that, by the law of nature, there is required only deliberate consent, and radical ability for the work of marriage, which at some time will be expedited. Moreover, the matrimony of the impubes is of itself null, as is had in law: and this, even if few days were lacking to the age of puberty, as is commonly taught.¹⁷

It was said: unless malice supplies for age, i.e. unless there is present, before the established age, sufficient discretion, and it is established concerning actual power of generating. But this is established with the greatest difficulty, apart from the case in which a girl, not yet having attained legal puberty, has already conceived: wherefore, that matrimony can be entered licitly, the declaration of an ecclesiastical judge is required. - But if it is established concerning discretion indeed, but there is doubt concerning expedited bodily ability, there is need of Pontifical dispensation, which is conceded so rarely that the impediment can be held as almost indispensable.¹⁸

IT IS ASKED. Whether matrimony is valid, if the contracting parties have attained LEGAL puberty indeed, BUT NOT NATURAL?

Resp. Affirmatively; because natural puberty is required by no law: not by natural law, which demands only radical ability; nor by positive law, which asks only the established age. - From what has been said it is easy to conclude that matrimony is valid, if the contracting parties, besides necessary discretion, have attained either puberty, namely legal or natural.¹⁹

2008. DEFINITION. Impotence, as regards matrimony, is inability for conjugal intercourse of itself apt for generation.²⁰

Whence, the impotent are not the sterile, or old persons, nor women who do not retain the seed received, provided they can perform the act of matrimony; for if they cannot generate, this is by accident. On the contrary, the impotent are perfect eunuchs, who namely lack both testicles, as Sixtus V declared in the year 1587 in the Bull Cum frequenter; likewise those who have testicles so crushed that they do not emit true seed; or those who labor under so great bodily debility that they cannot attend to the work of marriage. For all these are incapable of that act "by which generation would be possible of itself."²¹ Likewise women are impotent who lack uterus and vagina,²² or on account of another infirmity or surgical operation do not suffer the congress of a man.

DIVISION. Manifold impotence is distinguished:²³

1. One is natural, which comes from a natural defect, for example from excessive frigidity in the man, or from excessive narrowing of the vessel in the woman. Another is accidental, which comes from an extrinsic eventual vice, e.g. from disease, malefice, a violent act.

2. One is perpetual, which cannot be removed by natural and licit means, but only through a miracle, or through sin, or with danger of death. Another is temporary, which can be removed by licit and ordinary means, e.g. by surgical art, or even by the lapse of time.

3. One is absolute, which is with respect to any persons whatever: with this labors the man lacking both testicles. Another is respective, which is only with such a person: thus a woman can be apt for one man, but not another.

4. One is antecedent, which preceded matrimony; another subsequent, which followed it.

1559. - The impediments of Matrimony are: 1° diriment or impedient; 2° of divine law (whether natural or positive) or ecclesiastical law; 3° absolute or relative (respective); 4° antecedent or supervening; 5° public or occult.

1560. - A diriment impediment is so called, not because it dirimes a true Matrimony, but because it makes the act void by which someone, while it is subsisting, would undertake to enter Matrimony in fact. - Impedient impediments render Matrimony not invalid, but illicit.

1561. - Impediments of NATURAL divine law are more strictly taken from the very substance of the thing; and such certainly are defect of consent, impotence, and conditions adverse to the substance of Matrimony. - Impediments of positive divine law and of ecclesiastical law are those which have for their cause the express will of the legislator, whether divine or ecclesiastical. The impediment of bond is more commonly called of positive divine law; nevertheless it is so closely connected with natural law and is derived from it that rather it must be called of natural law. It is also most commonly taught that the impediment of consanguinity in the first degree IN THE STRAIGHT LINE is of natural law; concerning some others there is dispute, as we shall see in their own place; but nearly all the remaining impediments certainly are of ecclesiastical law.

There is by far a different effect of an impediment of natural or divine law upon natural consent than of an impediment of ecclesiastical law. When consent itself is lacking, there can be no speech concerning the effect of natural consent. But if there is question of another impediment of natural or divine law, natural consent indeed exists, but by the impediment it is so radically infected that it can never have any force, and is null as regards every effect, even a future one, because either it is contrary to the substance of Matrimony, or there is no power on earth which can attribute an effect to it. But when the impediment is of ecclesiastical law, natural consent indeed has no effect while it is offered, but it can, if it perseveres, have an effect afterwards, when by competent power, in a certain determined mode to be indicated by us afterwards, the impediment is removed.

1562. - Absolute impediments, e.g. Order, render someone incapable with respect to all; relative (respective) impediments, e.g. crime, render someone incapable only with respect to certain persons.

1563. - Antecedent impediments exist before the celebration of Matrimony; supervening impediments arise after it has been contracted. Indeed the force of diriming belongs regularly to an impediment only if it precedes Matrimony; if nevertheless it supervenes, it has certain notable, although diverse, effects. There are only three cases in which Matrimony validly contracted is dissolved: religious profession emitted by solemn vows when Matrimony has not yet been consummated; dissolution of non-consummated Matrimony made by the Roman Pontiff; and the case of the Apostle. Nevertheless a supervening impediment in diverse other cases has very notable effects, e.g. privation of the right of asking or rendering the conjugal debt, or privation of each.

1564. - Public and occult impediments. This division is especially to be noted for dispensations. - For the sake of brevity, for practice, we call public that which in no way is occult. Therefore the only question, for practice, is what here is called occult.

Occult is twofold, namely altogether occult and quasi-occult, or occult without addition. - Altogether occult is that which cannot be proved by two witnesses,¹ or which is known to only one besides the parties and the confessor. - Quasi-occult is that which is known to few. But how many come under the name of few? I respond that circumstances are to be attended to, but chiefly the following:

1° The place, by reason of which that is called occult which in a town is known only to six persons, in a city only to seven or eight. Indeed St. Alphonsus writes that he knows that the Sacred Penitentiary, which dispenses only in occult matters, dispensed in an impediment of consanguinity known to about ten persons.

2° Probable danger, or prudent fear, lest the matter be brought to the external forum or divulged. "Hence," Reiffenstuel¹ rightly says, "in practice one must altogether attend not only to how many persons, but also to what kind of persons, the impediment is known, because it can well happen that with respect to five prudent persons fearing God, who know the impediment, there is altogether no danger of further divulgation; and, on the contrary, with respect to two or three, e.g. talkative persons, or enemies, etc., the danger of divulgation may seem truly present, especially if other circumstances also threaten such danger."

3° The mode by which the fact from which the impediment arises is known; for a public fact which has not become known as criminal does not prevent the impediment from being judged occult.² The case would be, e.g., in the impediment of crime from homicide deliberately perpetrated, but which the people judges to have been perpetrated by accident. - But if the crime is public, yet almost everyone is ignorant of the penalty imposed upon it or the impediment annexed to it, some deny that it is occult; others, as St. Alphonsus,³ affirm. But the holy Doctor seems to rely only on the doctrine of Benedict XIV, whom he supposes to adhere to the affirmative opinion; yet Benedict XIV, in the place cited by St. Alphonsus, namely Inst. Eccl. 87. n. 42, sets forth not his own opinion, but that of others; but his own in n. 48, namely the negative, to which the practice of the Sacred Penitentiary, at least in the time of Benedict, was conformed. - For the rest, although Benedict XIV, as a particular doctor, does not accept the affirmative opinion, nevertheless he is forced to testify (Inst. cited, n. 42) that it is handed down by nearly all writers. Therefore the Bishop also safely follows it in a case in which he dispenses by force of quasi-ordinary power.⁴

4° The nature of the impediment itself; for if by its very nature it is public, as consanguinity, affinity from licit copula, and spiritual cognation, although accidentally it would be occult, it is judged public as often as there is question of Matrimony to be contracted.⁵

Notes near nn. 1559-1564, divisions of matrimonial impediments (printed p. 243).

1 L. VI. 605. Cf. 1116.

1565. - Today four impediments impeding Matrimony are numbered, namely 1° prohibition of the Church made for various causes; 2° likewise prohibition of the Church lest at a certain determined time the solemnities of Matrimony be celebrated; 3° a betrothal contract already entered with another person and not legitimately dissolved; 4° a vow which, from its nature, cannot be observed in the contract or society of marriage. These four are comprehended in the following verse:

The Church's prohibition, time, betrothals, vow.

It will be enough to append a few things concerning each.

1566. - It is a prohibition, whether particular or general, made by the Church or by some ecclesiastical Superior, lest some Matrimony be celebrated.

1° Particular prohibition is had when, from a just and special cause, Matrimony is interdicted to someone, whether by the Pastor or by the Bishop;¹ e.g. because probable suspicion of a diriment impediment has arisen. But suspicion here will be probable if there is present either rumor, such as moves grave and prudent men, or one witness, sworn nevertheless and not from hearing only; this nevertheless suffices if there is question of the impediment of consanguinity and there is another witness from certain knowledge, even if not sworn.²

2° General prohibition is had especially in a threefold case, namely 1° lest Matrimony be contracted between a heretic and a Catholic woman, and conversely; 2° lest it be contracted without the proclamation of banns; 3° lest it be contracted without the duly required consent of parents. Concerning banns we have already spoken above, n. 1533; likewise concerning the consent of parents, n. 1548. q. 8°. 9°. But concerning the impediment of mixed Communion we speak below.

1567. - It is some determined time in the course of the year, which is called ferial or closed, and in which the Church forbids the solemnities of nuptials. Trent.¹ Such now is the time which flows from the First Vespers of the First Sunday of Advent up to Epiphany inclusively, and from Ash Wednesday up to the Octave of Easter likewise inclusively.

For the rest, Trent prohibits only the solemnities of nuptials in the aforesaid time, namely to bless them solemnly, to lead the bride home with noise, and to arrange more solemn nuptial banquets. But it does not forbid the Pastor privately to join the spouses, although in various places, because of custom or through Episcopal constitutions, outside the case of urgent necessity or dispensation of the Ordinary, this also is prohibited.

See n. 1529. II.

A fourfold vow impeding Matrimony is distinguished, namely 1° vow of chastity; 2° vow of not marrying; 3° vow of entering Religion; 4° vow of receiving Sacred Orders.

1568. - I. Vow of chastity.

1° He who has emitted such a vow sins gravely by entering Matrimony with the intention of consummating it, because he violates the vow.

2° He also sins gravely, even excluding this intention, because he exposes himself to the danger of violating the vow, and deceives the other party.

3° Once Matrimony has been contracted, he can neither ask nor render the debt while the first two months are running, because from divine privilege spouses at this time are exempt from the obligation of the conjugal debt, according to the things said above n. 1551. 2°. But after this time has elapsed, he can (indeed, is held to) render and satisfy the right of the other, yet not ask without dispensation from the vow or without irritation of the vow made by the other spouse.

4° He ought altogether to abstain if the other consents, or loses the right of asking, e.g. on account of adultery or incest. But if he can abstain with difficulty, he ought as soon as possible to seek dispensation or to seek the aforesaid irritation from the other spouse.

5° If the other spouse dies, he cannot proceed to new nuptials unless he has obtained dispensation from his vow also for this effect. - Lacroix.¹

1569. - II. Vow of not marrying, or vow of virginity.

1° He who, after emitting this vow, contracts Matrimony, sins gravely, as is manifest.

2° Once Matrimony has been contracted, he can render and also ask the debt, because the observance of the vow has now been made impossible. - But if he strictly vowed virginity, he cannot ask the first time.

3° For the same reason (namely because the observance of the vow has been made impossible), the spouse having died, he can at least probably contract a new Matrimony. - Heiss² excepts, with the Instruction of Eichstaett, if the vow was of not marrying; we assent to him, because the reason of impossibility does not militate for it.

In practice it is sometimes doubtful whether someone vowed virginity or celibacy, or rather chastity. The penitent will have to be interrogated whether he was led by the intention of freeing himself from the burdens of Matrimony and of serving God more holily, or only by love and affection of purity; in the first case he is to be judged to have vowed celibacy and virginity, but in the second truly chastity. - Lacroix.³

1570. - III. Vow of entering Religion.

1° He who has emitted such a vow sins gravely by entering Matrimony, both because he deceives the other party and because he exposes himself to the danger of violating the vow.

2° Before the consummation of Matrimony he is held to enter Religion; and therefore he sins mortally when for the first time, whether by asking or rendering the debt, he consummates the Matrimony; because he ought to fulfill the vow when he can. But he can fulfill it by not consummating Matrimony in the first two months, since then from divine privilege anyone can enter Religion, and the other party, the spouse solemnly professing, is freed from the bond of Matrimony, according to the things said above n. 1551. 2°.

3° After Matrimony has been consummated he can ask and render the debt, because the execution of the vow has been made impossible, and the asking of the conjugal act is not against that vow, since he did not vow chastity, but Religion.

4° Even after Matrimony has been consummated, of itself he is held to enter Religion as often as he can do this without injury to the right of the other party, e.g. if the other consents, or loses the right of asking the debt in perpetuity, or if the Matrimony is dissolved by death; because the obligation of the vow always subsists. But in practice, in these cases it is more expedient that recourse be had to dispensation, unless nevertheless the circumstances, by reason of age, offspring perhaps received from Matrimony, the state of fortune, and capability also for religious offices, are so changed that the matter of the vow has certainly been made impossible.

1571. - IV. Vow of receiving Orders.

1° He who emitted that vow sins gravely by entering Matrimony, as is well known.

2° He is held to receive Orders if he can, e.g. if he obtains the consent of the other. According to several he is held to enter Religion before the consummation of Matrimony, even against the will of the other, so that he can fulfill the vow. But others more probably deny this.¹

3° Matrimony having been entered, he can consummate it if he can no longer fulfill the vow.

1572. Questions. - Quaer. 1° Who can dispense in impedient impediments?

Resp. 1° No one can dispense [except the Pope. Feije, n. 601 (2)] from the impediment arising from valid betrothals, since in this matter there is question of a strict debt of justice. The same must be said of the necessity of the consent of parents, which is to be taken from natural law; nevertheless this naturally ceases if the parents dissent unjustly.

Resp. 2° Bishops, or ordinary Pastors of souls enjoying full jurisdiction in the external forum, can dispense 1° in the obligation of banns; 2° as regards the contract (but not as regards the solemn blessing) of Matrimony during the ferial time, where custom or particular constitution also interdicts this; 3° in a vow of temporary chastity, and of virginity and of not marrying.

But they cannot dispense 1° as regards the vow of perpetual chastity; 2° as regards the vow of entering Religion; 3° as regards the impediment of mixed Communion. For this threefold impediment is reserved to the Pope. - But our Bishops can dispense in 1° and 2° (p. LXX. n. 4), and, if there is question of Marriages to be contracted to which no other diriment impediment obstructs, also in 3° (p. LXXIV. n. 4. 5).

Resp. 3° What Regulars can do, see n. 1203. I. 2°. 3°.

Quaer. 2° Can the Bishop, when necessity is urgent, namely when there is danger in delay, dispense in a vow of perpetual chastity for contracting Matrimony?

Resp. Affirmatively, provided that that danger is truly present, and access to the Pontiff is not easily open. For the rest, the question as regards our Bishops is useless, as is clear from the things said in the preceding question.

We must treat 1° of diriment impediments in general; 2° of diriment impediments in species; 3° of dispensation from these impediments.

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.

1575. - Fifteen diriment impediments of Matrimony are numbered, expressed in these verses:

Error, condition, vow, cognation, crime,
Disparity of cult, force, order, bond, honesty,
Age, affinity, if clandestine, and incapable,
Or a woman has been abducted, and not safely restored to the party:
These forbid marriages to be joined, and retract them when made.

We shall institute a discourse concerning each separately.

A twofold error concerning Matrimony is distinguished, namely: 1° substantial error, which is concerned with the person; 2° accidental error, which affects qualities of the person. But condition is understood as servile, unknown to the other party.

1576. Principles. - I. Every error concerning the person makes Matrimony null by natural law, even if the error is altogether vincible, or only concomitant, or most crass.¹ The reason is because, on the part of the contracting party, it removes the voluntary concerning the object of the contract, and therefore, consent failing, the contract is void. - Except if someone intends actually to contract with the present woman, whoever she finally is.

