Matrimony

THE seventh sacrament of the Christian Church is Marriage, and because it is usually preceded by an engagement to marry, we will first treat of betrothal. Betrothal may be defined as a mutual promise of future marriage between persons who may marry lawfully.

It is a mutual promise or a bilateral contract between a man and a woman, and the conditions which are required for the validity of any bilateral contract are requisite for betrothal. There must be a serious, voluntary, and deliberate intention to enter into the agreement: Mere unmeaning flirtation, or the expression of a wish by the man that he could make the woman his wife, does not make a betrothal. Anything which destroys the voluntariness of the act will prevent it from being a valid contract. Substantial mistake about its nature or about the identity of the other party to the contract, and probably even mistake about some unessential quality in the other party, if it were the motive for entering into the contract, would make it null and void. As grave and unjustly caused fear is a diriment impediment to marriage, so, too, it prevents a valid engagement to marry.

The promise must be deliberate, made with full knowledge and advertence to the serious step which is being taken. There must be, as divines say, the deliberateness about the act which is necessary to commit a grave sin. The mutual consent of the parties must be expressed by words, writing, or other suitable sign. The acceptance by a woman of a ring from a man who has asked her to be his wife is a sufficient expression of consent and concludes the contract.

For many years past a special law has existed in Spain by virtue of which no betrothal is valid unless attested by a formal document in writing. In the year 1900 this law was extended to the whole of Spanish America, and by the decree of the Sacred Congregation of the Council, August 2, 1907, no betrothal between Catholics or in which one of the parties is a Catholic is valid in conscience or in law or has any canonical effects unless it is contracted in writing and is signed by the parties, and also signed either by the parish priest, or by the local ordinary, or at least by two witnesses. If either of the parties or both of them are unable to write, the fact should be noted in the document, and another witness must be added who will sign the document together with the priest, or the local ordinary, or the two witnesses mentioned above. This decree binds all Catholics of the Latin rite throughout the world, and takes effect from Easter Sunday, April 19, 1908 (Can. 1017).

The term parish priest in this decree is used to designate not only him who is lawfully placed in charge of a canonically erected parish, but in countries where there are no canonically erected parishes the priest to whom the cure of souls in a definite district is lawfully entrusted, and who is equivalent to a parish priest, and in missions where as yet the districts are not definitely marked out all priests who in any place have the general cure of souls assigned them by the superior of the mission.

The parties must be capable of entering into a lawful marriage at any rate at the time contemplated when the engagement is made. For a promise to do something which is impossible or unlawful has no binding force, and so if at the time contemplated there will still be some diriment or prohibitory impediment between the parties, an engagement to marry is void.

A valid contract to marry at a future time when the parties will be free to do so may be entered into by those who are now hindered by some impediment. And so children under age, though incapable of marrying, may enter into a valid betrothal. According to the old canon law, even their parents might make a valid engagement for them, if they were present and did not express dissent; or, if absent, afterward ratified the contract. The decree of August 2, 1907, abolishes this rule, as also the presumption of law by which marriage attempted by children under age was presumed to be a valid engagement to marry.

Some authors applied that presumption to the case of clandestine civil marriages contracted in places subject to the decree Tametsi of the Council of Trent. They held that although such a marriage was null and void, yet it had the effects of a betrothal, as in the case of those under age. Leo XIII, however, by a decree dated March 17, 1879, decided that a clandestine marriage has not the effects of a betrothal even if the parties intended that it should have.

Betrothal of children under seven is presumed to be amend for want of the use of reason, but if it is proved that the parties to the contract had sufficient use of reason in spite of their tender age, the engagement will be valid; malice is then said to supply for the want of age.

Betrothal under condition, as, “I will marry you if I can earn £200 a year,” is lawful, and follows per se the ordinary rules of conditional contracts. Such a betrothal will impose on the party who enters into it an obligation to do what he can to fulfil the condition, and when the condition is fulfilled the engagement will become valid and binding without any renewal of consent. Similarly, an engagement in this form, “1 will marry you if I reach the age of twenty-one,” will become a binding engagement on attaining that age. On the contrary, an engagement under an impossible condition is null and void from the commencement. And so, if two parties between whom there is a diriment impediment, which either cannot be dispensed or for which a dispensation is not usually given, enter into an engagement under the form, “I will marry you if we can get a dispensation,”’ there will be no valid contract. It is much controverted among canonists and divines whether the same is to be said when the impediment is one for which a dispensation can be, and usually is, granted. If cousins, for example, entered into an engagement under the form, “‘ I will marry you if I can get a dispensation,” what would be the effect of such an engagement? ‘There would, of course, be an obligation to ask for a dispensation; but if it were got, would there be a valid betrothal by virtue of the conditional engagement, or would the parties have to renew their consent ? Many authors maintain that in this case there is no valid betrothal without a renewal of consent. For proof of their view they point out that the parties were not free to enter on an engagement to marry on account of the diriment impediment between them; that it is unbecoming to contract on condition that the superior grant a dispensation from the law which should be observed by all; and that when the question has been submitted to Rome the decision has uniformly been in favour of this view. On the other hand, many good authors hold that there is nothing in these reasons to prohibit us from applying to such cases the ordinary doctrine concerning conditional contracts, and so the general question remains undecided and uncertain. Both opinions are theologically probable.

Vol. II, Bk. IX, Chapter II. The Effects of Betrothal

As betrothal is a contract Of Betrothal and the matter is serious, the betrothed are under a grave obligation in justice to fulfil their engagement. If a special time was agreed upon, they must keep to the appointed time, otherwise they must marry at a reasonable time after the engagement has been concluded. As grave inconveniences are likely to arise from a too prolonged betrothal, it is the duty of those who have the cure of souls to admonish those engaged that they should marry if without just cause they defer doing so too long. A delay of over a year without good reason seems excessive.

After betrothal the parties are under a special obligation to live chastely, and if either commit a sin of impurity with a third person the sin has a special malice on account of his violation of the fidelity which he owes to his betrothed. It is a disputed point whether the circumstance of betrothal changes the species of the sin so that mention of it must be made in confession, or whether it merely aggravates its malice, It is probable that it does not change the species of the sin, for betrothal does not, like marriage, give one party a right in the other, but gives only a right to have the other when the engagement is executed.

Betrothal to one prevents valid betrothal to another as long as the former tie lasts, for a promise to do what is unlawful has no binding force. If, however, in spite of betrothal to one the party marries someone else, the marriage will be valid but illicit, just as the sale of a house to one person is valid in spite of a previous promise to sell it to someone else. Betrothal, in other words, is a prohibitory, not a diriment impediment of marriage with third persons,

The consent of the parents of the parties is certainly not necessary for the validity of marriage. The Council of Trent teaches this¹ Nor is it necessary per se for the lawfulness and the validity of betrothal, because in the choice of a state of life every man is his own master. It does not follow, however, from this doctrine, that children need not consult their parents about marriage and about a partner for life. In a matter of such importance for the future happiness of the child, and because the marriage of a member of the family concerns not merely the individual, but the whole family, and especially the head of it, a dutiful child will ordinarily consult his parents before entering on an engagement to marry. If a child wishes to contract an unsuitable marriage, as if the heir of an honoured house wishes to marry an actress of doubtful reputation, the parents have a right to object to such a marriage; and if they forbid it, the son is bound to obey, and he commits sin if he goes against his parents’ commands. An engagement contrary to the reasonable commands of one’s parents is unlawful and therefore invalid. Mere inequality of rank between the parties of itself is not a sufficient reason why parents should forbid a marriage, but a difficulty arises when inequality of rank will be the cause of dissension and ill-feeling in the family. Even in this case a son who wishes to marry someone of inferior rank is not always bound in conscience to submit to the wishes of his parents. If he is satisfied that the woman he loves will make him a good wife, and he is not prepared to take anybody else, he is not bound to sacrifice his own happiness in deference to the wishes of his parents, especially when these originate in social prejudice rather than in a desire for the welfare of their child.

English civil law requires the consent of the father or guardian for the lawfulness of the marriage of a minor. In most of the United States of America the law is similar.

Canon 1034 bids parish priests seriously to warn minors against contracting marriage without their parents’ knowledge and consent. If minors insist on doing this, parish priests should not assist at the marriage without consulting the Ordinary.

¹ Sess. xxiv, c. 1, de ref. Matr.

Vol. II, Bk. IX, Chapter III. Dissolution of Betrothal

Betrothal, like other contracts, can be dissolved in various ways. The parties may both agree to release each other and then they will be free, for by a rule of law all things are dissolved by the same causes which gave them birth. If children under age have been betrothed, they cannot release the contract even by mutual consent until the age of puberty, and then within three days either may resile from the contract without waiting for the consent of the other party; but if they do not use this privilege granted by canon law they are presumed to ratify the contract.

One of the betrothed may resile if a circumstance of importance be detected or happen which if it had been known before would have prevented the contract being entered into, This rule is commonly admitted by divines, who explain it by saying that betrothal is of its nature conditional, and has such a condition as the above annexed to it. If, then, one of the parties finds that the other has an ungovernable temper, or great debts, or is given to drink, or if the other becomes afflicted with a disease like consumption or paralysis, he will be free to rescind the contract. The innocent party may resile if the other commit fornication with someone else, and certainly the man is free if he find out that the woman was corrupted even . before betrothal. The same rule may be applied in favour of the woman when she finds out that the man committed fornication before betrothal, at least if in the particular case it is a sign of inconstancy or is very much resented.

Betrothal is annulled if an impediment of marriage come to exist between the parties unless it had its origin in the culpable fraud of one of them, for then he must do what he can to obtain a dispensation or at least compensate the other, as no one should reap advantage from his own fraud.

One who is betrothed may resile in order to enter a religious order, or to take sacred orders, or even with a view of living in the world under a perpetual vow of chastity, for in all these cases a higher life is embraced, and betrothal has also the condition annexed, “ Unless afterward I am called to a higher life.”

The Pope may for a just cause grant a dispensation from betrothal. Some authors maintained that the Pope had not the power to grant such a dispensation, inasmuch as it would violate the rights of the other party. However, if an individual is unreasonably obstinate in the maintenance of his rights, the head of the society to which he belongs should have the power of granting relief to others whom that obstinacy places in difficulties. This is what the Pope sometimes does; when a civil marriage contracted in violation of betrothal to another, though null and void in the eyes of the Church, makes it impossible for the married party to return to his former betrothed, the Pope will grant a dispensation even if the other party refuses to forego his rights.

When one of the parties labours under a secret defect which, if known, would furnish sufficient ground for resiling from the engagement, there is no strict obligation to make . it known to the other party, unless it will be to his detriment. Past sin, then, need not be declared, but if the woman has undergone an operation which makes her incapable of bearing children, she should not contract marriage with a man who is ignorant of the defect and hopes to have children.

Whether marriage with a woman contracted in violation of a promise of marriage made to another annuls the former betrothal altogether, or whether the obligation to marry the first is only suspended and revives again if the wife die before the husband, is a disputed question among divines. Of course, such a breach of faith makes the other party free to marry someone else if she choose, and the opinion is at least probable that by such a radical change in circumstances as marriage with another the former engagement is altogether dissolved and cannot revive. There is something incongruous in the idea of a person who is married to one, being nevertheless still under the obligation to marry someone else.

If a man after betrothal without the knowledge or consent of his betrothed goes to live elsewhere at a distance so that personal intercourse between them is impossible, the woman may consider herself free to break off the engagement. A short absence makes no difference in the mutual obligations of the parties. If it is uncertain with what intention and for how long a time a betrothed person has absented himself, information as to his intentions should be sought by letter before breaking off the engagement. If a time was fixed for the marriage, the obligation is not extinguished by failure to keep to the time, unless it is certain that the intention of the parties was to break off the engagement if the marriage were not contracted at the appointed time. Presents made to the betrothed in view of marriage are forfeited if the engagement is broken off through the fault of him who made the presents, otherwise, if the fault is on the other side.

If it is certain that there is good cause for breaking off an engagement, this may be done by private authority; it will only be necessary to have recourse to the ecclesiastical judge when the cause is doubtful, or when scandal would arise if the engagement were broken off by private authority on account of the cause being unknown.

When valid betrothal has been broken off by one of the parties without good reason, the other has no right of action in the ecclesiastical court to compel the defaulting party to fulfil the contract, he has only a right to an action for damages (Can. 1017, sec. 3). This action is mixti fori (A.A.S., xx, 345).

People who are only engaged to be married have not the rights of married people, and if they attempt to use them they are guilty of sin against the sixth commandment. It is, however, as a rule, morally necessary for them to become acquainted with each other, and they are justified in showing to each other those marks of affection which are not wrong in themselves and which are usual in the circumstances, It is to be desired that they should not be much together alone, especially at night, and if they are left alone they should not show greater familiarity toward each other than they do when a mother or sister is with them.

Vol. II, Bk. IX, Chapter IV. Banns of Marriage

Before publishing the banns of marriage the priest who has the cure of souls must have at least a general knowledge of those who wish to marry. The Ritual prescribes that he should inquire whether there is between them any impediment of kindred or affinity, or any other; whether they wish to marry freely and of their own accord; whether they be of age, and know the rudiments of the Faith so as to be able to teach it to their children (Can. 1020).

With regard to people with no fixed abode, strangers, the wives of soldiers, sailors, and others, who are said to have died in foreign parts, the Ritual admonishes the priest not to admit them readily to marriage before making all needful inquiries about them, and referring their case to the bishop, so as to have his leave for the marriage. Canon 1021¹ prescribes that the parish priest demand the certificate of baptism of the parties unless they were baptized in his parish, and their reception of Confirmation, as far as possible.

¹ Sess. xxiv, c. 1, de ref. Matr.; can. 1024.

If no impediment has been discovered by examining the parties, the priest publishes the banns in accordance with the decree of the Council of Trent.1 “ It ordains that for the future before a marriage is contracted the proper parish priest of the contracting parties shall three times announce publicly in the Church, during the solemnization of Mass, on three continuous festival days, between whom marriage is to be celebrated; after which publication of banns, if there be no lawful impediment opposed, the marriage shall be proceeded with, in the face of the Church.”

The reasons for this law are: the avoidance of clandestine marriages, so that it being known who are married, there may be less danger of bigamous marriages; the discovery of impediments of marriage; and the protection of the rights of others arising from former betrothal. The banns must be published by the parish priest in the church of the parish or district where the parties have their domicile or quasi-domicile, If they live in different parishes, the banns must be published in both; and if either or both have lived six months in another place after the age of puberty, the parish priest should inform the bishop, who will prescribe what is to be done (Can. 1023). They must be published during the principal Mass on three successive days of obligation; but if the publication has been omitted at Mass, the omission may be made good in the evening if there be a considerable concourse of people at the evening service.

The very form which is commonly made use of in publishing banns shows that by them the Church intends to impose a serious obligation on all who know of any impediment between the parties who wish to marry to communicate their knowledge to the parish priest. This precept of the Church will bind even when the impediment is matter of a natural or promised secret, for such a secret cannot avail against the just commands of a superior. A professional secret binds more strictly, but it does not excuse one who knows it from doing what he can without betraying the secret to procure the removal of the impediment.

The obligation of publishing banns is a serious one, but for good reason the bishop or his Vicar-General may dispense with them either wholly or in part. According to approved theologians, the bishop is even obliged sometimes to dispense with banns, when charity toward his flock requires it. Thus a dispensation should be given when it is probable that otherwise the marriage will be maliciously prevented, when it is a necessary means to preserve the reputation of the parties who. are thought to be man and wife already, and when the parties are obliged to depart at once to foreign countries. For lighter reasons the bishop may dispense, but he is not obliged to do so.

A parish priest has no jurisdiction in the external forum, and so he cannot dispense of his own authority from banns. In some special case, however, it might be necessary to marry the parties without delay, and then if there were no time to have recourse to the bishop, a simple priest might declare that under the circumstances the law with regard to banns ceased to be of obligation.

Sec. 1. According to Canon 1031, when a doubt has arisen about the existence of an impediment between the parties— (1) The parish priest should investigate the matter more carefully, interrogating at least two witnesses under oath, who are worthy of credence, provided that there is no question of an impediment from the knowledge of which the reputation of the parties will suffer, and interrogating also the parties themselves if it be necessary.

(2) Let him proceed with or finish the publication of the banns if the doubt arose before they were begun or before they were finished.

(3) Let him not assist at the marriage without consulting the Ordinary if he prudently judge that the doubt still remains.

Sec. ii. When a certain impediment has been discovered— (1) If the impediment be secret, let the parish priest proceed with and finish the banns, and without mentioning names let him report the matter to the local Ordinary or to the Sacred Penitentiary.

(2) If it is public and is discovered before the publication of the banns is begun, let the parish priest not proceed further until the impediment is removed, although he may know that a dispensation has been obtained only for the forum of conscience; if it is discovered after the first or second publication of banns, let the parish priest finish the banns and report the matter to the Ordinary.

Sec. iii. Finally, if no impediment, doubtful or certain, has been discovered, let the parish priest, after the banns are published, admit the parties to the celebration of marriage.

Canon 1030 lays it down that this should not be done until the parish priest has received all the necessary documents and three days have elapsed after the last publication of the banns, unless there be some good reason to the contrary.

Canon 1026 forbids banns to be published of a marriage which is contracted by dispensation from the impediment of mixed religion or difference of worship, unless the local Ordinary deems it proper to permit them with prudence and the removal of scandal, provided that the apostolic dispensation has been granted and no mention be made of the religion of the non-Catholic party.

The Ritual prescribes that the parties should be diligently instructed how they should live in a pious and Christian way in the state of wedlock. This is done partly in the confessional, partly outside. The parish priest may make a brief discourse to them at the end of the ceremony, or if he prefer he may read to them the instruction which is inserted in the Ritual for the purpose (Can. 1033).

Canon 1034 bids parish priests seriously to warn minors not to contract marriage without the knowledge of their parents or against their reasonable wish. In case of disobedience parish priests should not assist at the marriage without consulting the local Ordinary.

Vol. II, Bk. IX, Chapter V. The Marriage Contract

Marriage may be defined as a contract between a man and a woman by which they give each other the right to exercise the acts requisite for the procreation of children, and bind themselves to live indissolubly together. Living in accordance with this contract constitutes the state of marriage.

The primary end of marriage is the procreation of children for the preservation and increase of the race; besides this there are also the secondary ends of mutual society and help, and a lawful outlet for concupiscence. The Fathers and councils mention a threefold good in marriage: that of children, that of mutual fidelity, and that of the sacrament, or an indissoluble and holy union, typified by the union between Christ and his Spouse the Church.

It is the teaching of the Church, defined by the Council of Trent, that marriage between baptized Christians is a sacrament, and so Christ our Lord, though he did not institute marriage, yet raised it to the dignity of a sacrament of the New Law, causing the marriage contract to be productive of grace ex opere operato whenever it is worthily entered into by baptized Christians. Between these the contract is the sacrament, there is no real distinction between them, and among Christians a marriage cannot be valid without being also a sacrament (Can. 1012, 1013).

There are certain technical terms used by theologians to designate different kinds of marriage, and it will be well to give them here.

A valid marriage between non-baptized persons is called legitimate; when it is perfected by the use of marital rights it becomes consummated; a valid marriage between Christians not yet consummated is said to be a ratified marriage.

A true marriage is one that has been validly contracted and which can be proved by suitable arguments; a presumptive marriage is one presumed by law; a putative marriage is one thought to have been validly contracted by at least one of the parties, until both parties become certain of its invalidity (Can, 1015).

A canonical marriage is one celebrated according to the laws of the Church; a civil marriage is contracted according to the laws of the State; a secret marriage, or a marriage of conscience, is one celebrated without banns by the bishop’s leave before the parish priest and witnesses who are bound to secrecy; a morganatic marriage is contracted by a person of rank with one of inferior position in life on condition that she and her children are excluded from the rank of the father.

Marriage is rooted in human nature; it was instituted by God and raised by our Lord to the dignity of a Christian sacrament; and so of course it is honourable and its use is lawful. The marital rights, or the debt as St Paul calls it,¹ is the matter of the matrimonial contract, and therefore the right to use marriage is of its essence, and without it marriage cannot exist. However, marriage does not necessarily imply the exercise of the right which it gives, any more than the ownership of a house implies the use of it. Our Lady and St Joseph were really married though our Lady always remained a virgin.

Although marriage is lawful and honourable, yet all are not commanded to marry. A man may remain a bachelor if he please, and many women remain single without their having the option of being married. The Church, following St Paul, teaches that the state of celibacy, or virginity, voluntarily chosen in order to render a more whole-hearted service to God, is more perfect than the state of marriage. Our Lord himself said that there are some who refrain from marriage for the sake of the kingdom of heaven, and he added, ‘“‘ He that can take, let him take it.” At the same time he said, “All men take not this word, but they to whom it is given.” And certainly for some who are strongly inclined by nature to the pleasures of the flesh, or who have fostered their passions by indulgence, the word of St Paul remains true: “It is better to marry than to be burnt.”

¹ Matt. xix 11.

The efficient cause of marriage, as of all contracts, is the consent of the parties lawfully expressed outwardly by sensible signs. That consent must be mutual, referring to the present, not to the future; it must be deliberate and voluntary, and expressed by suitable signs; not only because it is a bilateral contract, but also because it is a sacrament, which is essentially an outward sign of invisible grace.

For the validity of the contract any suitable signs by word, or writing, or nods, would suffice. The contract is valid when entered into by proxy, by letter, or by other means of communication between the absent.¹

Ordinarily, for the lawful celebration of marriage the parties must be present with each other, and all must be done in accordance with what is laid down in the Ritual and in law.

Anyone who having entered into the contract of marriage afterward asserted that he had only feigned consent would not be listened to in the external forum. In the forum of conscience he should be told that he must give a real and internal consent, as that is practically the only way to repair the injury which by his fraud he has inflicted on the other party. If such a case occurred, it would not be necessary to go through the form of marriage again; all that would be required would be for the defaulting party to make good the expression of his consent (Can. 1135).

¹ 1 Cor. vii 3.

Marriage should be contracted absolutely, but if in any particular case it is contracted under condition, we must distinguish various cases to see how the condition will affect its validity.

(a) A marriage contracted under a condition which has reference to the past or to the present and is verified, as, “I agree to marry you if you are a maid,” is valid, but it will not be lawful to use marital rights until it is known whether the condition is verified or not. If the condition is not verified, the contract is invalid.

(b) An explicit condition against the essence of marriage which has reference to the future makes it null and void for want of true consent to marriage. ‘Thus the conditions, “ I marry you if you agree to have no offspring,” or, “‘ Until I find a more suitable partner,” or, “ If you will sell yourself for money,” make the marriage null and void; for such conditions destroy the perpetual and exclusive right, the transference of which is of the essence of the contract of marriage.

(c) If nothing against the substance of marriage is expressed in the contract, but one or both of the parties intends to do something which is against the essence of marriage, such an intention will vitiate the contract or not, according as it excludes marital rights or only implies a determination to abuse them. Thus if a man intended to have two wives on a footing of perfect equality, he would be married to neither of them; but if he intended really to be married to one and was also bent on keeping a concubine, his marriage with the first would be valid. Similarly, if two were to marry with the intention of living together in virginity, the marriage would be null and void if there was no transference of marital rights; if their intention excluded only the use of marital rights, the marriage would be valid.

The validity of marriage contracted with mutually opposed intentions will depend on which is predominant, or on which - would be chosen if their mutually destructive character were known and realized. And so, if a baptized person wants to be married but does not want the sacrament of matrimony, he will be married if that is the predominant intention; he will not be married if the intention to exclude the sacrament is predominant (Can. 1092).

Vol. II, Bk. IX, Ch. VI, Matter, and Form of Matrimony

We have seen that according to the teaching of the Church the contract of marriage was raised by our Lord to the dignity of a sacrament, so that the marriage contract constitutes the sacrament, and as such confers grace on baptized and worthy recipients to enable them to perform the duties of their state of life like true Christians. The efficient cause of the contract is the mutual consent of the parties, who thereby confect the sacrament, and who are, therefore, its ministers to each other. The remote matter would seem to be the marital rights which are the matter of the contract; the proximate matter is the mutual offer, and the form the mutual acceptance of those rights. It is uncertain whether a Christian who by dispensation marries a non-baptized person receives the sacrament or not, as the other party is certainly incapable of receiving a sacrament. It is also disputed whether the marriage of unbaptized persons who are converted to the Faith becomes a sacrament on the reception of Baptism.

The civil authority probably has power over the marriages of non-baptized subjects, so that it can make diriment and prohibitory impediments to such marriages for the common good, Christian marriage is a sacrament, and the administration of the sacraments belongs exclusively to the Church, so that the State has no power to make diriment or prohibitory impediments for Christian marriage. The regulations which the civil authority makes concerning marriages of soldiers and others should, of course, be observed if they are reasonable and just, but they are not impediments in the strict sense. There is nothing to prevent the State from making laws concerning the civil effects of marriage, such as the property rights of married people, rights of inheritance and succession, titles of nobility, and similar matters; these things are within the competence of the State. But questions which affect the bond of marriage and the capacity of parties to contract marriage belong exclusively to the Church, and so laws of divorce made by the civil authority are of no validity in the forum of conscience, except in so far as they sanction and apply the laws of the Church (Can. 1016).

Marriage is a sacrament of the living, and should be received in the state of grace. The priest should endeavour - to get the parties to go to confession and Communion when they are married, so that they may enter on their new state of life with the blessing of God. The rite in Catholic marriages should be performed in the Church, and if the wife has not received the nuptial blessing before, it is the wish of the Church that, whenever the rubrics permit, the Mass Pro Sponso et Sponsa should be said, and the nuptial blessing given as therein laid down. This Mass may be said on all days outside close time except on feasts of the first and second class, and on days of obligation. On these days, however, a commemoration may be made of the Mass Pro Sponso et Sponsa and the prayers after the Pater and Communion may be added.

The common law of the Church prescribes that the nuptial blessing shall not be given out of Mass, and in England, by a special indult of the Holy See, when the nuptial Mass is not said, a special blessing is given by the priest according to the Ritual.

In England the State does not acknowledge Catholic marriages unless they are celebrated in presence of a registrar and in a building registered for marriages. A priest who solemnized marriage otherwise would be liable to severe punishment as a felon. Due notice of a marriage must also be given to the superintendent registrar of the district or districts in which the parties reside. The marriage cannot take place without the registrar’s certificate, which cannot be granted before the expiration of twenty-one days after the notice has been entered if the marriage is to be without licence, or of one day if it is to be with licence. These and other laws which the civil authority has imposed on Catholic marriages should be observed in order that the marriages of Catholics may be recognized by the law of the land, and to avoid greater evil. The Nonconformist Marriage Act of 1899 enabled Nonconformists to dispense with the presence of the registrar, but its onerous conditions prevented the Catholic Bishops from accepting it except in some parishes,

Vol. II, Bk. IX, Chapter VII. The Properties of Marriage

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

¹ Sess. xxiv, c. 2.

Marriage is also indissoluble, at least by divine law, so that no human power can dissolve a marriage once validly contracted; ‘“‘ What God hath joined together let no man put asunder.”¹ This text has the strictest application to the consummated marriage of baptized Christians which can only be dissolved by divine authority. The Pope can for a grave reason dispense in the ratified but not consummated marriage of a Christian; ratified marriage is also dissolved by religious profession of solemn vows; and there is the case of the Pauline privilege.

(a) 'The Pope not unfrequently uses the power given to him by our Lord to dissolve the merely ratified marriage of Catholics for some grave reason. A probable suspicion of impotence in one of the parties, and a serious quarrel which leaves no hope of reconciliation, have been held sufficient causes for granting a dispensation from a ratified marriage. As the Pope has no jurisdiction over non-baptized persons, he cannot exercise his authority to dissolve their marriages. But if a non-baptized married couple were converted to the Faith, the Pope would have power to dissolve their marriage if it had not been consummated after baptism, for even if it had been consummated before baptism it would only rank as a ratified marriage. By authority of the Holy See a baptized pagan who had several wives is sometimes permitted to keep any one of them who may be converted with him, if the first is unwilling to become a Christian. Similarly, a married pagan converted in circumstances which render it impossible to interpellate the other party is sometimes allowed by papal dispensation to contract another marriage with a Catholic.

(b) Solemn profession in a religious order with solemn vows annuls a previously existing ratified marriage by ecclesiastical law. Mere entrance into religion and even profession of simple vows in orders that have solemn vows is not sufficient (Can. 1119). By ecclesiastical law a period of two months was granted after marriage, during which there was no obligation to render the debt, in order that either of the parties might use his privilege of entering religion. But this seems contrary to Can. 1111.

(c) The consummated marriage of two pagans may be dissolved by the Pauline privilege if one of them is converted to the Faith, and the other will neither be converted nor live at peace without trying to draw the convert to sin. It is in this sense that the Church interprets the words of St Paul: ‘“ But if the unbeliever depart, let him depart. For a brother or sister is not under servitude in such cases. But God hath called us in peace.’’?

The marriage is not dissolved by the Baptism of one of the parties, but if the conditions mentioned above are verified, the convert after Baptism may contract a second marriage with a Christian, and by this marriage the former is dissolved. In order that it may be known whether the other party is willing to be converted or at least to live at peace with the convert, he must be interpellated by the bishop or by his authority. Both interpellations are required, and more probably they are necessary for the validity of the second marriage, unless a dispensation from them is obtained from the Holy See. Thus in a case of insanity of the other party, a dispensation from the interpellations was granted, and in countries where Christians were forbidden to live with Jews, only one interpellation was put, ‘‘ Whether the other party was willing to be converted to the Faith,” and if a negative answer was given, the convert was free to marry again (Can. 1120 ff.). j

¹ Matt. xix 6.

Married people ought to live together as man and wife unless there is some good reason to the contrary.

If one of the parties commits adultery, the other has the right to separate from him altogether as to bed and board, unless he consented to the crime, or was the cause of it, or expressly or tacitly condoned it, or he himself has committed the same crime.

When an innocent spouse has separated from the adulterer by his own authority or that of a judge, he is under no obligation to admit him again to marital cohabitation; but he may admit him or recall him, unless with his consent he has adopted a life incompatible with marriage.

If a spouse has joined a non-Catholic sect, if he is educating a child as a non-Catholic, if he is leading a criminal and shameful life, if he is the cause of grave danger to the soul or body of the other, if by his cruelty he makes cohabitation too difficult for the other, these and similar causes are so many lawful reasons of separation for the other party, by the authority of the local Ordinary and also by his own authority if the causes are certain and there is danger in delay.