II. Error concerning the qualities of the person, of whatever kind it is, even if it gave cause to the contract, does not of itself void Matrimony. Thus the common and truer opinion.² The reason is 1° because error concerning qualities does not fall upon the object of the contract; for that object is the very person with whom one contracts, as was just said; it is not the person's qualities; 2° because in those things which constitute a state firm and irrevocable from its nature, such as Profession and Matrimony, the will, according to the nature of the thing in question, accommodates itself and consents without restriction or condition, and altogether absolutely and independently of other conditions besides those which are of the substance of the same contract.³ For from these conditions Matrimonies and Professions would remain uncertain, and accordingly the state itself, which is not according to the nature of the thing in question. Except unless either a) a quality is explicitly intended as a condition without which not (as they say), or b) error of quality redounds into the substance, whether because one errs in a quality not now common, but proper and individual to some determinate person, as if you wished to contract with the first-born and the second-born were presented to you, or because consent is borne directly and principally upon the quality, and less principally upon the person, as if you wished to marry a noble woman, such as you falsely think Titia to be, but not if you wished to marry Titia, whom you falsely think noble. Thus in the internal forum.¹

III. Error concerning the servile condition of the other party dirimes Matrimony by ecclesiastical law, as is clear from L. IV. Decr. T. IX.

1577. Resolves. - 1° If someone thinks he is contracting nuptials with Anna, and marries Agatha, the Matrimony is invalid. It is otherwise if, thinking that he has married a noble, rich, virgin, peaceful girl, he finds her on the contrary plebeian, poor, corrupted, quarrelsome.

2° Matrimony is valid if someone marries a widow, thinking that he is marrying an unmarried woman, even if he was induced into this error by fraud; for fraud indeed induces the obligation of repairing the injury, but does not effect that consent is not concerned with the substance of the thing in question. Indeed this is valid even if he certainly would not have contracted if he had known beforehand that she was a widow; for one must attend not to that which perhaps or even certainly someone would have done, but to that which he really did.

3° A noble girl validly contracts with a wandering man who falsely boasts that he is noble and the possessor of many goods, and proves it by false testimonies. But that woman is not held to cohabit with him, and can immediately make perpetual divorce as regards bed and habitation.

4° Since slaves have obtained liberty among us, there can be no speech of the impediment of condition as regards Marriages contracted from this time onward; nevertheless attention must be given when there is question of Marriages formerly entered between free persons and slaves who perhaps were by error held as free; for the contract which did not subsist from the beginning is not strengthened without new and free consent (and in the case which will be treated under n. 1634, q. 2, offered before the Pastor and two witnesses). Resolve the same concerning similar Marriages entered in those places of South America in which slavery still has force, when the parties immigrate into our provinces. For the rest, cases of this kind will be most rare.

Concerning other unions of former slaves entered in servitude, judgment is for the most part difficult; for often they fostered intercourse among themselves without any mind of marriage, or contracted under this condition, that the Matrimony would subsist only so long as each conducted himself or herself rightly, or until the masters separated them, namely by one being sold and the other retained, or each being sold to different masters. At other times they seem to have wished to enter a perpetual partnership; but whether they were then free from a prior bond can scarcely be known. If it is clear that at some time they seriously entered marriage, with the mind of obliging themselves in perpetuity, it will have to be held valid; nor will it be licit to pass to other nuptials until there is certainty concerning the death of the prior spouse. For the rest, most of their contracts did not have the force of marriage, since they lacked the mind of contracting a perpetual bond, or the condition concerning which above was added to the consent. Wherefore those who come to the Catholic Faith, or are reduced to a good way of living, are not immediately to be compelled to desert the person whom they have under the name of spouse, even if others with whom they already had intercourse are living, or there is no certainty concerning their death; but the matter is to be diligently investigated.¹

1578. - I. The vow diriment of Matrimony is only the solemn vow of perfect chastity (and not of conjugal chastity only, such as is emitted in certain Equestrian Orders), emitted through profession in an approved Religion. For the simple vow of chastity, even perfect and perpetual, does not dirime Matrimony, but only impedes it, according to the things said n. 1568.

II. But Order diriment of Matrimony is Sacred Order. Concerning each impediment the Lateran Council I and II and Trent speak.²

III. The solemn vow of chastity emitted in religious Profession, and Sacred Order, dirime Matrimony in diverse ways. For the former dirimes Matrimony both to be contracted³ and also contracted, provided it was only ratified,⁴ but not consummated.⁵ But Order dirimes Matrimony to be contracted, not Matrimony contracted, even if only ratified.

1579. Questions. - Quaer. 1° By what law do the aforesaid impediments dirime Matrimony?

Resp. 1° The impediment of Order, according to the common opinion, dirimes only by ecclesiastical law. The reason is because, on one side, Order of itself is not repugnant to the conjugal state; nor, on the other side, is there any divine prohibition which is found in the Scriptures or in tradition.

Resp. 2° Since the solemnity of the vow is of ecclesiastical law, by that very fact the Pope can dispense, provided there is a sufficient cause, i.e. one proportioned to the gravity of the matter.

Quaer. 2° What conditions are required that solemn vow and Order dirime Matrimony?

Resp. 1° As regards the vow, it must have been emitted in valid Profession (n. 1159. I.).

Resp. 2° As regards Order, there is required: 1° that it was received validly; 2° that it was received voluntarily. - Thus all.

Cognation is distinguished of three kinds, namely: 1° natural; 2° spiritual; 3° legal. Concerning each separately.

1580. - Natural cognation, or consanguinity, is the bond of persons descending by carnal generation from the same proximate stock, which namely arises from the unity and participation of the same blood.¹

In consanguinity three things are to be distinguished, namely: 1° the stock, or the person from whom others draw origin; 2° the degree, or the measure of distance of one person from another; 3° the line, or series of persons descending from the same stock.

The line is twofold: one straight, the other collateral or transverse. The former is the series of persons of whom some descend from others, either immediately, as children from parents, or mediately, as grandchildren from grandparents, or from great-grandparents, etc. But the latter is the series of persons who, although they have a common stock, nevertheless some do not descend from the others, as are brothers, cousins, etc.

The collateral line is equal or unequal, according as blood relatives are equally distant from the common stock, or unequally.

1581. Things To Be Established. - I. Consanguinity in the straight line, at least by positive law, dirimes Matrimony indefinitely in whatever degree. This is clear from Canon Law in the Response of Nicholas I to the Bulgarians, c. 37.

II. Consanguinity in the collateral line dirimes Matrimony up to the fourth degree inclusively, and not beyond. This is clear from Lateran Council IV and many places of Canon Law.

III. Consanguinity dirimes Matrimony also between those who were born either only from the same father or only from the same mother; likewise between blood relatives begotten from illegitimate births. The reason is because diversity of father or mother, or illegitimacy, does not prevent carnal consanguinity from existing between them.

Rule for Computing the Degrees of Consanguinity.

1582. - First Rule. In the straight line there are numbered as many degrees as persons, the stock being removed, or there are as many degrees as there are generations. Hence between father and son there is one degree, because there is one generation, or one person of the son, the father excluded, as being the stock. Between grandson and grandfather two degrees are numbered, because there are two generations, although three persons intervene, namely the grandfather, the father, and his son, or grandson with respect to the grandfather. Suppose likewise a great-grandfather or great-great-grandfather, and you will have three or four degrees.

Second Rule. In the equal collateral line there are as many degrees as there are persons on one side, the stock being removed. Hence brother and sister are in the first degree: because, if the common stock or father is set aside, one person remains on each side; and, since each is distant by one degree from the stock, they are also distant from one another by one degree. Likewise paternal cousins, or sons of two brothers, are each distant by two degrees from the common stock, or from the grandfather, and therefore are blood relatives between themselves in the second degree. Thus also must one speak concerning the others.

Third Rule. In the unequal collateral line there are as many degrees as there are persons on the more remote side, the stock always being removed. Hence if one is distant from the common stock by two degrees, and his blood relative by three, they will be blood relatives between themselves in the third degree, according to the saying: The more remote degree draws the nearer to itself. Therefore Berta will be related by blood in the second degree with her paternal uncle, or brother of her father, because she is distant by two degrees from the common stock, namely from her grandfather, although the uncle himself is separated by one degree from the same stock, since he is the son of the stock, or brother of Berta's father. Thus also concerning all others whatever must it be established.

"In most of the Federal States," says Kenrick,¹ "the Levitical prohibitions have been adopted by the authority of civil law," i.e. Roman law; "in others the prohibition of marrying consists within narrower limits." But these are valid only as regards civil effects.

For computing degrees according to civil law, i.e. Roman law, the number, or sum of all persons in each line, the stock being removed, is taken. Therefore in the straight line they are computed in the same way as canonical degrees; in the equal collateral line the canonical degrees are doubled; in the unequal collateral line the lesser line is doubled and the excess of the greater is added. Cf. n. 905. X.

1583. Questions. - Quaer. 1° By what law does consanguinity in the aforesaid degrees dirime Matrimony?

Resp. 1° It is certain that consanguinity in the straight line dirimes Matrimony by natural law in the first degree, but probably according to St. Alphonsus² not indefinitely in the remaining degrees. For the rest, the case, as is clear, is very far from practice.

Resp. 2° As regards the collateral line, in the first degree, according to the opinion which St. Alphonsus³ judges equally probable with the opposite, it does not dirime by divine law. In the other degrees, according to all, it dirimes by ecclesiastical law, as is deduced from the practice of the Church, which dispenses from them.

Quaer. 2° How can the degrees of consanguinity easily be found?

Resp. 1° If the common stock is known, write that person's name on paper, and below it report on this side and that the generations and names of the persons descending, until you arrive at those persons who are to be joined in marriage; from this you will easily compute the degrees.

Resp. 2° If the stock is unknown, proceed thus: Write in the lower part of the paper or tablet the name of the bridegroom on one side, and the name of the bride on the other; then above the name of the bridegroom note the names of his blood relatives who perhaps can be the cause why some cognation exists with the bride; do the same as regards the bride. This notation having been made, ascend from one side and see whether they agree in a common principle or stock, from which the bridegroom and bride are mediately begotten. Hence, after you have found it, and at the same time observed whether the spouses are in an equal or unequal line, finally apply the rules proposed below, and the resolution of the doubt will be clear. For these let the following example be given:

In this example Peter Harvey and Mary Johnson are blood relatives in the fourth equal degree. But if Mary Johnson descended immediately from Maurus Johnson, Arthur Johnson would be her grandfather and Didacus Johnson her great-grandfather, and therefore they would indeed be blood relatives in the fourth degree, but touching the third.

Another method is also indicated for discerning degrees of cognation, namely with a table of genealogy, or tree of consanguinity. Inspect the table on p. 254, and see in what line and in what cells you find the persons concerning whose cognation there is question, and attend by how many degrees they are distant from the common stock. Example: You ask, e.g., in what degree the bridegroom Titius is related by blood with respect to the bride Berta, when you already know that the grandfather of the former was the brother of the great-grandfather of the latter. Place Titius in the middle cell N.; ascend to his grandfather; his brother on the right side, in the cell where paternal uncle is noted, will be Berta's great-grandfather; descend through his straight line by numbering the grandfather, father, and bride herself; hence the common stock will be the one who is found in the third cell above the middle line. Thus you will number three degrees on the part of the bridegroom, and four on the part of the bride; hence you conclude that they are blood relatives in the fourth degree touching the third.

Imagine any other similar examples, supposing one or the other spouse in any cell whether middle or at one side, and ascending to the common stock, so that from there you descend to the other spouse; but do not at all attend to the names which you will find in the various cells occurring, because for the selected cell all things will vary, as is clear.

Consanguinity between the same persons can arise from a double or even multiple head, and then there is a double or multiple propinquity, or impediment to be disclosed in the petition of dispensation; thus, e.g., if two brothers marry two women related to each other by blood, the children proceeding from each Matrimony will be related to each other by blood in two ways, and this circumstance must necessarily be declared.

Quaer. 3° Who are collateral blood relatives?

Resp. They are the following, namely:

1° On the part of the father.

2° On the part of the mother.

3° On each side.

Degrees of Consanguinity.

The printed genealogical tree places N as the central person. The straight line above and below N is:

The principal collateral cells are:

Note. - 1° Persons who are joined by a line are among themselves in the straight line; with the rest, in the collateral line.

2° Where lines are joined, there the stock is had.

Spiritual cognation is a certain propinquity which arises from the statute of the Church, from the administration and reception of Baptism or Confirmation, between certain persons determined in Canon Law.

1584. Principle. - Spiritual cognation dirimes Matrimony by ecclesiastical law: 1° between the Minister of the Sacrament and the subject and the subject's parents; 2° between the godfather or godmother and the goddaughter or godson, and their parents. Thus from Trent.¹ - See the conditions n. 1265. II; to which add that this impediment arises only from valid Baptism, and, if there is question of Confirmation, it is also required that the sponsor have been confirmed.¹

1585. Resolves. - 1° The godfather and godmother can enter Matrimony between themselves, but not with the father or mother of the baptized person.

2° They do not contract spiritual cognation who exercise the office of godfather and godmother in supplying the solemnities of Baptism, as the Sacred Congregation de Propaganda Fide² declared in express words, nor those who only in the name of another receive the baptized person from the sacred font.

3° Sponsors designated by the parents and unjustly rejected by the Pastor contract true spiritual cognation if they actually hold the infant; otherwise, if they were justly rejected by the Pastor.

4° A man baptizing a girl in a case of necessity and privately can marry neither her nor her mother. Say the same of a woman privately baptizing a boy, and of a parent baptizing illegitimate offspring.

5° To the doubt: "Whether the disposition of the council, c. 2. S. 24. Ref. Matr., decreeing that in the Sacrament of Baptism spiritual cognation is contracted between the one receiving and the father and mother of the one received, has place in Baptism without solemnities, conferred at home on account of necessity? The Sacred Congregation judged: Affirmatively. March 5, 1678." Thus also the same Sacred Congregation of the Council, April 17, 1603.

6° Parents baptizing children in necessity or in good faith contract no spiritual cognation by which they are prohibited from the use of marriage; for this prohibition has the character of a penalty, which is not incurred without fault. Indeed, to St. Alphonsus it is quite probable that they do not contract cognation even if deliberately, necessity excluded, they baptized offspring. Others contradict.

7° From conditional Baptism cognation arises if there is a negative doubt concerning the prior Baptism; for, since no reason urges for the value of this one, the presumption stands for the value of that one. Otherwise, if the doubt is positive (cf. n. 1574. q. 5°. R. 1°), as if Baptism is repeated because it was not conferred on the head.

1586. - Legal cognation is the propinquity of extraneous persons which arises from legal adoption. A twofold adoption is distinguished:

1° Perfect adoption or arrogation, by which a person of his own right, in legal form, passes into the power and family of the adopter, and acquires all the rights of a legitimate son.

2° Imperfect adoption or adoption, by which an extraneous person who is not of his own right is assumed as son or grandson, yet does not pass into the family and power of the adopter, and therefore is not made the latter's necessary heir by testament, although he succeeds to him ab intestato.

If a question arises whether in this or that case there is an impediment of legal cognation, recourse must necessarily be had to the civil laws of the State, i.e. there will be an impediment if the civil law admits adoption and the solemnities prescribed by it were observed. De Angelis, L. 4. T. 12.

Principles. - I. Legal cognation constitutes a diriment impediment by ecclesiastical law, although it was first established in Roman Law. This is drawn from the Response of Nicholas I to the Bulgarians, etc.

II. Legal cognation, after the likeness of natural cognation from Roman Law, dirimes Matrimony between the following persons:

1° As in the straight line, between the adopter and the adopted person and the latter's children, while they are constituted under paternal power; 2° between the adopted person and the children of the adopter, as in the collateral line, while the latter's children are under paternal power; 3° between the adopter and the wife of the adopted person, and conversely between the adopted person and the wife of the adopter, as in the straight line by way of affinity, as is clear from the declaration of the Sacred Congregation in Hortana, September 25, 1734.

Notes near nn. 1586-1587, legal cognation and adoption (printed p. 257).

1 L. VI. 154. | 2 Ib. 149. Ferr. V. Bapt. a. 7. n. 20. | 3 Murray, De imp. n. 72 sq. Therefore the opinion of St. Alphonsus L. VI. 149 is to be relinquished. | 4 L. VI. 150. | 5 Ib. | 6 Apud Feije, de Imp. n. 426. 427. | 7 L. VI. 151. 902. H. A. Tr. XIV. 33.

1587. Questions. - Quaer. 1° Does legal cognation dirime Matrimony up to the fourth degree between the adopter and the descendants of the adopted person, or conversely?

Resp. 1° Certainly it is restricted to the first degree as regards the adopted person and the descendants of the adopter. This is clear from Canon Law.

Resp. 2° It is controverted as regards the adopter and the descendants of the adopted person. Probably cognation is not extended beyond the first degree, or beyond the adopted person, unless he has descendants constituted under his power; for nothing is found in law opposed to this decision.

Quaer. 2° Does imperfect adoption dirime Matrimony?

Resp. Negatively, more probably with St. Alphonsus and several others, because only perfect adoption is to be judged adoption properly so called. Nevertheless De Angelis, in the cited place, contends from the acts of the Sacred Penitentiary that it is sufficiently clear that any adoption which is admitted by the law of the country induces an impediment.

The principal place in a pastoral treatise on matrimony is claimed for itself by impediments, which, whether from the precept of natural or divine law or from an ecclesiastical statute, stand in the way of the valid or licit celebration of matrimony. But lest the present chapter become too long, in this one we shall treat only of impediments considered in general and of prohibiting impediments. In the following chapter, however, we shall subject each of the diriment impediments to the examination of the studious reader.

96. • I. Which they are.

a) In the law of the Code there are numbered thirteen impediments properly so called, namely those which constitute true inabilities for entering matrimony validly, and they are: age, impotence, bond, disparity of worship, sacred order, solemn vow, raptus, crime, consanguinity, affinity, public honesty, spiritual kinship, legal kinship.

b) Error, condition, fear, and clandestinity, which formerly were listed among the impediments, in the new law are rightly considered as vices or defects which are opposed to consent or to form.

97. • II. Division.

a) The Code of Canon Law has introduced a distinction between impediments of a major grade and impediments of a minor grade. Practically, that distinction refers only to diriment impediments.

b) Minor impediments 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, and crime from adultery with a promise or attempted matrimony.

All the others are major impediments. (Can. 1042.)

c) The practical usefulness of this distinction lies in this: "a dispensation granted from a minor impediment is rendered invalid by no vice either of obreption or of subreption, even if the final cause set forth in the petitions was false." (Can. 1054.)

855. Matter to be treated. - After we have spoken of the conditions required for matrimony on the part of consent and of the opposite defects (n. 797-807), likewise of those things which are required for validity and liceity on the part of celebration (n. 845-850), there remains to be spoken of the conditions required on the part of the subject and of those things which in him can impede matrimony. Therefore, where the subject of matrimony comes to be considered, it is also necessary to speak of matrimonial impediments. For "all can contract matrimony who are not prohibited by law" (can. 1035): namely, all enjoying the use of reason are apt for matrimony, and, if they are baptized, also for the sacrament of matrimony, provided they are not prohibited or impeded from it by law. Hence we shall speak:

1° Of the impediments of matrimony in general.

2° Of impeding impediments.

3° Of diriment impediments.

4° Of dispensation from impediments.

5° Of the convalidation of matrimony.

S. Th., Suppl., q. 50.

872. In present-day law thirteen diriment impediments are numbered, the fittingness of which matter can be shown thus, conformably to the doctrine of St. Thomas, q. 50:

"For someone can be impeded from contracting matrimony either simply or with respect to some person. If simply, so that he can contract matrimony with no one, this cannot be unless 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 there is posited the impediment of impotence of coeundi..."; or because he cannot yet fittingly, and thus there is posited the impediment of age; "second, because he cannot licitly, and this according as he is obligated to continence, which happens in two ways: either because he is obligated from an office received, and thus there is the impediment of order; or from a vow emitted, and thus vow impedes. But if someone is impeded from matrimony not simply, but with respect to some person, either this is on account of an obligation to another person, as he who is joined to one in matrimony cannot be joined to another, and thus there is the bond of matrimony; or because proportion to the other person is lacking, and this on account of three things: first, indeed, on account of too great a distance from that person, and thus there is disparity of worship; second, on account of too great a nearness, and thus there is posited a threefold impediment, namely, kinship (whether carnal, spiritual, or legal), then affinity, which imports the nearness of two persons by reason of a third person joined in matrimony, and the justice of public honesty, in which there is nearness of two persons by reason of a third person... joined" illegitimately; "third, on account of an undue conjunction first made with that person, and thus crime impedes, namely of adultery previously committed with that person," or also abduction.

§ 1. A man before the completed sixteenth year of age, a woman likewise before the completed fourteenth, cannot enter valid marriage.

§ 2. Although marriage contracted after the aforesaid age is valid, nevertheless pastors of souls should take care to turn young persons away from it before the age at which, according to the received customs of the region, marriage is usually entered (Can. 1067).

I say. Therefore in the new Code a notable change has been introduced; the age of puberty is no longer regarded, but the year is fixed absolutely before whose completion marriage cannot validly be entered: the sixteenth for a man, the fourteenth for a woman.

In the second paragraph, once it has been established that after the aforesaid age wedlock is valid, pastors are admonished to turn young persons away from entering this covenant before the civil legal age.

In all our States the age at which marriage can validly be contracted is the age of 21 years, except South Carolina, North Carolina, New Hampshire, Michigan, Idaho, in which it is the age of 18 years, and Tennessee, in which it is 14; this is established for men, and indeed without the consent of parents. For women, however, without the same consent, in many States the age is 18 years, except the States Florida, Kentucky, Louisiana, Pennsylvania, Porto Rico, Rhode Island, Virginia, West Virginia, Wyoming, in which it is 21; Maryland, New Hampshire, in which it is 16; Tennessee, in which it is 12. But the age with the consent of parents in many is 18 years for men; but in Alabama, Georgia, Kansas it is 17; in Arkansas, Iowa, North Carolina, Texas, Utah it is 16; in Kentucky, Louisiana, Maryland, Mississippi, New Hampshire, Virginia it is 14. For women with the consent of parents it is variable from the twelfth year in Virginia, Mississippi, Maryland, Kentucky, Louisiana; to the year 13 in New Hampshire; to the fourteenth year in Utah, Texas, South Carolina, Rhode Island, North Carolina, Maine, Iowa, Georgia, Arkansas, Arizona, Alabama; to the fifteenth year in Wisconsin, Washington, South Dakota, Oklahoma, North Dakota, Minnesota, Kansas, Hawaii, California; to the sixteenth year in Wyoming, West Virginia, Porto Rico, Oregon, Ohio, Nevada, Nebraska, Montana, Michigan, Massachusetts, Indiana, Illinois; and to the eighteenth year in Idaho. In Connecticut no provision is made in a special way for the age of matrimonial consent. New York has its own provisions in relation to this matrimonial consent.¹

¹ Cf. Addenda, p. 1117, n. 70.

The impediment of impotence consists in incapacity for exercising carnal intercourse of itself apt for generation. But this incapacity is manifold, namely: 1°. certain or doubtful; 2°. antecedent or consequent, according as it precedes Marriage or follows it; 3°. temporal or perpetual, according as by lapse of time or by art it can be removed or cannot be removed; 4°. natural or accidental, according as it arises from an intrinsic defect or from an extrinsic cause, for example, a spell; 5°. absolute or respective, according as it exists between a man and all women, or between a man and some determinate woman, or conversely.

§ 1. Antecedent and perpetual impotence, whether on the part of the man or on the part of the woman, whether known to the other or not, whether absolute or relative, dirimently invalidates marriage by the law of nature itself.

§ 2. 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.

§ 3. Sterility neither dirimently invalidates nor impedes marriage (Can. 1068).

In the first paragraph the impediment is established because the object of the matrimonial contract is not had; in the second, the principle known in this matter is applied, that in these natural rights a man is not deprived of their exercise until it is clearly established that the right itself does not exist; in the third, sterility is affirmed to be neither an impeding nor a diriment impediment, for the object of the contract is present.

From this Canon, therefore, it is established: 1°. that consequent impotence and antecedent temporal impotence do not annul the contract; 2°. that marriage is not to be impeded when impotence is doubtful, whether by a doubt of law or by a doubt of fact; 3°. that sterility does not render the contract either invalid or illicit.

You Will Resolve. - 1°. Impotence is not to be confused with sterility, for sterile persons are not impotent for the conjugal act; hence old men who are able to consummate marriage contract validly; likewise women who can receive seed, even if they do not retain it. - Cf. S. Alphonsus, n. 1015.

2°. Eunuchs or castrated men deprived of both testicles, or who have them crushed, are reputed impotent, as is clear from the Declaration of Sixtus V, in the year 1587, which begins "Frequenter in istis regionibus." But otherwise if they lack only one, because then they can emit true seed. - Cf. Sanchez, lib. 7, disp. 104, p. 17.

3°. In doubt concerning antecedent impotence one must stand for the validity of Marriage, and the spouses must be permitted to try intercourse. Indeed, for this a triennium is conceded to them by canon law, notwithstanding greater probability for perpetual impotence. But for demonstrating impotence there is no need of this three-year experiment when safer means are available for rendering judgment. Safer means of this kind are the depositions of the spouse affirming the impotence of the other, confirmed by suitable testimonies, and the judgment of experts and obstetricians after a physical examination duly performed. - Cf. Acta S. Sedis, vol. 7, p. 118.

4°. In doubt concerning consequent impotence, likewise, it is licit for the spouses to try intercourse until they are altogether certain that it can in no way be completed. This certainty indeed can very rarely be had, for according to the principles now commonly received in the schools of physicians, although it is necessary that the man pour forth seminal fluid, nevertheless it is not required that he inject it all the way into the inner parts of the female organ; but it is enough that fluid of this kind be applied to the external surface and entrance of the vagina. Cf. Ballerini, note (a), p. 830. - Varceo, vol. 2, p. 357.

By the impediment of impotence is understood impotence of coition, or inability for having perfect carnal intercourse, which is effected by penetration of the female vessel and the pouring forth of seed in it. Thus Reiffenstuel, 1. IV, tit. XV, n. 1; and in nearly the same words Laymann, Schmalzgrueber, Sanchez, Lacroix, Palaus, Pirhing, Tamburini. "The faculty of coition, such as it is conceived in canon law," says Tarquini, "and is held sufficient for marriage, is completed by that act by which seeds are mingled in the natural vessel. For from this the spouses become one flesh, and attain the secondary end of marriage, which is the quieting of concupiscence. But now all these things, the quieting of concupiscence, the mingling of seeds, and conjunction into one flesh, are completed in the vagina itself, so that there is no necessity of penetrating the uterus. Therefore, though the uterus is closed, provided that the vagina is free, the faculty of coition, insofar as it is conceived as separated of itself from the faculty of generation, remains whole." Analecta Ecclesiastica, year 1900, p. 260.

These things having been said, whatever is in no way removable, or removable only with the greatest difficulty, and whether on the part of the man or on the part of the woman renders perfect intercourse impossible, renders the man or woman impotent. But a woman whose ovaries or uterus have been cut out is not unable for perfect carnal intercourse. For her vessel can be penetrated, and seed can be poured forth in it. Therefore, since she is not unable for perfect carnal intercourse, she is not impotent. Moreover the normal scope and function of intercourse is to place male seed in the woman's vessel; for this function the presence of an ovule is not required. The production of an ovule is accomplished independently of coitus, and the production of sperm is made independently of the ovule. Therefore intercourse takes place, whether there is or is not an ovule; this arises from nature, that from free will. It is not within the woman's power to produce an ovum as she wills. In marriage the spouses oblige themselves to an act, that is, to perfect intercourse, which according to the named authors is effected by penetration of the female vessel and the pouring forth of seed in it. If nature completes the rest, by that very fact there will be conception. It is not impotence of generating, but impotence of coition, which dirimently invalidates marriage. The contracting parties mutually hand over to themselves the right to intercourse itself. A woman who has been cut hands over this right just as a woman not cut. Therefore she is not impotent. Besson explains this argument beautifully in Nouv. Rev. Theol., v. 42, p. 193. Add that the parts of a woman in undergoing intercourse consist only in this, that she receives seed in the vessel; by this reception the human act is terminated, whether in one cut or not cut. Intercourse itself is posited in the same way by either woman. Someone says, generation will not follow; to whom you may reply, nor is it required that it follow. Finally, on 3 Feb. 1887, when the doubt had been posed to the Holy Office, "Whether a woman rendered sterile by defect from the cutting out of both ovaries can and may be permitted to enter marriage, or not?" it responded: "The matter maturely and long considered, that the marriage of the woman concerning whom in the case there is question is not to be impeded." "Not to be impeded," it responded on 23 July 1890, even if the uterus also had been removed; again on 31 July 1895; but especially on 2 Apr. 1909, when a response was given repeating the decision of 23 July 1890; which last response the distinguished Ferreres, after his custom, examines most acutely in Razon y Fe, v. 26, pp. 101 sqq. The negative opinion is safe: Eschbach, Disp. Phys. Theol., d. 2, p. 2, c. 3. - D'Annibale, n. 431, note 9. - Genicot, 503. - De Smet, p. 337. - Van de Burgt-Schaepman, p. 241, and others. But the other opinion also has very weighty supporters, who say: Perfect carnal intercourse is intercourse of itself apt for generation; but such intercourse is not had in the case. Therefore it is not perfect intercourse; therefore that woman is unable for such intercourse and consequently is impotent. This is the opinion of Antonelli, De Conceptu Impotentiae. - Bucceroni, n. 994. - Noldin, n. 577. - Sebastiani, n. 561, note. - Bulot, n. 837, and others.

Question. Must he now be called impotent who has undergone double vasectomy?

Resp. It is all but certain that the impediment is present, but it is not certain. Several grave authors adhere to the affirmative opinion, whose reason is very pressing: he who labors under antecedent and perpetual impotence, absolute or relative to this bride, is unable validly to contract marriage; but the vasectomized man labors under such impotence. For he is impotent for perfect carnal intercourse, which is effected by penetration of the female vessel and the pouring forth of seed in it, because he cannot ejaculate true seed, and he has been cut for inducing this inability.

The negative opinion is proved. In order that there be a diriment impediment, impotence must be perpetual. But it is not certainly established that it is perpetual in the case. For surgeons themselves vary, and there are those who affirm that the cut parts can be joined together and the function probably restored. Moreover, to use the words of Cardinal D'Annibale: it is publicly pernicious to prohibit men from marriages in such a doubtful matter. v. 3, n. 447. If the case occurs, let the confessor refer the matter to the Ordinary.

Note. - Let the confessor most greatly beware lest, in a matter of such grave moment and subject to so many difficulties, he proceed rashly or decide anything by his own authority; but let him refer the case, duly examined with all its circumstances, to the Ordinary, whose role it will then be to establish and determine what must be done in a similar business. Indeed, a prudent and discreet confessor will not question spouses concerning impotence, nor even forewarn those whom he believes impotent; nor will he respond finally to those consulting him on that matter, unless he himself first has consulted the Bishop.¹

¹ Cf. Addenda, p. 1117, n. 70.

I say. Bond, namely the bond of Marriage by which spouses are bound between themselves as long as they live, certainly by divine law dirimently invalidates any other Marriage which one of the spouses would attempt. The reason is that Marriage is, at least by positive divine law, one and indissoluble.

§ 1. He invalidly attempts marriage who is held by the bond of a prior marriage, although not consummated, with the privilege of faith saved.

§ 2. Although a prior marriage is invalid or dissolved from any cause whatever, it is not therefore licit to contract another before the nullity or dissolution of the prior has been established legitimately and certainly (Can. 1069).

You Will Resolve. - 1°. He who in good faith believes that his spouse is dead, while in fact she is living, and hastens to other nuptials, does not indeed sin, but contracts invalidly and is bound to return to the prior spouse when she appears.

2°. For entering a new Marriage, the mere absence of the spouse, however great it may be, is not sufficient; but arguments of death are required which make true moral certitude.

3°. This moral certitude required by law is not had through rumor, even public rumor, unless it is supported by some positive argument, nor through one single witness, unless other conjectures are present, concerning which it belongs to the Bishop alone to judge. - Hence in doubt one must always have recourse to the Bishop; but he, while the doubt remains, cannot permit the celebration of Marriage, but must transmit the whole cause, insofar as there is need, to the Holy See.

4°. By special law and reason, especially among us, recourse must be had to the Ordinary when it is a question of Marriage to be entered by wanderers and foreigners. - Cf. Council of Trent, sess. 24, cap. 7. - Kenrick, n. 193.¹

Note. - What must be done when a woman desires to enter new nuptials from the fact that her husband gave his name to the military and has not returned, you may see in the Second Plenary Council of Baltimore, n. 328. Consult also the Instruction given for proving the death of a spouse in the Third Plenary Council of Baltimore, Appendix p. 258.²

¹ Cf. Addenda, p. 1120, n. 75.

² Cf. Addenda, p. 1117, n. 70.

§ 1. A marriage contracted by a non-baptized person with a person baptized in the Catholic Church or converted to it from heresy or schism is null.