In all these cases when the cause of separation ceases cohabitation should be restored; but if separation was decreed by the Ordinary for a certain or uncertain time the innocent party is not obliged to cohabit unless the time fixed has elapsed or by the decree of the Ordinary (Can. 1128-1131).

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

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

¹ N. 126; S.O., December 19, 1860.

Vol. II, Bk. IX, Chapter VIII. The Impediments of Marriage in General

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.

Vol. II, Bk. IX, Chapter IX. The Prohibitory Impediments

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,

Vol. II, Bk. IX, Ch. X, Article I. Impotence

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.

Vol. II, Bk. III, Treatise VIII. On Matrimony · Vol. II, Bk. III, Tr. VIII, Dissertation I. On Those Things which Customarily or Necessarily Precede Matrimony · Vol. II, Bk. III, Tr. VIII, Dissertation II. On Matrimony Itself · Vol. II, Bk. III, Tr. VIII, Diss. II, Part I. On Matrimony in General · Vol. II, Bk. III, Tr. VIII, Diss. II, Pt. I, Sect. I, Chapter I. Summary Exposition · Vol. II, Bk. III, Tr. VIII, Diss. II, Pt. I, Sect. I, Chapter II. Fuller Exposition

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.

…and 55 more passages — all of them are listed on the topic page.

Wouters, Manual of Moral Theology

Ludovicus Wouters, C.SS.R. — 15 passages

Vol. II, Bk. III, Treatise VIII. On Matrimony

(St. Thomas, Supplement, qq. 41-68; St. Alphonsus, Theologia Moralis, book VI, nn. 831-1148; Homo Apostolicus, tr. 18).¹

We shall speak first of those things which customarily or necessarily precede matrimony; then of matrimony itself.

¹ Cf. Encyclical of Leo XIII, Arcanum, February 10, 1880; Encyclical of Pius XI, Casti connubii, December 31, 1930; Sanchez, Disputationum de S. Matrimonio libri decem; Feye, De impedimentis et dispensationibus matrim.; Gasparri, Tractatus canonicus de matrimonio; Wernz-Vidal, Ius canonicum, t. V, Ius matrimoniale; Desmet, De sponsalibus et matrimonio; Vlaming, Praelectiones iuris matrimonii.

Vol. II, Bk. III, Tr. VIII, Dissertation I. On Those Things which Customarily or Necessarily Precede Matrimony

The things which customarily or necessarily precede matrimony are: 1° betrothals; 2° the examination concerning free status; 3° publications; 4° prenuptial instruction; 5° the reception of the sacraments.

Vol. II, Bk. III, Tr. VIII, Dissertation II. On Matrimony Itself

Matrimony can be both merely a contract, as the matrimony of non-baptized persons, and a contract which at the same time is a sacrament, as matrimony entered by baptized persons. Namely, Christ elevated to the dignity of a sacrament the very contract which existed from the beginning of the human race. Now many of the things to be said hold both for matrimony which is merely a contract and for that which is also a sacrament. Hence before we speak specifically about matrimony insofar as it is a sacrament, we shall first discuss matrimony in general. Therefore let there be:

Vol. II, Bk. III, Tr. VIII, Diss. II, Part I. On Matrimony in General

We shall speak first of its nature, then of its division, then of its institution, ends, goods, honesty, and governance, finally of its properties, and last of all of the effects of matrimony.

Vol. II, Bk. III, Tr. VIII, Diss. II, Pt. I, Sect. I, Chapter I. Summary Exposition

n. 700.

Matrimony can be considered in becoming and in completed fact.

I. Matrimony in becoming is an onerous contract, by which a capable man and woman hand over and accept the right over the body, exclusive and perpetual, in order to acts of themselves apt for generation (cf. canon 1081). It is said:

An onerous contract; by these words the constitutive act of matrimony is indicated, according to these words of canon 1081, § 1: "Matrimony is made by the consent of the parties, legitimately manifested between persons capable by law; and this consent cannot be supplied by any human power."
A capable man and woman; by these words the subject of matrimony is assigned, namely a man and a woman who actually enjoy the use of reason and are not bound by a diriment impediment (cf. canon 1081, § 1).
Hand over and accept the right over the body, exclusive and perpetual, in order to acts of themselves apt for generation; these things will be more fully developed in their own place. Behold the essential object of the matrimonial contract, into which therefore the will must necessarily be borne. But once consent has been given to this object, matrimony is constituted by that very fact, without intercourse being added, as many formerly judged. Thus Nicholas I in the Responses to the Consultations of the Bulgarians,¹ Innocent III in c. 22 De Sponsalibus,² Eugene IV in the Decree for the Armenians,³ etc. Thus also canon 1081, § 1, just cited. And it is confirmed from the fact that certainly a true matrimony was contracted between the Blessed Virgin Mary and St. Joseph, without intercourse nevertheless having been added (St. Alphonsus VI, 879).

Corollary. The reciprocal right over the body of the consort, and that exclusive and perpetual, is the true and sole essential object of the matrimonial contract. Hence marriages which are called for a time, or by way of experiment, or friendly marriages, are not true marriages.⁴

The communion of table, bed, and dwelling belongs only to integrity; union of minds and goods not even to integrity, but only to a good outcome or to the better being.

¹ Denzinger-Bannwart, n. 334.

² Denzinger-Bannwart, n. 404.

³ Denzinger-Bannwart, n. 703.

⁴ Encyclical Casti connubii (A.A.S. 1930, p. 558).

n. 701.

II. Matrimony in completed fact is the very conjunction itself, or the permanent bond, which arises from the contract.

This definition of matrimony is customarily handed down, almost taken from Roman law: the marital conjunction of a capable man and woman, retaining or carrying with it an undivided society of life. In this definition the word conjunction, taken actively, denotes matrimony in becoming; taken passively, matrimony in completed fact. By undivided society of life, however, the unity and indissolubility of matrimony are designated.

Corollary. Matrimony, even when abstraction has been made from the character of sacrament, belongs not only to the order of justice and temperance, but also to the order of religion. Thus Leo XIII teaches in the Encyclical Arcanum,³ where matrimony is said to be "by its nature, by its force, of its own accord sacred." Thus also Pius XI teaches.⁴ The same is drawn from the fact that the end of matrimony is not only the procreation and education of children as such, but as servants of God. Indeed, from the beginning God, by a primitive supernatural ordination, put into every matrimony the character of an adumbration of the supernatural union both of the Divine Word with human nature and of Christ with the Church; which Innocent III,⁵ Honorius III,⁶ Leo XIII,⁷ and Pius XI⁸ teach.

¹ Cf. De Smet, op. cit., n. 193; Nederlandsche Katholieke Stemmen, 1905, p. 12 sq.; Revue du clerge francais, t. 1, p. 745 sq.

² Matrimony is derived, according to some, from the words mother and office, because it is especially the office of the mother to generate and educate offspring; according to others, from the word mother alone, "for monium is a mere extension of the word, as from father comes patrimony, from holy comes sanctimony" (Forcellini, Totius latinitatis lexicon, under Matrimony). It is denominated from the mother rather than the father because the burdens of matrimony, namely conception and birth of offspring, belong to the mother, likewise especially, at least, education. Matrimony is also called coniugium from joining together, consortium from with and lot, nuptials and connubium from veiling, because girls formerly covered or veiled the head before they were handed over to a man.

³ February 10, 1880.

⁴ Encyclical Casti connubii (A.A.S. 1930, p. 570).

⁵ Chapter Gaudemus, De divortiis (Decretals, book 4, title 19, c. 8).

⁶ Chapter Ex parte tua, De transactionibus (Decretals, book 1, title 36, c. 11).

⁷ Encyclical Arcanum.

⁸ Encyclical Casti connubii (A.A.S. 1930, p. 552).

Vol. II, Bk. III, Tr. VIII, Diss. II, Pt. I, Sect. I, Chapter II. Fuller Exposition

The fuller exposition is contained chiefly in the development of the properties of matrimonial consent itself. Now on each side there is required consent that is true, fully deliberate, sufficiently free from ignorance, error, force, and fear, external, made known to the other party, and simultaneous. It is said:

n. 702.

I. True or internal, in other words, there is required an act of the will of contracting matrimony (cf. canons 1081 and 1086).

In the internal forum, one asserting that he or she consented only fictitiously must be believed according to the truthfulness of the person. In the external forum, fiction is not admitted unless it is proved (canon 1086, § 1); and this commonly will be very difficult.

One who consents fictitiously sins against justice unless he is unjustly forced to matrimony; but with sufficient probability he does not commit sacrilege unless there is abuse of the sacred rite. The reason is that, because of defect of consent, the sacrament which could be violated is lacking (St. Alphonsus VI, 62). But he is bound: 1° to abstain from those things which are licit only for spouses; 2° not to contract matrimony with another before an ecclesiastical judge has declared according to the norm prescribed by law that the prior nuptials were null; 3° to repair the damage caused by the fiction, unless someone has been unjustly forced to matrimony. Now commonly he cannot repair the damage except by now consenting truly. The reason is that the deceived party commonly will not be able to enter another matrimony, because the fiction, and therefore the nullity of the prior nuptials, commonly will not be able to be proved. And from this very fact another reason for now consenting truly is added, namely the danger of incontinence which otherwise would arise from a cohabitation to be prolonged. Finally, if perhaps offspring has been received, the good of this offspring also requires matrimony. Nevertheless, one who consented fictitiously is excused from furnishing true consent: 1° if he was unjustly forced to matrimony, in which case he is not even bound to repair the damage; 2° if the other party also consented fictitiously, or if that party renounced his or her right; 3° if much greater damages are foreseen as about to arise from a true matrimony, in which case the damage must be repaired in another way (St. Alphonsus VI, 887, 1113).

n. 703.

II. Fully deliberate; as was said about contracts generally (vol. I, n. 834). Hence a matrimony contracted by one insane, sleeping, or plainly drunk would be invalid. With regard to those half-drunk and those more or less foolish, the validity will easily be doubtful. The insane who have lucid intervals are sometimes, at that time, sufficiently in possession of reason; nevertheless, as St. Thomas teaches (Supplement, q. 58, a. 2), "it is not safe that he contract matrimony, because he would not know how to educate offspring." Sometimes, however, matrimony of this kind is rightly commended, for example for legitimating offspring. Meanwhile this kind of matrimony will more easily be advised where the man is insane in this way than where the woman is, on account of the greater danger to offspring on the part of an insane woman. If each is insane in this way, matrimony between them can scarcely, or hardly at all, be licit. If some just cause for admitting such an insane person to matrimony seems to be present, the matter will prudently be brought to the Ordinary.¹

¹ Thus approximately Dens, De matrimonio, n. 97.

n. 704.

III. Sufficiently free from ignorance; concerning which observe that ignorance differs from error. Ignorance is the mere defect of knowledge, and does not import an opinion or judgment; error, however, imports an opinion or judgment, and a false one. Now ignorance of the matrimonial object invalidates consent, because the will is not borne toward the unknown. Hence:

Corollary I. Those who are ignorant that matrimony is a permanent society between man and woman for procreating children contract invalidly (canon 1082, § 1). This ignorance is not presumed after puberty (canon 1082, § 2). It is said permanent; by this word indissolubility properly so called, or the essential property of matrimony, is not understood; otherwise the Code would also make mention of other equally essential properties, for example unity. But there is understood some permanence which must last more or less, and is supposed in every society.

Corollary II. Those who are ignorant that the procreation of offspring is obtained by means of bodily union seem to contract invalidly, because there is ignorance of the object, that is, of the right over the body in order to procreating children.

Corollary III. Those who are ignorant only of the mode of union or intercourse have sufficient knowledge of the object, because the said ignorance does not prevent them, by explicitly handing over the right over the body in order to procreation, from at least implicitly handing over the right to acts of themselves apt for generation. Thus also the Sacred Congregation of the Council.¹ The aforesaid things hold even if someone, once the truth was known, would not have entered matrimony, since the question is not what someone would have done, but what he did.

¹ March 15, 1856; December 18, 1869.

n. 705.

IV. Sufficiently free from error. Error can regard the object of matrimony or its properties, the person or that person's qualities, and finally the value of the matrimony. Now:

Error concerning the object of matrimony invalidates the matrimonial contract, because then the will is borne toward an object diverse from the object of the matrimonial contract, so that consent to the object of matrimony is lacking.

Corollary I. The following contract invalidly: 1° those who judge that matrimony is not ordered to procreating children; 2° those who judge that children are procreated in a way other than by bodily union, for example by union of minds.

Corollary II. Those who err only concerning the mode of bodily union contract validly.

Simple error concerning the unity or dissolubility of matrimony, or its sacramental dignity, even if it gives cause to the contract, does not vitiate consent (canon 1084). The reason is that in the case there is not error concerning the object of the matrimonial contract taken simply, but only concerning that which in the object is quasi-secondary or consequent; in other words, one does not err concerning the right over the body of the consort, but either concerning the exclusive or perpetual right, or concerning the dignity intrinsic to matrimonial consent. But such error does not prevent the one consenting to the right over the body from consenting at least implicitly to the exclusive and perpetual right, and to the dignity intrinsic to the consent (cf. St. Thomas, Supplement, q. 51, a. 2, ad 2). It was said:

a) Simple error; for one contracts invalidly if either or both parties by a positive act of the will exclude some essential property of matrimony (canon 1086, § 2), or, if it is a question of baptized persons, the sacramentality of matrimony. Hence the Holy See has several times declared invalid the marriages of those heretics who, with the rite by which they enter nuptials considered, explicitly or implicitly stipulate that matrimony will be dissolved in the case of adultery.¹

b) Even if it gives cause to the contract; for the question is only what someone did, not what he would have done if the error had been absent.

Error concerning the person renders matrimony invalid (canon 1083, § 1); and this holds whether the error is invincible or vincible, antecedent or giving cause to the contract, or merely concomitant. The reason is that in the case consent is borne toward an object diverse from the object of the present contract: for consent regards the right over the body, for example, of Peter, while the object of the present contract is the right over the body, for example, of Paul. Therefore consent to the object of this contract is lacking.
Error concerning a quality² of a person commonly does not invalidate matrimony; and this holds even if the error gave cause to the contract and was induced by fraud. The reason is that such error does not prevent consent to the substance of the object. Canon 1083, § 2 is consonant.

I said commonly does not invalidate matrimony; for it invalidates it:

a) If error of quality redounds into error of person (canon 1083, § 2, 1°). But this has place when the quality about which there is error distinguishes the person from every other, and the contracting party determines for himself the person with whom he intends to contract precisely through that quality; as if someone intends to contract with the first-born daughter of a prince, and externally contracts with another whom he erroneously thinks to be the first-born (St. Alphonsus VI, 1010, 1013, 1015).

b) If a free person contracts matrimony with a person whom he thinks free, while on the contrary that person is a slave, with slavery properly so called. Thus by force of positive ecclesiastical law (canon 1083, § 2, 2°). But slavery properly so called is required, that is, one which extends so far that a human being can be bought and sold like an irrational animal, according to works (St. Alphonsus VI, 1017, 1018; vol. I, p. 537).

Question. Whether the matrimony is valid if a free unbelieving person, from error, married a faithful person who is a slave?

Response. Many deny, because the law does not distinguish. Others affirm, because the impediment in the case seems to affect no party: not the unbelieving party, because he or she is not subject to the Church; nor the faithful party, since the impediment seems to have been constituted in favor only of the free party who errs.

Finally, knowledge or opinion of the nullity of the matrimony does not necessarily exclude matrimonial consent (canon 1085). The reason is that such knowledge or opinion does not necessarily prevent someone, as far as is from himself, from having the will to contract. If the case occurs, one must see whether the contracting party in fact, as far as was from himself, intended matrimony. But if that had place, the matrimony was valid at once if the opinion was false; if it was true, the matrimony can afterwards be convalidated. But if the contracting party, with knowledge or opinion of nullity, intends concubinage or a simple civil ceremony, consent is lacking. I said intends, because it does not stand in the way of validity that someone merely judges³ it to be concubinage or a mere ceremony. In practice one more easily doubts about the intention of contracting true matrimony if it is a question of well-instructed Catholics who for some reason contract merely civilly, see a mere ceremony in a matrimony of this kind, and therefore more easily do not seek matrimony properly so called but only legal convenience. Indifferent and not well-instructed Catholics are more easily presumed to contract validly; a fortiori non-Catholics.⁴

¹ Holy Office, April 6, 1843 (Collectanea, n. 965).

² If the one erring binds his consent to the quality as to a condition without which not, the matrimony is certainly invalid; not, however, by reason of error, but on account of the lacking condition.

³ Sacred Congregation of Propaganda Fide, October 1, 1785 (Collectanea, n. 580).

⁴ Holy Office, July 2, 1897, to the Archbishop of Cologne.

n. 706.

V. Sufficiently free from force and fear. Concerning this canon 1087 says: "Matrimony entered by reason of force or grave fear inflicted from without and unjustly, from which, in order that one may free himself, he is compelled to choose matrimony, is also invalid. No other fear, even if it gives cause to the contract, carries with it the nullity of matrimony." Therefore:

Absolute force renders matrimony invalid; since in the case the external act is posited under physical coercion, with the mind resisting completely, consent of the will is lacking. With regard to force or violence in a qualified sense (vol. I, n. 28), the things said about the full deliberation required, and the things to be said about fear, suffice.
With regard to fear,¹ these things hold:

a) Grave fear, inflicted from without and unjustly, from which, in order that one may free himself, he is compelled to choose matrimony, dirimently impedes this matrimony (canon 1087, § 1), at least by canon law. It is said:

α) Grave fear; either absolutely or relatively to the person on whom the fear has been inflicted. It makes no difference whether someone fears a grave evil for himself or for those intimately joined to him.

β) Inflicted from without; that is, by a free cause. Hence, for example, a matrimony entered from fear lest life otherwise be hard would be valid.

γ) Inflicted unjustly. Now fear is certainly inflicted unjustly if someone uses an unjust means, or by an unjust means extorts matrimony whether owed or not owed, or, as others state the same thing, if the one inflicting fear does not have the right of executing what he threatens; as if a father, who catches a young man acting basely with his daughter, threatens him with death unless he marries her.

It is disputed whether fear is inflicted unjustly if someone by a means not unjust in itself extorts matrimony not owed, or if the one inflicting fear indeed has the right of executing what he threatens, but does not have a right to matrimony; as if a girl should threaten a young homicidal man that she will denounce him to the judge unless he marries her, or if a physician, who is bound only from charity to undertake the care of a sick girl, denies his help unless the girl marries him.

Response. Some affirm, because one acts unjustly who through grave fear tries to obtain that to which he has no right, for example matrimony. Others deny, because one does not act unjustly who offers to another a means, for example the choice of matrimony, by which he may avoid a damage which can be inflicted on him without injustice. But it seems one must distinguish thus: If the avoidance of the imminent evil, for example denunciation to the judge or denial of medical care, is esteemed to be of as much value as the choice of matrimony, the answer seems to have to be denied, because an unjust pact is not had. Otherwise, if the avoidance of the imminent evil is not worth so much, then the pact is unjust (cf. St. Alphonsus VI, 1051, 1053).

δ) From which, in order that one may free himself, he is compelled to choose matrimony. These things are certainly verified, and therefore the matrimony is certainly invalidated, if fear is inflicted for extorting matrimony with the one inflicting the fear. Likewise it seems invalid if fear is inflicted for extorting matrimony with someone other than the one inflicting the fear, because there is in reality coercion to matrimony itself.

But it is controverted whether it is necessary that fear be inflicted for extorting matrimony, or whether the intention of matrimony on the part of the one fearing the evil suffices, who in matrimony sees a necessary remedy against a greater evil to be avoided. Some deny that fear inflicted for extorting matrimony is required, and draw the reason from the tenor of the Code, "from which in order that one, etc." But the affirmative answer seems to have to be given, because before the Code it was taught with sufficient commonness that fear inflicted for extorting matrimony was required. Now the Code is not presumed to have departed from the old disposition unless the tenor of the law sufficiently signifies this; and the latter does not have place, since the canon can well be harmonized with the old disposition and be understood thus: "from which, in order that one may free himself, he is compelled to choose matrimony," namely because the fear is inflicted precisely for extorting matrimony. If fear is inflicted for another end, one is not so properly compelled to the choice of matrimony (St. Alphonsus VI, 1049).

ε) At least by canon law. It is disputed whether also by natural law, so that the described fear would also invalidate the marriages of unbelievers. Some deny, because fear does not impede consent simply voluntary into the contract. Others affirm, because a contract caused by gravely injurious fear and irrescindable, and therefore such that the grave injury which was the cause of the contract cannot be repaired, seems to have to be excluded. But if the prior opinion is admitted, such a contract would be had, namely matrimony, since it cannot be rescinded. St. Thomas admits the latter opinion (Supplement, q. 47, a. 3; cf. St. Alphonsus VI, 1054; Homo Apostolicus, tr. 18, n. 64).

Objection. If the latter opinion is admitted, even fear not inflicted for extorting matrimony would invalidate it, because such fear would also involve an injury which could no longer be repaired.

Response. Fear not inflicted for extorting matrimony indeed involves an injury, but one independent of matrimony, of which it was only the occasion, not the cause; but an injury independent of matrimony can be repaired even if the matrimony is valid and can no longer be rescinded.

Question. Whether, with canon law alone considered, matrimony is valid if the party who suffered fear is an unbeliever?

With natural law considered, the said matrimony is held by many to be invalid, according to the things set forth.

b) No other fear, for example light fear, or grave fear but justly inflicted, carries with it the nullity of matrimony, even if it gives cause to the contract (canon 1087, § 2). This is clear if the speech is about fear justly inflicted; if it is a question of fear lightly unjust, it is deduced from the fact that, on the one hand, fear does not impede simply voluntary consent, and on the other hand the reparation of a light injury is not to be valued so highly that on account of it, if excluded, the contract must be called invalid (St. Alphonsus VI, 1055). Furthermore note:

α) One who through grave and unjust fear forces another to matrimony sins gravely both against justice and, on account of the nullity of the sacrament, against religion. Therefore he is bound to repair the injury, even, if it cannot be repaired in another way, by convalidating the matrimony, at the will of the one who suffered fear (St. Alphonsus VI, 1057).

β) The Church never dispenses in the impediment of fear, because the dispensation would confirm the injury inflicted on the party who suffered fear, and would bring it about that the one inflicting fear would receive advantage from his crime.

How matrimony contracted from fear can be convalidated will be explained later.

¹ What fear is and in how many ways it is distinguished, see vol. I, nn. 838 and 839.

n. 707.

VI. External or manifest (canon 1081, § 1); this quality is required both because matrimony is a contract (vol. I, n. 834), and so that it may be a sacrament, for a sacrament does not subsist without a sensible sign. If someone consented externally but not internally, to revalidate the matrimony it suffices afterwards to supply internal consent. Moreover, for validity it does not matter whether consent is expressed by words or by another sign, for example by a nod. Indeed, of itself even silence, for example on the part of the bride, with the circumstances considered, can be a manifestation of consent.

As to liceity, however, from the precept of the Church it is required that "the spouses express matrimonial consent by words; nor is it licit for them to use equivalent signs if they can speak" (canon 1088, § 2). This obligation seems grave.

n. 708.

VII. Made known to the other party; and indeed by the contracting party or in his name, as was explained in vol. I, n. 834.

n. 709.

VIII. Simultaneous, because otherwise they do not truly consent into one. Nevertheless it suffices that one consent while the consent of the other persists (vol. I, n. 834).

Corollary I. Matrimony, like other contracts, can also be contracted between absent persons, for example through a mere messenger, by letters, by means of telephone or telegraph. But this now cannot be done by those who are bound by the ecclesiastical form, for "to contract matrimony validly it is necessary that the contracting parties be present either personally or through a procurator" (canon 1088, § 1).

Corollary II. Matrimony, just like other contracts, can also be entered through a procurator (the cited canon). But from canon 1089, without prejudice to diocesan statutes added on this matter,¹ for matrimony to be validly entered through a procurator, it is required:

1° That the procurator have a special mandate to contract with a certain person (§ 1).

2° That the mandate be signed by the mandator and either by the pastor or Ordinary of the place in which the mandate is made, or by a priest delegated by either, or by at least two witnesses. If the mandator does not know how to write, this is to be noted in the mandate itself and another witness is to be added, who also signs the writing; otherwise the mandate is invalid (§ 2).

3° That, before the procurator has contracted in the name of the mandator, the latter has not revoked the mandate nor fallen into insanity; because then the matrimony is invalid, although either the procurator or the other contracting party may have been ignorant of these things (§ 3).

4° That the procurator perform his office personally (§ 4). Hence the procurator cannot delegate another, nor, as it seems, can this faculty be granted to him by the mandator.

Note. When matrimony is to be contracted through a procurator or through an interpreter, the pastor is not to assist unless there is a just cause and it is in no way licit to doubt about the authenticity of the mandate or the trustworthiness of the interpreter, after having obtained, if time permits, the license of the Ordinary (canon 1091).

¹ Statutes added on this matter do not regard validity.

McHugh–Callan, Moral Theology

John A. McHugh, O.P., and Charles J. Callan, O.P. — 54 passages

Vol. II, Pt. II, Q. III, Art. 2. Duties of Members …, Husband and Wife

n. 2613.

The Duties of Husbands and Wives

The Duties of Husbands and Wives.—Conjugal obligations may be classed under three heads according to the three ends of marriage.

(a) Thus, the first blessing of marriage is offspring, and this imposes upon parents the obligation of providing for their children and of training them in mind and will (see 2630 sqq.).

(b) The second blessing of marriage is fidelity to the engagement made by husband and wife to deliver to each other exclusive power over their bodies for procreation (conjugal debt) and to love each other with a special but pure affection: “The wife hath not power of her own body, but the husband; and in like manner the husband hath not power of his own body but the wife” (I Cor., vii. 4); “Husbands, love your wives as Christ also loved the Church” (Eph., v. 25). Conjugal love admits no rivals; the husband must prefer his wife to every other woman, and the wife likewise must think more of her husband than of any other man (see 1179).

(c) The third blessing of marriage is the Sacrament or the unbreakable bond of marriage: “The Lord commanded that the wife depart not from the husband, and if she depart that she remain unmarried, or be reconciled to her husband. And let not the husband put away his wife” (I Cor., vii. 10). This imposes the duties of a permanent domestic society in which the spouses dwell together permanently and each has certain special functions of assistance to the other.

Vol. II, Pt. II, Q. III, Art. 2. Duties of Members …, The Conjugal Debt

n. 2614.

The Obligation of Paying the Conjugal Debt

The Obligation of Paying the Conjugal Debt.—(a) The duty is one of justice, since it arises from the contract of marriage, in which the parties freely and solemnly bind themselves to it as the subject-matter of their pact.

(b) The obligation is grave, since the marriage contract is one of the most momentous of human agreements, its direct end being the propagation of the race, while the denial of its essential right is productive of most serious evils, such as incontinence, scandals and the disruption of families. There is light matter, however, as when the request is not imperative, or the denial is infrequent and without danger of incontinence.

n. 2615.

Absence of Obligation

Absence of Obligation.—The obligation of paying the conjugal debt does not exist, however, when the right to make the request has been lost or when the request is unreasonable.

(a) Thus, the right to make the request is lost when one party has broken faith by committing adultery and has not been forgiven by the innocent party, and also when one party is incapable (e.g., on account of insanity or drunkenness) of asking in a rational manner.

(b) The request is unreasonable, first, when it is immoderate (e.g., when it cannot be granted without serious and unusual detriment to health, or without danger of death, or without likelihood of abortion or other great harm to a child conceived or to be conceived); secondly, when it is seductive (e.g., when it is an invitation to commit onanism).

n. 2616.

Suspension of Obligation

Suspension of Obligation.—The obligation of granting and the right of requesting conjugal relations are suspended when the marriage is discovered to be null or uncertain.

(a) Thus, if the marriage is certainly null, abstinence is necessary until the marriage is made valid; otherwise the parties are guilty of fornication. But if nullity is due to a merely ecclesiastical impediment, the impediment probably ceases in cases of most grave inconvenience when the nullity is known to only one spouse and the dispensation cannot be obtained at once.

(b) If the marriage is only doubtfully null, abstinence is not necessary unless both parties have a serious doubt and no examination has yet been made. Light doubts should not be considered, nor doubts that have not been corroborated by investigation; while, if only one party doubts, he or she cannot refuse the debt lest injustice be done the other.

n. 2617.

Is There an Obligation of Requesting Conjugal Intercourse?—(a) Per se, there is no obligation, since one may lawfully decide not to enjoy one’s right, and not to use what belongs to one. As man and wife were free to marry or not to marry, so are they free to agree either to consummate or not consummate marriage. It is even lawful for married people to contract together to abstain temporarily or permanently from marriage relations (e.g., for the sake of health, or of economy, or of mortification). By mutual consent one or both may make a vow of chastity, as was done by St. Joseph and the Blessed Virgin, or the husband may enter the priesthood and the wife become a nun.

(b) Per accidens, there is often an obligation of requesting intercourse, for experience shows that continual non-use of marriage often leads to incontinence or to loss of affection (see 2228).

Vol. II, Pt. II, Q. III, Art. 2. Duties of Members …, Morality in Marriage

n. 2618.

The Morality of Venereal Acts of Marriage

The Morality of Venereal Acts of Marriage.—(a) Non-consummated Acts.—These acts, whether internal or external, are lawful per se when they are used only as accessories to the act of marriage or as means to foster or preserve conjugal love, for the acts are meant by God to serve the purposes mentioned (2510). But per accidens there may be venial sin, on account of inordinateness in the motive (i.e., when only pleasure is intended), or in the manner (i.e., when due decency is not observed). There is mortal sin when these acts are not referred to the lawful conjugal act, but either directly or indirectly to pollution, namely, when there is foreseen proximate danger of pollution and the acts are either solitary or cooperative but performed without sufficient reason (such as expressions of special affection), for pollution is gravely sinful in the married, as well as in the single state (see 2539 sqq.).

(b) Natural Consummated Act.—This act in itself is not only lawful, but meritorious, because it exercises such virtues as obedience (Gen., i. 28), justice (I Cor., vii. 3 sqq.), and love of the common good and religion (Tob., viii. 9). Since marriage intercourse has for its ends not only reproduction, but also the expression of mutual love and the allaying of concupiscence, it is lawful even when conception is impossible or less probable, as when the parties are sterile, or the woman is pregnant, or during the so-called agenesic period, or at the time of lactation. It is a venial sin to exercise the conjugal act when one excludes every motive except that of pleasure (Denziger, n. 1159); and there may be even mortal sin on account of circumstances, such as place (e.g., scandal to others present), manner (e.g., external immoderation, internal desire of another person), evil consequences (e.g., when one of the parties has a contagious or veneral disease, when abortion will likely result, etc.).