§ 2. If the party at the time of the contracted marriage was commonly held as baptized, or his baptism was doubtful, one must stand, according to the norm of can. 1014, for the validity of the marriage, until it is certainly proved that one party was baptized, but the other was not baptized (Can. 1070).

In this impediment it is supposed that one party has not been baptized, and that the other either has been baptized in the Catholic Church or has been converted to it from heresy or schism; therefore the extension of this impediment is greatly diminished. From the second paragraph a particular question is decided: when marriage was contracted, the party was commonly held to be baptized, and the other party also was held to be baptized; now a doubt arises, because one party for a not altogether slight reason doubts concerning baptism. One must stand for the validity of the marriage until it is certainly proved that the one party was baptized, and that the other was not baptized. There is no impediment between a person baptized in heresy and not converted to the faith and a non-baptized person. There is no impediment between two persons baptized in heresy. In other words, it is a question of an impediment dirimently invalidating the matrimonial contract itself, not of dissolving a marriage already validly entered. By reason of this impediment the persons concerning whom the question is had are a non-baptized person and a person either baptized in the Catholic Church or converted to it from heresy; in this case the marriage which is entered between them is invalid. It is not a question of non-Catholics contracting marriage. Again, in contracting this impediment, one party is supposed baptized in the Catholic Church, or converted from heresy or from schism. The other party is not baptized. Baptism in the Catholic Church, or conversion to it from schism or heresy, is had on one side; on the other, no baptism. When these adjuncts occur, the impediment enters. Titius and Bertha, heretics, enter marriage; the baptism of both is doubtful; Bertha is found not to be baptized. No impediment is present, because there is not had a party baptized in the Catholic Church or converted to it entering with another not baptized.¹

Those things which have been prescribed concerning mixed nuptials in Canons 1060-1064 must also be applied to marriages to which the impediment of disparity of cult is opposed (Can. 1071). Therefore cautions are altogether required for entering marriage in the case, so that not even a dispensation can be given if they are not given.

¹ Cf. Addenda, p. 1122, n. 77; p. 1135, n. 95.

Question 1. From what law does this impediment proceed?

Resp. It is certain that the impediment of disparity of cult, insofar as it is diriment, depends on ecclesiastical law alone. For in the first centuries of the Church this impediment did not exist, and several Marriages of this kind are read as having been approved in ecclesiastical history, as the Marriage of St. Monica with Patricius, of St. Cecilia with Valerian, of St. Chlotildis with Clovis while still pagan, etc. ... But the impediment of mixed religion, and also of disparity of cult insofar as it is impeding, proceeds both from natural and divine law and from ecclesiastical law. Second Plenary Council of Baltimore, Appendix p. 311. - Third Plenary Council of Baltimore, p. 130. - Acta S. Sedis, vol. 6, p. 456. - Sanchez, lib. 7, disp. 71, n. 7.

Question 2. What does an appropriate caution, taken accurately and most strictly, signify?

Resp. It signifies "such a promise which, having been brought into a pact, furnishes a moral foundation concerning the truth of execution, so that such execution can prudently be expected." Thus the Holy Office, 30 June 1842.

Question 3. Whether a dispensation concerning the impediment of disparity of cult imparted by one having power from the Holy See, when the prescribed cautions were not required or were denied, must be held valid?

Resp. "That a dispensation imparted as it is set forth is null." Holy Office, 21 June 1912.

Question 4. How were the words of Formula D, n. 3, to be understood: "except, however, the case of marriage with a Jewish man or woman"?

Resp. They were to be understood in this sense, that by force of this Faculty our Bishops were able to dispense with all, even Jews, except only non-reformed Jews; indeed, they were able to dispense even with these if there had been danger in delay. Cf. Zeitschrift fur Kath. Theol., Innsbruck, v. 15, p. 390. - Holy Office, 12 June 1882; 3 Aug. 1889. - Wernz, v. 4, n. 510, note 35.¹

¹ Cf. Addenda, p. 1117, n. 70.

The vow dirimently invalidating Marriage is only the solemn vow of chastity, emitted by profession in an approved Religion. But the Order dirimently invalidating Marriage is sacred Order, namely the presbyterate, diaconate, and subdiaconate.

I say 1°. The solemn vow of chastity and sacred Order dirimently invalidate Marriage by ecclesiastical law. This is established from the First and Second Lateran Councils, and also from the Council of Trent, sess. 24, can. 9, where it is said: "If anyone shall say that Clerics constituted in sacred Orders, or Regulars who have solemnly professed chastity, can contract Marriage, and that the one contracted is valid notwithstanding ecclesiastical law or vow, let him be anathema."

Likewise religious who have professed solemn vows invalidly attempt marriage, or simple vows to which, by special prescription of the Apostolic See, the force of invalidating nuptials has been added (Can. 1073).

I say 2°. Clerics constituted in sacred orders invalidly attempt marriage (Can. 1072).

We declare Marriage contracted even after the recited Orders (subdiaconate, diaconate, presbyterate) null and invalid: thus Benedict XIV, Etsi Pastoralis, Par. VII, n. 27; Council of Trent, sess. 24, de matr., can. 7. - I said by ecclesiastical law, for nothing is had from the Scriptures or tradition, or even from the law of nature, by which it is indicated that sacred Order is repugnant to the conjugal state; and elsewhere the common opinion of theologians holds that Order dirimently invalidates Marriage by force of the vow which is annexed to it from the sole will of the Church. - But the vow of chastity therefore dirimently invalidates Marriage because it is solemn; but solemnity is of ecclesiastical law; therefore, etc. Cf. Sanchez, lib. 8, n. 7. - S. Alphonsus, n. 1059. - Heiss, §§ 34 and 35.

By a special privilege conceded by Gregory XIII, in the Constitution Ascendente Domino, the vow of chastity which members of the Society of Jesus emit after two years of novitiate, although simple, likewise dirimently invalidates Marriage. This is established from the very words of the Supreme Pontiff, who speaks thus: "Indeed, all those [members of the Society of Jesus] are incapable of contracting [Marriage], and contracts of this kind are null and invalid, just as we make them invalid and annul them." - But concerning these things the following are to be observed:

1°. This special concession is not to be understood as if the emission of the simple vows of members of the Society of Jesus were equivalent to religious profession, so that it would annul a ratified Marriage perhaps contracted by them beforehand; for although this had been asserted by some canonists, nevertheless the Society of Jesus itself, as Ballerini says, never either learned of it or thought of it.

2°. Since by the law laid down by Pius IX even in other Religious Orders strictly so called profession is no longer made immediately after the novitiate, but then only simple vows are emitted, and one must remain in these for at least a triennium, now it can and must be said that those religious are compared to the Scholastics of the Society of Jesus. Nevertheless the special privilege of the vow of chastity in relation to Marriage cannot be extended to them. - Cf. Ballerini, note (a), p. 733; and note (b), p. 777. - Lehmkuhl, nn. 749 and following.¹

¹ Cf. Addenda, p. 1117, n. 70.

I say. Abduction, namely the violent carrying away of a woman from a safe place to another, where she is detained under the power of the abductor for the sake of entering Marriage, dirimently invalidates by ecclesiastical law Marriage between the abducted woman and the abductor, whether he carries away the woman by himself or through others. This is established from the Council of Trent, sess. 24, cap. 6, and from Canon 1074:

§ 1. Between a male abductor and a woman abducted with a view to marriage, as long as she has remained in the power of the abductor, no marriage can stand.

§ 2. But if the abducted woman, separated from the abductor and placed in a safe and free place, has consented to have him as husband, the impediment ceases.

§ 3. As regards the nullity of marriage, violent retention of a woman is held equal to abduction, namely when a man violently detains a woman with a view to marriage in a place where she is staying or to which she freely came (Can. 1074).

From the third paragraph, violent retention of a woman in the place in which she is staying, or to which she freely came, is held equal to abduction.

Question 1. Does abduction of seduction induce the impediment, or when a woman is induced by gifts, flatteries, etc., to follow the abductor?

Resp. Negatively, because through the impediment of abduction the Church intends only to consult for the liberty of Marriage, which is not injured when a consenting woman is carried away, even when the parents are unwilling. Except nevertheless, unless deceit and fraud intervene in bestowing and promising gifts, as perhaps some Declarations of the Sacred Congregation of the Council suppose, on which the patrons of the affirmative opinion rely. - Cf. S. Alphonsus, n. 1107. - Analecta Juris Pontificii, vol. 4, pp. 1848 and following.

Question 2. Is the impediment incurred if Marriage takes place after the woman has been liberated from the power of the abductor?

Resp. Negatively, and the reason is that, the woman having become of her own right and violence having ceased, actual abduction is no longer had, as is required by the Council of Trent. It must be noted, however, that this impediment exists if the woman contracted Marriage while she remains under the power of the abductor, even if she consents altogether freely. Cf. S. Alphonsus, n. 1032. - Acta S. Sedis, vol. 1, pp. 15 and following.

Question 3. Do those who carry out abduction for another incur this impediment?

Resp. Negatively, because they are not properly abductors, although they can incur the penalties laid against abductors. - Cf. Varceno, vol. 2, p. 362. - Ballerini, note (a), p. 832. - Acta S. Sedis, vol. 9, p. 519.¹

¹ Cf. Addenda, p. 1117, n. 70.

Crime, insofar as it is a diriment impediment of Marriage, is threefold, namely: 1°. adultery; 2°. both at once, provided certain conditions concur which we set beneath; 3°. homicide of the spouse, provided, etc.

They cannot validly contract marriage:

1°. Those who, while the same legitimate marriage endures, have consummated adultery between themselves and have given faith to each other mutually concerning marriage to be entered, or have attempted marriage itself, even through a civil act only;

2°. Those who, while likewise the same legitimate marriage endures, have consummated adultery between themselves, and one of them has perpetrated conjugicide;

3°. Those who by mutual physical or moral work, even without adultery, have brought death upon the spouse (Can. 1075).

For the impediment to be incurred from this head, it is required:

1°. That the adultery be true, formal, consummated. And first indeed true, that is, that at least one or the other fornicator be joined in Marriage not merely putative, but legitimate and valid, even if perhaps not consummated. Then formal, and indeed on each side, that is, that each know that one or the other is married. For the impediment arises on account of injury inflicted on one and the same marriage. Finally consummated, with perfect carnal intercourse intervening.

2°. That there be present a promise of future Marriage to be contracted, namely after the death of the spouse. This promise, although it is not restricted to any time, but can precede, accompany, or follow adultery, provided that, if it preceded, it was not retracted before the adultery, nevertheless must be true, absolute, and mutually given to each other, as is clear from the clear declaration of the canon. But if a promise of future Marriage is not present, but the accomplices have attempted it in the present in any way, even clandestinely, this suffices for inducing the impediment.

3°. That both the promise of Marriage and the adultery take place while the prior spouse is living, or while the same Marriage stands. - Thus from many places of canon law, for example, from cap. Si quis vivente 5, caus. 31, q. 1. Likewise from cap. Propositum 1, de eo qui duxit, etc. Cf. S. Alphonsus, nn. 1036 and following. - Ballerini, notes (a), (b), (c), etc., pp. 796 and 797.

You Will Resolve. - 1°. If an unmarried man lies with a woman whom he does not know to be married, formal injury to one and the same wedlock is not made on both sides, and therefore neither is adultery had which is required in this impediment. A married man and a married woman have relations, but just as the woman wholly does not know that the man is bound by marriage, so also the man does not know that the woman is married; therefore the man bears injury to his own marriage, not to the woman's, likewise the woman to her own, not to the man's; therefore the adultery on both sides is not formally injurious to one and the same marriage; hence neither does the impediment exist. On the contrary, however, if each knew of the other's marriage, a double impediment arises.

2°. Pius X established, lest marriages be exposed to danger of nullity, that for the future a dispensation from the impediment arising from adultery with attempted marriage should be judged granted through a dispensation given by the Holy See, whether over a ratified and non-consummated marriage, or through permission of passage to other nuptials. S. C. Sacr., 3 June 1912. - Cf. Can. 1053.

When the crimes of adultery and conjugicide are found joined, mutual conspiracy toward conjugicide is not required, nor a promise of Marriage, but these three things suffice: 1°. Adultery, such as was explained above, which precedes the conjugicide; nevertheless it is not necessary that it precede the machination of death. 2°. Machination of death by one of the adulterers from the intention of Marriage; but it suffices that this intention be had by one, although S. Alphonsus besides requires as more probable that this intention be manifested to the other in the same way as will be said below. 3°. Death following from the machination of one of the adulterers, in the same way as will be said below concerning homicide alone. Thus from the same law. - Cf. S. Alphonsus, n. 1036. - Gousset, n. 824. - Carriere, n. 739.

In this species it is required that on the part of each the adultery be formal with respect to the spouse killed, and therefore tend to the injury of that spouse. Thus Bertha does not know that Titius is married; she commits adultery with him. That adultery was not injurious on each side to the wedlock of Titius. But he knows that Bertha is married. Bertha's husband dies; Titius now kills his own wife. The adultery was not formal on each side with respect to the spouse killed. Wherefore neither is the impediment present. - Cf. Ballerini-Palmieri, n. 1031. - Schmalzgrueber, 1. IV, t. 7, n. 49.

This impediment, which because of the double crime united is called both at once, constitutes one single impediment. But, on the contrary, if both adultery and homicide have their own proper conditions separately, as they are explained here in I and III, they introduce a double impediment.

Three conditions are required so that an impediment may proceed from this.

1°. Mutual conspiracy; whence it does not suffice that a spouse kill his own spouse if the person with whom he is going to enter Marriage is ignorant of this action, or contradicts it, or finally, although he knows it, does not properly participate in it. Thus theologians commonly, from cap. Laudabilem 1, de Conv. infidel. - Cf. S. Alphonsus, n. 1033. 2°. Intention of Marriage. Thus commonly, although it is not expressed in the law. The reason is that the end of the law is lest someone kill his own or another's spouse in hope of Marriage. But it is enough that Marriage be intended by only one of the accomplices. Some require that that intention have in some way been manifested to the other; but S. Alphonsus says that it suffices that certain indications of this intention had preceded, for example, familiarities, love letters, etc. Otherwise, in the external forum, when machination or common work toward killing has been supposed, the intention of Marriage is always presumed. - Cf. Ballerini, note (b), p. 798. 3°. Death really following from the physical or moral action of one or the other accomplice. This is clear from canon law. - Cf. S. Alphonsus, nn. 1033 and following.

Hold all these things in memory thus in fewer words:

1°. Adultery with a promise of Marriage mutually given and accepted.

2°. Homicide from common conspiracy and with the intention of contracting, had and manifested at least by one.

3°. Both at once with a view to Marriage, but without conspiracy and promise of Marriage. - Since this impediment of crime is of ecclesiastical law, it has no place among unbelievers, as S. Alphonsus, n. 1037, indicates from common doctrine, even if afterward they come to the faith. But, on the contrary, a faithful person who has an unbelieving accomplice contracts it and communicates it to the unbeliever, and therefore cannot enter Marriage with that same one converted to the faith. This is established from cap. Laudabilem 1, de Convers. infidel. - There is added the resolution given by the Sacred Congregation de Prop. Fide, 23 Aug. 1852, in Cretoni, vol. 2, p. 459.¹

¹ Cf. Addenda, p. 1117, n. 70.

Kinship is distinguished as of three kinds, namely: 1°. natural; 2°. spiritual; 3°. legal. A few things will be said concerning each for practice.

Natural kinship, or consanguinity, is the bond of persons descending from the same nearest stock through carnal generation, or the bond which arises from participation of the same blood within certain limits.

In consanguinity three things must be distinguished, namely: 1°. the stock, or the person from whom the others draw origin; 2°. the degree, or the measure of the distance of one person from another; 3°. the line, or series of persons descending from the same stock. But the line is twofold: one direct, and the other collateral or transverse. The former is the series of persons of whom some descend from others, either immediately, as children from parents, or mediately, as grandchildren from grandparents or from great-grandparents, etc. But the latter is the series of persons who, although they have a common stock, nevertheless do not descend one from another, as brothers, cousins, etc. Besides, this is equal or unequal according as blood-relatives are equally or not equally distant from the common stock.

I say 1°. § 1. In the direct line of consanguinity, marriage is invalid among all ascendants and descendants, both legitimate and natural (Can. 1076), at least by positive law. - I said at least by positive law, because although it is certain that Marriage in the first degree of the direct line is null by the law of nature itself, nevertheless it is disputed among theologians whether it is dirimently invalidated by the same law in other degrees. - Cf. S. Alphonsus, de Sacram. Paenit., n. 470. - Schmalzgrueber, lib. 4, tit. 14, n. 30.