(c) Unnatural Consummated Acts.—Pollution is mortally sinful (2535 sqq.), and is worse in married than in single persons, as being an injury to the faith pledged in marriage; and hence it is not lawful to practise it even for the purpose of artificial fecundation. Rectal copulation is also gravely sinful, being unnatural lust (see 2534) and a violation of conjugal faith. The usual forms of unnatural vaginal coition, which are very much practised today, are contraceptive in purpose, and are of two general kinds in the procedure—the physiological or preventive, which uses instruments to keep the semen from the uterus (such as sponges or pessaries for the female, condoms or protectors for the male), or which employs douches or syringes to remove semen from the vagina, or uses chemicals to devitalize it.

Vol. II, Pt. II, Q. III, Art. 2. Duties of Members …, Contraception and Onanism

n. 2620.

Contraception

Contraception.—Contraception in all its forms (onanism, condonism, vaginal irrigation, spermatocide) is a grave crime.

(a) It is an Injury to God.—Marriage was instituted by God to propagate the human race (Gen., i. 27, 28) and to bless homes with children (Ps., cxxvi, cxxvii), and He has made it a sacred institution and a Sacrament. Contraception defeats the ends of marriage and degrades it to the level of a mere instrument of carnal gratification. The hatred of God for this sin appears in general from the horror with which Scripture speaks of unnatural lust, and in particular from the case of Onan, whose sin is called detestable and whom God slew in punishment (Gen., xxxviii. 10).

(b) It is an Injury to Society.—The perpetuation of the human race is endangered as soon as marriage is abused as to its natural end. Hence, after the crime of homicide which destroys human life already in existence, contraception seems to rank next in enormity, since it prevents human life from coming into existence. This vice spreads moral degeneracy and decay from the home itself, and is rightly called race-suicide, since it depopulates and destroys the nation by the act of its own people.

(c) It is an Injury to the Family.—The happiness and success of the home depend chiefly on the respect which its members have one for the other and on the cultivation of the sturdy virtues that strengthen character. The husband and wife who practise onanism or other similar carnal vices cannot have the mutual respect they should have; the wife is deprived of the treasure of her modesty and is treated as a prostitute rather than as an honored wife and mother, and the husband is brutalized by the removal of the natural restraint to his sex passion. Such self-indulgent persons will either selfishly neglect the one or two children they may have, or will spoil them for life by the luxury and laziness in which they are reared.

(d) It is an Injury to the Individual.—As concerns the body, there is a perversion of the sex act from its definite use and specific end, and hence contraception has been described as “reciprocal masturbation.” As regards the soul, its higher goods of will and intellect are subordinated by the contraceptionist to the delight of passion, the lower impulses are greatly strengthened and self-control made more and more difficult, and the spiritual objectives that should prompt a rational creature are sacrificed for the passing gratification that moves the beasts.

Vol. II, Pt. II, Q. III, Art. 2. Duties of Members …, Birth-control

n. 2621.

Some Arguments of Neo-Malthusians and Other Advocates of Contraception

Some Arguments of Neo-Malthusians and Other Advocates of Contraception.—(a) Necessity for the Individual.—“This practice is demanded by comfort (e.g., in order to have a good and easy time, to have more opportunity for pleasures and occupations outside the home, to preserve form and beauty, to escape the troubles of child-bearing and child-rearing), or by utility (e.g., in order that suffering wives be freed from the slavery of excessive child-bearing, in order that children receive more attention and care than is possible in large families).” This argument from comfort is unworthy of any but a pagan or materialist, for the end of existence is something higher than pleasure or escape from all hardship. But even if happiness alone be considered, the childless home is not the most cheerful, and it often happens that parents who have sinfully limited their parenthood will lose an only child and be left sterile and desolate. The argument from utility proves only that sometimes (not often) it is inadvisable for a couple to have any or many children, but it does not prove that family limitation through means forbidden by the laws of God and of nature is permissible. The normal woman is not harmed but helped by child-bearing, whereas onanism and other unnatural vices are fearfully damaging both to mental and physical health. Experience too shows that mothers of five or more children live longer, and that children from large families are very often superior in qualities and achievements and stand a better chance in life. Exceptions only emphasize the rule.

(b) Necessity for the Family.—“Large families are impossible to many persons because the high cost of children today (expenses for clothing, food, medical care, schooling, etc.) is beyond their means.” The inability to support many children is often due to extravagance or to insufficient wages, and the remedy lies in prudent economy or in improvement of the economic condition of workers, not in the abuse of marriage. The weakness of the objection is shown from the fact that race-suicide is more common among the well-to-do than among the poorer classes. However, in a genuine case of inability to maintain a large family, limitation of children is a duty, but not by means of the sin of contraception or onanism.

(c) Necessity for the Community.—“The cause of unemployment, destitution, famine and war is the overpopulation of the world. Moreover, if the poorer classes would practise contraception and the better-to-do classes have larger families, the standard of living of the former would be raised, the culture of the latter would be preserved, and the quality of the whole race be greatly improved.” The resources of the earth are easily adequate to support many times the present population, and the misfortunes referred to are due, not to the number of people who inhabit the earth, but to accident or to human greed or imprudence. The eugenic argument is a vain dream, for the history of nations and modern facts show that the ideal of race improvement makes little appeal when the easier way of indulgence has been learned. As said above, it is the wealthy and educated classes who have the fewest children.

(d) Necessity of a Moral Kind.—“Contraception is a useful control of nature similar to that employed by physicians, surgeons and other scientists; it is not a contradiction of nature, since it preserves the end of the sexual faculty in expressing physical love. The motives of those who use it are not necessarily carnal, but may be of a very Christian kind (e.g., the need of limitation of family in order the better to practise one’s vocation, or in order to spare one’s wife, or to keep her from abortion), and they may sincerely believe it to be lawful.” Contraception does not control, but defeats nature, by voluntarily frustrating the primary end which nature has in view, and, if permitted, it logically leads to every kind of sensual indulgence. The motives or conscience of those who use it cannot change its character, for the end does not justify the means and a wrong conscience does not change the law. Those who have not been spoiled or misled by contraceptive propaganda or advice, instinctively regard artificial birth-control as well as onanism with disgust.

n. 2622.

Is Birth-Control Ever Lawful?—(a) If this refers to an end (viz., the limitation of the number of children or the spacing of their arrival), it is not unlawful in itself (see 2617); and it is sometimes a duty, as when the wife is in very poor health or the family is unable to take care of more. But in view of the decline and deterioration in populations today, it seems that couples who are able to bring up children well should consider it a duty to the common welfare to have at least four children, and it should be easy for many to have at least a dozen children. The example of those married persons of means who are unable to have a number of children of their own, but who adopt or raise orphaned little ones, is very commendable.

(b) If birth control refers to a means of family limitation, it is lawful when that means is continence or abstinence from marital relations, not if it is onanism or the use of mechanical or chemical means to prevent conception. The objection that husbands cannot restrain themselves is really an insult to God’s grace and is contradicted by numerous facts. A man of manly character should be ashamed to admit that he is the slave of passion, and the fact that God commands chastity and that millions obey Him both in the wedded and single state is sufficient proof that, even though hard, sexual abstinence is not impossible, if there is a real resolve and the right means are employed, such as rooming apart and concentration on other and higher things.

Continence or abstinence is counselled by the Church should conditions make the conception of children inadvisable. It is counselled, not commanded, since it involves heroic sacrifice which makes it all the more meritorious and praiseworthy: “It is wronging men and women of our times to deem them incapable of continuous heroism. Today, for many reasons—perhaps with the goad of hard necessity and even sometimes in the service of injustice—heroism is exercised to a degree and to an extent which would have been thought impossible in days gone by. Why. then, should this heroism, if the circumstances really demand it, stop at the borders established by the passions and inclinations of nature? The answer is clear. The man who does not want to dominate himself is incapable of so doing. He who believes he can do so, counting merely on his own strength without seeking sincerely and perseveringly help from God, will remain miserably disillusioned” (Pope Pius XII, Allocution to the Italian Catholic Union of Midwives, Oct. 29, 1951).

Another lawful means of family limitation is “periodic continence” or “rhythm,” the deliberate avoidance of conception by restricting intercourse, temporarily or permanently, to the days of natural sterility on the part of the wife. Many of the faithful are under the impression that the system has received the unqualified approval of the Church, that it constitutes a form of “Catholic Birth-Control.” This is not completely true.

All theologians agree that the use of marriage during the sterile period is not per se illicit. The act is performed in the natural way; nothing has been done positively to avoid conception; and the secondary ends of matrimony, mutual love and the quieting of temptation, have been fostered. “If the carrying out of this theory means nothing more than that the couple can make use of their matrimonial rights on the days of natural sterility, too, there is nothing against it, for by so doing they neither hinder nor injure in any way the consummation of the natural act and its further natural consequences” (Pope Pius XII, ibid.).

“If, however, there is further question—that is, of permitting the conjugal act on those days exclusively—then the conduct of the married couple must be examined more closely” (ibid).

The following points summarize papal teaching on this aspect:

A premarital agreement to restrict the marital right and not merely the use to sterile periods, implies an essential defect in matrimonial consent and renders the marriage invalid. 2) The practice is not morally justified simply because the nature of the marital act is not violated and the couple are prepared to accept and rear children born despite their precautions. 3) Serious motives, (medical, eugenic, economic and social), must be present to justify this practice. When present, they can exempt for a long time, perhaps even for the duration of the marriage, from the positive obligations of the married state. 4) The married state imposes on those who perform the marital act the positive obligation of helping to conserve the human race. Accordingly, to make use of the marital act continuously and without serious reason to withdraw from its primary obligation would be a sin against the very meaning of conjugal life (ibid.).

Pope Pius explicitly confirmed the common teaching of theologians: 1) Rhythm, by mutual consent, for proportionate reasons, and with due safeguards against dangers would be licit. 2) Without a good reason, the practice would involve some degree of culpability. Not expressly confirmed, but simply an expression of common moral principles is the common agreement: 3) That the sin could be mortal by reason of injustice, grave danger of incontinence, serious family discord, etc.

Since the Allocution, the more common opinion in this country asserts that the Holy Father taught: 1) that married people who use their marital right have a duty to procreate; 2) that this duty is binding under pain of sin; 3) there are, however, reasons that excuse the couples from this obligation and, should they exist for the whole of married life, the obligation does not bind them at all; 4) the sin does not consist in the exercise of marital rights during the sterile periods; but in abstention from intercourse during the fertile periods precisely to avoid conception, when the couple could have and should have made its positive contribution to society. Sin is present when the practice is unjustifiedly undertaken; 5) the formal malice of illicit periodic continence is not against the sixth commandment; i.e., against the procreation of children or the use of the generative faculty, but against the seventh commandment, i.e., against social justice. The couple is not making its contribution to the common good of society; 6) from 4 and 5 above, it follows that the individual acts of intercourse during a period of unjust practice of rhythm do not constitute numerically distinct sins. Rather, granting the continuance of a single will act to practice rhythm, there is one sin for the whole period of illicit abstention during the fertile periods.

Since the Pope abstained from an explicit statement on the gravity of the sin, the controversy of whether the practice intrinsically is a mortal sin or not continued. The opinion in this country which holds the greatest authority states that mortal sin is involved in the case of continued practice with a total exclusion of children and frequent use of marital rights during the sterile period.

Diversity of opinion has arisen as to the means of estimating when a serious sin has been committed. Some have used a temporal norm, e.g., unjustified use of rhythm for five or six years would constitute a serious matter. Undoubtedly most of the proponents of this norm would not accuse a couple of certain mortal sin if they already have one or more children; after that, indefinite use of the practice without excusing causes would not be a mortal sin. (This is admitted by most theologians.) Others have proposed a numerical norm as a basis to determine whether or not a couple has made its contribution to the conservation of the race. Concretely the proponents of this theory regard four or five children as sufficient to satisfy the obligation in such a way;

a) that the use of rhythm to limit the family to this number is licit provided the couple is willing and morally able to practice it;

b) that the limitation through rhythm to less than four requires a serious justifying cause. The intention involved to prevent conception would be seriously sinful in itself, since it causes great harm to the common good and involves in practice subordination of the primary to the secondary end or ends of matrimony. At the present time this opinion seems to be more favored in America than the first which places the gravity of the sin in the unjustified practice of rhythm for five years. (For a survey of recent opinion, see the Conference Bulletin of the Archdiocese of New York, Vol. XXXIV, No. 1, pp. 36 ff.)

On the other hand, some European theologians have denied that the practice constitutes a mortal sin in itself, independently of circumstances such as injustice and danger of incontinence.

The present state of opinion, then, is definitely undecided and calls for caution both in dealing too severely with penitents or too readily recommending the practice. The response of the Sacred Penitentiary of June 16, 1880, affords a safe guide in practice: “Married couples who use their marriage rights in the aforesaid manner are not to be disturbed, and the confessor may suggest the opinion in question, cautiously, however, to those married people whom he has tried in vain to dissuade from the detestable crime of onanism.”

As to the theological censure to be attached to “rhythm,” it is not approved, nor recommended, but seems to be tolerated for sufficiently grave reasons. “Instead of being freely taught and commended, it is rather to be tolerated as an extreme remedy or means of preventing sin” (Official Monitum, Patrick Cardinal Hayes, Sept. 8, 1936, Conference Bulletin of Archdiocese of New York, Volume XIV, No. 2, p. 78).

Vol. II, Pt. II, Q. III, Art. 2. Duties of Members …, Cooperation With Contraception

n. 2623.

Cooperatio Uxoris ad Onanismum vel Contraceptionem

Cooperatio Uxoris ad Onanismum vel Contraceptionem.—(a) Cooperatio formalis graviter illicita est, quum includat approbationem ipsius peccati. Unde graviter peccat uxor quae suis quaeremoniis de molestiis graviditatis virum cogit ad congressum onanisticum, vel quae nec interdum conatur eum avertere ab iniquo consilio onanistice congrediendi, vel quae active adjuvat abruptionem copulae, vel quae interne gaudet de ipso peccato (1513).

(b) Cooperatio materialis ad onanismum ex gravi causa (e.g., ex metu fundato rixarum, molestae cohabitationis, adulterii viri) licet; nam actio mulieris, scil. copulam habere naturalem, honesta est, atque causa sufficiens adest permittendi abusum factum a comparte (1515 sqq.). Imo uxor debitum petere potest a suo viro onanistico, si secus diu abstinere cogeretur ab omni usu conjugii cum periculo incontinentiae, quia caritas erga virum non obligat ad abstinentiam cum tanto incommodo.

(c) Cooperatio mere materialis ad contraceptionem, non videtur possibilis; nam copula contraceptiva est intrinsece et ab initio mala (1517, 1527). Unde uxori nec petere debitum licet, nec passive se habere. Sed qualibet vice tenetur positive pro viribus resistere. Sin autem gravissima causa sit actum permittendi, ut puta periculum mortis, eam tantum resistentiam opponere debet ad quam obligatur virgo oppressa (2497), consensu ut patet denegato (See Irish Ecclesiastical Record, June, 1940, pp. 634 ff., and March, 1948, pp. 244 ff.)

Vol. II, Pt. II, Q. III, Art. 2. Duties of Members …, Recapitulation

n. 2624.

Recapitulatio de Licitis et Illicitis in Conjugio

Recapitulatio de Licitis et Illicitis in Conjugio.—(a) Illicita graviter sunt extra matrimonium facta, v.g., moechia, mollities solitaria, alienae conjugis concupiscentia; sed probabiliter actus imperfecti et solitarii in proprium corpus exerciti leve non excedunt, citra periculum pollutionis, siquidem in delectationem veneream quae in conjugio licita est natura sua ordinentur, sicque minus indecentes fiant.

(b) Illicita graviter sunt intra matrimonium facta sed contra finem, i.e., naturae matrimonii seu generationi prolis repugnantia, ut sunt pollutio mutua, onanismus, impudicitia quae non in copulam sed in pollutionem tendit.

(c) Illicita leviter sunt intra matrimonium facta sed praeter finem, i.e., qum generationi nec prosunt, nec obsunt, sed in circumstantiis aliquam prae se ferunt inordinationem (e.g., copula ob solam voluptatem habita), imprudentiam (e.g., copula tempore parum apto habita), immoderantiam (e.g., impudicitia pudori nociva, situs innaturalis, ut si stent vel vir succubet, ex levitate electus).

(d) Licita sunt intra matrimonium facta, quae tum ex parte objecti (scil., quia actus ordinatur ad finem matrimonii), tum ex parte circumstantiarum (scil., quia debito tempore, loco, modo, etc., ut prudentia exigit, exercentur) rationi rectae concordant. Unde non peccant conjuges sibi licita concupiscendo vel de iis gaudendo. Immo mulier onanistae licite cooperata non est peccati arguenda si gavisa sit de ipsa copula vel de bonis ejus effectibus, vel (saltem quando probabile videtur se semen excipisse) si ad completam voluptatem se excitaverit.

Vol. II, Pt. II, Q. III, Art. 2. Duties of Members …, The Duty of Conjugal Companionship and Assistance

n. 2626.

Marriage as a Sacrament

Marriage as a Sacrament.—The third benefit of marriage is that of the Sacrament. The union of man and wife is not merely a physical union, but also a social one, and it should be modelled on the union of Christ and the Church: “This is a great sacrament; but I speak in Christ and the Church” (Eph., v. 32).

(a) Christ abides with the Church, and so the husband should dwell with his wife (Matt., xix. 5). The cohabitation of the parties is demanded by the very nature of the promises made in marriage, and hence it is wrong for the husband to be absent from the home for notable periods of time, or, what is worse, to drive his wife from home—or vice versa. Grave reasons and mutual consent justify long absences, as when the husband is called away on distant business; but, if he goes away for a considerable part of the year, he should, if possible, take his wife with him, or visit or write to her frequently. Very grave reasons suffice for obtaining a separation, either permanent, on account of adultery, or during the continuance of the reason, as when there is serious unhappiness (Canons 1128 sqq.).

(b) Christ is the head of the Church, and so also the husband is superior to the wife in authority (Eph., v. 23). Ordinarily man excels in the qualities suited for rule of the home (such as physical strength, decision, courage), and hence as every society, no matter how small, must have a head, the husband is the natural head of the home. But obedience is due a husband in domestic matters in which he is head of the house—for example, the choice of the place of residence, the management of the family income, the discipline of the children, but not in the wife’s personal affairs (e.g., her conscience, her politics, her property)—and only in commands that do not exceed his authority, for he has no power to command if he is irrational, and he has no claim to obedience if he orders something sinful or foolish. Moreover, since the wife is a partner and not a servant, and since she usually excels as sympathetic and wise adviser and careful household manager and is naturally more virtuous, the husband should consult with her on important family questions and decide them as far as possible by mutual consent, and should gladly leave to her sole control and direction the many things in which she is more competent than himself.

(c) Christ gave Himself for the Church (Eph., v. 25), and so also the husband has the duty of providing for his wife, spiritually and temporally. Usually the man should attend to the external affairs of the family (such as its support and protection), while the wife should take care of the internal affairs (such as the housekeeping and the training of the children). It is to be regretted that the smallness of the husband’s salary often compels the wife to work outside her home. Women should not be compelled to take up occupations unsuited to their sex, much less those that interfere with the supreme duty of motherhood. Injury done the common personal goods of husband and wife by one of them is unjust, if due to illegal action; it is at least uncharitable, if due to carelessness. The family goods are usually under the control of the head of the family. The wife has no right to use the earnings of her husband without his consent, unless he fails to provide suitably for his family, or uses his money extravagantly.

Vol. II, Pt. II, Q. III, Art. 2. Duties of Members …, The Obligation of Marrying

n. 2627.

The Duties of Persons Engaged to Marry

The Duties of Persons Engaged to Marry.—We shall speak first of the duty of entering into a nuptial engagement, and next of the duties which engagement imposes.

(a) Per se, there is no obligation for an individual to marry, for the need of marriage is not a personal but a social one, and social duties do not all fall upon each particular person. Each person must take necessary food, for without it the individual perishes, and eating is thus an individual duty; but each person need not be a soldier, or farmer, or builder, or merchant, or married; for it suffices that these offices be fulfilled, one by one individual, another by another. Indeed, if marriage is an impediment to a more urgent good of the common welfare (e.g., perilous public service incompatible with married life), or of private good (e.g., the duty of maintaining parents, the wish to remain single because one feels oneself unsuited for marriage or called to continence), marriage should not be chosen.

(b) Per accidens, there is sometimes a duty of marrying on account of public or private necessity. Thus, if the community is depopulated by race-suicide, the public good should move suitable persons to marry in order to assist the birth rate; for, if those are considered slackers who refuse their service or money in war time when the nation is threatened with death from without, are not those also culpable who will not assist a community threatened with extinction from within? Marriage is also obligatory on those who feel that they are unable to live continently, and will be lost unless they marry (I Cor., vii. 9). In case of seduction, marriage is a form of restitution to the injured girl, but since forced marriages are usually unhappy, the injury should be atoned for in some other way if the seducer does not care for the girl or is not desirable himself (see 1803).

Vol. II, Pt. II, Q. IV, Art. 4. Holy Orders; Matri…, The Sacrament of Matrimony

n. 2787.

The Sacrament of Matrimony

The Sacrament of Matrimony.—Marriage in general is defined as “the conjugal union of man and woman, contracted between two qualified persons, which obliges them to one another for life.”

(a) The word union may be taken actively for the passing act of internal and external consent, and then it refers to marriage in its state of becoming, as it is a contract and (among Christians) a Sacrament; or it may be taken, as it were passively, for the bond that results from the mutual consent pledged by the parties, and then it refers to marriage as a permanent state of life.

(b) The marriage union is conjugal; that is, its end is the procreation and rearing of children, or the making of a family, and it therefore gives the right to the natural acts of generation. A contract which has other ends (e.g., a business agreement of labor or of partnership), or which excludes procreation (e.g., an agreement of onanistic concubinage), is not a marriage.

(c) Marriage is between qualified persons, for certain individuals are excluded by natural, divine or human law from making a valid contract of marriage.

(d) Marriage is between two, one man and one woman. This unity of marriage is its first property, resulting from its nature as a relationship intended primarily for the propagation of the race and its proper upbringing, and secondarily for the peace and contentment of the married couple, their mutual assistance to one another, and their protection against carnal temptations (299). For polyandry is opposed to both these ends, and therefore to natural law, while polygamy does not accord well with the secondary ends of matrimony and is forbidden for all by the law of Christ (“They shall be two in one flesh,” Matt., xix. 3 sqq.). On the permission of polygamy in the later Old Testament ages, see 303, 311.

(e) Marriage obliges the parties to one another for life. This indissolubility of marriage is its second property, and also follows from the natural ends of marriage. For the right propagation of the human race is a matter that concerns not merely the married couple or human society, but also God Himself, who is matrimony’s immediate author and lawgiver, and God has decreed that marriage be unbreakable except in the few instances allowed by Himself: “What God hath joined together let no man put asunder” (Matt., xix. 6). Since the good of marriage is inferior to the good of faith, the divine law permits a dissolution of the bond in the case known as the Pauline Privilege (I Cor., vii. 12-15); similarly, in a very few instances where there is a serious good more important than the preservation of the bond (the faith of a convert from infidelity, the observance of the counsel of chastity, the public welfare), and where the bond itself has not the strength of sacramentality (i.e., in a non-Christian marriage), or has not been consummated in a Christian marriage, the divine law authorizes the Church, the representative of God, to decree a dissolution (see 363, 314). Not only are these cases few, but the conditions are strict (see Canons 1120-1127), and hence these exceptions are no menace to the ends of marriage. But once consummation has been added to consent in a Christian marriage, thereby perfecting the natural contract and extending the sacramental signification from the mystical and severable union of Christ with the soul by grace to the physical and perpetual union of Christ with the Church by the Incarnation, the indissolubility becomes complete and admits of no exception. The bill of divorce under the Mosaic Law seems to have been a true and complete dissolution of the marriage tie, but there is good reason to think that it was a toleration of the Jewish civil code, not a permission given by God. The valid marriages of infidels as such are not subject to the judgment of the Church; and the civil authority has no power to dissolve them (even when they are childless), otherwise individuals and the family and the State will suffer, as experience proves.

n. 2788.

Distinctions

Distinctions.—(a) In reference to validity, marriage may be true (i.e., validly contracted), or presumed (i.e., taken by the law to be validly contracted on account of some fact, as when the validity of a marriage was not attacked during the lifetime of the parties), putative (i.e., really invalid, but contracted in good faith by at least one of the spouses and not yet known by both to be certainly null), attempted (i.e., contracted invalidly in bad faith, at least one of the parties being aware of an invalidating impediment).

(b) In reference to perfection, marriage is legitimate (when it is validly contracted between non-baptized persons), ratified or sacramental (when it is celebrated between baptized persons), consummated (when the consent given in the contract is subsequently completed by the conjugal act). It seems that marriage lawfully contracted between a baptized and a non-baptized person is not ratified or sacramental, for, as the consent must be mutual, so should the Sacrament be mutual. But a marriage free from substantial defects is always a Sacrament, even though the contractants do not wish this, when it is contracted between Christians, whether they be Catholics or non-Catholics; and a marriage contracted between non-Christians becomes a Sacrament on the Baptism of the parties.

(c) In reference to its manner, marriage may be clandestine (i.e., not celebrated before the pastor and two witnesses), or secret (i.e., celebrated before the pastor and two witnesses pledged to secrecy, and without the publicity the Church ordinarily requires), public (i.e., celebrated before pastor and witnesses and with publicity such as announcement to the people and registration in the usual marriage book). The secret marriage is also known as a marriage of conscience (Canons 1104-1107).

(d) In reference to the law under which it is performed, marriage is either canonical or civil. A purely civil marriage between Catholics is invalid, as far as the bond is concerned, since their contract, as being a Sacrament, is subject to the Church. But the civil marriage, as far as the purely civil consequences are concerned, is a lawful ceremony, and is obligatory if required by law. A morganatic marriage is made between two persons of unequal condition (e.g., between a king and a plebeian woman) on condition that the inferior spouse and progeny shall not share entirely in the titles and property of the superior spouse.

Vol. II, Pt. II, Q. IV, Art. 4. Holy Orders; Matri…, The Elements of Matrimony as a Contract

n. 2789.

The Elements of the Contract of Marriage

The Elements of the Contract of Marriage.—(a) The subject-matter of the contract is the conjugal right or the lawful power of exercising with the other party acts suitable for generation.

(b) The ends of the contract are, primarily, the good of the race and of the children, and secondarily the good of the couple through mutual assistance and protection in spiritual and temporal matters. To these general ends may be added others which a particular person has in view, such as dignity, wealth, honor, lawful pleasure.

(c) The essence of the contract is the consent, for every pact consists in mutual agreement. But if marriage be regarded as a permanent state, its essence is the bond of union, and consent is the efficient cause productive of the bond. Marriage consent must have the qualities (internal, external, mutual, free) that are necessary in every contract, as explained in 1883.

n. 2790.

Requirements for Valid Marriage Consent

Requirements for Valid Marriage Consent.—(a) Internal Consent.—If both or one of the parties internally and positively wills to exclude marriage, or the right to the conjugal act, or an essential property of marriage, the contract is null, since there is no purpose to contract a real marriage. Similarly, if both or one of the parties negatively (or by lack of all intention) excludes consent, there is no marriage. It should be noted that he who intends to get a divorce later on does not intend a permanent union or marriage, whereas he who intends to be unfaithful or to practise onanism may nevertheless intend to oblige himself to the duties of fidelity and of the lawful use of marriage, and therefore to a true marriage. Fictitious consent, unless a serious reason excuses (e.g., when one is forced under grave fear to marry, when one becomes aware of a diriment impediment at the altar and cannot retire without great scandal), is a mortal sin, as being a lie in a very important matter and an injustice. If the other party was deceived, the party guilty of feigned consent is bound to make reparation for the damage done, and, unless the marriage has become impossible or inadvisable, the means of reparation should be a genuine consent revalidating the marriage. This is especially true when there is a conflict between the internal and the external forums on account of the inability to establish juridically the nullity of the invalid marriage.

(b) External Consent.—Both as contract and as Sacrament, matrimony requires some sensible manifestation of the internal consent. Since the contract of marriage between Christians falls under the jurisdiction of the Church, the manner of expressing the consent is regulated by Canon Law. The solemnities required for valid and lawful marriage will be treated below in 2826, 2827.

(c) Mutual Consent.—Both parties must agree to the marriage, since no one is obliged by a contract without his consent. But mutuality does not imply simultaneity, for, if the previous consent given by one party continues, the subsequent consent given by the other is joined to it and the consent becomes mutual.

(d) Free Consent.—If every contract must be deliberate and voluntary, this is especially true in the case of marriage, since it entails very heavy duties and its obligations are lifelong (cfr. 2195). In marriage there must be full and perfect consent, though it is not necessary that one think expressly on the essentials of the contract when assenting to it.

n. 2791.

Defects in Consent

Defects in Consent.—Consent supposes sufficient knowledge, and hence it may be vitiated by a defect as to knowledge.

(a) Mental Derangement.—Those who are not in possession of their mental faculties cannot marry, whether the derangement be habitual (e.g., idiots, the completely insane, monomaniacs on the subject of marriage) or actual (e.g., infants, those who are completely drunk or doped, the hypnotized or delirious, somnambulists). But defectives who are not unbalanced all the time or on all subjects, may be able now and then to realize the meaning of marriage and to give deliberate consent, though the presumption is against them. Those whose mentality is of a low grade, but who are able to judge and reason correctly (e.g., stupid persons, the deaf and dumb, or blind), and those who have some little fanaticism or eccentricity are not excluded; otherwise very few of either sex could marry.

(b) Ignorance.—Substantial ignorance, or the absence of knowledge about the essentials of marriage (viz., that it is a permanent association of man and woman for the purpose of raising children of their own), makes the contract null, for one does not consent to what one does not know. Accidental ignorance, on the contrary, does not nullify, for he who understands the main facts about marriage can intend to contract it as others do, even though he does not know its details or secondary features. Ignorance invalidates marriage, therefore, if one of the parties does not know that marriage is meant for the procreation of children or that children are procreated by carnal intercourse; but it does not invalidate if the parties are ignorant about physiology or scientific explanations. Substantial ignorance in persons of marriageable age (especially young women) is not uncommon even in these days, but it is not presumed after puberty (Canon 1082, Sec.2).