I say 2°. § 2. In the collateral line it is invalid up to the third degree inclusive, yet in such a way that the impediment of marriage is multiplied only as often as the common stock is multiplied (Can. 1076). But concerning the law of this impediment it must be said that it is from a positive ecclesiastical statute, as is deduced from the practice of the Church, which dispenses from it, except in the first degree, concerning which it is disputed whether it dirimently invalidates by ecclesiastical or natural law, or at least by positive divine law, since the Church never dispenses so that brothers and sisters may be joined, and unbelievers themselves detest nuptials of this kind. - Cf. Schmalzgrueber, loc. cit., nn. 45 and 46. - Ballerini, notes (a) and (b), p. 786.

I say 3°. § 3. Marriage is never to be permitted if there is any doubt whether the parties are blood-relatives in some degree of the direct line or in the first degree of the collateral line (Can. 1076).

But that the diversity of the degree of consanguinity may be computed, attention must be given to the following rules:

§ 1. Consanguinity is computed by lines and degrees.

Rule I. § 2. In the direct line, there are as many degrees as generations, or as many persons, with the stock removed (Can. 96).

Hence between father and son there is one degree, because there is one generation or one person of the son, the father being excluded as the stock. Between grandson and grandfather two degrees are counted, because there are two generations, although three persons intervene, namely grandfather, father, and his son, or grandson with respect to the grandfather. Suppose likewise great-grandfather or great-great-grandfather, and you will have three or four degrees.

Rule II. § 3. In the oblique line, if each tract is equal, there are as many degrees as generations in one tract of the line (Can. 96).

In the equal collateral line there are as many degrees as there are persons on one side, with the stock removed. Hence brother and sister are in the first degree, because if the common stock or father is set aside, one person remains on each side; and since each is distant by one degree from the stock, they also are distant from each other by one degree. Likewise paternal cousins, or the children of two brothers, are each distant by two degrees from the common stock or from the grandfather, and consequently are blood-relatives between themselves in the second degree. Thus also it must be said concerning the others.

Rule III. § 3. If the two tracts are unequal, there are as many degrees as generations in the longer tract (Can. 96).

Hence if one is distant from the common stock by two degrees and his blood-relative by three, they will be blood-relatives between themselves in the third degree, according to the saying: The more remote degree draws the nearer to itself. Therefore Bertha will be a blood-relative in the second degree with her paternal uncle, or the brother of her father, because she is distant by two degrees from the common stock, namely from her grandfather, although the paternal uncle himself is separated from the same stock by one degree, since he is the son of the stock, or the brother of Bertha's father. Thus also must it be established concerning any others.

Notice that these rules regard computation according to ecclesiastical law. But if the civil laws of some State compute differently, attention must be given to them, but only for civil effects. Cf. Kenrick, n. 153.

Question 1. How can the degrees of consanguinity easily be found?

Resp. If the common stock is known, write his name on paper, and below mark the generations and the names of the persons descending from here and there, until you come to those persons who are to be joined in wedlock; from this you will easily compute the degrees. - But if the stock is unknown, proceed thus: write in the lower part of the paper or table the name of the bridegroom on one side, and the name of the bride on the other; then above the bridegroom's name mark the names of those blood-relatives of his who perhaps can be the cause why some kinship exists with the bride; do the same with respect to the bride. When this notation has been made, ascend on one side, and see whether they come together in a common principle or stock, from whom the bridegroom and bride have been mediately begotten. Hence after you have found it, and at the same time have observed whether the betrothed are in an equal or unequal line, finally apply the rules proposed below and the resolution of the doubt will be clear. For these things let the following example stand:

                         GREAT-GRANDFATHER

PATRITIUS MURPHY

GRANDMOTHER                         GRANDFATHER
              Anna Murphy                         Petrus Murphy
              Wife of Joseph Smith

FATHER                              FATHER
              Michael Smith                       Joannes Murphy

BRIDEGROOM                          BRIDE
              Robertus Smith                      Maria Murphy

In the example Robertus Smith and Maria Murphy are blood-relatives in the third equal degree.

Another method also exists for recognizing the degrees of kinship, namely the use of the tree of consanguinity or of the genealogical table which is had on the following page. Therefore, that the whole matter may be done practically, inspect the table, and see in what line and in what cells you find the persons concerning whose kinship inquiry is made, and attend by how many degrees they are distant from the common stock.

Consanguinity between the same persons can arise from a multiple head, and then there is a double or multiple propinquity or impediment to be opened in the petition of dispensation. But this can happen when two or more common stocks concur. Thus, for example, if wives who are themselves sisters or cousins between themselves were married by two brothers or cousins, the children received from each wedlock will be joined between themselves by a double bond of consanguinity. - Cf. Scavini, lib. 3, tract. 12, n. 1012.

Question 2. Who are collateral blood-relatives?

PATRUUS MAGNUS, or brother of the grandfather - grandfather's brother.

AMITA MAGNA, or sister of the grandfather - grandfather's sister.

PATRUUS, or brother of the father - father's brother, paternal uncle.

AMITA, or sister of the father - father's sister, paternal aunt.

PATRUELES, or children of brothers from the father's side - first cousins.

AVUNCULUS MAGNUS, or brother of the grandmother - grandmother's brother.

MATERTERA MAGNA, or sister of the grandmother - grandmother's sister.

                                      3
                              Great-grandfather
                              Great-grandmother

3            2             3
                 Great paternal     Grandfather    Great maternal
                 uncle/aunt         Grandmother    uncle/aunt

3          2            1            2           3
         Their children  Paternal     Father       Maternal    Their children
                         uncle/aunt   Mother       uncle/aunt

3        2          1           N           1          2        3
   Nephews   Paternal    Brother                 Sister    Cousins   Nephews
             cousins                                      maternal
             Amitini                                      Amitini

3        2                       1                    2        3
   Second    Brother's               Son/Daughter        Sister's  Second
   cousins   children                                    children  cousins

3                                2                             3
   Brother's                         Grandson                      Sister's
   grandchildren                     Granddaughter                 grandchildren

3
                              Great-grandson
                              Great-granddaughter

Notes

I. This table represents consanguineous persons up to the third degree in the direct and collateral line.

II. Persons who are joined by a tract are blood-relatives between themselves in the direct line, and with the rest in the collateral line.

III. Where the lines are joined, there the stock is had.

AVUNCULUS, or brother of the mother - mother's brother, maternal uncle.

MATERTERA, or sister of the mother - mother's sister, maternal aunt.

CONSOBRINI, or children of brothers from the mother's side - first cousins.

AMITINI, or children of brothers - first cousins.

SOBRINI, or their children - second cousins.

NEPOTES, or children of brothers - nephews - brother's or sister's children.

PRONEPOTES, or their children - second nephews - grand nephews.¹

¹ Cf. Addenda, p. 1117, n. 70.

Spiritual kinship is a certain propinquity which, by statute of the Church, arises from the administration and reception of Baptism among certain persons determined in canon law.

I say. Only that spiritual kinship invalidates marriage concerning which there is question in can. 768 (Can. 1079). From baptism only the baptizer and the sponsor contract spiritual kinship with the baptized person (Can. 768).

And therefore neither the baptizer nor the sponsor can validly enter with the baptized woman. Any other kinship no longer constitutes an impediment.

You Will Resolve. - Sponsors, whether male or female, do not contract spiritual kinship unless they themselves immediately and by themselves, or through a proxy, physically touch the baptized person, either by holding or touching him while he is baptized, or by receiving him immediately from the hand of the priest after Baptism; because otherwise they are not properly judged to receive him from the sacred font. For all the texts of canon law by which spiritual kinship is established are expressed in these words: he who receives, holds, touches, etc. - Cf. S. Alphonsus, de Baptismo, n. 148.

2°. An unbeliever cannot contract spiritual kinship because this propinquity arises from the Church; and therefore the minister of the sacrament, in order that he incur it, must be baptized. Hence an unbeliever who validly and licitly baptized someone in a case of necessity afterward does not incur the impediment when he himself is baptized. Since in this case the spiritual kinship itself never existed, it cannot revive when the sacrament has been received.

3°. "But if others beyond those designated have touched the baptized person, they contract spiritual kinship in no way." - Council of Trent, sess. 24, cap. 2.

4°. If parents have designated more than two, or persons of the same sex, contrary to the Tridentine Decree itself, and these, admitted illegitimately by the pastor, have touched the infant, all, otherwise capable, contract spiritual kinship.

5°. Sponsors can receive infants through proxies; in which case not the proxies, but the sponsors, contract the impediment.

6°. That absent persons be sponsors, it is required that they truly give a mandate to others, by which these receive the infant in their name; it is not enough that they ratify an act placed without mandate. - Cf. Wernz, v. 4, n. 492. - Van de Burgt, n. 168.

Legal kinship is the propinquity of persons which arises from legal adoption.

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. 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.

II. QUESTION I. Whether error of person dissolves matrimony? ANSWER. Error of person by the law of nature annuls the contract, because this error takes away consent, when one person is substituted for another. This error nevertheless must needs be antecedent, giving cause to the contract, as when someone intends to marry Rachel, prepared not to marry Lia. It is disputed only whether concomitant error renders matrimony null. Some affirm it, others deny it. To me the affirmative opinion is the more probable, because concomitant error, although it does not make it involuntary positively, yet makes it so negatively. Error concerning accidental qualities, whether antecedent or concomitant, according to the more probable opinion does not annul matrimony; unless the accidental quality throw back the error into the very substance of the person, or the consent given were only under the condition of such a quality — for instance: I take thee, if thou be rich, if thou be noble; otherwise I take thee not.

III. QUESTION II. What is understood by the name of condition? ANSWER. Condition betrays servitude. Those are called slaves whose master has full dominion of selling, letting, and employing them, and so forth; these are called also mancipia. This condition of servitude according to all annuls matrimony. It is disputed only whether error of servitude annuls it by civil and ecclesiastical right alone, or also by the right of nature. To me the more probable opinion is that this impediment proceeds from the law of nature itself, and has been determined by positive law. He who knows a woman to be a slave and nevertheless marries her, the matrimony is valid. It is valid also if a man ignorant that she is a slave marry her, when he himself is a slave: because the condition of each is equal.

IV. There are three cases in which the laws dispose that a slave obtains liberty through matrimony: 1. When the master bestows a dowry; 2. When a master receives a female slave as wife, or a mistress a slave; 3. When a master delivers a female slave to a free man ignorant of her servitude. In these three cases, even in the last, the matrimony is valid. For this servitude is of no moment, as though it were not.

V. In servitude the offspring follows the womb, as the laws dispose. If a man be born of a slave mother and a free father, he is a slave. On the contrary he who is begotten of a free mother and a slave father is free. Slaves of penalty are called those condemned by a judge to the galleys, to perpetual exile, or to death, which they decline by flight. Their marriages are null as regards civil effects, namely of legitimation, inheritance, and so forth. But as regards the conjugal and sacramental bond they are annulled by no ecclesiastical law. The marriages of other slaves contracted with the master unwilling are now according to all held ratified and valid.

VI. QUESTION III. What is the impediment of a vow and of sacred Order? ANSWER. A simple vow makes matrimony unlawful, not invalid. A solemn vow emitted in an approved Religion renders null a matrimony to be contracted; and likewise a simple vow emitted in the Society of Jesus after a biennium of noviceship.

VII. QUESTION IV. What is the impediment of kinship? ANSWER. Kinship is threefold: natural, spiritual, and legal. Natural is called consanguinity, as it were a unity of blood: because blood-relations descend from the same stock and are as it were conjoined in it. Spiritual kinship is that affinity which is contracted from Baptism or Confirmation, and is called also co-paternity. Legal kinship arises from legal adoption, and is called adoption.

VIII. QUESTION V. What is consanguinity, and of how many kinds is it? ANSWER. It is a bond of persons descending from the same stock, contracted by carnal propagation. It is divided into lines and degrees. A line is an ordered collection of persons descending from the same stock. It is twofold: one direct, which is the collection of those of whom one descends from another, as a son from a father, a grandson from a son, and so on to infinity. This is regarded in two ways. One is of ascendants, by which ascent is made from the begotten to the begetters, as from a son to a father, from a father to a grandfather, and so forth. The other of descendants, by which descent is made from a father to a son, from a son to a grandson, and so forth. The second line is transverse, which is the collection of those who descend from the same stock, without one deriving his origin from another, as brothers, cousins, and so forth. This is considered under a twofold aspect. One is equal, as two brothers, who descend in the same degree from a single stock. The other is called unequal, as an uncle and a nephew, who stand unequally distant from the same stock. A degree is the greater or lesser distance of one person from another according to the line of consanguinity. The stock, lastly, is called that person from whom the other blood-relations draw their origin, as the father is the stock of sons, and a grandfather of grandsons.

IX. QUESTION VI. How many are the rules which are assigned by theologians and canonists for the computation of the degrees of consanguinity? ANSWER. Three. 1. In the direct line of ascendants and descendants there are as many degrees as there are persons, the stock being taken away. Hence father, son, grandson, great-grandson, great-great-grandson are five persons and four degrees: the son is in the first degree with the father, the grandson in the second, the great-grandson in the third, the great-great-grandson in the fourth; since there are as many degrees as there are generations. 2. The rule: In the collateral equal line persons are distant from one another by as many degrees as they are from the common stock. Thus two brothers are distant in the first degree from one another, because they are distant by one degree from the stock. The sons of two brothers are blood-relations in the second degree, because they are distant in the same from the stock. 3. The rule is: In the collateral unequal line persons are distant from one another by as many degrees as he is distant from the stock who is the more remote. Wherefore an uncle and a brother's son are unequally distant from the grandfather, in whom they are conjoined. For the former is in the first, since he is his son; but the latter is distant in the second degree. Therefore they are distant from one another in the second degree, because the more remote person is distant by two degrees from the stock.

X. In the direct line canon law and civil law agree in the computation of degrees. In the transverse or collateral line the civil law differs from the canon. For the civil law numbers the degrees by persons, and numbers as many degrees as there are persons, the stock being taken away. Thus two brothers are indeed distant by one degree from the common father, but they are distant from one another by two degrees, because there are two persons; the sons of two brothers are distant in the fourth degree, because there are four persons, the stock being taken away. On the contrary canon law numbers the degrees not by persons but by the distance from the stock. The reason of the canonical computation is that persons in the transverse order are not conjoined with one another save by reason of the stock from which they descend. Therefore they cannot be more or less distant from one another than they are distant from the stock from which they descend. Hence two brothers are distant from one another in the first degree, because both are conjoined in the first with the stock. If they be unequally distant from the stock, as an uncle and a brother's son, they are distant from one another by that degree by which he is distant from the stock who is the more remote, as has been said.

XI. In the first degree of the direct line there are no marriages by the law of nature, as the Fathers commonly teach. Theologians dispute whether in every degree of the direct line marriages are unlawful, and whether Adam, if he should now rise again, could marry some woman; but this disputation I judge futile. For it is enough that there are none up to the fourth degree. For in the fifth degree they are either dead, or are in an age so bowed down that it would be most absurd to wish to contract matrimony between them.

XII. That in the first degree of the transverse line there are no marriages by the law of nature, Soto, Toletus, de Lugo, Gonet, and others contend. But the contrary denying opinion is more probable. For at the beginning of the world brothers in fact married sisters. Nor is it to the purpose that they answer that this was done by divine dispensation. What? Did God establish such a law, which scarcely promulgated could not be observed without a dispensation?

XIII. Spiritual kinship, as has been indicated, is called a nearness of persons introduced by ecclesiastical right. This induces an impediment between godparents and the one baptized or confirmed, and the father and mother of the one baptized or confirmed. For this kinship nevertheless solemn Baptism is required. If a child be baptized privately at home, very many teach that this kinship is not contracted between the godparents and the one baptized and the father and mother of the one baptized, but only with the one baptizing.

XIV. That legal kinship arising from adoption may induce an impediment, six conditions are required: 1. That the adopter be male; 2. That the adopter be twenty-five years old; 3. That he be able naturally to beget sons; 4. The adopter ought to exceed the adopted by eighteen years, that by reason of age he can be called his son; 5. The adopter and the adopted ought to be present; 6. The authority of the Prince or of the Magistrate must accede. They distinguish a twofold adoption. The first is perfect, which is called also arrogation, and is made by the rescript of the Prince with an extraneous person who is sui juris. The other, imperfect, is called simple adoption. This does not require that the adopted be sui juris, nor the rescript of the supreme Prince; but the authority of any Magistrate suffices. The arrogated necessarily succeeds the arrogator, both by testament and ab intestato. The simply adopted succeeds only ab intestato.