(c) Error.—Error which excludes consent to the essential object of the contract nullifies, and hence a substantial error about the person with whom one is contracting makes marriage of no effect (e.g., if Titus thinks he is marrying Claudia, but is really marrying her twin sister, Sempronia; if Balbus intends to marry Caia only on condition that she is a virgin and she is not a virgin; if Julius intends to marry the woman who is present solely as differentiated by a personal or individual characteristic which he mistakenly believes her to have, such as seniority among her sisters). Error which does not prevent essential consent does not nullify the contract. Hence, a mere accidental error about the other party (e.g., Titus marries Claudia, thinking she is rich, whereas she is poor, and he would never have married her had he known her poverty) does not make marriage null, though the Church makes the marriage of no effect when a slave is married in the belief that he or she is free (Canon 1083, Sec.2, n, 2). A mere speculative error about the properties of marriage (e.g., if one believes that marriage may be lawfully dissolved for adultery) or about the validity of one’s own marriage (e.g., if the bride erroneously believes that the marriage she is contracting is null) does not deprive the contract of its force, if there is really a purpose to marry as best one may; for such an error does not act upon the will or take away consent.

n. 2792.

Forced Consent

Forced Consent.—Consent also supposes self-determination, and hence in certain cases force or fear makes a marriage null and unlawful.

(a) Effect on Validity.—Coercion nullifies marriage from natural law, when overpowering physical might extorts an external assent, or when moral violence so terrifies as to unsettle the reason; from church law at least, when being grave, external and unjustly caused, it compels one to marry in order to escape the evil it inflicts or threatens. In other cases fear does not void marriage, even though it be the cause of the contract, as when the fear is slight, or when it is induced by shipwreck or by the fear of sin, or when a seducer marries only because he is threatened with prosecution unless he marries the girl whom he seduced.

(b) Effect on Lawfulness.—He who by intimidation impels another to marry, sins gravely if the fear is unjust and grave, or unjust and productive of serious evils; he sins venially if the fear, though unjust, is light and not productive of serious evils; he sins not at all; if the fear is justly caused, unless he offends charity by his manner of acting; revengeful spirit, etc. He who marries knowing that the other party is forced into the contract, is guilty of serious injustice; and he who marries unwillingly, but with the purpose to live as if he were validly married, sins gravely by his will to live in impurity.

n. 2793.

Conditional Consent

Conditional Consent.—Conditional consent is that in which the agreement to marriage is made dependent on some fact or event.

(a) A condition makes marriage invalid if it neutralizes consent (e.g., if the condition is de praesenti but unfulfilled; if it is de futuro and against the substance of marriage; if it is impossible but seriously added); it suspends marriage if it is de futuro, possible, and not against the substance of marriage; it neither nullifies nor suspends if it is de praesenti or de praeterito and fulfilled. In law the presumption is that de futuro necessary or impossible conditions and shameful conditions are not serious, or are modes rather than conditions (see 1886), and of course in the external forum invalidity on account of a condition has to be proved. Conditions against the substance of marriage are such as deny essential conjugal rights or duties (i.e., the right to have conjugal intercourse, the duty of fidelity to the consort, of loyalty to the bond); but they should not be confused with the purpose to violate marriage engagements, or with a resolution, or a vow, or a pact in the form of a mode, not to make use of the right to conjugal intercourse.

(b) A condition added to marriage consent is gravely sinful, unless there is a very urgent reason for it; otherwise most serious evils would result. Moreover, there is responsibility in justice for culpable damages, as when one party gives consent conditionally without the knowledge or against the will of the other party. A suspensive condition (e.g., “if my parents will consent”) is regularly unlawful without the bishop’s permission, and marriage rights may not be used in a marriage dependent on a condition whose fulfillment is not known to the parties. It is unlawful to make a vow or promise of chastity in the married life unless there is moral certainty that it will be kept.

Vol. II, Pt. II, Q. IV, Art. 4. Holy Orders; Matri…, The Elements of the Sacrament

n. 2794.

The Elements of Marriage as a Sacrament

The Elements of Marriage as a Sacrament.—(a) The matter and form of marriage are found in the contract, for the Sacrament is the natural pact elevated to the dignity of a sacred sign productive of grace. The remote matter is, therefore, the bodies of the spouses, or the bodily rights which they give one another (I Cor., vii. 4). Since the indeterminate part of a contract is the offer or bestowal, and the determinate part the approval, the proximate matter of Matrimony is found in the grant of mutual conjugal rights externally manifested, and the form in the acceptance of that right externally manifested.

(b) The ministers and the recipients of Matrimony are the parties themselves, since it is they alone who make and receive the contract. In order to be a recipient of the Sacrament it is necessary that a person be baptized and be free from all natural, divine and human impediments that make one incapable of the contract of marriage.

(c) The effects of Matrimony are per se second grace, which increases sanctity and is of help especially for the due performance throughout life of the duties of the conjugal state and for domestic blessedness and happiness.

Vol. II, Pt. II, Q. IV, Art. 4. Holy Orders; Matri…, Duties in Reference to Marriage

n. 2795.

Duties in Connection with Marriage

Duties in Connection with Marriage.—The duties in reference to marriage as a permanent state of life were treated already in 2613 sqq., and we shall consider here only the duties that have to do with marriage as a contract and a Sacrament. These duties can be arranged under three heads: (a) before marriage, there are obligations in reference to the preparation for marriage, which consists remotely in engagement or espousals, and proximately in compliance with duties owed to divine, ecclesiastical, and civil law (e.g., license from the State, establishment of freedom to marry, proclamation of banns, dispensations, confession); (b) during marriage, in addition to the common obligations of intention and a state of grace, there are special duties in reference to the external form or rite of marriage; (c) after marriage, there is a duty of making canonical records and of validating defective marriages.

Vol. II, Pt. II, Q. IV, Art. 4. Holy Orders; Matri…, Engagement

n. 2796.

Betrothal or Engagement

Betrothal or Engagement.—Engagement is a promise of their future marriage made by competent persons.

(a) It is a promise, either unilateral or bilateral, the latter being espousals or betrothal in the strict sense of the word (1749). Like every promise, engagement is not binding unless it be made with requisite deliberation and freedom from force and fear. But a valid engagement to marry has not the same strength, either from divine or from human law, as a contract of marriage, and hence fraud or light fear unjustly produced and which induces one to become engaged leaves the engagement rescindable at the will of the innocent party. Canon Law requires certain formalities for a valid engagement, and without them there is no obligation in either forum. The law is that the contract of betrothal be in writing, and be signed by the parties and also by the pastor or local Ordinary or two witnesses, and that, if one or both of the parties be unable to write, this be noted in the document and an extra witness be added (Canon 1017).

(b) It is a promise made by competent persons. Hence, there is no valid engagement if a party is incapable either naturally (e.g., one who has not the use of reason) or canonically (e.g., one who has not attained the age of seven years). It is against good morals to be engaged to two persons at the same time, with the understanding that one will marry the second after the expected death of the first; and much more is it immoral for a married person to become engaged to marry another, the marriage to take place after the death of the present consort. Some canonists hold that engagements are not valid before the age of puberty, on account of the lack of sufficient discretion.

(c) It is a promise of future marriage, that is, a contract to marry, not a contract of marriage. A nuptial engagement is invalid if the marriage promised is invalid or unlawful, for no one can bind himself to sin. An invalid marriage is promised if there is a diriment and not dispensable impediment in the way, or if in spite of a removable impediment the engagement is unconditional, unless the mind of the parties is to marry after the impediment has ceased. The Church seems to regard as null an engagement made on the condition that the Pope will dispense an impediment. An unlawful marriage is promised when the parties cannot marry without sin (e.g., when the marriage will bring great sorrow or disgrace on parents), or when they promise to marry in a sinful way (e.g., with the understanding that they will abuse marriage). But an unlawful promise of a lawful marriage is not necessarily invalid, and hence an engagement dependent on an immoral condition not opposed to the substance of marriage would become obligatory on fulfillment of the condition (see 1878 d, 1886).

n. 2798.

Is an Engagement Necessary before Marriage?—(a) An engagement is not strictly necessary. Neither the validity nor the lawfulness of marriage depends on espousals, for there is no law that requires this. Hence, if for a reasonable cause a man and woman married without any previous binding pledge on either side, the marriage would be good and lawful. The formal engagements of Canon Law are not common in this country, but an informal engagement usually precedes matrimony.

(b) Engagement is most suitable and useful. Men are accustomed to fit themselves by long and serious study for the business of a profession or calling, and to enter into preliminary agreements about contracts of major importance (as in contracts to sell), and certainly marriage, a contract and vocation that binds until death and upon which the spiritual and temporal welfare of society and individuals rests, is among the most momentous of human agreements. The special advantage of engagement is that it affords a means of preventing hasty and ill-advised unions, of discovering impediments, of securing the consent of parents, and of preparing oneself in knowledge and virtue for the duties of the married state. If engagements were regarded and treated as a period of training for serious and sacred duties, not as a time for frivolity or enjoyment, there would be fewer divorces and less talk about trial marriages. On the duties of engaged persons to one another, see 2628, 2629.

Vol. II, Pt. II, Q. IV, Art. 4. Holy Orders; Matri…, Duties to Parents and to Children

n. 2799.

Duties to Parents or Guardians in Reference to Marriage

Duties to Parents or Guardians in Reference to Marriage.—(a) There is, per se, a duty of consulting with one’s parents about one’s marriage; for he who marries without their knowledge, generally exposes himself to the danger of making a serious mistake, and moreover as a rule the interests of parents themselves are bound up intimately with the marriages of their children. Hence, unless a very serious reason excuses, he who marries without advising with his parents sins grievously by his rashness or want of filial affection. The same is true, if a child wilfully disregards the wishes of his parents by stubbornly marrying when for a good reason they disapprove. If their opposition is imperative and emphatic, or if they are grief-stricken at thought of the imprudent marriage, the sin is serious; but if their opposition is mild and the match not a very bad one, the sin is venial. The consent or counsel of parents is not necessary for validity, however, since it is not they who are getting married, and no law makes their consent or counsel an essential part of the compact. Per accidens, their consent or counsel is not even necessary for lawfulness, as when the children live far away from their parents, or when marriage has to be contracted without delay, or when the parents are unreasonable in their opposition.

(b) There is, per se, no duty of obeying one’s parents in the matter of marriage: first, because marriage supposes choice, admiration, and love, and these do not submit to dictation, even from parents; next, because in things that pertain to nature, such as self-preservation and procreation, children are not subject to their parents; finally, because the authority of parents does not extend to the whole lifetime of their children and marriage is a lifelong union. Hence, parents may not compel their children to marry or to remain single; they may not make the match for their children against the latters’ will, they may not force a child to marry a person whom he or she detests, they may not veto a marriage that does not appeal to them if the son or daughter has good reasons for it. Those parents sin, then, who refuse their blessing to a marriage out of selfishness, and those parents sin gravely who force their children into loveless unions and so make them unhappy in this world and endanger their salvation for the world to come. Per accidens, there is a duty of obeying parents in reference to marriage when one is obliged even apart from their command to do what they prescribe, when the marriage which they forbid is also forbidden by law (e.g., if the child is needed at home to support his indigent parents, if the mate selected will bring disgrace upon the family and the match can easily be broken off), or when the marriage which they require is also demanded by duty (e.g., if a son will surely enter upon a wild and reckless life unless he marries). See above, 2228, 2627, 2633, 2636, 2347, 2348, 2361 sqq.

n. 2800.

Duties of Parents in Reference to Marriage

Duties of Parents in Reference to Marriage.—(a) If there is question of the marriage of a child, parents should guide themselves by the rule of St. Paul: “Let her marry whom she will, only in the Lord” (I Cor., vii. 39). Undue pressure should be avoided, but bad marriages should be opposed, and parents should assist their children to marry well. (b) If there is question of a parent’s second marriage, the children’s interests should be considered in making the choice of the step-father or step-mother, and, if the children are grown up, they should be consulted, or at least they should not be unreasonably saddened or harmed by the new marriage.

Vol. II, Pt. II, Q. IV, Art. 4. Holy Orders; Matri…, Pre-nuptial Investigations

n. 2801.

Obstacles to Marriage

Obstacles to Marriage.—Since marriage is a most important contract and a Sacrament, it is necessary to ascertain beforehand with moral certainty that there is no obstacle to its valid and lawful celebration. This imposes duties on the pastor, the couple themselves, and the faithful who know them.

(a) The pastor in virtue of his office is gravely obliged to make inquiries about the competency and fitness of the prospective husband and wife, and even in a death-bed marriage the obligation does not cease. Church law prescribes the method of inquiry, which should include an examination and instruction of the couple and a publication of the marriage. Of course, there is an obligation of confidential secrecy.

(b) The couple are bound to present themselves to the pastor within a reasonable time before the marriage in order to make these arrangements, and should bring with them the necessary papers (for example, their baptismal certificates, license to marry, testimonials). They are gravely obliged to make known either to the pastor or to the confessor any impediment, even though it be of a secret and culpable nature, in order that their marriage may be valid and lawful, unless they wish to give up the marriage or seek a dispensation in some other way.

(c) The people who know of an impediment to a marriage are bound under pain of mortal sin to make it known in time to the pastor or Ordinary; for the natural and divine laws, as well as the law of the Church, hold one to speak when this will prevent irreverence to the Sacrament of Matrimony, sin and other serious evils to the neighbor. The obligation ceases, however, when the revelation is either impossible or useless. Cases of impossibility are those in which revelation will cause great spiritual harm (e.g., public scandal), or great temporal harm of a public kind (e.g., violation of professional secret), or a great temporal harm of a private kind (e.g., persecution), unless a more serious evil will result from concealment. Revelation is useless when the marriage can be stopped or made legal in some other way (e.g., by persuading the couple to break their engagement or get a dispensation), or when one foresees that the revelation will have no effect.

Vol. II, Pt. II, Q. IV, Art. 4. Holy Orders; Matri…, Examination of the Parties by the Pastor

n. 2802.

Duties of the Pastor in the Examination of Engaged Persons

Duties of the Pastor in the Examination of Engaged Persons.—(a) He should question both the man and the woman separately and prudently about their freedom to marry, even though he is certain that there are no impediments. He should inquire especially whether there has been a previous marriage, and should also ask specifically about any impediment that seems likely. About impediments of a defamatory kind he should not interrogate before others, leaving that matter if necessary to his doctrinal instruction or to the confessor. (b) He should ask both of them, and especially the woman, whether they have decided on marriage freely, without force or pressure from any person. But children who live with their parents should be asked whether or not they have obtained their parents’ consent to the proposed marriage.

n. 2803.

Special Proofs of Freedom to Marry

Special Proofs of Freedom to Marry.—(a) Proof of Baptism.—A baptismal certificate should be presented by the parties (if baptized in another parish), even by one who is a baptized non-Catholic. If a certificate cannot be had, other proofs are necessary. In danger of death, the sworn testimony of the parties suffices; outside danger of death, the testimony of a reliable witness, or of the person himself, if he can remember his Baptism, or, it seems, a certificate of Confirmation or First Communion will do. If Baptism cannot be proved and there is a prudent doubt, it should be administered conditionally.

(b) Proof of Single State.—If it is manifest that a previous civil marriage was null and was dissolved by divorce, the proof of the facts suffices. If the husband or wife of a previous marriage has died, but the pastor has no personal knowledge of this, positive proof of the decease in the form of a public document or of sworn testimony of two or at least one reliable witness is necessary, and if the pastor cannot obtain these he must have recourse to the Ordinary.

Vol. II, Pt. II, Q. IV, Art. 4. Holy Orders; Matri…, Matrimonial Impediments

n. 2804.

Matrimonial Impediments

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).

n. 2805.

Sinfulness of Marrying with an Impediment

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.

Vol. II, Pt. II, Q. IV, Art. 4. Holy Orders; Matri…, Impedient Impediments

n. 2806.

The Impedient or Prohibitive Impediments (Canons 1058-1066).—(a) Vow.—The following simple vows make marriage illicit: the vow of virginity, that of perfect chastity, the vow not to marry, the vow to receive Sacred Orders, the vow to enter religious life, the simple vows of religion. A vow to abstain from the use of marriage is not against the substance of marriage, but it is difficult to keep in the married state; the vows to enter religion, or take Sacred Orders, or not to wed, are incompatible with marriage. Hence, the Church forbids one who has these vows to marry, unless the vow be first dispensed. Those who marry while bound by one of these vows sin gravely, and are held to keep the vow if this is possible or the other party’s rights do not prevent.

(b) Legal Relationship.—In those countries where relationship from adoption makes marriage illicit, there is also an impedient impediment of Canon Law. The Church wishes, in so far as possible, to preserve harmony between her own law and that of the State. Hence, she includes in her Code the civil law regulations that forbid marriage to certain persons on account of the intimate relation that exists between them through civil law adoption. The law of some European (e.g., France, Germany, Switzerland) and South American countries have a prohibitive impediment of adoption, but in the United States, the British Empire, and many other countries adoption is no such hindrance to marriage.

(c) Mixed Religion.—Marriage between two baptized persons, one a Catholic and the other a member of an heretical or schismatical sect, is severely forbidden by the Church. Mixed marriages in themselves are opposed to divine and natural law, inasmuch as they offer an occasion for communication in false worship and a danger of perversion; and hence they have been disapproved from the very beginning of the Church (II John, X. 11; I Cor., v. 10; Tit., iii. 10). But the divine prohibition ceases if appropriate measures are used to safeguard the faith of the Catholic and the children, and the Church will grant a dispensation, though reluctantly and only for just and grave causes.

n. 2807.

Duties in Reference to Mixed Marriages

Duties in Reference to Mixed Marriages.—(a) The Pastor.—A dispensation should not be sought unless there is first a sufficient reason, all things considered, and generally the reason should be the public good (such as the relative fewness of Catholics in a district, hope of conversion of the non-Catholic, avoidance of scandal). Secondly, there must be guarantees given by the non-Catholic that the faith of the Catholic will not be interfered with, and both parties must promise that all the children will receive Catholic and no other baptism and education. Finally, these promises must be such as to produce moral certainty of fulfillment, and as a rule it should be required that they be given in writing. After the marriage has been celebrated the pastor is held both in charity and in justice to do what he can to have the promises faithfully lived up to.

(b) The Parties.—Neither before nor after the marriage in the Catholic Church is it lawful to have any non-Catholic religious ceremony (see 956 sqq.); and if the pastor knows that this has been done or will be done, he may not assist at the marriage without permission from the Ordinary, which is granted for a most grave reason (scandal being avoided). After the marriage the parties are bound in justice to keep the promises made, and the Catholic is held in charity to seek prudently, by good example and advice, to convert the non-Catholic.

n. 2809.

Other Obstacles to Marriage

Other Obstacles to Marriage.—Other obstacles which forbid marriage, though they are not strictly canonical impediments, are the following:

(a) valid engagement gravely forbids marriage with a third party. This is a natural obstacle which results from the very nature of a binding promise;

(b) special prohibition of the Church at times gravely forbids a particular marriage, as when the Holy See in granting a dispensation for a present marriage forbids a future marriage. If an irritant clause is added, the prohibition has the force of a diriment impediment. The Ordinary also may forbid a particular marriage for a time, as when there is suspicion of a secret impediment, or when great damage will likely ensue from a marriage. This prohibition is for a special case or time or person, and thus it differs from the impediments of the law;

(c) closed times (Lent and Advent) are the seasons when, on account of the penitential and mournful character of the liturgy then in use, the solemn blessing of marriage is not regularly permitted. This is not really an impediment, since marriage itself may be contracted at any time of the year, according to the general law.

Vol. II, Pt. II, Q. IV, Art. 4. Holy Orders; Matri…, Diriment Impediments

n. 2810.

Diriment Impediments to Marriage

Diriment Impediments to Marriage.—The diriment or nullifying impediments to marriage are personal incapacities in a person which render him or her incapable, from divine or ecclesiastical law, of contracting marriage with anyone (absolute impediments), or of contracting marriage with a certain individual (relative impediments).

n. 2811.

The absolute diriment impediments are the following: (a) those that are due to a personal defect making one unable to promise with sufficient discretion (impediment of age) or to perform what is promised (impediment of impotency); (b) those that are due to a voluntary act which consecrates one to God with the obligation of perpetual celibacy (the impediments of Orders and vows).

n. 2813.

The Impediment of Age

The Impediment of Age.—(a) Nature.—This impediment exists in males who have not completed their sixteenth year, and in females who have not completed their fourteenth year. These ages are set by the general law, because all parts of the world have to be considered and sufficient discretion may be presumed at those ages everywhere. But substantial ignorance even after those years invalidates consent, and moreover, in colder countries where development is slower, marriage is generally inadvisable before the parties are 18 and 16 respectively. The marriageable ages according to the statute law in most of our States are 18 and 16 with parental consent, and 21 and 18 without it.

(b) Effect.—This impediment is of ecclesiastical law in so far as the precise determination of age is concerned, but of natural law in so far as the use of reason is demanded. Hence, the Church may dispense, and hence also the impediment as ecclesiastical does not bind the unbaptized, even when being underaged they marry Christians.

n. 2814.

The Impediment of Impotency

The Impediment of Impotency.—(a) Nature.—Impotency is the inability to exercise the sexual act in a way suitable for procreation. The requisites for this act are immissio membri virilis in vaginam mulieris cum seminis effusione, and hence those are impotent who lack sexual organs (such as the emasculated or spayed), or who on account of psychical or physical abnormalities are unable to have complete intercourse (e.g., anaphrodisiacs, some hermaphrodites, those who suffer from hypospadias, vaginism, etc.). Sterility, or the mere inability to procreate from sexual intercourse (as in old persons), is not the same thing as impotency, and is not an impediment to marriage. Authorities are not agreed whether or not the operations of male vasectomy and evariotomy produce impotency or sterility. But many regard the former operation as unlawful except for a most grave cause (such as the saving of life), since it takes away a power given by nature for the benefit of society, exposes the individual to very serious temptations, and opens the way to terrible abuses.

(b) Effect.—Impotency anterior to marriage and perpetual, whether in the man or in the woman, whether known to the other party or not, voids marriage from the law of nature itself, and hence is not dispensable. But impotency that arises after marriage or that is only temporary does not invalidate, and impotency that is relative (i.e., in reference to one person only) does not nullify marriage except in reference to a determinate person. In justice to the other spouse, married persons who have an easily curable impotency should have this defect removed.

n. 2816.

The Impediment of Bond

The Impediment of Bond.—(a) A person who is already validly married cannot marry again until the bond of the existing marriage is removed by the death of the other spouse or by dissolution. An exception is the case of the Pauline Privilege; but even then the bond of the first marriage remains till the second is contracted (see 2787 e).

(b) This impediment is of natural and divine law, and it binds all men, the unbaptized as well as the baptized. No dispensation can be granted from the impediment as long as it continues; and moreover those who would contract a second marriage must offer proof that the bond of the first marriage was non-existent, or that it has ceased. Nullity of a previous marriage must be established by canonical process (Canons 1986 sqq.); dissolution of an unconsummated marriage through vow or Papal dispensation is proved sufficiently by an authentic document; cessation of bond through death of consort must be demonstrated with moral certainty, if it is not manifest (see 2803). The procedure to be observed in cases of the Pauline Privilege is explained by commentaries on Canons 1120 sqq. of the Code.

n. 2817.

The Impediment of Disparity of Cult

The Impediment of Disparity of Cult.—(a) A marriage of a Catholic (i.e., of a person baptized in or converted to the Catholic Church) with an unbaptized person is null and void. This impediment bars the marriage of a professed ex-Catholic with an infidel, but not the marriage of a non-Catholic with an infidel; and by infidel is understood here not only a non-Christian (such as a Jew), but also a Christian unbaptized or invalidly baptized. A person accidentally baptized by a Catholic is not considered a Catholic if born of heretical or schismatical parents and reared by them in their sect.

(b) This impediment as prohibitive is of divine ordinance, for the same reasons as in the case of mixed marriages (see 2806 c): “Bear not the yoke with unbelievers” (II Cor., vi. 14). But neither natural nor divine law nullifies such a marriage with unbelievers; for the substantial ends of marriage (i.e., procreation and education of children) can be had even in such unions, and very holy personages have contracted marriage even with pagans (e.g., Jacob with the daughters of Laban, Joseph with the daughter of Putiphar, Moses with the daughter of Jethro, Esther with Assuerus, St. Cecilia with Valerian, St. Monica with Patricius, St. Clotilda with Clovis, etc.). The Church, however, has made disparity of cult a diriment impediment on account of the special danger, and it grants no dispensation unless the precautions decreed for mixed marriages be observed (see 824, 2807).

…and 14 more passages — all of them are listed on the topic page.

Bucceroni, Moral Enchiridion

Gennaro Bucceroni, S.J. — 249 passages

Bucceroni, Moral Enchiridion, On Matrimony

N. 722. 723. - On Betrothals of Infants and of Those Below Puberty

"Betrothals contracted by infants, or by an older person with an infant, are null by the law itself, and cannot beget the impediment of public honesty.... If it is established that betrothals were entered into while still in infantile age, it must be investigated whether after the seventh year they were renewed, or at least ratified. But if, as sometimes happens, betrothals were contracted by parents.... if they were still in infantile age, namely the children, it is certain that the contract was void; but if they were of age or above puberty, the contract then would be valid only if the children expressly, or at least tacitly, consented, or afterwards ratified the betrothals entered into in their name by their parents." Instruction of the Holy Office, 20 June 1883, nn. 33, 34; Instruction of the S. C. de P. F., 1885, n. 35. Cf. Acta S. Sed. Vol. 18, p. 355 ff.

"We have it established especially by Canon Law that betrothals, whether contracted between infants or by an older person with an infant, are to be held as not done, so that they do not produce even the impediment of public honesty. Those betrothals themselves which are celebrated between persons below puberty, although Canon Law has provided that they are valid and induce an obligation, nevertheless by the same Law it has been established, because of weakness of judgment, that after puberty it is lawful to withdraw; nor is he who first reaches puberty bound to wait for the other, but at once can withdraw, indeed ought to, if he is unwilling to approve the betrothals; otherwise he will not be heard afterwards." S. C. S. O. Feb. 1779.

N. 723. - On the Validity of Betrothals

Can a Bishop issue a law which prescribes a norm of entering into betrothals, as regards their validity, alien from common law? Resp. Negatively.

It is established from the response of the S. C. C., 8 July 1865; 23 March 1878. Cf. Acta S. Sed. Vol. 1, p. 529; Vol. 7, p. 665; Vol. 11, p. 230. Much less can a Bishop render marriages to be contracted without previous denunciations void, by removing jurisdiction for this effect from the Parish Priest. S. C. C. at Lugo, Moral Responses, book 1, doubt 45.

"1. Whether betrothals which are contracted in Spain without a public document are valid? And insofar as negatively, 2. Whether an instrument drawn up in the Curia for a dispensation over some impediments can supply for a public document? Resp. To the 1st and 2nd, negatively." S. C. C. 31 Jan. 1880. Cf. Paul Villada, Cases of Conscience Accommodated Especially to These Times, Part 2, Brussels 1885, p. 74 ff.; Acta S. Sed. Vol. 13, p. 191.

N. 727. 748. 787. 834. - On Intercourse Had After Betrothals, in Places Where the Council of Trent Has Not Been Promulgated

".... For the solution of the proposed doubt, the S. C. likewise indicated that the prescription of chap. Is qui, 30, On betrothals and marriages, received by Gregory IX of happy memory from the pure sources of Pontifical law and promulgated to be observed among all Catholics, is to be observed. For when the Pontiff was asked what needed to be done concerning a man who, after betrothals entered into with a woman, and intercourse had, afterwards had married and known another in the face of the Church, he gave this response: He who gave faith to some woman that he wished to take her as wife, and if afterwards he carnally knows her, and marries another in the face of the Church, is bound to return to the first; because, although the first marriage seems presumed, nevertheless proof to the contrary is not to be admitted against such a presumption. Whence it follows that the marriage afterwards contracted in fact is not a true marriage, but null.... Place before your eyes the things which Father Pirhingius, a most approved explicator of the sacred Canons, brings forward in elucidating chap. Is qui. For in book 4 of the Decretals, title 1, section 1, section 5, after the remembered rule or prescription of Gregory IX, he adds these things: The reason is, because from carnal intercourse the Church presumes in the betrothed a conjugal consent for excluding sin, namely that the betrothed man and betrothed woman wished to know each other mutually not with a fornicator's affection, but with marital affection, because offense is not to be presumed; and this is a presumption of law and of law, that is, altogether certain and indubitable, against which proof is not admitted; and consequently a betrothed man asserting that he did not know the betrothed woman with marital affection or with the intention of contracting marriage with her would not be heard (Covarruvias, in Epitome, book 4, Decretals, part 1, ch. 4, section 1, nn. 1 and 2). It is confirmed, because carnal intercourse following after betrothal concerning the future is a sufficient sign of consent concerning the present unto marriage; and the betrothed through it are judged to hand themselves over mutually to each other. This presumption has place only in the contentious and judicial forum, but not in the forum of conscience and penitential forum. Whence if the betrothed man truly knew the betrothed woman not with marital affection, but with fornicator's affection, it would not be a true marriage in the penitential forum and before God, because the Pope cannot make it that there be a true marriage without expressed or tacit consent (Hostiensis here, col. 2 at the end; Fagnanus here, nn. 6 and 7). Thus far Father Pirhingius, who, while presenting this doctrine, affirms that the same is everywhere held among all treaters of the Canons. Stand here, therefore; hold fast here. Namely, even in those regions in which the Tridentine Decree on marriage has not been promulgated, if the betrothed man and betrothed woman had intercourse with each other not with marital affection but with fornicator's affection, their betrothals do not on that account pass into a true marriage before God; and therefore before God, or in the forum of conscience, the faculty has not been taken from them of passing to other vows, if a legitimate occasion offers itself of dissolving the preceding betrothals.

But if the intercourse has been brought into the external and judicial forum, the same persons could be held by the Ecclesiastical Judge as in the manner of legitimate spouses; and therefore, as long as either of them lives, they could be prohibited from any other marriage, because this is a presumption of law and of law, that is, altogether certain and indubitable, against which proof is not admitted; and consequently the betrothed man asserting that he did not know the betrothed woman with marital affection, or with the intention of contracting marriage with her, would not be heard.