XV. That perfect adoption induces a diriment impediment by positive right all affirm. Concerning the imperfect they dispute on either side. To me it is the more probable that it does not induce one, as St. Thomas seems to defend, Suppl., q. 57, art. 1, reply 1. This impediment lasts between the adopter and the adopted, between the wife of the adopter and the adopted, and between the wife of the adopted and the adopter, in perpetuity; between the adopter and the posterity of the adopted up to the fourth degree inclusively. In the collateral line, namely between the adopted and the carnal and legitimate sons of the adopter, the impediment lasts only so long as they persist subject to the power of the adopter. The paternal power being taken away either by the death of the adopter, or by the emancipation of the adopted, whether legal or natural, that impediment vanishes, nor does it extend beyond the first degree. Chapter unicum, on legal kinship.

XVI. QUESTION VII. What is the impediment of crime? ANSWER. It is adultery with a promise of future matrimony after the death of the other spouse; or it is the homicide of a spouse with adultery; or the homicide of either spouse perpetrated by the consent of an accomplice without adultery; or adultery with a matrimony of the present contracted with the accomplice. And so this crime is fourfold: 1. Homicide alone; 2. Homicide with adultery; 3. Adultery with a promise of future matrimony; 4. Adultery with matrimony.

XVII. That homicide with adultery may induce a diriment impediment, the following conditions are required: 1. That death in fact followed by force of such an action; 2. The matrimony antecedent to the killing of the spouse ought to be valid; 3. The adultery ought to be consummated; 4. The adultery must needs precede the killing; 5. The adulterer and the adulteress ought to be conscious of the matrimony of each. There is always required a mind of future matrimony, as authors commonly teach, although some teach that homicide with adultery suffices.

XVIII. Homicide without adultery induces a diriment impediment when a man and a woman conspire in a machination for the death of the wife or of the husband, with the intention that, death following, they may enter upon matrimony. And it is required that death in fact follow.

XIX. Adultery with a promise of future matrimony without homicide induces a diriment impediment, when the adultery is consummated, and both the adulterer and the adulteress are conscious of the matrimony. Again, both the adultery and the promise ought to precede the death of the spouse, and the promise must needs be manifested by external signs and accepted; not nevertheless that it be mutual, nor according to many that it be sincere.

XX. Adultery with a matrimony of the present contracted induces a diriment impediment, if the preceding matrimony was valid, and both were conscious, and they in fact attempted to contract matrimony.

XXI. QUESTION VIII. What is the impediment of disparity of worship? ANSWER. Disparity of worship signifies a diverse religion, such as is between a believer and an unbaptized unbeliever. This impediment has been introduced by ecclesiastical right, from which, a just and grave cause urging, the Supreme Pontiff can dispense. For a believer ought to contract matrimony as a sacrament. But an unbaptized person is capable of no sacrament without Baptism. When a danger of subversion threatens, marriages of this kind are forbidden by natural and divine right. Similarly the marriages of Catholics with heretics are forbidden both by divine and by ecclesiastical right, yet not invalid. For heretics are excommunicated. Therefore they are not to be admitted into the most straitened society of matrimony. And assuredly the Supreme Pontiffs permit these save in causes most grave and most urgent, for the avoiding of graver inconveniences.

XXII. QUESTION IX. What is the impediment of coercion and of bond? ANSWER. This impediment of coercion arises from force or fear, by which someone is compelled to contract matrimony. Force here must needs be extrinsically inflicted, and the fear must be such as falls upon a constant man, as has been explained above. The impediment of bond is that which spouses contract from matrimony, and they cannot take another wife while the former lives. Of this impediment, or of polygamy, it has been said above.

XXIII. QUESTION X. What is the impediment of public honesty, and between whom is it contracted? ANSWER. This impediment arises from matrimony and from betrothals. It is contracted between the betrothed man and the mother, sister, and daughter of the betrothed woman, or between the betrothed woman and the father, brother, and son of the betrothed man, provided nevertheless that the betrothals first contracted were valid. For if they be invalid on some head, no impediment arises. But the impediment arising from ratified matrimony extends up to the fourth degree, because Trent limited only the impediment arising from betrothals.

XXIV. From clandestine matrimony there arises the impediment of public honesty, because these marriages are not void from a defect of consent, but on account of the omission of the solemnities. But only those marriages which are null from a defect of consent do not induce the impediment of public honesty. This impediment of public honesty is perpetual, whether it arise from ratified matrimony or from betrothals. If valid betrothals be dissolved by mutual consent, the impediment nevertheless lasts, because as soon as valid betrothals were contracted, the impediment arose. Second betrothals, as being null, supposing that the first are valid, induce no impediment.

XXV. QUESTION XI. What is the impediment of affinity? ANSWER. Affinity is a nearness of persons proceeding from carnal copulation. That copulation is necessary which suffices for the consummation of matrimony. Affinity arises from copulation whether lawful or fornicating, and lasts in perpetuity. The blood-relations of a man do not become through his carnal copulation affines to the blood-relations of the woman with whom he had copulation, nor conversely, because affinity does not beget affinity. Only therefore he who had carnal copulation becomes affine to the blood-relations of the woman, and the woman affine to the blood-relations of the man. The impediment of affinity dissolves matrimony, and arises from lawful copulation up to the fourth degree, from unlawful up to the second inclusively, as Trent determined.

XXVI. QUESTION XII. What is the impediment of impotence? ANSWER. I shall touch upon a few heads with that caution which I can, lest the pen itself be stained by turning over so putrid a matter.

XXVII. Impotence is an ineptitude for exercising conjugal copulation with penetration of the woman's vessel and effusion of seed within it, apt for the generation of offspring. Here one impotence supervenes upon matrimony, another precedes it; one is perpetual, another for a time; one natural and intimate, another accidental and coming from without. Natural impotence is of one kind from a defect of heat in the man, of another from an excessive straitness of parts in the woman. Again, natural impotence is of one kind absolute in respect of all, of another relative — that is, in respect of this woman and not of another. Accidental impotence is of one kind from nature, as in the aged; of another from man, as in the emasculated and in eunuchs; of another from a demon, as in those bewitched.

XXVIII. Absolute impotence is a diriment impediment of matrimony. Similarly that is reputed impotence by which, on account of excessive heat or straitness in the woman, seed can be admitted neither wholly nor in part within the natural vessel, when it can be removed by no remedy at all. And this also induces a diriment impediment of matrimony by natural and ecclesiastical right, as all confess. Whether this impotence be mutual, or in one alone, whether it be known or unknown to the spouses, it dissolves the matrimony, nor can they cede their own right, because the absurdities which would follow thence are known. And they sin mortally who, conscious of impotence, contract matrimony.

XXIX. Temporal impotence does not dissolve matrimony, as is had in chapter Fraternitatis, and all teach. That is called temporal impotence, or for a time, which can be removed without sin and without danger to life. He nevertheless sins mortally who, or she who, conscious of the same contracts, on account of the injury inflicted upon the party, and on account of the other absurdities proceeding thence. Those who are strong in a true faculty of coming together enter upon a valid matrimony, even if they be sterile either by nature or on account of old age. Several things would have to be said concerning relative impotence. But because this rarely happens, and the other things are clear, therefore I pass them over.

XXX. Accidental impotence proceeding from a defect of age, as in boys, renders matrimony null by ecclesiastical right. Old age is not a diriment impediment. If nevertheless they were impotent for coming together in a manner apt for generation, the matrimony would be null. Eunuchs lacking both testicles are unfit for matrimony, but fit if they lack only one.

XXXI. Impotence proceeding from bewitchment, if within a triennium it cannot be removed by prayers, fasts, penance, and the exorcisms of the Church, is judged perpetual, and renders matrimony void. Similarly it is reputed perpetual when it cannot be removed without another bewitchment, since it is never lawful to remove a bewitchment by a bewitchment.

XXXII. Impotence supervening upon matrimony, from whatsoever head it proceed, in no way dissolves the matrimony. Impotent persons of this kind cannot attempt intercourse, when there is danger of effusing seed outside the vessel, and they have learned by experiment that they are in truth inept for copulation. It is hard; but such men will suffer the tribulation of the flesh. If on the contrary it happen that seed is not infrequently admitted within the vessel, although sometimes beyond their intention it turn out otherwise, they are not to be prohibited from the conjugal office. There is need nevertheless of prudence.

XXXIII. QUESTION XIII. What is the impediment of clandestinity and of abduction? ANSWER. The impediment of clandestinity arises from an occult matrimony without the presence of the parish priest and of witnesses, and dissolves matrimony by ecclesiastical right, of which it has been said above. Abduction is an impedient impediment, when a man leads away a wife from the house of her own husband. This abduction hinders matrimony not only with the woman abducted, but with any other whatsoever, when she is truly a wife under the power of a husband, and he resists. And even if the woman abducted consent, both she and the abductor are bound by the impediment, if the husband resist.

XXXIV. Abduction which is a diriment impediment is the violent leading away of a woman from place to place for the cause of matrimony. Violence is twofold. One physical, by which by force a woman is dragged from her own house. The other moral, which stirs up threats and fear falling upon a constant man. Either is required for abduction. For if a woman be led away from her parents' house with her own consent, even if she be deceived by guile and fraud, it is not abduction inducing an impediment, because then it is flight, not abduction, since all violence, whether physical or moral, is lacking as often as the woman consents. Nor does it matter that the woman abducted be a virgin or corrupt. It is said from place to place, that is, she ought to be led from the place in which she is to a place in which she is under the power of the abductor, although no copulation follow. Wherefore if he lead her from chamber to chamber that he may know her, it is not abduction. There is added for the cause of matrimony, because if this intention be lacking, and for another end — for instance for the fulfilling of lust — the woman be led away, it is not properly abduction inducing an impediment. Read the penalties constituted against abductors in Trent, session 24, chapter 6.

Caius, while his wife Caia was still living, attempted marriage in a Protestant church with Titia, a relative of Caia in the third collateral degree, who herself indeed was married. A few years afterwards, when both Caia and Titia’s husband had died, Titia approaches Thomas, a confessor, to set everything in order. During confession she relates that she lived as a concubine for an entire year with Sempronius, a relative of Caius in the second collateral degree, and bore him a son. Thomas therefore asks:

1. How many kinds of the impediment of crime are there; what conditions are required for incurring it; and when does it become double?

2. If an impediment public by itself but secret by accident is disclosed in the tribunal, must its relaxation follow the rules of the internal or external forum?

3. What dispensations are required in the case, and in which forum must the matter be treated?

4. What absolutions from censures must be given in the case?

[From cases to be solved in the Diocese of Liverpool, 1899–1900.]

1. What is the impediment of crime; what conditions are required for incurring it; and when is it double?

Generally the impediment of crime is said to be threefold; adultery, homicide, and both together. With adultery there must be a promise of marriage or attempted marriage with the adulterer; with homicide when committed by one party there must be physical or moral co-operation of the other party; when there is both adultery and homicide, the other conditions are not necessary that the impediment may exist between the parties. If both parties are married in the first case; if the spouses of both are killed in the second; and if in the third there is adultery with the promise of, or attempt at, marriage, and the machination of the other party in the homicide, there will be two impediments.¹

1 Manual of Moral Theology, vol. ii, 313.

2. If an impediment is per se public, but secret per accidens, ought its dispensation to follow the rules of the internal or external forum?

It should follow the rules of the external forum: “ It is received in common jurisprudence that an impediment is to be held altogether public which, although actually occult, can at any time be made public and proved.”²

2 Gasparri, De Matrim., vol. i, n. 251.

3. What dispensations are required in the case and in what forum should the case be treated?

Titia is the affinis of Caius in the third degree; we presume that the attempted marriage was consummated and so there is a double impediment of crime between them ( adulterium cum attentato matrimonio ); Titia is the affinis of Caius in the second degree on account of her illicit intercourse with Sempronius. All these facts are publicly known, so that the whole case must be treated in the external forum, and dispensations be obtained from the above impediments.

4. What absolutions from censures should be given in the case?

Caius and Titia incurred the censure of excommunication inflicted on heretics and their abettors on account of their attempting marriage in the Protestant Church, for to receive a sacrament in a non-Catholic place of worship is presumed to be an act of heresy. They will, then, need absolution from this censure.

A certain newspaper, somewhat hostile to our creed, made much of the following news item: The marriage of Mr. P. and Mrs. P. was to take place in the parish of X. Mrs. P. had been divorced from her husband, who recently died. All the preparatory steps had been taken and there appeared to be no valid obstacle. When the bridal couple made their Confession, the bride informed the priest that for fifteen years she had been living in concubinage with the bridegroom, whereupon the priest became very angry, and after having given her absolution, he hurriedly left the confessional and made the matter known to the pastor.

The latter sent for the bridegroom and informed him that he must get from the Bishop the necessary dispensation (the affair happened in a diocesan city), otherwise he could not get married. The Bishop being on a journey, the marriage could not take place that day. Upon the Bishop's return the dispensation was most courteously granted. The newspaper joins to this item the question: "Why did the pastor, on an occasion shortly before, marry two persons under similar circumstances, without protesting? Could it depend upon the amount of the fee? And far worse. The seal of Confession was broken." Thus far the newspaper. A correction appeared in the Catholic paper of the place stating the case correctly as follows: Bride and bridegroom approached the Sacraments on the morning of the wedding-day, and all preparations were made for the ceremony. The confessor advised the bride that she could not be married and directed her to go to the pastor and inform him that there was an impediment. The couple in fact did go to the pastor, who, however, told them to apply to the Bishop with the explanation that a marriage could not take place until a dispensation was received. The couple then proceeded to the Ordinary for the dispensation and as he was away from home, they sent a despatch after him, which, however, did not reach him. On his return, the following day, the Bishop readily granted the dispensation from the impedimenta occulto. The couple took the document to the priest and were united in marriage. No fee was asked either for dispensation or marriage.

That the newspaper report had a malicious tendency is plain. It is equally plain that the seal of Confession was not violated and that money played no part. It may happen, likewise, that impediments to marriage escape attention.

If the bride had only shortly before become a widow, and the two had already lived together, the question must be asked whether the impedimentum criminis adulterii did not obtain.

Let us leave that aside and turn to our main point. Did the confessor act rightly in directing the couple, when Confession was made immediately before the ceremony for which everything had been put in readiness, to make known to the pastor an impediment for which dispensation is obtainable, an impedimentum occultum, at that? Decidedly not. The confessor in this case should have bidden the bride to come back in about two hours, and in the meantime he himself should have proceeded to the Ordinary, to apply for the dispensation post absolutionem. And if this was by circumstances prevented, he should have performed the ceremony to avoid scandal. In that case the bridegroom was to be instructed to come to Confession again in about a week's time. Meanwhile it would be possible to apply to the Ordinary and ask for approval of his conduct, and also for the faculty of dispensation.

The following is a synopsis of a marriage case recently decided by the tribunal of the Rota:

In 1879, one Werner, a German Lutheran, contracted marriage with Eliza, a member of the same sect, before a Lutheran minister. Before the marriage Werner had heard reports reflecting on Eliza, but they did not deter him from marrying her, because, as he said to his relatives, if the reports should prove true, or if the girl proved unfaithful after marriage, he would simply get a divorce. Accordingly, the marriage took place, without the wife ever learning of the objections made against her. After the birth of several children, the relations between Werner and Eliza became so strained that the wife procured a divorce in 1884. Two years later Werner married again, but his second wife died in 1895, leaving three children by the marriage.

After the death of this second woman, Werner became acquainted with Antonia, a Catholic noblewoman, who, in her desire to convert Werner and his children to the Catholic faith, consented to marry him, and accordingly applied to her bishop for a certificate de stat libero for Werner, which would declare Werner’s marriage to Eliza invalid, and that Werner was free to marry Antonia. But the bishop refused the certificate de statu libero, on account of the impedimentum ligaminis, as Werner’s first wife Eliza was still living. To remove this obstacle, Antonia, the Catholic woman, brought a case in the bishop’s court, for the declaration of the invalidity of Werner’s first marriage, on the grounds that it had been contracted with a conditio turpis, namely, the intention, if certain things proved true, of procuring a divorce, and that this conditio turpis destroyed the substance of the marriage. The bishop decided against Antonia, who thereupon appealed the case to Rome.