Since these things are so, the S. C. judges that response should be made to the seventh doubt in this way, namely: If in the aforesaid regions, where the Decree of the Holy Council of Trent has not been published, two betrothed persons then have carnal intercourse between themselves, but not from marital affection, but from illicit and fornicator's affection, this intercourse of theirs by no means causes their preceding betrothals to pass into a true marriage before God; or in the forum of conscience they remain free, and they will be able, if the aforesaid betrothals of theirs have been dissolved from some legitimate cause, lawfully to enter other nuptials. Nevertheless, if their intercourse is proved in the external and judicial forum, they could from the presumption of law and of law, against which proof is not admitted, be compelled by ecclesiastical power to hold themselves as true spouses, to whom, while the consort lives, any marriage is interdicted, from chap. 30, On betrothals and marriage.

But a step must be taken to untie the other doubt, which is the eighth in the series of the proposed ones, namely: What counsel is to be given to Missionaries of those regions concerning the mode to be observed, especially in the administration of the sacrament of Penance, with those faithful who, after betrothals and intercourse had with a woman, have publicly contracted nuptials with another, which they themselves in good faith judge just and valid? The Most Eminent Fathers judged that this diligence and caution is to be observed with a penitent of this kind. Let the Confessor peacefully ask him whether he had intercourse with that first woman moved by marital affection, or by illicit and fornicator's affection. If the penitent responds this latter, he will dismiss him in peace, and will raise no doubt concerning the validity of the marriage afterwards contracted. But if the penitent responds that he had intercourse with that first woman with marital affection, he will gravely admonish him that he is not the husband of the other, but of the first, and that he must altogether return to her according to the prescription of chap. Is qui, often remembered. But Missionaries should also have another caution before their eyes, namely, if it should happen that a penitent of this kind can by no means prove in the external forum the carnal intercourse had by him with the first woman, and therefore is compelled, by judgment of the Ecclesiastical President, to retain in honor the nuptials contracted in the sight of the Church; if this should happen, he ought patiently to tolerate any penalty, even of excommunication, rather than, certain that he is entangled by the impediment of bond, lie with the other not without grave fault. For the prescription of Innocent III of happy memory is known, expressed in chap. 44, On sentence of excommunication: If one of the spouses, thus he says, knows for certain an impediment of marriage, because of which he cannot exercise carnal commerce without mortal sin, although he cannot prove it before the Church..., he ought rather humbly to sustain the sentence of excommunication than to commit mortal sin through carnal commerce.

From the things considered thus far the S. C. embraced the response to this second doubt of this kind thus: If any one of the faithful, after betrothals and then intercourse had with one woman, publicly contracts marriage with another woman, and in this state approaches some Missionary in the tribunal of Penance, he must ask him whether he had that intercourse with that first woman from marital affection, or truly from illicit and fornicator's affection. If he responds this latter, he will raise no doubt concerning the validity of his present marriage. But if he responds the first, he will gravely admonish him that he is husband not of the second, but of the first woman, and must altogether return to her. But it is added, for the instruction of the same Missionaries, that if perchance that man, not being able to prove in the external forum the carnal intercourse had by him with that first woman, should hence be compelled by ecclesiastical power to remain with the other woman with whom he publicly contracted marriage, he ought humbly rather to sustain any penalty whatever, even excommunication itself, than to exercise carnal commerce with this other woman not without lethal fault, from chap. 44, On sentence of excommunication...." Instruction of the S. C. de P. F. 17 Jan. 1821, to the Bishops and Apostolic Vicars in the Empire of China and the Kingdoms and Provinces adjacent to it. Pius VII approved it and ordered it to be observed altogether.

".... Common law having been inspected, betrothals concerning the future, intercourse following, pass into true marriage, from chap. Is qui, 30, On betrothals and marriages.... Conformable to this Decretal Epistle is another which Pope Alexander III had already issued before, and which is read in chap. Veniens, 15, same title, whose words are these: Coming to us, he showed us by his report that in his house he received a certain woman, by whom he had offspring, and to whom he pledged faith before many persons that he would take her as wife; meanwhile, however, when he was spending the night at the house of his neighbor, his daughter on that night lay with him; the girl's father, finding them together in his bed, compelled him to betroth her by words concerning the present. And therefore we command that, if you find that after faith pledged he knew the first, you make him remain with her; otherwise you make him adhere to the second as wife, unless he betrothed her compelled by fear which could fall upon a constant man.

This canonical disposition is indeed founded in presumption, but this presumption is so great that proof is not admitted against it, and therefore it is customarily called a presumption of law and of law. Most learned Emmanuel Gonzalez writes rightly to this matter: from intercourse following, the Church presumes conjugal consent rather than fornicator's, namely by a benign interpretation, so that the presumption of sin may be avoided.... It is added, because the betrothed, consenting to intercourse, seem first to consent to marriage as the necessary preamble to lawful intercourse.... Nor against this presumption, when intercourse has followed, is any proof admitted, since it is of law and of law. And Pirhing on this title, section 1, par. 5, n. 27.... Covarruvias, in Epitome, book 4, Decretals, p. 7, ch. 4, part 1, nn. 1 and 2. Schmalzgrueber has similar things there, par. 2, n. 116; Fagnanus there, nn. 2, 3, 4; and all Canonists.

The doctrine is not the same with relation to the internal and penitential forum; for in this forum, if the betrothed man knew the betrothed woman not with marital affection, but with fornicator's affection, through intercourse following the betrothals these would not pass into marriage; for in the internal forum, not presumption, but the truth of the matter must be attended to. It is well to hear the just-praised Fagnanus writing thus: Nevertheless this presumption has place only in the contentious and judicial forum, but not in the forum of the soul, in which there is not presumption or fiction, but the truth itself. Whence, if the betrothed man truly knew the betrothed woman not with wifely affection, but with fornicator's, there would not be marriage in the penitential forum and as regards God. Chap. Tuam, above, same title. For, as Ioannes Andreae says, here n. 4, after Hostiensis, under n. 3, v. Thus the Pope: If the betrothed man in no way consented to the first, but to the second, even if the Pope is above the law, nevertheless consent cannot be valid, nor can he urge a man against conscience. In the same place, nn. 5, 6, 7, Pirhing writes equal things...." S. C. de P. F. 23 June 1850.

N. 730. - On Civil Marriage

".... But indeed, in carrying out the mandates of the Holy Father, this Sacred Penitentiary judges it superfluous to recall to the memory of each one what is a most known dogma of our most holy religion, namely that Matrimony is one of the seven Sacraments instituted by Christ the Lord, and therefore that its direction pertains uniquely to the Church herself, to whom the same Christ committed the dispensation of his divine mysteries. Then it also judges it superfluous to recall to the memory of each one the form prescribed by the Holy Synod of Trent, sess. 24, ch. 1, on reform of marriage, without whose observance, in places where it was promulgated, Matrimony could by no means be validly contracted.

But from these and other axioms and Catholic doctrines, Pastors of souls ought to compose practical instructions, by which they may persuade the faithful also of that which Our Most Holy Lord proclaimed in secret Consistory on 27 September 1852, that is: Among the faithful there cannot be Matrimony without its being at one and the same time a Sacrament; and therefore any other union between Christians of man and woman, apart from the Sacrament, even one made by force of civil law, is nothing else except a base and deadly concubinage.

And hence they will easily be able to deduce that the civil act before God and his Church can in no way be held not only as a Sacrament, but not even as a contract; and, just as civil power is incapable of binding any one of the faithful in marriage, so also is it incapable of dissolving. Therefore, as this Sacred Penitentiary already at other times declared in some responses to particular doubts, every sentence concerning separation of spouses joined by legitimate Matrimony before the Church, brought by lay power, is of no value; and the spouse who, abusing a sentence of this kind, would dare to join himself to another person, will be a true adulterer; just as he would be a true concubinary who would presume to persist in marriage by force of only a civil act; and each is unworthy of absolution until he repents and, subjecting himself to the prescriptions of the Church, is converted to penance.

But although the true Matrimony of the faithful is contracted only when a man and woman free from impediments make manifest their mutual consent before the Parish Priest and witnesses, according to the cited form of the Holy Council of Trent, and a marriage thus contracted obtains all its value, nor is there need that it be ratified or confirmed by civil power; nevertheless, to avoid vexations and penalties, and because of the good of offspring, which otherwise would by no means be held legitimate by lay power, and also to avert the danger of polygamy, it seems opportune and expedient that the same faithful, after they have legitimately contracted Matrimony before the Church, present themselves, to carry out the act decreed by law, yet with this intention, as Benedict XIV teaches in the Brief of 17 September 1746, Redditae sunt Nobis, that by presenting themselves to the Official of the Government they do nothing else than execute the civil ceremony.

For the same reasons, but by no means in order that they cooperate with the execution of the unhappy law, Parish Priests should not so easily and promiscuously admit to the celebration of marriage before the Church those faithful who, because they are kept away by law, would then not be admitted to the civil act and consequently would not be held as legitimate spouses. In this matter they will have to use much caution and prudence, and ask the counsel of the Ordinary; and let him not be easy in assenting, but in graver cases let him consult this sacred Tribunal.

But if it is opportune and expedient that the faithful presenting themselves to perform the civil act prove themselves legitimate spouses before the law, nevertheless they ought by no means to perform this act before they have celebrated the marriage before the Church. And if some coercion or absolute necessity, which is not easily to be admitted, should be the cause of inverting this order, then every diligence will have to be used that the marriage be contracted before the Church as soon as possible, and meanwhile that the contracting parties remain separated. Concerning this matter this Sacred Penitentiary exhorts each one that he follow and hold the doctrine set forth by Benedict XIV in the Brief of which mention was made above, to which both Pius VI in his Brief to the Bishops of France, Laudabilem Maiorum suorum, given on 20 September 1791, and Pius VII in his letters given on 11 June 1808 to the Bishops of Picenum, referred those same Bishops for the sake of instruction, who had requested norms by which they might direct the faithful in a similar contingency of a civil act. After all these things it is easy to see that the practice observed thus far concerning Matrimony, and specifically concerning parish books, betrothals, and matrimonial impediments of whatever nature, whether constituted or admitted by the Church, is in no way varied." Instruction of the Sacred Penitentiary, 15 Jan. 1866. Cf. N. 819.

Vol. IV, On Marriage, I. On Betrothals and on the Banns · Vol. IV, On Marriage, II. On the Nature and Properties of Marriage

N. 736. - On the Time of Banns

"Whether the Ordinary can, for a cause, dispense that while Vespers are sung, denunciations can be made, yet on feast days? Resp. That he can so dispense for a cause." S. C. C. 25 Oct. 1586.

n. ¶21.

"Whether on abrogated feast days denunciations of marriages can be made in the case? Resp. Negatively, unless with license of the Bishop under the conditions according to the form Brunen., 5 July 1780, the matter having been discussed with the Most Holy One." In Tudertina, Denunciation of marriage, 19 Apr. 1823. Now the Brunen. form requires, besides a grave cause, that "on those days which are not feast days, a frequent attendance of the people at the Church still perseveres."

n. ¶22.

"Whether and at what time denunciations and the explanation of the Gospel ought to be made in the case? Resp. Affirmatively, and as regards the explanation of the Gospel in the parochial Mass, and as regards denunciations in the same Mass, or at another hour more frequented by the people." S. C. C. 20 Sept. 1828.

n. ¶23.

N. 738. - On Proof of Free Status

Cf. Instruction of the S. C. I., 21 Aug. 1670; Lucidi, Vol. 3, 3rd ed., p. 605 ff.

n. ¶24.

N. 739. - On Secret Marriages

".... An equal, indeed perhaps a greater vigilance must also be employed by you, lest, after the Denunciations have been remitted, Matrimony be celebrated before the Parish Priest, or another Priest deputed by the Parish Priest himself or by you, with two or three trusted witnesses present, lest any notice or rumor of the celebration arise. For in order that this can be done lawfully according to the prescription of the sacred Canons, not just any obvious and common cause is enough, but a grave, urgent, and most urgent one is required.... But after the Matrimony has been celebrated, without delay by the Parish Priest or other priest before whom it was entered into, a written document of it is to be exhibited to the Bishop, with note of place and time, and of the witnesses who were present at the celebration. It will afterwards be yours diligently to see that, for perpetual memory of the thing done, the aforesaid document is faithfully transferred into a book wholly distinct from the other in which publicly contracted Marriages are noted. A book of this kind, suitably bound for secret Marriages, closed and sealed with seals, is to be cautiously kept in your Episcopal Chancery. And you will suffer it to be unsealed and opened, your license acceding, only in that case in which other Marriages of this kind must be written down, or the necessity of administering justice claims this for itself, or finally those having true interest demand some document from it," etc. Benedict XIV, Const. Satis vobis, 17 Nov. 1741.

n. ¶25.

N. 752. - On Marriage Entered into in a Place Where the Universal Custom of Divorce Flourishes, with Ignorance of the Indissolubility of the Same Marriage

"Marriages entered into with only the error of the contracting parties that the bond of consummated marriage can be dissolved in the case of adultery or for other causes are valid. But if they were entered into under this express condition, they are to be held invalid." S. C. S. I. 11 March 1868; 18 Dec. 1872.

n. ¶26.

N. 759. - On the Necessity of Interpellation of an Unbelieving Spouse

"1. Whether, for the effect of dissolving marriage according to the privilege conceded by Christ the Lord in favor of the faith and promulgated by the Apostle, the interpellation of the party persevering in unbelief is by Divine law and therefore so necessary that, it having been neglected, there is plainly no place for dissolving the marriage? Or whether it belongs only to judicial form, and is not required except so that the dissolution be done licitly, especially when it is otherwise established, by morally certain indications, that the other spouse wishes neither to embrace the faith nor to cohabit without contumely of the Creator?

n. ¶27.

Supposing that the first part is answered affirmatively, it is asked whether the interrogation concerning the Religion to be embraced alone suffices, namely whether the party remaining in unbelief wishes to be converted or not, which some of the Missionaries think, relying on the authority of Thomas Sanchez; or rather whether the interpellation whether at least the party persevering in unbelief consents to cohabit without contumely of the Creator is also essential and absolutely required, so that, it having been omitted, the marriage can be dissolved not only not licitly, but also not validly?

n. ¶28.

Whether the solemn expulsion of a wife made by a husband, namely by giving a bill of repudiation before the chiefs of the village, according to the laws of the Kingdom, can hold the place of interpellation and be reputed for it, since it is most certain concerning the will of that husband, namely that he in no way wishes to have the aforesaid woman as wife for the future; or rather, no account being had of the repudiation, in those circumstances also, the double interpellation prescribed in law is required for the validity of the dissolution of the marriage?

n. ¶29.

It is asked how a Missionary ought to conduct himself toward an unbelieving woman, repudiated without any cause of adultery by her husband, also an unbeliever, who has married another, when she asks to be baptized, and there is suspicion whether she is prepared in soul to return to her husband, if perhaps afterwards he recalls her and consents to cohabit without contumely of the Creator? Ought he first to question her concerning this matter, and meanwhile defer Baptism until she is better disposed, even with danger of dying without Baptism? But what if she consents, but only with this condition, namely when the concubine shall have been expelled?

n. ¶30.

It is asked whether adultery gives occasion to unbelieving spouses, just as to Christians, of celebrating perpetual divorce, so that it is altogether intact for the innocent party, when he or she shall have been washed in the sacred Font, either to send a notice of renunciation to the world, or to pass life in the state of widowhood, although the other party wishes to be reconciled and to cohabit without contumely of the Creator?

n. ¶31.

Since an unbelieving husband permits his wife, already tinged with the waters of holy Baptism, indeed to observe Religion, nor does he formally command anything of mortal sin, but in the use of marriage he entices her very importunately to many grave things against conjugal chastity, so that the woman is always in grave danger of sinning mortally: It is asked, in this case, whether the aforesaid woman can leave him and pass to other vows? But what if the danger does not come from the other spouse, but from others who are in the same house, for example from a father-in-law who solicits his daughter-in-law to incest, or from a mother-in-law, a most quarrelsome woman and very much addicted to superstitions?

n. ¶32.

Resp. To the 1st: There is no place for dissolution of a marriage contracted in unbelief, in the case concerning which there is question, unless interpellation has first been made, or unless, for legitimate causes, an apostolic dispensation concerning the interpellation has been obtained.

n. ¶33.

To the 2nd: The unbelieving spouse is to be interpellated, not only whether he or she wishes to be converted, but also, in the case in which he or she does not wish to be converted, whether he or she wishes to cohabit with the faithful spouse without contumely of the Creator, according to the disposition of Innocent III, chap. Quanto, On divorces.

n. ¶34.

To the 3rd: Interpellation is to be made, even in the case concerning which there is question, if it can be done, or recourse is to be had to the Apostolic See for obtaining dispensation.

n. ¶35.

To the 4th: Nothing prevents Baptism from being conferred on the woman concerning whom there is question in the case, provided she is otherwise sufficiently instructed.

n. ¶36.

To the 5th: A spouse converted to the faith and baptized can make divorce, as regards bed, from an unbelieving spouse because of adultery committed by him, although he seeks pardon and wishes to cohabit without contumely of the Creator.

n. ¶37.

To the 6th: A converted woman can withdraw from an unbelieving man and pass to other vows, in the case in which he draws her to grave sins against conjugal chastity (chap. Quanto and chap. Gaudemus of Innocent III, On divorces). But if the drawing of the converted woman to mortal sin does not come from her unbelieving husband, but from others who dwell in his house, a father-in-law, for example, or a mother-in-law, the faithful woman, where other means are not at hand, can withdraw herself from that house where she is drawn to grave sinning; but she cannot dissolve the marriage and pass to another." S. C. de P. F. 5 March 1816, to the Provicar General of Western Tongking.

n. ¶38.

"If the marriage happened with the Catholic party after the reception of baptism, it will have to be inquired whether there had preceded the canonical interpellation of the spouse still unbelieving, or at least whether dispensation concerning that interpellation had been granted by legitimate authority. Insofar as it shall be established that the interpellation was made, or that dispensation from it was granted, the first marriage can no longer constitute a bond invalidating the second union; but insofar as neither the interpellation nor the dispensation from it preceded, the first marriage will indeed obstruct the second, but the Ordinary will have to suspend judgment and refer the case with all its circumstances to the Holy See." Instr. S. O. 20 June 1883, n. 44; Instr. S. C. de P. F. 1883, n. 45.

n. ¶39.

"What is to be thought concerning the marriage of the said man with a Christian girl, contracted without interpellation and dispensation, and what is now to be done? From the things set forth, the first marriage contracted by the man in gentility with a gentile woman subsists, and therefore R. P. D. the Apostolic Vicar, the Orator, should take care, in the more prudent way in which it can be done, to call the parties to himself for the producing of their rights, and, if he finds nothing to the contrary, should oblige him to return to the first marriage." S. C. S. I. 20 June 1858; S. C. de P. F. March 1816.

n. ¶40.

"There are gentiles who, for the sake of carrying on commerce, leave their own place for a time, that they may betake themselves to other Provinces at a distance of ten or fifteen days' journey, and sometimes more, and there they take other wives while the first are living. One of these recently was converted to the faith with his second wife; then, receiving a message that the first wife was grieving over his conversion, and even was urging him not to embrace the faith, he asked for Baptism, promising that he, content with the second, would absolutely abandon this first wife, and that in no way would he cohabit with her when returned to his own places. A certain Chinese Missionary, to whom the faculty of dispensing from the monition had in no way been granted by the Apostolic Vicar, assented to his wishes, and, judging that in this circumstance there was no place for doubt, baptized this Christian together with his second wife, and, having compelled them to a renewal of consent, joined them in solemn marriage. Afterwards that Christian, having returned, found the first wife changed, and in every way disposed to embracing the faith. It is asked whether, in the proposed case, the marriage entered into with the second wife is valid? The reason for doubting for us is, on the one hand, that that Missionary had no faculty of dispensing from the monition; but, on the other hand, several Missionaries protest, indeed admitting that in this case the marriage with the second wife had been celebrated illicitly, but not so certainly invalidly: both because, on 5 January 1777, when the S. C. de P. F. was interrogated by us whether certain marriages of this sort, celebrated through ignorance without dispensation, would be invalid, it answered nothing, although it answered other things; and because, with Benedict XIV of holy memory as witness, book 13, On the Diocesan Synod, ch. 21, art. 6, most Theologians assert that judicial interpellation can licitly be omitted as often as it is judged to be of no utility; but the Supreme Pontiff does not reject this opinion as false, and declares it only not sufficiently safe in practice. But in the proposed case the interpellation seemed useless to them, since it was clearly established concerning the will of the prior wife. Resp. With attention to the circumstances concurring in the fact, the spouses of whom there is question are not to be disturbed; but let Missionaries beware of imparting dispensation from the interpellation of the spouse if they lack a faculty of this sort."

…and 209 more passages — all of them are listed on the topic page.

Bucceroni, Institutions of Moral Theology

Gennaro Bucceroni, S.J. — 165 passages

Vol. IV, On Marriage, I. On Betrothals and on the Banns

What are betrothals? Betrothals are a voluntary, deliberate, and mutual promise, expressed by a sensible sign, of future marriage between persons capable by law. A promise: true, not feigned; not a purpose, for this induces no obligation. Voluntary and deliberate, namely, with will and deliberation sufficient for grave sin, since betrothals bind under grave obligation. Mutual, for betrothals are an onerous contract, involving the condition: if you shall promise in return. Nevertheless, if the one promising should voluntarily wish to bind himself independently of the promise of the other, and this is certain, betrothals would not be had, nor consequently the impediment of public honesty, but a mere gratuitous promise binding only one party, by force of mere fidelity. It is said, and this is certain, because regularly spouses never intend to bind themselves gratuitously without the condition that the other also bind himself. But acceptance of a promise does not of itself include a promise in return; because anyone can accept the obligation of another without binding himself. Expressed by a sensible sign, for in any contract internal consent does not suffice, but consent externally expressed either by words or signs is required. Hence silence does not suffice for betrothals.

Nevertheless, per se, betrothals would be valid if parents contracted them in the presence of a son who is silent, provided the son internally and positively consents. For since parents, on account of their great love toward their children, are presumed to consult well for them, children are rightly judged to consent to their promise, and thus to express their own consent through the promise of the parents. But if the son internally dissents, "he is certainly not bound to those betrothals contracted by the parents. And I think exactly the same must be said if the son had himself negatively, neither dissenting nor consenting." L. 838. And the same must be said if parents contract betrothals for absent children, and those children, having been informed of the betrothals by the parents, do not contradict, namely, if they truly ratify the betrothals tacitly. Parents, not others; betrothals, not also marriage. Since in this matter the law is special, it is not to be extended. C. Si infantes, un., de Desp. imp. in 6; R. I. 28 in 6. But these things no longer have force after the Decree Ne temere, concerning which we must speak here at the end. Schmalz., 61 ff.; St. Thomas, IV, D. 27, q. 2, a. 2, ad 1; Suppl., q. 43, a. 2, ad 1; L. 831, 836-839.

Between capable persons, that is, those who are prohibited from marriage by no impediment. Therefore betrothals will be null if some impediment obstructs marriage. For when a diriment impediment stands, the thing promised either does not subsist, or is not in one's own power, and therefore there can be no promise of it. But when an impedient impediment stands, the thing promised is illicit, and there can be no promise of an evil thing. Except, unless the promise is not absolute but conditioned, namely, if dispensation is obtained, or is referred to a future time when the impediment ceases, as in betrothals of the prepubescent, or betrothals against the will of parents, where their dissent ceases. Moreover, no solemnity of law was commonly required for their validity, and neither the civil power nor local Ordinaries can attach it. S. C. C., July 8, 1865; March 23, 1878. Commonly. For in order that betrothals be valid in Spain and in Latin America, they had to be contracted by public writing. S. C. C., Jan. 31, 1880; S. C. Neg. Eccl. Extr., Jan. 1, 1900. Of future marriage; therefore, where the Decree of Trent was in force concerning marriage to be contracted before the pastor and witnesses, a contract in the present was neither marriage, because the Tridentine form was lacking, nor did it constitute betrothals, because a promise of future marriage was then not had, per se, nor virtually. As marriage contracted by proxy and by letters is valid, so also, per se, betrothals are valid. L. In sponsalibus 18, ff. de Sponsal.; St. Thomas, Suppl., q. 43, a. 1, 2, q. 55, a. 4; Schmalz., l. 4, tit. 1, n. 73-77, 247; E. M. Cf. 923.

But from the Decree Ne temere of the S. C. C., they must be made by public writing, in order that they be valid, signed by the parties and either by the Ordinary of the place, or by the pastor, or by two witnesses. But if both parties or either party does not know how to write, this is to be noted in the writing itself; and another witness is to be added, who, together with the Pastor or local Ordinary, or with the two said witnesses, signs the writing. For validly entering into betrothals, the parties are bound to sign the writing in one context with the pastor or Ordinary, or with the two witnesses; and it does not suffice that the writing, signed by one party with the pastor or with two witnesses, be sent to the other party, who in turn signs with the pastor or with two witnesses; and the date is also to be added, that is, the notation of the day, month, and year.

Here and in marriage, the pastor is the one who legitimately presides over the parish, or to whom in some defined territory the care of souls is primarily committed, or to whom in mission territory the care of souls is universally committed. The special law of Spain extended to Latin America remains abrogated, by force of which a public writing signed by a notary was required for the validity of betrothals. Indeed betrothals are invalid, if the aforesaid form is not observed, both for the external forum and for the internal forum, even if they are confirmed by oath, since the aforesaid form was prescribed for the common good. L. 1, 3, n. 177. But a simple promise of marriage without a promise in return remains valid. For the Decree Ne temere regards only betrothals. Betrothals cannot be contracted except before the local Ordinary or pastor, and not also before one delegated by either. They can, however, be celebrated before any local Ordinary or pastor whatever, provided this is within the limits of his territory, that is, in the proper territory, S. C. C., March 28, 1908, of the same Ordinary or pastor. All Catholics are bound by these decrees, whether they contract among themselves or with non-Catholics. Non-Catholics contracting among themselves are not bound by the aforesaid decrees. Therefore Catholics contracting otherwise contract invalidly, unless something else has been established by the Holy See for some place; but non-Catholics contract validly.

n. 920.

Is one who feignedly promised betrothals to another truly promising in return bound to contract marriage? Resp. In the negative. For 1. since the promise was feigned, he cannot be bound by force of the promise, even if it was confirmed by oath. St. Thomas, III, D. 39, q. 1, a. 3, q. 3. 2. "Granted that the one feignedly promising sinned against justice by deceiving the other party, nevertheless he was not bound from justice to put forth true consent, since there was no obligation upon him to enter into the contract, and, on the other hand, the other acquired no right over him from his own consent; therefore afterward he is indeed bound by reason of the deception to repair damages, but he is not bound by reason of the promise to put forth true consent and to contract marriage.

But it must be said otherwise if defloration intervened, because then the one deflowering is altogether bound to marriage, since he cannot then by another way repair the damage sufficiently equivalently." L. 833, 847, l. 3, n. 642. Hence, if a man induces a woman to sin under this condition, that he is going to take her in marriage if she agrees to his desires, then, after the crime has been committed, if not by force of contract, at least by force of unjust damage, according to the very common opinion, he is bound to take her if he can; otherwise it will suffice if he provides for her marriage.

The reason is, "because otherwise, if the deflowerer does not marry the deceived virgin, he will never render her an equivalent, nor repair the damage to be equaled." L. 1, 3, n. 642. And this holds even if the man vowed religion, orders, or chastity, and afterward knew the woman under a true or feigned promise of marriage. For the vow does not oblige, since a wholly notable change has been made, and a very grave obligation of justice has supervened. L. 1, 6, n. 833, 874. Nevertheless the Holy Doctor and others commonly except: 1. If from the marriage a very bad outcome is feared, such as discords, quarrels, scandals, etc. 2. If the man knew the woman, thinking her to be a virgin, but found her corrupted; or if she afterward had relations with another; for if this suffices in marriage so that separation is made, much more does it suffice when marriage has not been contracted. Sporer, 538 ff. 3. If there will be disgrace to the family. L. 849, 851. 4. If the man notably surpasses the condition of the woman, on account of the same reason of family disgrace. L. 1, 3, n. 642-650, l. 6, n. 851; St. Thomas, Suppl., q. 46, a. 2, ad 4; C. B. 1300. Cf. 928.

n. 921.

Are betrothals contracted through deceit giving cause to the contract void, even if the deceit is about a quality, for example riches, qualities of body or soul? This is disputed. The first opinion, sufficiently probable, affirms. For this is proper to betrothals, because marriages must be entered into voluntarily by mutual benevolence. The second opinion, more probable, denies. For this is common to any contract, that it is not void except by defect of consent or of object. "But then the deceived party has an action for voiding the contract on account of injury and defect of consent, and this holds even if the deception came from some third party, with the party ignorant." L. 835. "Lessius, etc., probably say that if the matter is intact, as happens in simple betrothals, and the error is invincible in conscience, the deceived party is not bound to stand by the contract, not even after the sentence of a judge." L., H. A., tr. 18, n. 2.

n. 922.

Are betrothals entered into through fear invalid by the law itself? If the fear is grave, this is disputed. The first opinion affirms, if the fear is extrinsic and unjust; for they would be valid if the fear were intrinsic, for example if someone promised, fearing lest he be compelled to pay a debt; or just, for then the contracting party would be unwilling irrationally. The reason is that fear dirimently impedes marriage, and betrothals are the way to marriage. The second opinion denies; nevertheless it adds that they can be rescinded by the one who suffered the fear; but if an oath was present, it must be observed until it is relaxed. The reason is that they are not invalid by positive law, which has nothing concerning betrothals; nor invalid by natural law, for fear of itself does not remove consent. "Each opinion is probable, but the first seems to me more probable..., because no one can be obliged to execute an act null in itself, and against which the law resists, such as marriage contracted while such fear endures would be... From these things it is inferred that from betrothals of this sort the impediment of public honesty by no means arises." L. 844.

If the fear is light and gave cause to the contract, the first opinion affirms, which Ballerini calls much more probable; but the second, more common and more probable to St. Alphonsus, denies. The reason is that the other is not judged to have inflicted a true injury, since light fear can easily be repelled. But whether in such a case the one who suffered the fear can rescind the betrothals in conscience, the first opinion, sufficiently probable, denies, on account of the reason just brought forward; but the second opinion, more common and more probable, affirms. "The reason is that since fear gave cause to the contract, so that otherwise it would not have been entered into, the one instilling fear is bound to rescind the contract; hence, just as he is bound to relax the pledge unjustly extorted by such fear, so the one who suffered the fear can revoke the pledge given." L. 844. Sanchez, l. 1, d. 14; l. 4, d. 16.

n. 923.