The Facts of THE Case.—Upon examination, the tribunal of the Rota, at Rome, found the facts of the case to be these: Werner had the intention of marrying his first wife Eliza, according to the rites of the Lutheran Church, which permits divorce for adultery, but that this dissolubility was not put as a condition on the occasion of the marriage. When adverse criticism was made against Eliza before the marriage, Werner states that: “As no facts were given, I believed the reports to be unfounded and mere idle gossip. For the moment I did not think that it would come to this, and my usual reply was that I wanted to be let alone, that I loved the girl and that I was making a good marriage.” Some days before the marriage Werner replied to some who still endeavored to dissuade him: “It makes no difference to me, even if the stories about the girl should prove to be true, or if she should go wrong after our marriage, I would not kill myself for that; I would simply get a divorce.”

From these and similar expressions of Werner, the tribunal of Rota holds that Werner’s predominating intention was to contract a valid marriage, although he held the erroneous opinion that marriage is dissoluble for adultery. When examined by the bishop’s curia, Werner testified:

“In marrying Eliza according to the rites of the Evangelical Church, I wished to contract a Christian marriage, according to the belief of my sect, and I wished to assume the duties of a Christian marriage. I believed that Christian marriage could be dissolved for certain causes and that after its dissolution I would be free to marry again. During the marriage ceremony, when I was standing before the altar, I was decided to fulfil my duties, but I also thought that, if the stories about my wife proved to be true, I would get a divorce.”

From these facts of the case it is evident that Werner wished to contract a valid marriage, although he held the erroneous opinion that marriage was dissoluble for adultery on the wife’s part; furthermore, that this intention of his was not put as a pact or condition, because he did not think it necessary, first, because he did not believe the reports about his wife; and, secondly, because if the reports should prove to be true, he had at hand a remedy for the dissolution of the marriage, independently of any prenuptial agreement, namely, divorce, sanctioned by his sect, as well, as by the law of the country.

The Law IN THE Case.—According to Catholic theology, not any intention of dissolving a marriage is sufficient to invalidate a marriage, but only such intention as has been put forward as a pact or condition, at the celebration of the marriage. When asked as to whether a marriage is valid when contracted between a Catholic and a schismatic with the intention of dissolving the marriage, the Holy Office replied, October 20, 1680: “Those marriages are null when these things are put forward as a pact or when the marriages are contracted with this condition, otherwise the marriages are valid.” If the prime intention of the parties to the contract was to contract a dissoluble marriage, such intention would destroy the substance of the marriage, since there is no such thing possible among Christians as a dissoluble marriage, Christian marriage being essentially indissoluble. But where the prime intention is to contract a true and valid marriage, then, though the parties believe that marriage is dissoluble for certain causes, still such secondary intention or persuasion is absorbed by the prime intention of contracting a true Christian marriage and it does not destroy the substance of the contract. This doctrine is set forth by Pope Benedict XIV, synodo dioecesana, 1. 13, and is confirmed by Pius VI in a letter to the Archbishop of Prague, July 2, 1789:

“Nor is there lacking an intimate reason why the intention of contracting according to the ideas of a sect or of a law which permits the dissolution of marriage for these causes does not militate against its validity, provided this intention is not put forth as a pact; for, from the very fact that non-Catholics, through error, think that the dissolution of marriage for these causes is not repugnant to the law of Christ; hence, it comes about that in their minds, by reason of this false opinion, the intention of contracting according to such laws, or to the principles of such a sect, by no means excludes the primary intention of contracting according to the divine law confirmed by Christ. Hence, this will remain at the act of contracting, and from it flows and is determined the consent which is given to the act. And consent given according to the law of Christ is suitable and sufficient for the validity of marriage, unless there be some other canonical impediment.”

Again, the making of a pact or condition is not presumed éin foro externo, but must be proved. Benedict XIV, loc. cit., says:

“If the express condition that the marriage is to be dissolved in case of adultery has not been made, although the contracting. parties may be in error with regard to the dissolution of marriage by adultery; still the presumption remains that when they willed to contract marriage as it was instituted by Christ, they willed to contract perpetual and indissoluble marriage, even should adultery take place, for, as we have said, the general will of contracting marriage as instituted by Christ prevails, and in a manner, absorbs that private error; so that the marriage thus contracted remains firm and valid.”

But, it may be asked, what if the parties, knowing the law permitting the dissolution of marriage for adultery, have contracted marriage with this positive intention that in the case of the infidelity of one of them the marriage can be dissolved.

In such case, of course, the marriage would be null, for this positive intention would destroy the marriage on account of the defect of the matrimonial mind to its proper object, i. e., to an indissoluble marriage. But the auditors of the Rota decided that this doctrine cannot be applied to the present case, because Werner, ignoring the rumors about Eliza, and having no doubt about her future fidelity, had no reason for limiting his consent at the marriage. Neither did he manifest any such intention to the girl, either before or at the marriage, and yet the condition must be put forth as a pact with the knowledge and consent of the other party, because the contract is the resultant of the will of the two persons for the same object.

From the facts and the law the Rota concludes that the marriage of Werner to Eliza was a valid marriage, and that he is not free to marry Antonia.

A country girl, named Laura, enjoyed an excellent reputation, and her uncle, eighty years of age, had assigned a considerable legacy to her in his will. Unhappily she had lately been seduced by a married man, who was regarded as very religious and most respectable. Finding herself pregnant by him, she resolved in her despair to save her honor, and secure her inheritance, by means of abortion. At that moment a chance of escape presented itself. A young man, named Norbert, having no suspicion of what had happened, offered to marry her, and wished their marriage to take place immediately. If Laura told him the truth, he would certainly withdraw his offer, and she would be left in her desperate plight. She therefore hurried to the neighboring town to consult Father Philip, who did not know her. She told him the whole story and asked whether in this case she might conceal her pregnancy and marry Norbert.

Question.—What should Father Philip reply?

The pregnancy of his bride by another man is undoubtedly a defect which not only renders the marriage minus appetibile to the bridegroom (to use the language of theologians), but is actually prejudicial to him; is, in fact, a defectus nocivus. St. Alphonsus says: "Just as one sins against justice who sells harmful merchandise to another who believes it good, so much more does one who wishes to contract marriage with a harmful defect" (1. VI. n. 864). A woman pregnant by another man by her marriage forces her husband against his will to receive some one else's child and bring it upas his own. She causes his legitimate children to share their inheritance involuntarily with one who has no right to it. Moreover, she exposes her husband, her children, and herself to all the miseries of an unhappy marriage, for it is quite possible that he may eventually find out the trick that she has played him. In some states he might even obtain a dissolution of his marriage in the secular court, in defiance of the law of God and the Church. Therefore, as a rule, all authors hold that under such circumstances the woman is bound sub gravi either to refrain from marriage or to reveal her condition to her future husband. Father Philip explained all this fully to Laura, but she replied that marriage was the only way for her to save her reputation and her inheritance, to keep secret the sin committed by the partner in her guilt, to preserve his family life, and to protect the whole parish from public scandal. As to the dangers that the priest pointed out to her, she firmly believed that, under the existing circumstances, her husband would never find out what she had done, and that she would succeed in making good to him and his legitimate children any loss that they might incur out of her own means.

Taking all these circumstances into consideration, Father Philip thought that he could discover the following reasons for acceding to Laura's request.

(1) The prohibition of marriage in such a case is based upon the danger of causing the injuries enumerated above; but, in Laura's case, it seems that this danger is not great, and therefore there is no need to insist upon the prohibition. Even Lehmkuhl says, in his Casus conscientiae, II. n. 845, in discussing a similar case: "But if the girl were secretly to give birth before marriage and provide well for the child, in such a way that her motherhood remained entirely concealed, her pregnancy must be judged no differently from fornication without consequences." St. Alphonsus says (1. VI. n. 865) of such a woman that some authorities would permit her to give an evasive answer, should her husband question her on this point, or even to conceal her fault with a restrictio non pure mentalis, as in all probability it will never do him any harm at all.

(2) It can scarcely be a sin on Laura's part if, by concealing the fact of her pregnancy when she marries, she does what is not forbidden in se, sed solum propter periculum damni proximi, and is moreover the only means of averting evils of a much worse kind. Gury takes this view in his Casus conscientiae, II. n. 871, with regard to a similar case: "many make an exception if, with the wedding imminent, the girl could not provide for her reputation except through marriage, because then she would not be bound to undergo so great an injury to her reputation in order to avert temporal loss to the bridegroom."

(3) The chief reason, however, for not forbidding Laura's marriage seemed to Father Philip to be the extrema necessitas of the child that she had conceived; for, if she could not marry at once, she was in the greatest danger of yielding to the temptation to procure abortion. The child was therefore in extreme spiritual and bodily necessitas, and under existing circumstances Norbert alone could save it. In such a case any one would be strictly bound to even greater sacrifice than Norbert would make by this marriage; therefore he could not be rationabiliter invitus, if such a sacrifice were imposed upon him by Father Philip's decision. The latter, after he had well considered all the arguments in her favor, could not make up his mind either to prohibit the marriage or to force Laura to reveal her condition to Norbert. He simply admonished her to do her best to avert the dangers he had mentioned from her husband and the family.—Johann Schwienbacher, C.SS.R.

Case.—Anna had during the life of her feeble husband Lewis repeatedly broken her marriage vow with the frivolous and irreligious Charles, who had even promised to marry her as soon as Lewis died. When Anna became a widow she desired to set her conscience at rest, and proposed to Charles that he either marry her, or cease all relations. Charles declined to marry her, and so she broke with him altogether. Then Anna received a favorable offer of marriage and intended to accept it. Charles, hearing of it, wanted from motives of jealousy to prevent Anna from becoming the wife of another man, and, seeking and gaining her favor again, devised a perfidious scheme. He knew that Anna from conscientious grounds would only marry in church, and he had repeatedly declared to her that for him the church ceremony appeared a mere formality and of no value; the only binding marriage for him was a civil marriage, one which, however, he was not willing to enter. Nevertheless, he consented to a church wedding. Anna, who doubted his honorable intentions, and had reason to fear that he would abandon her after the wedding and only occasionally live with her, told him and several friends that she would consent to the marriage on condition that Charles would lead the life of a married man according to the Catholic idea, and that this honorable married life should, for family reasons, begin after the approaching wedding of a daughter of Anna. Charles hesitated at first to accept the condition of married life, but finally gave his consent, even in writing. Thereupon the day was set for the ceremony. On the way to church Charles insisted that Anna promise upon oath that the copula was to take place in such manner that all prospect of having children was excluded. Anna was shocked at this proposition, but saw no escape, everything being ready for the wedding, so she complied, but for fear of disappointment she renewed mentally during the ceremony her previously made condition of honorable married life. After leaving the church Charles went his way, Anna returning home alone. On rare occasions Charles visited Anna, but declared, both in writing and verbally, that he had given only a feigned consent to the marriage, in order to prevent her marrying someone else. When, six months later, Anna’s daughter married, and thus the condition put by Anna and accepted by Charles, of living their married life together, was realized, Charles would not hear of it despite Anna’s pleadings, and so they came to a final break. Now Anna wishes to have her marriage to Charles under the conditions named declared invalid.

Question.—Quid ad casum?

Solution.—It appears from the facts stated, that several diriment impediments exist to the marriage between Charles and Anna, but their presence must be proved to establish the invalidity of the marriage. Not less than four impediments here come into consideration. Namely (1) that of the conditio; (2) that of the withheld or simulated consent (simulatio seu fictio consensus); (3) of the condition contrary to the nature of wedlock, and, finally, (4) that of crime. If even one of these obstacles can be proved with moral certainty, then the marriage in the case is null and void.

I. The obstacle of the conditio. Like every other contract, that of marriage may have a condition added to it. By a condition in the strict sense we understand an addition to the contract by which its obligations are held in abeyance until the future event of the condition takes place (conditio de futuro). Conditions of the present or of the past are conditions in the improper sense, since a marriage under such conditions either at once exists or not, according as the conditioned circumstance, although unknown to the contracting parties, either exists or does not exist. With the conditio de futuro, however, as long as the condition has not been fulfilled, marriage is not effected but simply remains in abeyance, for which reason the married couple have to refrain from conjugal intercourse until the fulfilling of the condition. If the condition is realized, the consent to marriage is valid and hence the marriage concluded; if, however, the condition does not materialize, then there is no marriage, and if the parties nevertheless wish to keep their union in existence, they must make a new marriage contract. Under a condition de futuro the contracting parties must arrange for the realization of the condition, must at least not impede its fulfilment. Should, however, one of the parties before the fulfilling of the condition enter unconditionally into a second marriage, then, on account of the obligation of waiting for the entrance of the condition, this marriage would be unlawful, yet at once valid, as the first conditional marriage is no marriage before the fulfilment of the condition. On this matter Gasparri (De Matrimonio, 3, cap. IV, parte II, n. 987 seq.) says briefly and plainly: A condition concerning a contingent future event suspends consent until the event is verified.... Therefore a marriage contracted under such a condition is meanwhile invalid and is, as it were, in suspense, since the consent bound to that condition has not yet been given and remains in suspense. Each party is bound to see to the fulfillment of the condition, or at least not to impede it.... A marriage, when the condition has not been fulfilled for any reason, vanishes through defect of consent, as is evident; but when the condition has been fulfilled, it is valid from the moment of fulfillment and then becomes a sacrament, although it is thereafter carried back by a fiction of law to the moment of celebration. It is to be remarked that after fulfilment of the condition, as most Canonists teach, a renewal of the consent, either privately or before the pastor and two witnesses, is not necessary.

In this case, Anna had added to her marriage contract with Charles the lawful and possible condition: “I take you as my husband if after the wedding of my daughter you will begin to live with me in honorable wedlock.” Charles consented to this condition. The marriage contracted under this condition is invalid if with moral certainty three things can be proved; namely: (1) That Anna before the marriage really imposed the condition actualiter. (2) That she never renounced actualiter the condition imposed, that therefore the condition at the moment of marrying continued virtualiter (a merely habitual condition would not suffice), and, (3) that the condition was not fulfilled. As is apparent from the facti species Anna is decidedly in a position to produce the threefold proof. For she published before the wedding the condition not only to her fiancé Charles, but also to some friends, who can testify to this fact. She never renounced the condition imposed, but renewed the same mentally during the ceremony. The condition, as already stated, was not kept. Hence the marriage may be regarded in the given case as null and void. It does not alter the case that before the fulfilment of the condition, sexual intercourse was voluntarily had between Charles and Anna. True, the law holds that the performance of the copula carnalis means relinquishment of the condition. Wernz teaches even positively: “One who, before a condition concerning the future has been fulfilled, consummates the marriage by freely admitted intercourse is presumed by a presumption of law and by the law itself to have renounced the condition.’ The same view is held by other weighty Canonists, such as Gasparri, Kutschker, Scherer, Aichner, and others. This presumption, however, was abolished by a decree of Leo XIII. “Consensus mutuus,” of February 15, 1892. Whether the abolition of this presumption may be extended to a condition de futuro of a contracted marriage, is not positively agreed upon by the Canonists, but several of them reply affirmatively to the question. Thus D’Annibale, with regard to the decree mentioned, declares: “As long as it is unknown whether the condition concerning the future exists or has existed, it is unlawful to consummate the marriage unless the spouses withdraw from the condition. But if in the meantime they have intercourse, today they are no longer presumed to withdraw from the condition and to contract unconditionally, even where the Tridentine decree is not in force.” The same is taught by Ballerini-Palmieri. That the presumption in question permits of a contrary proof is assumed by Leitner, who says “Sexual intercourse practised prior to the fulfilment of a condition between two persons, who gave a conditional consent to marriage, implies renouncement of the condition, unless the will to the contrary is positively present.” Similarly other authorities.