Do words in the present tense among prepubescents, apt for marriage, since this is null by positive law, have the force of betrothals? Resp. Affirmatively, from C. Si infantes, un., de Desp. imp. in 6, C. Tuae nobis, fin., e.t. The reason is that, when acts do not have force in the manner in which they are made, from the interpretative will of those contracting they have force in the better way in which they can, unless someone expressly dissents. But betrothals are contained interpretatively in marriage, unless in reality only the bond of marriage is expressly intended for binding oneself. For betrothals are not had except by a mere presumption of law. Sanchez, l. 1, d. 21, n. 3, 5; Schmalz., l. 4, tit. 2, n. 63; Pignatelli, Cons., tom. 9, C. 133, n. 46. Hence many said the same if adults contracted marriage clandestinely, that is, without the pastor and witnesses, in a place where Trent has been promulgated. But this must be denied altogether. S. C. C., June 8, 1595; Ferraris, v. Matrimonium, art. 2, n. 2; Benedict XIV, Quaest. can. 291, par. Ultimum. "The reason is that when an act is null not now on the part of those contracting, but on the part of itself, because it is against good morals and the law resists it, Trent, sess. 24, C. 1, then such an act produces no obligation." L. 841. Except, on the contrary, unless those contracting clandestinely expressly intend to bind themselves in the way in which they could. Sanchez, loc. cit., n. 6. But if there is question of civil marriage, from the Declaration of Leo XIII, March 17, 1879, where the Decree of Trent, sess. 24, C. 1, de Ref., has been promulgated, whether marriage is intended in the present or in the future, "the impediment of the justice of public honesty is not produced"; and therefore neither is had. E. M.

But after the Decree Ne temere it must be denied altogether that marriage in the present is converted into betrothals for the future. For they are two altogether distinct and quite different contracts. And they remain thoroughly distinct and different from the praised Decree, as is clear from its whole tenor. Indeed, for the validity of each contract, quite different formalities are required. Marriage cannot be contracted validly unless before the pastor or the local Ordinary or a priest delegated by either, and at least two witnesses. Betrothals cannot be contracted except by writing, signed by the parties and either by the pastor, or the local Ordinary, or at least by two witnesses.

n. 924.

Are betrothals valid which are entered into before the seventh year by malice, that is, by advertence of reason supplying for age? Resp. Affirmatively, "because, namely, the laws prescribing the seventh year are founded strictly on the presumption that the light of reason does not dawn except when the seventh year has been completed... C. Si infantes, un., de Despons. impub. in 6." Ithur., Cas. 30, n. 25. Therefore all who can licitly enter marriage among themselves can licitly enter betrothals, and prepubescents besides. C. A nobis 8, de Despons. impub.; St. Thomas, Suppl., q. 43, a. 2; Ferraris, v. Sponsalia, n. 15; C. Litteras, de Desp. imp.; C. Ad dissolvendum 13, e.t.; C. Accessit 5, e.t.; L. 14, ff. de Sponsal.

n. 925.

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

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

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

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

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

What and how great is the obligation of betrothals? Betrothals oblige one to enter marriage under mortal sin. For they are an onerous contract in a grave matter. If a term has not been fixed, it will suffice if the one promising fulfills them according to the custom of the region, or when he is required by the promisee. Here it is to be noted that "if the other party, from forgetfulness, fear, shame, or a similar cause, should not ask, as especially happens in women, then the bridegroom is bound of himself, without petition, to contract marriage when he conveniently can... But if the other party, when she can conveniently ask, is silent, then she seems to assent to the delay." L. 845. Therefore one withdrawing can be compelled to marriage, even by a judge through censures; this, however, is rarely expedient because of the danger of an unhappy outcome. C. Requisivit 17, de Sponsal.; L. 846; St. Thomas, Suppl., q. 43, a. 1, ad 2.

Nothing concerning betrothals is had in C. G. But C. I. 53, 54; C. H. 43, 44; C. A. 45, 46; C. B. 1297 deny to betrothals a legal obligation of contracting marriage. Nevertheless, if the promise is duly established, the one withdrawing without just cause is bound to compensate the other for damage, from C. A. and from C. B. 1298; from C. I. and C. H., for expenses which he made on account of the promised marriage. But from C. I. and C. H., compensation must be sought within a year from the day on which the promise was to be fulfilled. By Roman law, one who is bound by betrothals is permitted to renounce the condition or pact, and afterward contract with another. L. Alii 1, C. h.t. But if, without previous renunciation, either the bridegroom or the bride marries another, he is marked with infamy. L. Quid ergo § 3, de His qui notantur infamia. By canon law, there is an obligation not only from fidelity, but also from justice, of contracting marriage, and there is an impediment, impeding marriage with another, and dirimently impeding marriage with blood relatives in the first degree. E. M.

n. 927.

Are later betrothals, entered into against a prior pledge, valid, and are they to be fulfilled before the prior ones? "It is certain that if the second bride was conscious of the prior betrothals, marriage must be contracted with the first." If she was ignorant, "the first opinion says that the bridegroom is bound to contract with the second, if he had copula with her..., but the second opinion, more common and more probable, says that the bridegroom is bound to contract with the first, even if copula with the second was present... The reason is that the promise made to the second bride is always null, as being about an illicit thing, since it had been promised to the prior bride; nor does an injury inflicted on another take away the right of this one. And this holds even if the second promise was confirmed by oath." L. 848. Nor indeed is the prior bride bound to yield her right, even if the other would suffer grave damage from defloration, because this woman must impute it to her own crime that she suffers such damage. It is indeed a grave sin, after betrothals have been entered into, to attempt other betrothals, which, as illicit, are also void; for there can be no force of an illicit promise, although both oath and copula intervene. For the oath cannot be a bond of iniquity. Copula cannot take away a right acquired by another. But one entering betrothals with another woman or another man falls from his own right as regards the prior betrothals. And the same judgment is to be made if he makes to another even a mere promise of future marriage. L. ibid.; Sporer, 237; Benedict XIV, Notif. 46.

n. 928.

Do sons subject to family authority sin by contracting betrothals and marriage without parental consent; and are these valid in such a case? As regards validity, it is certain that marriage is altogether valid, even without parental consent, and even if they altogether dissent. Trent, sess. 24, C. 1, de Ref. Matr. But as regards betrothals, when parents are unaware and even unwilling, they are never invalid for that cause alone; since from this it is not generally and necessarily had that they are illicit. For the consent of parents is not necessary per se, that is, from the nature of the thing, nor from positive law. The first reason is that every man, in choosing a state and an individual society of life, is of his own right and liberty. The second reason is that from Trent, loc. cit., marriage is valid without the consent of parents. But the same reason holds for betrothals, which are the way to marriage, because, namely, a man in this matter is of his own right. St. Thomas, II-II, q. 104, a. 5; St. Bonaventure, IV, d. 29, a. 1, q. 3. For that cause alone; for from another cause, even by reason of parents, betrothals can be entered into illicitly, if the parents are unwilling reasonably, for example, if the bride or bridegroom is imbued with bad morals, if such a marriage would redound to disgrace of the family, or if grave scandals or dissensions would arise from it. "But in the case in which the son could not enter such a marriage without sin, the authors say that he is not bound to it, even if he had contracted betrothals with an oath; because since this promise would be about an illicit thing, an oath cannot be a bond of iniquity... The authors commonly think the same must be said, namely, that the bridegroom is not bound to fulfill betrothals of this sort with grave injury to his parents, even if he deflowered a virgin, but that it suffices that he dower her... The reason is that the virtue of justice cannot oblige one to an act which cannot be fulfilled without sin... The authors agree, however, that children are excused at least from mortal sin if they contract marriage without the consent of parents from just causes... If a father impedes his son from some marriage without a just cause, then the son is not bound to obey, and the father sins gravely by impeding." L. 849.

The principal difficulty on account of which parents often are unwilling, and there is doubt both whether the parents dissent justly and whether the spouses themselves, after the promise has been made, are obliged, in practice arises from disparity of condition between the two contracting parties. "It is certain that if those contracting, at the time of the betrothals, were not conscious of the disparity, the betrothals are null, provided the ignorance was antecedent; nevertheless they are valid if it was concomitant... If they were already conscious, the authors commonly say that they are bound to marriage." L. 851. And betrothals of a noble man with an ignoble but honorable girl were declared valid. S. C. C., Aug. 28, 1751.

Except 1. if by reason of disparity in nobility disgrace to the family would come from that marriage. "The reason is that the promise is null, since it is about a gravely illicit thing, as something which cannot be fulfilled except with great detriment to the family." L. 851. Surely justice obliges that this detriment not be inflicted on the family. But not just any disparity suffices, "but a notable one is required, for example if a noble man betrothed the daughter of an artisan, mechanic, or farmer." L. 851.

Except 2. if by reason of disparity in wealth scandal is probably feared, for example, hatreds of relatives, etc., "because in that case the bridegroom would sin gravely against charity, and therefore, since to contract that marriage would then be an illicit thing, the promise made cannot oblige to it. And for the same reason Sanchez says, etc., that this must be said even if the bride suffered defloration. And even if, as Sanchez adds, ... there is no disparity between those contracting. I confess indeed that this is the common opinion, and, speaking per se, true, when the son could conveniently avoid scandals of this sort; but if he could not do so without grave inconvenience to himself, it seems to stand in the way of the reason adduced that charity does not oblige with grave inconvenience... Does not the bridegroom perhaps seem about to undergo grave inconvenience if he is forced to omit marriage with the girl with whom he believes he will lead a quiet life, on account of the vehement passion of love by which he feels himself affected toward her? All those authors, etc., indeed judge this to be a grave inconvenience... All the more because scandals of this sort..., once marriage has been entered into, easily vanish, and minds are reconciled." L. 851.

But if no scandals are feared by reason of notable disparity in wealth, nevertheless, because a promise of this sort is prodigal, St. Alphonsus, loc. cit., still thinks that the bridegroom is not bound to marriage. But from the common sense of men, it is certainly not illicit that a rich man contract marriage with a poor woman. Salm., c. 1, n. 82; Sanchez, l. 1, d. 14, n. 2. "Nevertheless," the same Holy Doctor adds, "since the fault of prodigality is not more than venial, any moderate just cause can remove the vice of prodigality." Hence St. Alphonsus adds, "the case can scarcely occur in which the bridegroom is not bound to take her, because some one of these causes will very rarely be lacking."

From C. I. 63; C. G. 148, children cannot contract marriage without the consent of parents before the twenty-fifth year has been completed, if they are males; the twenty-first year, if they are females. From C. H. 45-47, 320, marriage is prohibited to a minor, namely, before the twenty-third year of age, without the consent of the father, or, in his defect, of the mother; but to one of age, without the counsel of the father, or, in his defect, of the mother. From C. A. 49, minors and also those of age who cannot validly oblige themselves by themselves, also cannot validly contract marriage without the consent of the father, or, if he is lacking, of the tutor, or curator and judge. From C. B. 1304, 1305, 1331, he who has restricted capacity for contracting needs the consent of his legal representative; a son before the twenty-first year needs the consent of the father. In place of the father the mother succeeds, but a son declared legitimate does not need her consent. From the defect of consent of this sort, annulment of the marriage can be sought. But where there is truly question of the validity of the marriage itself, all contrary dispositions of civil law are of no force as regards the validity of the marriage itself, if otherwise it is valid by natural and canon law. Trent, sess. 24, C. 1, de Ref. Matr.; L. 849, 859, 851, 877, l. 3, n. 335; St. Thomas, Suppl., q. 47, a. 6; Ithur., Cas. 14, n. 7 ff.; E. M.

n. 929.

How are betrothals dissolved? Betrothals are dissolved by mutual consent, just as any contract whose obligation, as regards its stability, does not depend on another law, namely divine or human, as, for example, in marriage and religious profession. L. 854; St. Thomas, Suppl., q. 43, a. 3, ad 5. "Between adults, betrothals are dissolved by mutual consent, even if confirmed by oath, not only validly, but also licitly, if there is a reasonable cause; for otherwise it would be at least venial..., because an oath in favor of a third party, although principally made in honor of God, always includes the condition, if the other accepts, or if he does not remit." L. 855. "But between prepubescents, betrothals are not dissolved unless they themselves become adults, from C. De illis 7, de Despons. impub.... Sanchez, etc., say, moreover, that if one of the spouses dissented before puberty, and persevered in such dissent, the betrothals are dissolved when he comes to puberty. Nevertheless, if he dissented only internally, Sanchez, etc., judge that he can also withdraw in conscience; but Coninck, etc., more probably deny this, both because this benefit of withdrawing is not granted by law except to those objecting, which is certainly understood externally, and because, just as internal consent alone does not suffice for entering into a contract, so also internal dissent alone does not suffice for dissolving a contract." L. 856; Schmalz., l. 4, tit. 2, n. 32, 40-43. "Moreover, it is certain that he is an adult who by the habit of the body shows puberty, and can now generate." C. Puberes 3, de Despons. impub.

Betrothals are likewise dissolved if a notable change occurs or is discovered which, if it had been foreseen, the betrothals would not have been contracted, or which, if it supervened, would now be sufficient for rescinding them. The reason is that spouses are judged to be obliged under this understood condition. A change of this sort would be had if a diriment impediment is discovered; if grave enmity or hatred should supervene or be discovered between the spouses themselves, or the parents or blood relatives; grave infirmity, for example leprosy, consumption, syphilis, etc.; great debts or grave danger of fortune, reputation, etc. L. 863, 865; St. Thomas, Suppl., q. 43, a. 3, ad 3.

Betrothals are likewise dissolved if one party preferred to enter a more perfect state of life. St. Thomas, loc. cit. For they are judged to have been contracted also under this tacit condition. But if religious profession dissolves even ratified marriage itself, much more betrothals. Finally, betrothals are dissolved by the authority of the Supreme Pontiff, when a just cause intervenes, as is clear from the practice itself of the Church. A. S. S., vol. 15, p. 587.

n. 930.

Is a party laboring under a hidden defect sufficient for dissolving betrothals bound to manifest it before betrothals, or, once they have been contracted, before marriage? If the defect would render the nuptials pernicious, as infamy, leprosy, syphilis, etc. would be, he is bound to manifest it or to desist from the nuptials.

And the same must be said if the bride, from intercourse had with another, is pregnant, because then there is present the danger of damage to the bridegroom, namely, that he might have to support another's offspring, and that offspring might be counted among his own heirs.

But if the defect would only render the nuptials less desirable, as, for example, that the bride is not a virgin but corrupted, then, granted that she cannot deceive the man by pretending that she is immune from such a defect, if the man shows that otherwise he would not wish to take her; nevertheless otherwise, even if questioned, she can dissemble by answering equivocally. The first reason is that it is against justice. The second reason is that no one is bound to make known his own defect with his own infamy, if he does not injure the right of another. L. 863-865; La-Croix, l. 6, p. 3, n. 183.

n. 931.

Are betrothals dissolved by the crime of the other? By an atrocious crime of the other spouse, betrothals are dissolved on the part of the innocent one. Heresy, grave theft, homicide, or something similar is judged an atrocious crime, which produces grave damage or infamy. The reason is that a notable change of affairs is altogether present. On the part of the innocent one; for no one ought to gain advantage from his own delict. L. 860; C. B. 1299.

n. 932.

Is fornication a sufficient cause for dissolving betrothals? "If the fornication was before the betrothals, it is certain among all that the man, after the betrothals, once the fornication of the bride is known, can leave her. Conversely, the woman cannot rescind the betrothals on account of fornication of the bridegroom had before with another..., unless the man also had offspring from another, or unless he is known to have been given to this vice by mixing himself with many women." L. 861. The reason for the assertion is that the bride is thereby rendered notably less valuable, but not likewise the bridegroom. But the reason for the exception is that then it can rightly be feared that the bridegroom will not keep faith with the bride. Nevertheless St. Thomas says absolutely: "although those contracting betrothals have not yet given each other power over the body, nevertheless from this they become mutually suspect of not preserving fidelity in the future; and therefore one can provide for himself against the other by dissolving the betrothals." Suppl., q. 43, a. 3, ad 6. Add that the bride can also withdraw if, at the time of the betrothals, she would not have given consent if she had known that the bridegroom was a fornicator; for then there would be an error giving cause to the contract, and therefore consent would be lacking. And, if the bride is truly an honorable virgin, she by no means intends equally to marry an impure man as a chaste one. "But if the fornication was after the betrothals, it is certain that the bridegroom can leave the woman if she fornicated voluntarily... If the bride suffered fornication violently..., the more common and truer opinion affirms." L. loc. cit. But if the bridegroom fornicated after the betrothals, the authors more commonly and more probably say that the bride cannot withdraw, and much less if the man was compelled by fear. The reason is the same as that which is adduced for the preceding case. But as regards preserving the faith given, either the man or the woman is judged by equal right. Therefore, if the other party voluntarily fornicates, it seems more truly that the other can withdraw. Moreover, although the fall of the bride is held to be more shameful than that of the bridegroom, nevertheless the fall of the bridegroom produces a notable change of status. What fidelity can the bride henceforth hope for from such a bridegroom?

If both spouses fornicated, the first opinion holds that each is permitted to withdraw, because each is judged by the same right in preserving fidelity; the second opinion, that this is permitted to neither, because equal delicts are removed by mutual compensation; "the third opinion, more probable and common..., teaches that the bridegroom can well withdraw, but not the bride. The reason is that in this there would not be equal compensation, since the fornication of the bride is far more shameful than that of the bridegroom." L. 861, 862; H. A., tr. 18, n. 18; Diana, tom. 2, tr. 6, r. 14.

n. 933.

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

n. 934.

Is he who has placed the impediment bound to obtain a dispensation, or to accept it when offered? "Some, as Filliucci, etc., say that he is not bound, even if the betrothals were sworn, unless he is obliged to this by reason of damage inflicted, namely defloration, or reputation defiled, because the promise is understood to have been made, things remaining in the same state.... Others, as Roncaglia, etc., say that he is bound, even apart from damage inflicted, to procure the dispensation together with the expenses..., even if they should be great. The reason is that each one is bound, in the way in which he can, to repair the right of another which he himself unjustly injured.... Finally others, more probably, as Sanchez, etc., say that he is indeed bound, even with damage inflicted excluded, if the dispensation can easily be obtained; otherwise, if great expenses and a long delay would be required for it; because the obligation arising from betrothals urges the spouse to employ only ordinary and easy means, not difficult and extraordinary means. Sporer, etc., nevertheless except the case in which the damage of defloration or of reputation must be repaired: because then he would be bound even to expend a great amount, but not so much that he would be forced to fall from his own state." L. 858.

n. 935.

Does the obligation of betrothals cease through a subsequent marriage only while the marriage lasts, as is certain; or are they also entirely dissolved, so that, when the spouse has died, the obligation of the prior betrothals no longer urges? The first opinion affirms, because an obligation once extinguished never revives. Moreover, when a thing previously subject to servitude or obligation passes into another state which does not bring an excuse from that obligation from accidental impotence, but of its own nature is repugnant to that obligation or servitude, then this is not only suspended, but entirely extinguished. But marriage of its own nature is indissoluble, and through it the spouse hands himself over perpetually into the power of the other. Therefore. The second opinion, which St. Alphonsus 875 says is absolutely more probable for himself, denies; because neither by positive law nor by natural law is it certain that betrothals are entirely annulled by a subsequent marriage, "as is clear in him who, after a vow of religion, should consummate marriage; for he, when the spouse had died, would indeed be bound to fulfill the vow."

n. 936.

Are betrothals dissolved by the reception of orders? - "By the reception of sacred orders it is certain that betrothals are also dissolved, but not ratified marriage. Thus all... and it is clear from the Extravagant Antiquae, on Vow." L. 871. But does he sin who receives sacred orders without the bride knowing or against her will? "The first opinion affirms that he sins gravely, and Sanchez, Palaus, etc., hold this. The reason is that by no law has it been granted to sacred order to dissolve betrothals, as has been given to the religious state.... But the second opinion, not less probable, denies, and Pontas, Navarrus, etc., hold it. The reason is that in the promise of betrothals there is always imbibed the condition: unless a better state is chosen." L. 871. - Whether betrothals are also dissolved by the reception of minor orders? "The first opinion affirms... because there is such a change of the bridegroom... that the bride is deservedly judged not to have wished to oblige herself to contract nuptials with him.... The second opinion, more common and truer, denies.... The reason is that in reality the state of minor orders is not of itself incompatible with marriage... as is clear from C. 1 and 2, de Cler. coniug." L. 872. But this proves that betrothals are not dissolved on the part of the one initiated into minor orders; it by no means proves that they are not dissolved on the part of the bride, to whom marriage with such a man could deservedly be grave.

n. 937.

Are betrothals contracted before profession dissolved by the entrance of one spouse into religion? - There are three opinions. The first asserts that they are dissolved on neither side. Of it St. Alphonsus says: "It does not seem sufficiently probable." The second, which Busembaum, Sanchez, and others hold, says that they are dissolved on the part of both. The holy Doctor shows that this is not sufficiently persuasive. The third, which "seems absolutely more probable" to St. Alphonsus, says that they are dissolved only on the part of the one remaining in the world, because on his or her part there then occurs a notable change, since it is deemed disgraceful to marry one who has deserted religion. But the other, by entrance, does not become incapable of contracting marriage, and therefore, if he goes out, he must stand by his promises. "The bridegroom would be bound before entrance to celebrate the nuptials, if this were necessary to legitimate offspring, to repair scandal, or to provide for the honor of the bride, if it could not be met in another way. And in this case it is not even permitted to the bridegroom after the celebration of marriage to enter religion and leave it unconsummated; for he cannot then desert the wife, who because of infamy could not find other nuptials." L. 870.

n. 938.

What as regards a vow of entering religion, or of receiving sacred orders, or of preserving chastity? - "It is certain, 1., that one vowing to enter religion vows licitly and ought to enter, nor is he bound to stand by the betrothals, if he truly wishes to become religious.... It is certain, 2., that by these three vows betrothals are dissolved on the part of the one not vowing, since by them the one vowing is deservedly judged to renounce the betrothals. It is certain, 3., that if someone after betrothals emits a vow not only of entering, but also of professing religion, then the betrothals are dissolved on the part of both; because the one vowing then becomes altogether incapable of contracting marriage." L. 873.

n. 939.

Are betrothals dissolved also on the part of the one vowing by a vow of preserving chastity, or of receiving sacred orders? - "If the vow precedes the betrothals, it is certain that they are invalid, because their promise, since it is about an illicit thing, does not oblige." - If it follows, the first opinion denies, and many grave theologians hold it. "The reason is that God does not accept the promise of a thing promised to another and accepted by him, nor is it held by any law that betrothals are dissolved by these vows ." But the second opinion affirms, and very many grave doctors hold it in St. Alphonsus and Sanchez, "who calls it most probable, and Salmanticenses, etc., commonly call it probable and safe, and St. Thomas teaches it absolutely, Suppl. q. 52, a. 1, ad 1....

The reason, which they more commonly hand down, is that the promise of betrothals is always judged to have been made under the condition: unless a better state is chosen. And they say that this holds even if the betrothals were sworn, because an oath follows the nature of the act." L. 873. It is confirmed by the Decision of the S. C. C., March 15, 1705, where it was said: a vow of chastity or of receiving sacred orders, through the election of a better state, annuls betrothals, even those confirmed by oath. But except "if the bridegroom were to make the vow in order to elude the bride.... Likewise more probably... even if the bridegroom vowed chastity without the intention of eluding, if afterward he obtains dispensation from the vow, he will not be able to marry another.... But not altogether improbably Bonacina and Sanchez deny this." L. ib. - De Angelis, Praelect. iur. can., l. 4, t. 6, n. 6.

n. 940.

Is the dissent of parents a cause for dissolving betrothals? - "I think it must be said," says St. Alphonsus 877, "that, if the father unjustly dissents from such a marriage, the son cannot withdraw from the betrothals, and both he himself and the father would sin if they wished to dissolve them. But otherwise, if the father justly contradicts, namely if the marriage would turn to the disgrace of the family; for then those betrothals do not oblige, since no one can be obliged to execute an unjust thing." And Laymann and Sanchez say the same, "with others commonly, if from such a marriage great scandals would arise among relatives." And hence it is clear that the dissent of parents is not a true impedient impediment of marriage. For the question is only of the honor and deference owed to parents. Hence some fault would not be lacking, grave or light according to the various circumstances, by contracting marriage, without the parents' knowledge, when no urgent cause exists. L. ib.

n. 941.

Can a bridegroom rescind betrothals if a rich inheritance comes to him? The doctors most commonly deny it, because the bridegroom "has not been deceived in the condition of the bride, in whom no change has been made." A change has indeed been made in the bridegroom, but in a thing extrinsic to this contract. But several probably affirm it, "because in such a case there now comes a notable change of things." The same consequently would seem to have to be said if someone contracted betrothals with one woman and afterward marriage with another of an exceedingly better condition is offered to him. This "I would not dare," says St. Alphonsus 876, "altogether to condemn"; nevertheless he adds: "I would never dare to depart from the contrary opinion, nor ever to advise it."

n. 942.

Can a bride withdraw from betrothals if the bridegroom departs elsewhere? - "It is certain that if the bridegroom transfers his domicile elsewhere, or if he goes away to a distant region, even with the intention of returning, the bride can at once pass to other nuptials; this is expressed in C. De illis 5, de Sponsal.... - But if the bridegroom has departed to a nearby place..., one must wait until he returns; or the bridegroom must be required to come within a fixed time to contract marriage; but if he, having been required, should delay his return for a just cause, either one must wait according to the judgment of a prudent man... or, what is safer, the cause is to be remitted to the judgment of the judge....

These things proceed, however, if in the betrothals no time was fixed for entering the nuptials.... When a term is attached to betrothals, one must look at whether it is attached to urge, or not to delay, the obligation of contracting marriage, or whether it is to end the obligation. It is attached to urge when the parties therefore fix the term so that neither party before it can compel the other to fulfill the contract. But it is to end when the term is attached so that, when it has elapsed, no obligation remains.... - Whether, when the term has elapsed by the defect, for example, of the bridegroom, the bride can withdraw, if he inculpably omitted entering the nuptials, detained by a just impediment? The first opinion denies.... The reason is that it is not equitable that one be deprived of his right who is impeded by a just cause from fulfilling his promises.... The second opinion, more common and more probable, affirms.... The reason is that the term is attached for this, lest the party who is ready remain for a long time without nuptials; otherwise a time would be fixed in vain. Moreover, this opinion is clearly proved from C. Sicut 22, de Sponsal.... Whether, when the term has elapsed, the party also remains free who culpably caused the delay? The first opinion, more common, denies.... The reason is that no one ought to draw advantage from his own crime.... The second opinion affirms..., and St. Thomas also expressly holds this in 4, d. 27, q. 2, a. 3, ad 2....

The reason seems to be that since the term was attached to end the obligation, when it has elapsed, the obligation ceases.... The first opinion is indeed far more common, and to me far more probable; but the second does not lack its probability." L. 866, 868. - S. C. de P. F., September 26, 1840, Collect. n. 1216; St. Thomas, Suppl. q. 43, a. 3, ad 2; L. 17, de Sponsal., ff.; L. 2, e. t., C.

n. 943.

Is one withdrawing from betrothals bound to restore the earnest money? That betrothals can be contracted with earnest money given, there is no doubt. For earnest money is a pledge given of fulfilling the thing promised. If the thing promised, as here, is licit, a pledge is licitly given for fulfilling it. - One who culpably withdraws from betrothals loses his own earnest money, and is bound to return that of the other party, and to restitution of as much as it was in that party's interest that such a contract be fulfilled. Cf. 926. - L. 852; Sanchez, l. 1, d. 30, 35; Schmalzgrueber, l. 4, t. 1, n. 126 ff.; L. 5, de Sponsal., C.; C. B. 1301.

n. 944.

Is one justly withdrawing from betrothals bound to pay the promised penalty? "If the penalty is generally attached against him who withdraws justly, it is certain among all that the promise of the penalty does not oblige." L. 853. For it is against the liberty of marriage. - If it is added against one withdrawing unjustly, "the first opinion, sufficiently probable, denies..., because liberty would still be injured...; but the second opinion, more probable, affirms.... The reason is that such addition of a penalty is contrary neither to natural law nor to positive law." L. 853, l. 3, n. 949. - From C. B. 1297, a promise of a penalty, if marriage is not contracted, is null. - St. Thomas, Suppl. q. 43, a. 1, ad 4; Sanchez, l. 1, d. 30 ff.; L. Titia 134, C. de Verborum obligationibus; C. Gemma 29, de Sponsal. et Matr., C. Requisivit 17, e. t.; S. C. de P. F., November 22, 1790, Collect. n. 603, v. 1.

n. 945.

Is the authority of a judge required for dissolving betrothals? "In the aforesaid causes, when they are manifest, the authority of a judge is not required for dissolving betrothals; otherwise it is required. But if the bridegroom, after his right of withdrawing has become known, nevertheless carnally knows the bride, he is judged tacitly to have renounced his right and to have ratified the betrothals.... Laymann and Palaus say that, when there stands a probable fear of an unhappy outcome, a man can licitly withdraw from betrothals." L. 878. But after the Decree Ne temere something else must be said for Catholics. Since betrothals are contracted by a public act, for their dissolution it is necessary that the public authority of the Church intervene.

n. 946.

What concerning kisses and embraces of betrothed persons among themselves? Kisses, embraces, and other similar acts which are shameful or less honorable are illicit to the betrothed in entirely the same way as to others. The reason is that betrothals confer on the betrothed no special right to intercourse and venereal pleasure, and therefore neither to those acts which contain a danger more or less proximate of venereal pleasure. - Kisses, embraces, and other acts honorable from their object and from the manner of performing them are permitted to the betrothed. The reason is that those acts are licit in themselves, and therefore, as they are permitted to others who are free, so also they are permitted to the betrothed. But the question is moved especially about the betrothed rather than about others, both because on the one hand these acts can more easily be permitted to them because of the special reason which has force for them, namely for mutually fostering benevolence, which is entirely necessary to them for future marriage, and because on the other hand there is also present a special danger of sin; whence counsel should generally be given to them that they abstain even from these acts, as far as can be done. - Billuart, diss. 6, art. 16; L. 950.

n. 947.

What must be thought of those acts of the betrothed which otherwise in themselves are honorable and licit, if they contribute to arousing venereal acts? Here the general rule holds: these acts are culpable only when either the cause is evil, or there is a proximate danger of consent. What if it is clear to the bridegroom or bride that the other sins in these acts because of a depraved affection? If those acts are done before others, the other can licitly permit those acts, lest he or she be defamed, or introduce suspicion of himself or herself, and lest others be scandalized. If those acts are done secretly, and it is certain that they are done maliciously, where the question concerns others and not betrothed persons, the doctors commonly teach that one is bound to repel those acts. But if the question concerns betrothed persons, for whom often in this matter a notable inconvenience could be present, because the other will certainly withdraw from the marriage, the general rule concerning scandal received seems to have to be applied, namely that this can be permitted if it cannot be impeded without grave inconvenience; but it must be impeded if this can be done without notable inconvenience.

What must be thought of these same acts when, from frequency of falls, the danger of consenting to subsequent venereal pleasure must be held as a proximate occasion of sin? - This question, like the preceding ones, can be raised even about looks and conversations themselves, which have a most just cause, as is clear of itself; whence parents can altogether licitly permit such looks and conversations, although great caution and prudence must always be applied in these things. But here the general rule concerning a necessary proximate occasion holds; for it is morally impossible that a bridegroom seriously thinking of entering marriage should not visit, look upon, speak to the bride, and according to custom show her other signs of benevolence which manifest his mutual love. Therefore the confessor should suggest not only general but also special means: that due moderation be preserved, and that necessity not be exceeded in showing these signs; and then that he never deal alone with her alone. Care is likewise to be taken that the marriage not be long delayed. But if these and other remedies do not obtain fruit, this one thing remains: that they be dealt with no otherwise than with other persons in occasions of sin and recidivists. Reuter, Neo-confess. 112.

n. 948.

Is intercourse had with one betrothed by words about the future adultery? - "More probably it is denied with Sanchez, de Matr., l. 1, d.

2, n. 2, Salmanticenses, Roncaglia. But Roncaglia and Salmanticenses judge that if one of the betrothed fornicates with another person, he must disclose in Confession the circumstance of the betrothals, as changing the species by reason of the injury inflicted on the other. But it is sufficiently probable with Trullench, Pontas, Diana, Covarruvias, Lugo, Sanchez, and Laymann that it is only an aggravating circumstance, since the bridegroom by betrothals acquires no right over the body of the other." L. l. 3, n. 447; l. 6, n. 647; Billuart, diss. 6, app. 1, question 3; Ithur., Cas. 6, n. 16; Lugo, de Poenit., d. 16, n. 177, 178.

n. 949.

Must banns be sent before marriage? - Marriage cannot be contracted licitly, although validly, without previous proclamations of the same, and the obligation is grave. Trent, sess. 24, C. 1, 5, de R. M.; C. Cum inhibitio 3, section 1, de Clandest. desp. - All who are to contract are subject to the law of proclamation. From usage, however, Princes are excepted, because their lineage is sufficiently known, and ordinarily their marriages are sufficiently public. The case of urgent necessity is also excepted, for example, if someone near death should wish to marry a concubine to legitimate offspring, and there would be danger in delay. - A parish priest omitting the denunciations, even if he knows that no impediment is present, sins gravely.

For the law obliges, although in the particular case its reason may cease; and a very grave danger is always present if this matter is left to the judgment of parish priests. But does a parish priest sin gravely if he omits only one proclamation without dispensation? It is controverted. Some affirm, because one proclamation out of three must be held a grave part of the whole precept. Others probably deny, because of the opposite reason. But to omit two denunciations is more probably grave. L. 991. - From a just cause the Bishop and his vicar general can dispense from the law of banns, more easily from one or another denunciation than from all. Trent, sess. 24, C. 1, de R. M. But dispensation must be obtained from both Bishops if the spouses belong to different dioceses.

For if impediments are not detected on one side and in one place, it does not follow that they cannot be detected on the other side and in another place. Yet there are not lacking authors who say that the Ordinary of either side can dispense with both, because of the unity of the act of both, and St. Alphonsus 1006 seems to approve. - The doctors commonly teach that the Bishop not only can, but also sometimes is bound to dispense, namely to avoid grave common or private damage, spiritual or temporal; indeed even because of a notable spiritual or temporal good of the community or of another private person. - L. 389-391, 1005-1007; C. I. 70 ff.; C. B. 1316; E. M.

n. 950.

Note: If for a grave cause the denunciations were omitted before marriage, lest, for example, it be maliciously impeded, "then before its consummation let denunciations be made in the Church, so that if any impediments underlie it they may more easily be detected." Trent, sess. 24, C. 1, de R. M. Therefore, if it is clear that there is no impediment, the spouses will not sin gravely against the Decree by consummating. Indeed Trent immediately adds that the denunciations can be remitted by the prudence and judgment of the Bishop. The parish priest cannot undertake to make the proclamations unless it is first clear to him concerning the free consent of both contracting parties. He must also inquire whether they are affected by any impediment, and whether they know the rudiments of faith, which they must afterward teach their children. Roman Ritual, de Sacr. matr.

Free state: It must be clear before the reception of Orders and before entering marriage. It can be proved by the sworn testimony of two persons. A process is of itself to be instituted, and the norms handed down in the Instruction of the Holy Office, August 21, 1670, with the attached declarations, August 29, 1890 and 1868, are to be observed as regards proving the death of a spouse. But if the aforesaid free state cannot be legitimately proved, then recourse must be made, after the faculty has first been obtained, to a supplementary oath. Holy Office, February 1, 1865.

In what place must denunciations be made? - "It is certain that they must be made in the parish of each contracting party..., because custom so bears. Laymann, etc., except, unless the parishes are very near.... If one of the spouses stays in some place briefly, Pontas thinks it suffices if they are made in the place where he actually lives. But far more probably Sanchez, etc., from the declaration of the S. C., say that they must altogether be made in the parish from which he departed, because denunciations are made for this, that impediments may be manifested, and therefore they must be made where the spouses have lived for a longer time. And here it must be noted that if one of the spouses is external, the parish priest must not make the denunciations unless after he has proved the free state before the Ordinary by an authentic document, as is had from the Instruction of the S. C. of the Holy Office.... But as regards vagi, Trent, sess. 24, C. 7, de R. M., commands parish priests not to assist at their marriages unless after diligent inquiry has been applied, and unless first they have obtained from the Ordinary license to assist. Hence Roncaglia rightly says that a parish priest would sin gravely if he did not observe such a precept." L. 991. - They are to be made in the parish church of the domicile or quasi-domicile of the spouses, or of simple residence and the immediately previous domicile, unless the spouses have left it for six months.

Nevertheless, monthly residence is now to be attended to only for marriage, and not also quasi-domicile. Hence if the spouses, where they now are, have come there for six months or at least for a month, there the denunciations are to be made; otherwise also in the place from which they departed. "For generally satisfaction is made to the Tridentine Decree if marriages are denounced where those intending to contract marriage are parishioners at the time of the denunciations." Schmalzgrueber, l. 4, t. 3, n. 14. But as regards place of origin and previous domicile, or where they lived longer, it is enough to seek testimony of free state through the documents of their Ordinaries, and through examination of witnesses, according to the cited Instruction of the Holy Office, August 21, 1620, confirmed by Clement X, or at least, by special indult, through the supplementary oath of those wishing to contract. But if one or both spouses have equal domicile in two places, or domicile in one place and quasi-domicile or monthly habitation in another, the banns must be proclaimed in both. - Many doctors say, moreover, that proclamations can be made outside the church in a place of great gathering, because thus the end of the Council is obtained. - L. 991; E. M.

It has been granted to the Archdiocese of Paris that written notices exhibiting future marriages be affixed in a conspicuous place of the church for three continuous Sundays or feast days, and that they remain affixed throughout the whole day from the first morning Mass to the last evening liturgical office. S. C. C., March 28, 1908.

At Rome, "from those who have stayed for six continuous months after attaining puberty in another diocese, a Document of free state is required, given by the Ordinary of the place. Those from outside the diocese shall exhibit a Document of origin, baptism, confirmation, and free state.... Once the publications have been carried out in the parishes of the contracting parties, and also in the parishes where the contracting parties have equal domicile or quasi-domicile..., the parish priest will be able to proceed to the celebration of marriage." Instruction of His Eminence the Cardinal Vicar of the City, April 5, 1902, A. S. S., v. 37, p. 223 ff. Cf. the more recent Instruction in M. E., v. 23, p. 28-34.

For proving free state, witnesses are to be duly examined according to the Instruction of the Holy Office, August 21, 1670, Collect. S. C. de P. F., v. 1, n. 192; Decree of the Holy Office, February 24, 1847, Collect. cit. n. 1011. Cf. also Decree of the Holy Office, January 13, 1869, Collect. cit., ed. 2, 1907, n. 1342.

When certain documents concerning the death of a spouse are not had, the response given by the Holy Office on July 20, 1898 concerning men who were present at the battle of Adua is to be applied to other similar cases. S. C. of Sacraments, December 16, 1910. Cf. Enchiridion, num. 996.

n. 952.

When must proclamations be made? - They must be made on feast days of precept, continuously, during the solemnities of Masses. Trent, sess. 24, C. 1, de R. M. On feast days of precept, at least in the place of the proclamations. On feast days. Several teach that they can also be made on a weekday if for some cause there is a great gathering of people at the church. Schmalzgrueber, l. 4, t. 1, n. 24. Continuously, i.e. with no feast day omitted from the first proclamation to the third. St. Alphonsus 992 thinks it probable that there is no grave sin if the feast days are not continuous, one or another having intervened, especially if the question concerns feasts other than Sunday. For there is slight danger that the people will forget. But can proclamations be made on feast days immediately succeeding each other, if they occur? It is controverted, and there is a twofold probable opinion. During the solemnities of Masses, i.e. in the parochial or conventual Mass. The doctors add probably that, from a just cause, they can be made in a sermon, or on the occasion of a procession, when the people are gathered. They cannot be made in private Masses, nor at Vespers. If, however, the parish priest has forgotten to make the last proclamation at Mass, and the nuptials are urgent, he can supply it at Vespers. Once the proclamations have been made, it is licit to contract at once even on the same day. But if, once the proclamations have been made, marriage does not follow within two months, more probably the proclamations must be repeated, unless it seems otherwise to the Bishop. Roman Ritual. And after three months have elapsed, there is also need of a new testimony of free state, unless again it seems otherwise to the Bishop. S. I. C., February 24, 1847, ad 4. - L. 991, 992, 993; E. M.

The S. C. C. in Pineroli, April 7, 1862, rescripted that "denunciations can be made on the aforesaid suppressed feast days, i.e. according to the Decree of Pius IX to the Subalpines; care is nevertheless to be taken that these be fulfilled at the time of the divine office when the greater number of the faithful is usually present in the church." But the authors add: with the permission of the Ordinary.

n. 953.

Must known impediments of marriage be revealed? - There is of itself a grave obligation of revealing impediments of marriage. The reason is drawn from the motive of religion and charity, and from the very precept of banns. - This obligation pertains to all, of whatever sex, age, parish, diocese, even friends and blood relatives; and it must be fulfilled as soon as morally possible, lest perhaps, once dispensation has been obtained from one or another proclamation, marriage immediately follow. But once marriage has followed, the positive law indeed ceases; but the natural law, according to circumstances, can require revelation. - The aforesaid obligation is present however hidden the impediments are, and even if someone knows them under a natural secret, even one simply committed or promised, even sworn. For a secret of this sort does not oblige when grave damage threatens the community or a particular person. But more probably there is no obligation of revelation if it is a secret committed for the sake of seeking counsel, for example to an advocate, physician, parish priest, etc. The common good seems to require this. But those who know impediments of marriage in this way must at least admonish the spouses to desist from the marriage. C. Praeterea 12, de Spons.

One is bound to reveal impediments, although he alone knows them and cannot prove them, since here the testimony of one suffices. One can, absolutely speaking, reveal an impediment if damage threatens an innocent person, or public damage would follow. Cf. V. 1, n. 1542. And the contracting parties themselves are bound to reveal it, since the question is not of undergoing a penalty, but of avoiding sin and scandal. - But one is not bound to reveal it with grave damage to himself, if grave scandal of others would follow from it, if the revelation would be useless or rather would harm those contracting in good faith, if dispensation had already been obtained, etc. - L. 994-1002.

n. 954.

Can a parish priest sometimes dispense in denunciations? - R. In the negative, because he has no jurisdiction in the external forum. "Nevertheless Sanchez, Laymann, etc., say very probably that in cases in which the Bishop is bound to dispense, and cannot be approached, and there is danger in delay, he can declare that the precept of proclamations does not oblige, provided he is certain that no impediment is present. Indeed in cases of this sort Busembaum, Pontas, etc., judge that the spouses themselves, if they are certain that they are not impeded, can enter nuptials without denunciations." L. 1007.

n. 955.

What is the parish priest to do if the spouses are already in the Church to contract marriage, and he detects that a hidden impediment is present? - If the nuptials cannot be delayed without danger of infamy or other very grave inconveniences, and the penitent is in invincible ignorance of the impediment, the admonition is to be omitted, and the celebration of marriage is to be permitted until dispensation is obtained. If the penitent is in vincible ignorance, or if he openly knows the impediment, and the marriage cannot be delayed without infamy or scandal, not even to obtain dispensation from the Bishop, then the difficulty is very great. According to St. Liguori and others, the confessor could declare the law of the Church concerning impediments not to oblige in such straits of infamy and scandal, and proceed to the celebration of marriage. Certainly every power has been given unto edification, not unto destruction. Nevertheless, as soon as possible, at least for caution, he ought to request dispensation. According to others, simulation of the contract of marriage could be permitted with the purpose of seeking dispensation from the impediment as soon as possible. But, they say, an impediment cannot cease naturally; for an invalidating law never ceases on account of a particular inconvenience, whatever it may be. But whenever the Bishop can be approached, he must be approached, because, according to the common opinion, in that case he can dispense from ecclesiastical impediments.

C. Ubi 2, de Desp. impub.; L. 613, 1122; Monit. Eccles., v. 12, p. 16 ff.

Nor are there lacking those who likewise hold that, at the article of death, when grave danger would be present for the eternal salvation of the sick person, the ecclesiastical law of impediments ceases by force of the more urgent natural law, namely of charity, and that at least then there is room for legitimate epikeia. M. E., v. 20, p. 177, 474.

But in the present matter almost every difficulty vanishes. For Bishops, in the aforesaid case, have among the quinquennial faculties the faculty "of dispensing over the impediments of adultery and affinity from illicit intercourse, even in marriages to be contracted, and of subdelegating, as regards the aforesaid impediment of affinity, the faculty of dispensing, even habitually, to parish priests of their own diocese." Form of Faculties, May 5, 1896. To parish priests, and also to rectors, so called, who exercise the care of souls in some district, although they are not parish priests in the strict sense; and also to those priests who, during the vacancy of a parish, or on the occasion of sickness or absence of the parish priest, are deputed as administrators of the parish. S. Poenitentiaria, July 17, 1901. Cf. 1044; E. M. de Leg., n. 264, and here 955.

Vol. IV, On Marriage, II. On the Nature and Properties of Marriage

n. 956.

What is marriage? - Marriage can be considered in two ways, namely as contract and as sacrament, since it is both. Marriage as contract is an agreement by which a man and a woman legitimately hand over to each other dominion over their bodies in order to acts of themselves apt for the generation of offspring, and oblige themselves to an undivided society of life. Marriage as sacrament is defined: a sacrament of the new law, conferring grace for sanctifying the legitimate union of man and woman, and for piously receiving and holily educating offspring. Trent, sess. 24, Doctrine on the sacrament of marriage, c. 1; Decree of the Holy Office, Lamentabili, July 3, 1907, prop. 51; L. 879, 880; St. Thomas, Suppl. q. 42, q. 44.

n. 957.

Resolutions: Therefore marriage is licit; and its use is licit. It is not, however, necessary for individuals, since it is necessary from its intrinsic nature only for the perfection of the multitude, and not for the perfection of each one. St. Thomas, Suppl. q. 41, a. 2, 3; E. M.

n. 958.

What is the division of marriage? Marriage can be considered both as regards the union of man and woman, and as regards the bond which arises from it. Hence it is called first in fieri or in facto esse. Marriage in fieri is called the actual contract itself, which is perfected by the mutual consent of man and woman. But the marriage persisting in the bond, which comes from the matrimonial contract, is called in facto esse.

Moreover, marriage is distinguished as legitimate, ratified, and consummated. Legitimate marriage is called that which is contracted according to the norm of natural and civil law, but nevertheless does not have the ratification of the Church or the notion of sacrament; such as was formerly entered in the law of nature and the Mosaic law, and is also now entered among Jews and Gentiles. - Ratified marriage is that which is contracted between Christians entangled by no impediment, between whom, however, after the contract, conjugal commerce has not yet intervened. Ratified, because not only nature and civil law, but also the Church approves it and holds it ratified. C. Quanto 7, de Divort. Consummated marriage is called that which has been completed by the intercourse of the spouses; this must be understood not only of ratified marriage, but also of merely legitimate marriage. That marriage may be called consummated, two things are required: 1. that the carnal union be perfect and sufficient for generation, so that, as is had in C. Verum 2, de Conv. coniug., the spouses have been made together one flesh. Therefore that would not suffice from which, although the bodily integrity of virginity had been taken from the woman, nevertheless, because suitable effusion of male seed was lacking, generation could not follow. 2. That legitimate consent or ratified marriage preceded a union of this sort. Therefore intercourse had before the matrimonial contract does not bring it about that the marriage afterward contracted is judged consummated, and therefore neither indissolubility nor the other effects of consummated marriage will be produced. Whence you conclude that he who, bound by a vow of religion, has violated a woman can marry her and then, unless another cause stands in the way, enter the vowed religion, if after he married her, he did not know her again. - Schmalzgrueber, l. 4, t. 1, n. 227, 228.

There is moreover another distinction of marriage into true, presumed, and putative. - True is called that which has really and validly been contracted, and is proved as such by some one of those arguments by which other affairs also are customarily proved, such as the testimony of the parish priest or of others, the book of marriages, the confession of the spouses, long cohabitation of an honorable woman. Lighter proofs suffice when the question concerns sustaining a marriage than when the matter is of dissolving it. Schmalzgrueber, l. 4, t. 1, n. 233.

Presumed is called that which is presumed by law; and this presumption of law has place especially in a threefold case. And 1. when, in places where the Tridentine decree concerning the form of marriage was not in force, after betrothals entered absolutely between two capable persons, carnal intercourse followed between them; for then consent concerning the future is presumed to have passed into consent concerning the present, and intercourse is presumed to have been admitted with conjugal affection. Schmalzgrueber, l. 4, t. 1, n. 115 ff.; Pirhing, e. t., n. 27; Barbosa on Cap. Is qui, e. t., n. 3 ff.; St. Thomas, Suppl. q. 46, a. 2. - 2. When after betrothals entered under a condition, before the event of the same, carnal commerce intervened between the spouses; for the Church, with abstraction made from the aforesaid Tridentine Decree concerning form, then presumes that the spouses receded from the condition, and therefore wished to contract marriage purely and absolutely. This is clear from C. Per tuas 6, de Cond. apposit. - 3. When after betrothals concerning the present invalidly contracted by prepubescents, in whom malice does not supply age, signs of ratified consent intervene between the same after they have attained puberty, such as not only carnal intercourse, but also kisses, embraces, cohabitation, etc. This is clear from C. unic. section idem quoque, de Desp. impub., in 6. Nevertheless this case also can have place only where the aforesaid Tridentine Decree is not in force. Cf. Schmalzgrueber, l. 4, t. 1, n. 234.

But by the Decree of Leo XIII, February 15, 1892, this presumption of law, which at the same time was a presumption de iure, admitting no contrary proof, was abrogated. By this Decree, indeed, the presumption from carnal intercourse is explicitly abrogated. But consequently and implicitly the presumption from other signs, which are of lesser force, must be judged abrogated. The presumption, however, is abrogated. Wherefore, if intercourse, or other signs, really express consent concerning the present from the real intention of the contracting parties, the marriage will still be valid in places where the Tridentine Decree is not in force. - C. H. 83.

Moreover, in the present day from the above-cited Decree Ne temere, this presumed marriage can no longer have place, since for its validity it must altogether be contracted according to the form established in the same Decree, except in those places and among those persons whom the aforesaid Decree does not regard.

Finally putative marriage is called that which is believed to have been legitimately contracted, although nevertheless in the reality of the matter it is null because of some hidden impediment. Concerning this the doctors therefore inquire, so that it may be clear when it has the force of legitimating offspring received from it and other effects of law. Now two things are necessary for this: 1. that it be contracted in good faith by at least one of the spouses, who was ignorant of the impediment.

Thus in C. Ex tenore 14, Qui filii legit. This good faith indeed neither an error of law nor doubt concerning the value of the marriage excludes, as Covarruvias proves, de Spons., p. 2, c. 8, section 1, n. 9. But in doubt this good faith is presumed. 2. That the marriage was contracted publicly and in the face of the Church, that is, before the parish priest and witnesses, and with the denunciations premised, or at least dispensed. Cf. C. fin., de Clandest. desp., section 1.

Another distinction of marriage into canonical, political or civil, and of conscience must also be remembered. They call that marriage canonical in which all things concur which are prescribed by the sacred canons for marriage. - They call that marriage political or civil in which those things also concur which are required by civil law, namely certain solemnities, dotal agreements, etc.; without which marriage is indeed canonically valid, but nevertheless is reputed illegitimate civilly, and therefore in the civil forum it has no action and lacks civil effects, for example, as regards the paternal power of the husband and wife, as regards the succession of children, as regards the dowry of the woman, etc. Marriage of conscience, or morganatic marriage, is called the legitimate union of a man with a woman of inferior condition, entered by this agreement: that the wife and the children born from it are content with the nuptial gift or another certain portion, destined at the time of betrothals, and abstain from the remaining ancestral and paternal goods, together with titles, dignities, and insignia. Schmalzgrueber, l. 4, t. 1, n. 236 ff. - But marriage of conscience or occult marriage is called that which is contracted secretly before the parish priest, or another priest deputed by the Ordinary or parish priest, and two familiar witnesses, who are bound to preserve secrecy. Marriages of this sort, and baptism conferred on children born from them, are noted in a secret book of marriages and baptisms. Care must be taken in them lest the marriage, which is occult, be held with scandal as shameful concubinage, lest the children be judged illegitimate and be deprived of their legitimate portion, and lest their education be neglected. Wherefore it cannot be done without the faculty of the Bishop. Benedict XIV, Const. Satis vobis, November 17, 1741; E. M.

Clandestine marriage: It is marriage celebrated without previous banns; this, without due permission, is illicit. It is also marriage celebrated without the parish priest, or another priest legitimately delegated, and witnesses; and this now, as regards Catholics, is altogether null, unless there is a positive exception, according to the Decree Ne temere. From it no impediment of public honesty is had.

…and 125 more passages — all of them are listed on the topic page.

Bucceroni, Moral Enchiridion (4th ed., 1905)

Gennaro Bucceroni, S.J. — 553 passages

Bucceroni, Moral Enchiridion (4th ed., 1905), On Matrimony

The Council of Trent on Matrimony, Session 24

“Doctrine on the Sacrament of Matrimony.—The first parent of the human race, under the inspiration of the divine Spirit, pronounced the perpetual and indissoluble bond of Matrimony when he said: ‘This now is bone of my bones and flesh of my flesh; wherefore a man shall leave his father and his mother and shall cleave to his wife, and they shall be two in one flesh.’

“But that only two are coupled and joined by this bond Christ the Lord taught more openly when, referring to those latter words as having been uttered by God, He said: ‘Therefore now they are not two, but one flesh’; and immediately He confirmed the firmness of the same bond, pronounced so long before by Adam, with these words: ‘What therefore God has joined together, let no man separate.’

“But Christ Himself, the institutor and perfecter of the venerable sacraments, merited for us by His Passion the grace which would perfect that natural love, confirm the indissoluble unity, and sanctify the spouses. Paul the Apostle intimates this, saying: ‘Husbands, love your wives as Christ loved the Church and delivered Himself up for it,’ immediately adding: ‘This is a great sacrament; but I speak in Christ and in the Church.’

“Since, therefore, Matrimony in the evangelical law excels the ancient marriages in grace through Christ, our holy Fathers, the Councils, and the tradition of the universal Church have always taught that it is deservedly to be numbered among the sacraments of the New Law. Raging against this tradition, the impious men of this age not only have judged perversely concerning this venerable Sacrament, but, after their custom, introducing freedom of the flesh under the pretext of the Gospel, have asserted in writing and word many things foreign to the mind of the Catholic Church and to the custom approved from the times of the Apostles, not without great loss to Christ’s faithful. Desiring to oppose their temerity, the holy and universal Synod judged that the more notable heresies and errors of the aforesaid schismatics were to be exterminated, lest their pernicious contagion draw more persons to itself, decreeing the following anathemas against the heretics themselves and their errors.

“Canon 1. If anyone shall say that Matrimony is not truly and properly one of the seven sacraments of the evangelical law, instituted by Christ the Lord, but was invented by men in the Church, and does not confer grace: let him be anathema.

“Canon 2. If anyone shall say that it is lawful for Christians to have several wives at the same time, and that this is prohibited by no divine law: let him be anathema.

“Canon 3. If anyone shall say that only those degrees of consanguinity and affinity which are expressed in Leviticus can impede Matrimony to be contracted and dissolve it when contracted; and that the Church cannot dispense in some of them or establish that more degrees impede and dissolve it: let him be anathema.

“Canon 4. If anyone shall say that the Church could not establish impediments which dissolve Matrimony, or that in establishing them she erred: let him be anathema.

“Canon 5. If anyone shall say that the bond of Matrimony can be dissolved on account of heresy, troublesome cohabitation, or affected absence from a spouse: let him be anathema.

“Canon 6. If anyone shall say that a ratified but non-consummated Matrimony is not dissolved by the solemn religious profession of either spouse: let him be anathema.

“Canon 7. If anyone shall say that the Church errs when she has taught and teaches, according to evangelical and Apostolic doctrine, that the bond of Matrimony cannot be dissolved on account of the adultery of either spouse; and that neither spouse, not even the innocent one who gave no cause for the adultery, can contract another Matrimony while the other spouse lives; and that he commits adultery who, having dismissed an adulteress, marries another, and she who, having dismissed an adulterer, marries another: let him be anathema.

“Canon 8. If anyone shall say that the Church errs when she decrees that for many causes separation between spouses, as regards the bed or as regards cohabitation, can be made for a definite or indefinite time: let him be anathema.

“Canon 9. If anyone shall say that clerics constituted in sacred orders, or regulars who have solemnly professed chastity, can contract Matrimony, and that a Matrimony contracted is valid notwithstanding ecclesiastical law or the vow; and that the contrary is nothing other than to condemn Matrimony; and that all who do not feel that they have the gift of chastity, even though they have vowed it, can contract Matrimony: let him be anathema; since God does not deny that gift to those who rightly seek it, nor does He permit us to be tempted beyond that which we can bear.

“Canon 10. If anyone shall say that the married state is to be preferred to the state of virginity or celibacy, and that it is not better and more blessed to remain in virginity or celibacy than to be joined in Matrimony: let him be anathema.

“Canon 11. If anyone shall say that the prohibition of the solemnity of nuptials at certain times of the year is a tyrannical superstition, derived from the superstition of the pagans; or shall condemn the blessings and other ceremonies which the Church employs in them: let him be anathema.

“Canon 12. If anyone shall say that matrimonial causes do not pertain to ecclesiastical judges: let him be anathema.”

On Betrothals of Infants and Those below Puberty, and on Mixed Betrothals

“Betrothals contracted by infants, or by one of age with an infant, are null by the law itself and cannot engender the impediment of public propriety.... If it has been established that the betrothals were entered into while still of infant age, it will have to be investigated whether they were renewed after the seventh year or at least ratified. But if, as has sometimes happened, the betrothals were contracted by the parents ... if the children were still of infant age, it is certain that the contract was invalid; but if they were of age, the contract would be valid only if the children consented expressly, or at least tacitly, or afterwards ratified the betrothals entered into by the parents in their name.” Instruction of the Holy Office, 20 June 1883, nos. 33, 34; Instruction of the Sacred Congregation for the Propagation of the Faith, 1883, no. 35; A. S. S., vol. 18, p. 355 ff.

“We hold it established, especially by canon law, that betrothals contracted either between infants or by one of age with an infant are to be regarded as not having been made, so that they do not even produce the impediment of public propriety. But those very betrothals which are celebrated between those below puberty, although canon law provides that they are valid and induce an obligation, nevertheless by the same law it is established, on account of weakness of judgment, that it is lawful to withdraw after puberty; nor is the one who first arrives at puberty bound to await the other, but he can, and indeed ought, to withdraw immediately if he does not wish to approve the betrothals, lest otherwise he should not be heard afterwards.” Holy Office, February 1779.

“Betrothals between one Catholic party and another schismatic or heretical party are unlawful and indeed invalid unless celebrated after a lawful dispensation has first been obtained.” Instruction of the Holy Office, 12 December 1888; M. E., vol. 6, part 2, p. 100 ff.

On the Validity of Betrothals

Can a bishop issue a law which, with respect to the validity of betrothals, prescribes a norm for entering into them that is foreign to the common law?—Response. Negative. This is established from the responses of the Sacred Congregation of the Council, 8 July 1865 and 23 March 1878. Cf. A. S. S., vol. 1, p. 529; vol. 7, p. 665; vol. 11, p. 230. Much less can a bishop invalidate Marriages to be contracted without prior banns by taking jurisdiction away from the parish priest for this effect. Sacred Congregation of the Council, apud Lugonem; Responsa Moralia, book 1, doubt 45.

“1. Are betrothals which are contracted in Spain without a public instrument valid? And insofar as the response is negative: 2. Can an instrument drawn up in the Curia for a dispensation from some impediments supply for the public instrument?—Response. To the first and second: Negative.” Sacred Congregation of the Council, 31 January 1880 and 11 April 1891. Cf. Paul Villada, Cases of Conscience Adapted Especially to These Times, part 2, Brussels, 1885, p. 74 ff.; A. S. S., vol. 13, p. 191; M. E., vol. 7, part 1, p. 97. In Latin America also, betrothals must be contracted by a public instrument in order to be valid. Sacred Congregation for Extraordinary Ecclesiastical Affairs, 1 January 1890 [printed: 1990]; Plenary Council of Latin America, no. 592.

n. 923.