In fact, it is not clear why the copula carnalis should in itself be a renouncement of the imposed condition. Couples may practice unlawful sexual intercourse without intending or wishing to renounce the condition imposed. Cohabitation of itself is not to be regarded as relinquishment of the condition. We cannot assert, for instance, that the copula carnalis implies renouncement of the condition when this renouncement is expressly excluded. And again, if a doubt exists as to the intention with which the copula was practised, then the continuance of the condition must be presumed, if its revocation can not be proved. For in such case must be applied the rule in law: “In doubt, the condition of the possessor is the better one.” The condition, however, is in possession as long as renouncement of the same is not established. If, therefore, Anna can prove that she did not intend to renounce the condition by permitting the copula, but persevered in the same, then her marriage to Charles is invalid because of non-fulfilment of the condition. We may even suppose that Anna, far from wishing to renounce the condition, permitted the copula in order to move Charles to the fulfilment of the condition. Finally, it is also to be observed that the copula carnalis, in order to imply renouncement of the condition, must be practised more et affectu conjugali; however, this is not to be assumed in the foregoing case, because Charles, as we shall proceed to show, probably added a condition contrary to the nature of matrimony. That, moreover, Anna did not renounce the conditionis best seen in the fact that she continued to insist upon its fulfilment, and at last, upon the day when the condition was to be complied with, namely on her daughter’s wedding-day, broke completely with Charles and since then had no further sexual intercourse with him. There is hardly any doubt, therefore, that Anna’s marriage to Charles, because of the non-fulfilment of the imposed and accepted condition is null and void.*

II. The second impediment to be taken into consideration in the case is the withheld or simulated consent (simulatio sive fictio consensus). This exists if one or both of the parties conform to the exterior forms of contracting marriage, but inwardly have no thought of entering upon a true marriage, or indeed exclude all such intention. That a feigned consent can never produce a real marriage, is evident. Of course the lack of consent is difficult to prove in the external forum, but such proof is by no means impossible. This proof of simulatio and fictio may be shown

_ *In a quite similar case the Roman Rota decided some time ago for the invalidity of a marriage, a fresh proof that the consummation of marriage before the fulfilment of a condition does not imply renouncement of the same. from the cause of the simulation, also from the circumstances which preceded the marriage, followed it, or accompanied it. Now we know from the facts of the case that Charles, an irreligious man, detested any kind of marriage, particularly a church marriage, which he regarded as an empty ceremony and not binding, and only married the Catholic Anna in church to make impossible her union with another man. We may conclude, therefore, that Charles misused the church marriage, fro an extent at least, as a means for his concupiscence. As a matter of fact Charles abandoned Anna right after the ceremony, thereafter occasionally visiting her to gratify his passion. Charles’ hypocritical and deceitful intentions cannot be denied, and therefore, when in addition Charles declared in writing and verbally that he never intended a real marriage according to Catholic ideas, the proof of his feigned consent and therewith the invalidity of the marriage is well established.

III. In the third place there comes into consideration in our case the impediment of the condition against the nature of marriage. When on the way to church Anna was made to promise Charles that the copula take place in such manner as to prevent child-bearing, this was a condition contra bonum prolis. The fact of this condition is admitted by both parties and therewith the marriage is rendered invalid in the inner forum. For its invalidity in the external forum the condition imposed must be proved with moral certitude. For this are required argumenta, quae prudentem virum, attentis circumstantiis occurrentibus, certum reddere valent. It is accepted generally that an admission made by the parties to the marriage at the investigation, or even earlier, after consummation of the marriage, is not admissible as proof against the validity of the marriage. But certainly there may exist exceptions to this rule. Such an exception could exist, if the understanding was made under circumstances that exclude all suspicion of untruth. This appears to be the fact in our case. Charles despised Catholic marriage; for him the only valid bond was a civil marriage, and this he refused to enter. He cared nothing about the invalidity of the church marriage. From these circumstances we may conclude that a condition against the natural aim of matrimony was imposed, namely against the bonum prolis. Nevertheless the facts of the case as presented do not offer proof of this condition with moral certitude.

IV. There remains now the fourth impediment, namely the impediment of crime ex adulterio et promissione matrimonii, to be briefly considered. It is evident in our case that there was a complete material and formal adultery. Anna during the life of her lawful husband had copula carnalis perfecta with Charles. Both parties considered the intercourse adulterous. To the adultery was added on Charles’ part the promise of future marriage; but whether this promise was seriously intended is very doubtful with a man of Charles’ views. Therefore it may have been only a resolution or wish, which does not suffice for the existence of the impedimentum criminis. And even if a serious promise of marriage was made by Charles, it is not plain whether Anna accepted the promise. Hence it is not certain whether in the given case the impedimentum criminis exists. In the case before us the marriage is invalid because of the added, but unfulfilled condition, and because of the feigned consent. For the existence of the two other obstacles (pactio contra substantiam matrimonii, and impedimentum criminis) proof cannot be furnished.

THE Church has frequently changed her discipline with regard to affinity, and the drastic changes on the subject which have been inserted into the new Code of Canon Law are a good example of the fearlessness with which the Church uses her authority when changed circumstances seem to require it. The ecclesiastical law now in force on the subject is stated in the new Code in a few simple but far-reaching canons.

Canon 97. " § 1. Affinity arises from valid marriage whether ratified only or ratified and consummated. " § 2. It exists only between the man and the relations by blood of the woman, and also between the woman and the relations by blood of the man. " § 3. It is so reckoned that those who are the relations by blood of the man are the relations by marriage of the woman in the same line and degree, and vice versa"

Canon 1077. " § 1. Affinity in the direct line annuls marriage in every degree; it annuls it in the collateral line to the second degree inclusively. " § 2. The impediment of affinity is multiplied:

" 1°. As often as the impediment of consanguinity is multiplied from which it proceeds; " 2°. By the successive repetition of marriage with a relation of a dead spouse."

The first section of Canon 97 changes the very notion of affinity as it has been understood in ecclesiastical law from very early times. Practically it adopts the definition of affinity which was accepted in Roman Law, and which has been followed by most modern legal systems. Affinity therefore, now, in ecclesiastical law arises only from ratified Christian marriage. It does not arise from the marriage of unbaptized persons, and probably not even from the marriage of a baptized person with another not baptized. It does not arise from carnal intercourse, whether licit between married people, or illicit between those who are not married. This simple change sweeps away some very irksome difficulties which frequently occurred under the old ecclesiastical legislation. According to the law as it existed before the new Code came into force, and which still governs cases which happened before that date, affinity arose only from carnal intercourse. It annulled marriage to the fourth degree when it arose from lawful carnal intercourse, and to the second degree when it arose from unlawful intercourse. Theologians taught, and the doctrine was confirmed by many decisions of the Roman Congregations, that although the diriment impediment of affinity did not affect unbaptized persons, yet carnal intercourse between unbaptized persons produced a natural bond which became the diriment impediment of affinity after the reception of baptism. Moreover, if a married man committed adultery with a near relative of his wife, he thereby contracted affinity with his wife which deprived him of his marital rights until dispensed by lawful authority. All these difficulties are now swept away and ecclesiastical law on the subject of affinity has been brought into greater harmony with the civil law of the country.

These great and beneficial changes in the law of the Church have their counterpart in the past history of this diriment impediment of marriage.

Natural feeling and the necessary intimacy between members of the same family exclude the idea of marriage among those who are closely related by blood. Experience, too, proves that the physical effects of such marriages are evil. By marriage one spouse becomes a member of the family of the other spouse. The reasons which militate against the marriage of those who are closely related by blood, militate also to some extent against the marriage of those who are related to each other by affinity. However, according to the received opinion, the natural bond which exists between those who are related by affinity is not sufficient to constitute a diriment impediment of marriage by the natural law. In other words the diriment impediment of affinity, even in the direct line and much more in the collateral line, is of positive, not of natural law. The positive legislation of most civilized peoples has recognized the impediment. The Mosaic law* enumerated the persons related to each other by affinity who were forbidden to marry. In much the same way the old Roman law for-

* Leviticus xviii. 8 ff.

bade marriage between certain persons closely related by affinity. During the first centuries of the Christian era the Church seems to have adopted the Mosaic and Roman laws on this subject. Very soon, however, she began to show that she was conscious of having legislative authority on such matters, and she began to make laws of her own. The Mosaic law allowed a man to marry a deceased wife's sister, and if a woman's husband died leaving her childless it obliged the husband's brother to marry her. At the beginning of the fourth century the Church forbade such marriages as these. The 61st Canon of the Council of Elvira in Spain (A.D. 305 or 306) enacted that: " If a man after the death of his wife marries her sister, let him abstain from communion for five years." The second Canon of the Council of Neocæsarea (A.D. 314-325) decreed that: "If a woman has married two brothers she shall be excommunicated till death." When St. Basil the Great was Archbishop of Cæsarea he forbade a man to marry his deceased wife's sister. Diodorus of Tarsus reprimanded him for this, but St. Basil defended himself by saying that such marriages had always been prohibited at Cæsarea.*

In the old law of pagan Rome lawful marriage was regarded as the chief ground of affinity in so far as affinity was an impediment of marriage. Yet even in Roman law affinity arose from certain other unions besides lawful marriage. As Wernz says:

"Affinitas jure Romano potissimum constituit impedimentum matrimonii quatenus

* Hefele, Histoire des Conciles, I., 161.

orta est ex nuptiis legitimis rite contractis, etsi non consummatis; veruntamen etiamsi ex contuberniis servorum originem duxit, matrimonii celebrationi obstabat. Nam L. 14, § 3, de rit. nupt. XXIII., 2 statuitur: ' Item, tamen, quod in servilibus cognationibus constitutum est etiam in servilibus affinitatibus servandum est, veluti ut eam quae in contubernio patris fuerit, quasi novercam, non possim ducere.' Imo, vel de ipsis concubinis (i.e., ex significatione hujus vocis in jure Romano) L. 4, de nupt. V. 4, decernitur: ' Liberi concubinas parentum suorum uxores ducere non possunt, quia minus religiosam et probabilem rem facere videntur. Qui si contra hoc fecerint crimen stupri committunt."'*

Still, in spite of these exceptional cases, affinity in general was regarded as arising from lawful marriage alone according to Roman law. During the first centuries of the Christian era there are no indications that Christians held any other view on the subject. The first sign of a change of opinion is met with in a passage from St. Augustine Contra Faustum. It was embedded subsequently in the Decretum Gratiani and quoted as c. 15, C. XXXV., q. 2, 3. It reads as follows:

" Si vir et uxor non jam duo sed una caro sunt, non aliter est nurus deputanda quam filia."

Henceforth, not marriage, but carnal intercourse, will begin to be regarded as the root of

* Wernz, Jus decretalium, IV., 654, nota (22).

affinity by ecclesiastical lawyers and writers. Over and over again the words are repeated in ecclesiastical laws. One of the chief authorities for the ecclesiastical rule of affinity was an apocryphal letter attributed to Pope Gregory and given by Gratian as c. 1, C. XXXV., q. 10.

"Si una caro fiunt [the Pope is made to say] quomodo potest aliquis eorum propinquus pertinere uni, nisi pertineat alteri? Hoc minime posse fieri credendum est. [Then a conclusion is drawn from the doctrine.] Porro uno defuncto in superstiti affinitas non deletur, nec alia copula conjugalis affinitatem prioris copulae solvere potest."

Another famous text attributed by Gratian to Pope Gregory, but which in the judgment of Mansi belongs to Pope Zachary (A.D. 741-752) begins thus:

"Porro de affinitate, quam dicitis parentelam esse, quae ad virum ex parte uxoris, seu quae ad uxorem ex parte viri pertinet, manifestissima ratio est quia si secundum divinam sententiam ego et uxor mea sumus una caro profecto mihi et illi mea suaque parentela propinquitas una efficitur."*

Canon 13 of the Council of Compiègne, held in the year 757, clearly indicates that then affinity arising from illicit intercourse constituted a diriment impediment of marriage in the law of the Church. A decree attributed by Gratian to Pope Gregory, but which probably belongs to the same

* c. 3, C. XXXV., q. 5, Decreti Gratiani.

period as the above-quoted Council of Compiègne, makes no distinction between affinity arising from lawful marriage and from fornication. The terms are very sweeping and drastic.

"Nec eam quam aliquis ex propria consanguinitate conjugem habuit, vel aliqua illicita pollutione maculavit in conjugium ducere ulli profecto licet Christianorum aut licebit, quia incestuosus est talis coitus et abominabilis Deo et cunctis hominibus (c. 10, C. XXXV., q. 2, 3)." According to chapters 13 and 14, C. XXXV., q. 2, 3, a man committed incest equally by sinning with his wife's relations by blood and with his own. Some modern writers have attributed the law of affinity arising from fornication to the false Decretals. What has been said shows that the law of the Church on the point was well established long before the middle of the ninth century, when the false Decretals made their appearance.

Sanchez* defines affinity as, " Propinquitas personarum ex carnali copula proveniens, omni carens parentela." He says that the definition was accepted by St. Thomas and other theologians and by professors of both canon and civil law. It is true that subsequently he admits that Tancred and Vincent maintained that affinity arose only from lawful marriage and quoted the Roman law in proof of their opinion. But the Archdeacon, says Sanchez, deservedly reprehends these doctors, and all other doctors admit that affinity arises from fornication as well

* De matrimonio, lib. VII., disp. 64.

as from conjugal intercourse. The way in which Sanchez speaks of the opinion which he rejects seems to show that when he wrote the tradition that there could be any opinion on the question different from that which was commonly received had been almost lost.

Starting from the principle of duo in carne una, a second and even third kind of affinity was obtained. Benedict XIV. illustrates this threefold affinity by the following example. Titius, the brother of Caius, marries Bertha, and the marriage is consummated. Bertha contracts the first kind of affinity with Caius. Titius dies and Bertha marries Sempronius. Sempronius contracts the second kind of affinity with Caius and all the relations of Titius. Bertha dies and Sempronius marries Naevia. Naevia contracts the third kind of affinity with Caius and the relatives of Titius. The second and the third kind of affinity were abolished by the fourth Council of the Lateran in A.D. 1215, and since that time it has been admitted as an axiom that, Affinitas non parit affinitatem.

Owing especially to the influence of the Germanic tribes during the sixth and seventh centuries the impediment of consanguinity was greatly extended. The impediment of affinity soon followed that of consanguinity, and in the middle of the twelfth century, when Gratian wrote his Decretum, both impediments extended to the seventh degree in the collateral line.

The fourth Council of the Lateran (A.D. 1215) restricted both consanguinity and affinity to the fourth degree as diriment impediments of marriage. The Council of Trent restricted the impediment of affinity to the second degree when it had arisen from illicit intercourse. As we have seen, in the new Code of Canon Law, affinity arising from illicit intercourse is abolished; and affinity arising from marriage is restricted to the first and the second degree.

A practical case will help us to realize some of the important consequences of the changes in the law of affinity which have been made by the new Code.

Titius committed fornication with Bertha in the year 1917. Subsequently he married Titia, the sister of Bertha. He now comes to confession for the first time since he committed sin with Bertha. How is he to be reconciled?

If Titius married Titia after the new Code came into force on May 19, 1918, and he is sorry for his past sins, he may be absolved without more ado. He had contracted affinity with Titia on account of his sin with Bertha, but when he married, that affinity was no longer a diriment impediment of marriage, and his marriage was lawful and valid.

If, however, the marriage took place before May 19, 1918, it was invalid, because affinity in the first degree in the collateral line arising from fornication was then a diriment impediment of marriage. It is no longer a diriment impediment now, and so the marriage may be convalidated without any dispensation. We presume that the impediment and the invalidity of the marriage are occult. In such a case the marriage may be convalidated by the private renewal of consent on the part of Titius, since we presume that Titia still maintains her consent to the marriage (Canon 1135, § 3).

BOTH Canon Law and Moral Theology give rules for the leading of a good life and attaining salvation. The two sciences depend on each other and assist each other. Antecedently to the commission of crime they both seek to prevent it. But consequently to crime being committed a slight divergence of aim sometimes makes its appearance. Canon Law seeks to discover the crime and bring it home to the criminal with a view to his punishment, the restoration of public order, and the prevention of the repetition of the crime for the public good. Moral Theology seeks to bring the culprit to repentance, to forgive the sin, and to put the sinner in the way of leading a good life for the future. Occasionally the public interest conflicts with the private good of the delinquent, and because there is a difference of aim, a difference of opinion will begin to appear between the Canonist and the Moralist. If this tendency is recognized by men of broad views, no great harm will follow; but if it is not recognized, there may be an occasion of quarrelling. Sometimes bishops and even the authorities in Rome are blamed for action which seems harsh to the individual, while in reality the public good left them no choice in the matter.

These general principles are important and I will try to illustrate them from the diriment impediment of marriage which is called " crime," and then inquire whether any change has been made in the matter by the new Code of Canon Law.

In Canon 1075 of the new Code we read:

" Those cannot contract marriage validly who, during the existence of the same lawful marriage have committed adultery with each other and promised each other to marry, or have attempted marriage even though only civil marriage." The object of this law is thus described by Cardinal Gasparri in his book on Marriage:

" The Church has made the guilty parties incapable of marrying each other as a penalty for committing the crime, as a protection for the innocent spouse, and because such a marriage would be publicly scandalous and harmful. Doctors disagree as to which was the primary, which the secondary object of the Church; we are of opinion that the Church intended and obtained all those objects at one and the same time by this incapacity. What some say, viz., that this impediment is rather an incapacity than a penalty, or vice versa, is without meaning if the matter be examined more closely; for this impediment, like all the other diriment impediments, is an incapacity purely and simply; and yet the Church made it both as a penalty for crime and on account of the other objects indicated above, and so in truth this incapacity is a penalty."*