Civil Marriage Does Not Produce the Impediment of Public Propriety

“Our Most Holy Lord Pope Leo XIII, by the present Decree, declares and establishes that the aforesaid act, which is commonly called civil marriage, in places where the Decree of the Council of Trent, Session 24, chapter 1, On the Reformation of Matrimony, has been promulgated—whether the faithful performing that act intend, as is fitting, to perform a mere civil ceremony, an ecclesiastical Matrimony having already been duly celebrated or with the intention of celebrating it as soon as possible; or intend to enter into betrothals for the future; or finally, from ignorance or in contempt of ecclesiastical laws, intend to contract Matrimony in the present—the act does not produce the impediment of public propriety.” Sacred Congregation of the Council, 13 March 1879.

On Intercourse Had after Betrothals, in Places Where the Council of Trent Has Not Been Promulgated

“...For the resolution of the doubt proposed, the [Sacred Congregation] directed that the prescription received from Pope Gregory IX, in chapter He Who, 30, On Betrothals and Matrimony, drawn likewise from the pure sources of Pontifical law and promulgated for observance among all Catholics, be observed. For when the Pontiff was asked what must be done concerning a man who, after betrothals entered into with a woman against her will and after intercourse had with her, subsequently married another in the face of the Church and knew her, he gave a response of this kind: ‘He who gave his pledge to a woman that he wished to take her as wife, and if he afterwards knows her carnally and marries another in the face of the Church, is bound to return to the first, because, although the first Matrimony may appear presumed, nevertheless proof to the contrary is not admitted against such a presumption. Whence it follows that the Matrimony afterwards contracted in fact is not a true Matrimony, but null....’

“Set before your eyes those things which Father Pirhing, a most approved expositor of the sacred Canons, presents in elucidating chapter He Who. For he, in book 4 of the Decretals, title 1, section 1, § 5, after the aforesaid rule or prescription of Gregory IX, adds these things: ‘The reason is that, from carnal intercourse, the Church presumes conjugal consent in the betrothed parties so as to exclude sin—namely, that the betrothed man and woman wished to know one another not with a fornicatory but with a marital affection—because a delict is not to be presumed; and this is a presumption of law and by law, that is, altogether certain and indubitable, against which proof is not admitted. Consequently, the betrothed man would not be heard if he asserted that he had not known the betrothed woman with marital affection or with the intention of contracting Matrimony with her’ (Covarruvias, Epitome, book 4 of the Decretals, part 1, chapter 4, § 1, nos. 1 and 2). ‘It is confirmed, because carnal intercourse following betrothals for the future is a sufficient sign of present consent to Matrimony, and through it the betrothed parties are judged to deliver themselves to one another. This presumption has place only in the contentious and judicial forum, but not in the forum of conscience and of Penance. Hence, if the betrothed man truly had known the betrothed woman not with marital but with fornicatory affection, there would not be a true Matrimony in the penitential forum and before God, because the Pope cannot cause there to be a true Matrimony without express or tacit consent’ (Hostiensis, here, column 2 at the end; Fagnanus, here, nos. 6 and 7).

“Thus far Father Pirhing, who, in setting forth this doctrine, affirms that it is commonly received among all writers on the Canons. Stand here, therefore; adhere here. Namely, even in those regions in which the Tridentine Decree on Matrimony has not been promulgated, if the betrothed man and woman have had intercourse with one another not with marital but with fornicatory affection, their betrothals do not on that account pass into a true Matrimony before God; and therefore, before God or in the forum of conscience, the faculty of passing to other vows has not been taken away from them if a lawful occasion for dissolving the preceding betrothals presents itself.” Instruction of the Sacred Congregation for the Propagation of the Faith, 17 January 1821, to the bishops of the Apostolic Vicariates in the Empire of China and the kingdoms and provinces adjacent to it. Pius VII approved it and commanded it to be observed in every respect. Cf. no. 958.

n. 928.

On the Marriage of Minors against the Will of Their Parents

“It is asked whether a Matrimony contracted by two Catholics who are minors in age, according to the forms prescribed by the Church but nevertheless against the will of their parents, is valid.

n. 928.

“Response. Affirmative; for neither the dissent of parents nor minor age can in any way be numbered among the impediments dissolving Matrimony in these our times. We do not linger over imperial laws and commands of rulers opposed to this opinion; for they are either to be understood only of civil effects, as eminent men hold concerning the edict of Henry III, Most Christian King, confirmed by Louis XIII—Loretus, a Counselor in the Parliament of Paris; Hubertus, Bishop of Vabres; Cabassutius; Gervasius; Natalis Alexander; and others—or, insofar as they establish something which exceeds the limits of secular power, they are to be rejected altogether. Concerning those things which pertain to the nature of the sacraments, the full power of defining belongs not to secular rulers but to the Church alone. She, moreover, not only held and declared Marriages of this kind ratified in chapter Although and chapter Your, On One Betrothed to Two, but also, lawfully assembled at Trent in the Holy Spirit, struck with anathema those who falsely affirm that Marriages contracted by children of a family without the consent of their parents are invalid and that parents can make them ratified or invalid. Therefore, no place for doubt remains concerning the validity of the aforesaid Matrimony.” Holy Office, 17 November 1835, Bishop of Quebec.

n. 949.

On the Banns

“The burden has likewise been enjoined upon the proper parish priest that, before the announcements of a Matrimony to be entered into are made publicly in the church during the solemnities of Masses, he should take care cautiously to examine both the bridegroom and the bride separately and, as it is said, in the ear, whether by their will, spontaneously and freely, and truly with the consent of the soul, they are mutually joined in Matrimony.” Apostolic Letter of Benedict XIV, 28 May 1743.

n. 949.

On Secret Marriages

“...Equal, or perhaps even greater, vigilance must be employed by you lest, after the banns have been remitted, a Matrimony be celebrated before the parish priest, or another priest deputed by the parish priest himself or by you, in the presence of two or three trusted witnesses, so that no notice or rumor of the celebration should arise. For in order that this may lawfully be done according to the prescription of the sacred canons, not every ready and ordinary cause suffices, but a grave, urgent, and most urgent cause is required.... But after the Matrimony has been celebrated, a written document concerning it, with a notation of the place and time and of the witnesses who were present at the celebration, is to be presented without delay to the bishop by the parish priest or other priest before whom it was entered into. It will then be your duty diligently to ensure that, for the perpetual memory of the act performed, the aforesaid document is faithfully transcribed into a book wholly distinct from the other book in which publicly contracted Marriages are recorded. Such a book, suitably bound for secret Marriages, closed and sealed with seals, is to be cautiously kept in your episcopal chancery. And you shall permit it to be unsealed and opened, with your permission being given, only in the case in which other Marriages of this kind must be recorded, or the necessity of administering justice should claim this for itself, or finally persons having a true interest should request some document from it.” Etc., Benedict XIV, Constitution Satis vobis, 17 November 1741.

On Proof of the Free State

The norms to be observed in this matter are contained in the Constitution Cum alias of Clement X, 21 August 1670. Cf. Instruction of the Holy Office, 21 August 1670 and 29 August 1890; M. E., vol. 2, part 3, p. 163 ff.; vol. 7, part 1, p. 243 ff.; vol. 8, part 1, p. 219 ff.; vol. 12, p. 434 ff.; C. 1363, 1367, 1373–1376; Ferraris, Supplement, s.v. Proceedings in Matrimonial Causes.

On Marriages of Foreigners

“The orders issued most recently concerning Marriages to be contracted with foreigners provide, among other things, that Ordinaries command each and every parish priest existing in their dioceses not to make publications in their churches for Marriages to be contracted with foreigners unless, after the Ordinary a quo, or his vicar general, has been informed, they are first bound to bring back an authentic attestation that witnesses have been examined for such a Matrimony in their tribunal who prove the free state of those wishing to contract. Hence it is asked:

“1. Are those from neighboring dioceses also bound to make such proofs, or does the attestation of the banns made in their dioceses, with the authentication of the Ordinary, and proof of their state after departure from that diocese suffice?—Response. Persons of this kind are regarded as foreigners and consequently are bound to make the proofs.

“2. Likewise, are those wishing to contract who dwell at the borders of their dioceses and, because of proximity, are known by their rectors, bound to make the same proofs; or do proofs to be made by the rectors themselves suffice?—Response. They also are bound to make the proofs.

“3. Are those who, having departed from their own diocese before marriageable age, betook themselves to another and thereafter always dwelt in it, bound to make the same proofs?—Response. Those who were not outside the diocese during the time at which they were capable of contracting are not bound.

“4. In a city in which Spanish, Teutonic, and German soldiers, and soldiers of other distant nations, are accustomed to reside, is the same thing to be observed with them; or does it suffice to receive proofs concerning their state in that city from witnesses of their own regions who are informed about the matter?—Response. They are bound to make the proofs according to the form of the Instruction, because they more easily commit polygamy.

“5. When notice has been given by the parish priest to the Ordinary of the one wishing to contract, is the attestation of a state of this kind to be brought back by the same parish priest or by the one wishing to contract?—Response. He who wishes to contract Matrimony is bound to bring back the attestation and deliver it to the parish priest, but the parish priest is free to assume a burden of this kind himself.

“6. Are the same proofs to be observed in a case of necessity and by those existing in danger of death who wish to contract in this way?—Response. They are not to be observed at the point of death, within which, namely, there probably is not sufficient time for making the investigations; with this provision also, that if the sick person should happen to recover, the investigations must be made according to the Instruction before they come together.

“7. Is an attestation of the proper Ordinary required for foreigners who for ten years or more have acquired domicile in the place where they are to contract Matrimony, if their free state is proved by trustworthy witnesses both of origin and of domicile?—Response. It is required.

“8. Is the said attestation required for foreigners who married one wife or several, and these, in turn, died in the place where they desire to contract Matrimony, and they themselves did not depart farther from the said place after the death?—Response. It is likewise required.” Holy Office, 1819; M. E., vol. 4, part 1, p. 199.

143. On Betrothals · 144. The Nature of Marriage

Instruction of the Holy Office, 29 August 1890, to the Eastern Bishops

“So that unity may stand firm in the nuptials of the Christian faithful and nullity may be avoided in contracting them, the Supreme Congregation of the Most Eminent Fathers, General Inquisitors ..., with the authorization of Our Most Holy Lord Leo XIII, commanded the following Instruction to be drawn up and communicated to the Eastern bishops, which, amid the difficulties by which they are pressed on every side, would be of great use and assistance to them for proving the free state of those who desire to be joined in Matrimony.

…and 513 more passages — all of them are listed on the topic page.

Bucceroni, Cases of Conscience

Gennaro Bucceroni, S.J. — 223 passages

143. On Betrothals

Severinus, in the presence of Amalia, asked Modestinus, the brother and tutor of Amalia, for his sister Amalia as his bride. Modestinus agreed, and then Severinus promised marriage by the solemn form of words, with an oath also added; which promise Modestinus accepted in the name of Amalia, who at the same time promised marriage back to Severinus with an equal solemnity of formulas. Amalia, hearing all these things, was silent because of shame and modesty; yet internally the matter greatly pleased her, and therefore she was consenting, and promising, and was also being bound by oath before God. But after a few days Severinus, seized by a sudden illness, dies; and then his brother Ioannes, who had heard Severinus often speaking of the virtues of Amalia, immediately, without previous betrothals, enters into marriage with Amalia in the place of his brother.

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

R. Schmalz., l. 4, tit. 1, n. 66 seqq., reports the opinion of some who stand for the validity of these betrothals. Then, n. 67, 68, he says: "But Paludanus, etc., better defend the negative. The reason is that the contract of marriage and of betrothals, by natural and divine law, is so personal that no one, even a father, can by that law furnish consent for a son, unless he has a special mandate from him; therefore, when the consent of parents, joined with the silence of the child, makes presumed betrothals, this is had only from the disposition and presumption of positive law, through c. un. de Desp. imp. in 6°, which, since it is restrictive of natural law, ought not to be extended beyond the case expressed in law; but it would be extended if it also proceeded in brothers, relatives, tutors, because the cited chapter mentions only parents; therefore, etc.

"From this it follows that, although perhaps the pupil, or the sister, in reality has complacency and internal consent of contracting betrothals and of obligating himself or herself, while the tutor or brother contracts in his or her name, nevertheless no betrothal obligation arises from this either for the internal forum or for conscience. The reason is that from the disposition of law the words of parents alone, and not those of a tutor or of any other person joined in whatever way, signify internal consent into a betrothal obligation; therefore, even if the pupil or sister has been silent at the promise of the tutor or brother, he or she nevertheless will not be considered by this very fact to have promised marriage; or if he or she promised it internally, nevertheless this promise, because it was not expressed by a suitable sign by the promisor himself or herself, and therefore could not be accepted by the other party, will in no way be obligatory."

Therefore, since in the case there were no betrothals, there cannot be had from them the impediment of public honesty; and therefore Amalia's marriage is valid.

But here it must be noted that, if there is question not of other outsiders, or of other relatives, but of parents, the same positive disposition of law exists, whether it is the father or the mother who contracts betrothals for the children; whether he or she contracts for children who have reached puberty or for those who have not reached puberty: and "from them arises the justice of public honesty." C. un. cit., Schmalz. n. 62. - I. M. 919.

"A marriage was contracted in the city of Messana, after the publication of the Decrees of the Council of Trent, by words concerning the present and mutual consent, the publications not having been made, nor the parish priest being present, but only a notary and witnesses. It is requested to declare whether the aforesaid contract of marriage, since it was made against the form handed down by the decree of the same Council concerning contracting marriage, is so null that it does not even pass over into betrothals for the future.

"The S. C. C., in the year 1573, judged that it does not pass over." Benedict XIV, Not. 46, n. 24; I. M. 923.

"In the year 1697 Antonius Levame drew up two writings of betrothals toward Benedicta Gena, signed by both: one under the date of 9 Nov., in this tenor: I, the undersigned, say and promise not to marry any other girl except Signora Benedetta Gena, as she also promises not to marry any other young man except me. Antonio Levame, Benedetta Gena. But the other, under the day 12 of the same month, of this sort: I, the undersigned, say and promise not to marry any other girl except Signora Benedetta Gena, as she also promises and swears. Antonio Levame, Benedetta Gena.

"1. Whether there is certainty concerning the validity of the betrothals between Antonius Levame and Benedicta Gena? And, insofar as in the affirmative: - 2. Whether Antonius Levame is to be compelled, or can recede from them by contracting with another, in the case?

"The S. C. C., June 1, 1709, responded: To the 1st: from the things deduced so far, it is not established that there are absolute betrothals. - To the 2nd: As to coercion to contract with Gena, negatively. But whether he is able to contract with another, deferred. But when, on Sept. 28, 1709, to the question: Whether Antonius can contract with another woman in the case? it responded: Affirmatively." De Iust. de Dispens. matr. Cas. 13.

For indeed one promising that he will not take another as wife except such a woman does not absolutely promise that he will contract marriage with her; but he only obligates himself to take her as wife on the hypothesis that he wishes to choose the conjugal state. This is made clear by the example of him who promises that he will not sell a farm except to Titius; he certainly is not simply obligated to sell the farm to Titius, but only in the case in which he wishes to sell the farm. Benedict XIV, Quaest. Can. CCCCXXXIV; L. 842; G. 835; I. M. 919.

"Antonius de Cristophoro, after he had entered into betrothals for the future with Catharina Carusio, joined to him in the third and fourth degree of consanguinity, and had known her carnally and had begotten offspring, then entered into other betrothals for the future with Catharina Pascharelli; but at length, having changed his mind, he contracted marriage by words concerning the present with Catharina Carusio, having obtained an apostolic dispensation upon the impediment of consanguinity. But since the brother of the said Antonius intends to contract marriage with the other Catharina, it was doubted whether the impediment of public honesty stood in his way, arising from the betrothals previously entered into with the other brother, insofar as they are valid. Therefore the doubt is proposed: Whether there is certainty concerning the impediment of public honesty between Alexander and Catharina de Pascharello, so that they need a dispensation in the case?

"R. Affirmatively." S. C. C., March 31, 1708. De Iustis de Dispens. matr. Cas. 11, 12; I. M. 919.

Dominicus, after betrothals entered into with Agnes, thinks of abandoning her, in order that he may take another as wife. Therefore he asks his confessor whether he can licitly effect this. For he is prepared to provide Agnes sufficiently with a dowry, indeed even to establish a considerable dowry for her, so that she may easily marry another.

It is asked: What ought the confessor to respond?

R. He ought to respond that he cannot effect that. Since betrothals oblige under grave matter by reason of an onerous contract to marriage, and to nothing except marriage, Dominicus cannot abandon Agnes, she being unwilling, although he wishes abundantly to provide her with a dowry. For by deserting Agnes, even though he endows her, he no longer stands by his promises. Cf. Benedict XIV, Quaest. Can. CCLXXIX; I. M. 926.

144. The Nature of Marriage

Augustinus, a jurist, holds that in the marriage of the faithful the contract and the sacrament can well be distinguished. Therefore matrimonial causes, he says, are mixed, and under the aspect of a contract pertain to the civil power, under the aspect of a sacrament to the Church.

It is asked: What must be thought of the doctrine of Augustinus?

R. Augustinus is remarkably deceived. For the sacrament of matrimony is not something added over and above the contract itself, or extrinsic to the contract, or separable from the contract, or really distinct from the contract itself; but the sacrament is the contract itself. And therefore, if matrimonial causes under the aspect of a sacrament pertain to the Church by her own right, they also pertain to her under the aspect of a contract. Therefore the Church, and she alone, and by her own right, has power to establish diriment impediments, and also directly to establish impediments which of themselves impede, and to dispense them; of herself also, and consequently, she has equal power of judging concerning the value, the consistency, and the duration of marriage.

Besides, from the opinion of Augustinus it would follow "that the marriage of the evangelical law, sanctified and perfected by the grace acquired by Jesus Christ through His Passion, and raised to the dignity of the great sacrament of the Church, would at the same time, by divine disposition, be exposed to contradictory enactments of laws, and would be perpetually battled over in war between two different powers, while the one protects what is rendered void by the other; the one holds in contempt and punishes what the other blesses and applies sanctification to; the one grants civil effects to him whom the other renders incapable of civil and spiritual effects." S. O., July 6, 1817; Collect. S. C. de P. F. n. 1289; I. M. 971.

Those things which precede are confirmed from the things which Benedict XIV has in the Letter of Sept. 17, 1746, Redditae sunt Nobis. For he says, speaking of places where the Decree of the Council of Trent has been promulgated, "it is clear that a marriage entered into before a civil magistrate or a non-Catholic minister, and not likewise before the proper parish priest of either of the contracting parties and two witnesses, can be sustained neither under the aspect of a sacrament nor under the aspect of a contract, nor in any way be reputed valid." Therefore, under each aspect altogether, both of sacrament and of contract, the marriage of Christians is subject to no power except that of the Church. And soon after he adds: "Let the Catholics entrusted to your care know that, when they present themselves to a civil magistrate or a heretical minister for the sake of celebrating marriage, they perform a merely civil act, by which they show their obedience toward the laws and institutes of rulers; but that then no marriage is contracted by them. Let them know that, unless they celebrate nuptials before a Catholic minister and two witnesses, they will never be TRUE AND LEGITIMATE SPOUSES either before God or before the Church; nor, if meanwhile they have had conjugal intercourse with each other, will it be without grave fault. Finally let them know that, if any offspring arises from such a union, that offspring, as BORN FROM A NON-LEGITIMATE WIFE, WILL BE ILLEGITIMATE IN THE EYES OF GOD, and, unless the spouses renew consent according to the prescription of the Church, WILL BE PERPETUALLY ILLEGITIMATE ALSO IN THE FORUM OF THE CHURCH."

From these things it is clear what the nature of civil marriage is, and what and how great is the force of marriage as sacrament. It is, namely, so great that, true marriage being removed, the effects of true marriage are lacking before God, that is, in the objective truth of things and in the forum of conscience.

Hence Leo XIII, in the Encyclical Letter of February 10, 1880, expressly teaches these things: "It ought to be established for all that, if any union of a man and a woman among the Christian faithful is contracted apart from the sacrament, it lacks the force and character of a just marriage; and although it has been made agreeably to civil laws, nevertheless it cannot be more than a rite or custom introduced by civil law; but by civil custom only those things can be ordered and administered which marriages of themselves bring forth in the civil sphere, AND WHICH, IT IS MANIFEST, CANNOT BE BROUGHT FORTH UNLESS THEIR TRUE AND LEGITIMATE CAUSE, NAMELY THE NUPTIAL BOND, EXISTS." Cf. Cass. 55; I. M. 959, 969, 970, 973.

"It is asked whether a marriage contracted by two Catholics who are minors by birth, according to the forms prescribed by the Church, but nevertheless with the parents unwilling, is valid.

"R. Affirmatively; for neither the dissent of parents nor minor age can in any way be numbered among the impediments diriment of marriage in these our times. We do not delay over imperial laws and commands of rulers contrary to this opinion; for they are to be understood either only of civil effects, as outstanding men think concerning the edict of Henry III, Most Christian King, confirmed by Louis XIII: Loretus, Counselor in the senate of Paris, Hubertus, Bishop of Vabres, Cabassutius, Gerbasius, Natalis Alexander, and others; or, since they establish what exceeds the limits of secular power, they are altogether to be rejected. Concerning those things which pertain to the nature of the sacraments, the full power of defining belongs not to secular rulers, but to the Church alone. But she not only held and declared marriages of this sort valid in cap. Licet and in cap. Tua de Sponsa duorum, but also at Trent, legitimately gathered in the Holy Spirit, struck with anathema those who falsely affirm that marriages contracted by children of families without the consent of parents are void, and that parents can make them valid or void. Therefore no place of doubt is left concerning the validity of the aforesaid marriage." S. O., Nov. 17, 1835; Collect. S. C. de P. F. n. 1448.

"... Into three classes can be divided those Armenians who present themselves before the Turkish judge to contract marriage. Some go there to take a concubine, and these cannot intend to celebrate the contract of marriage, but to cloak their lust in such a way. Others present themselves to the Turkish minister to make a simple declaration of a marriage already contracted, or to be contracted shortly, but they do not intend then to contract a true marriage, although they use verba de praesenti. - Finally, others also appear before the same judge in order to take a woman as a true wife, which at times has not been granted to them by the Church by reason of some impedient impediment; but these persons, not knowing that their marriage, celebrated in such a way before the Turkish minister, can be a true and valid marriage, although illicit, cannot intend to contract it, although they have the will for it, and they believe rather that they are contracting a concubinage; but if they knew the sufficiency of this act of theirs for contracting a true marriage, they would certainly intend to contract it.

"R. This is the substance of the doubts to which the Sacred Congregation responded that the marriages contracted by those of the first class before the Turkish judge are null and void, because the will of the contracting parties and their consent is directed to concubinage alone; and meanwhile externally they say that they celebrate marriage, insofar as they wish with this color to cover their incontinence. But if perchance this intention had been hidden in the mind of only one of the contracting parties, who had conducted himself in all external acts as if he had wished to celebrate a true marriage, and in such a way had deceived the other spouse with craft and fraud, in this case, if legitimate proof of the fraud and deception cannot be had, although the marriage may be null in the internal forum, nevertheless the same judgment must not be formed in the external forum. Therefore the Vicar Apostolic will be obliged, when the case occurs of having to decide concerning one of such marriages contracted with a feigned intention and with the mind of taking a concubine and not a wife; he will be obliged, I say, to examine well the circumstances of the fact, and not to give faith to the mere assertions of the deceiving spouse, especially if the woman was entirely ignorant of the deception; and he must oblige him to persevere in the marriage and to renew the necessary internal consent, because he is bound under mortal sin to consent anew and to effect a true marriage, as all the theologians teach us and as duty requires.

"For the others of the second class, who present themselves before the Turkish judge, but do not then wish to contract a true marriage, although they use verba de praesenti, intending to contract it afterward if they have not contracted it before, the Vicar Apostolic must verify the circumstance whether the marriage had been validly contracted before presenting themselves before the Turkish judge, or whether it must be contracted afterward. In the case in which the marriage had already been validly contracted before, the appearance before the Turkish judge, when it is made for a truly civil act and in order to obey the laws of the Principality, is not prohibited, as Benedict XIV teaches in his Constitution 139, t. 1, Bull. § 10, and it harms nothing in the validity of the marriage already celebrated; but if the marriage either had not been contracted, or had not been validly contracted, since, when these persons present themselves before the Turkish judge, they do not have the intention of then contracting a true marriage, thus, true and internal consent being lacking in them, and they being disposed only to furnish it then when they will celebrate the marriage, they cannot be regarded as legitimate spouses, nor can their marriage be said to be valid. But also for these the Vicar Apostolic must be very careful not to give faith so easily to the hidden intentions of the contracting parties, when from the exterior acts there results the contrary of what they assert.

"Finally, for the others of the third class, who have the will of taking a true wife, but are in the error that it is not sufficient for the value of marriage to present themselves before the Turkish judge, but if they knew the sufficiency of this act of theirs for contracting a true marriage, they would certainly intend to contract it, the Sacred Congregation ... decided that these marriages are valid when no other canonical impediment intervenes. For, according to the circumstances of the proposed case, there can be no doubt of the true, legitimate, internal, and reciprocal consent of the contracting parties. Their error that marriage cannot be validly contracted before the Turkish judge cannot render it null, because it does not concern nor belong to the substance of marriage, and does not remove the preceding will of the one who wished to celebrate it, but falls only upon its form and solemnity, and thus cannot render it invalid, since, in marriage as in other contracts, when the error is concomitant and does not influence the essence of the thing which is willed, but its accidental qualities, the contract remains valid. Nor does the opinion prevailing among the Armenian nation stand in the way of the validity of such marriages, namely, that a marriage cannot be contracted before the Turkish minister, but that it is necessary to celebrate it before the Church and with the priestly blessing. This opinion is not constant, nor is it even common among the nation; and the ecclesiastics who have studied theology know how to think differently.... Moreover, this opinion is not furnished with any Armenian synodal canon; it is not approved by the Apostolic See, but rather derives from the ignorance of the Armenians, who do not distinguish invalid marriage from illicit marriage.

"... The necessity of the assistance of the parish priest at marriages has been introduced only in the Latin Church by the Decree of the Sacred Council of Trent; and the Armenians, who, as Benedict XIV wrote in the noted Instruction of 1754, have never heard of this Decree, consequently cannot be subject to it. And therefore, when they celebrate their marriage in the presence of two or three upright and honorable witnesses, or before the Turkish judge, since then there can be no doubt of legitimate consent reciprocally manifested for contracting marriage, so its validity cannot be called into question." Instr. S. C. de P. F., Oct. 1, 1785; I. M. 959, 962, 967, 969.

"In the present case, with the parish priest and two witnesses present, and with the woman purposely waiting there, the bridegroom arrived in order to contract clandestinely; and at his very entrance, being asked by a certain third person why he was coming into that place, he answered: I come that I may see Lady N., my spouse, or, as others said, who is my spouse. Having heard this, the parish priest rose and fled, lest he be compelled to assist at a clandestine marriage. Therefore it was doubted whether those words of the man sufficed for contracting marriage concerning the present.

"R. In strictness it is not a true marriage, because although the contracting parties, afterward, having mutually given hands, expressed consent, nevertheless the parish priest neither saw nor heard that, but only those prior words, which indeed do not seem in practice to signify obligation, but enunciatively or narratively. For if someone says to a certain third person: I wish to leave Peter my heir, by these words he does not in practice constitute him heir, but only signifies the intention which he has. Likewise, if he says: Call the notary, because I wish to donate my goods, he does not in practice donate by these words. Thus, therefore, in that case, he who responds to a third person asking the cause of his coming, that he comes to see his spouse, does not use words which, by the institution of men, signify obligation in practice, but only narrates what has been done, or what is to be done in the near future; for that whole proposition spoken to a third person seems ordered only to giving a reason. For suppose someone to have come in the same way to make a testament in favor of Peter existing there, and, being asked by another third person why he was coming, says: I come to see Peter my heir; certainly by these words he would not institute him heir. Likewise, when the Supreme Pontiff used to be elected by public suffrages and adoration, if a cardinal, with the mind of electing someone, should go to the chapel where the one to be elected was present with others, and, being asked by another, Whither are you going?, should say, To adore the Pope, certainly by this response he would not be considered already to have given practical consent and suffrage for his election, but would signify only the mind with which he was coming to elect him." Lugo, de Iust. et iur., d. 22, n. 23.

Titius gave a mandate to Caius that he should contract marriage in his name with Sempronia. While Caius was contracting the marriage, Titius, seized by a very grave typhoid fever, fell into furious madness. But, many remedies having been applied, after a year he wholly recovered.

It is asked: Is the aforesaid marriage valid?

R. Affirmatively. For during the intervening time the will of Titius was not retracted, although then, when Caius was contracting for him, Titius had lost the use of reason. Sanchez, l. 2, d. 11, n. 12; I. M. 963.

"With what rite will the priest assist at marriages in which one party is non-Catholic? Is it permitted to pronounce the form, to say prayers, to bless the ring of the heretical bride?

"R. Negatively." S. O., Aug. 1, 1821; Collect. S. C. de P. F. 1543, 1427, 1443; Enchir. Moral. 1016; I. M. 1016.

"Many Protestants, without any intention of embracing the Catholic religion, often request that, either before one of their own ministers or before the bishop himself, they furnish consent for contracting marriage. It is to be noted that in such circumstances the bishop and priests would act not as priests, but as civil magistrates, which is permitted by the laws of the republic. Now he asks, whether it is permitted to him and to his missionaries to preside over such marriages?

Vol. II, Treatise on Matrimony · Vol. II, Treatise on Matrimony, Ch. III, Article I. On the Nature of Matrimony

"R. If there is question of marriage between two heretical parties, although an intervention of this sort is not so reproved that it can never be licit, nevertheless commonly it must be dissuaded. But if one party is Catholic, with a dispensation having been obtained from the impediment of mixed religion, and with the usual clauses and conditions being observed, it is permitted." S. O., Dec. 20, 1837. Cf. Enchir. Moral. 1016.

…and 183 more passages — all of them are listed on the topic page.

Gury-Ballerini, Compendium of Moral Theology (8th ed., 1884)

Jean-Pierre Gury, S.J.; notes by Antonio Ballerini, S.J. — 6 passages

Vol. II, Treatise on Matrimony

Matrimony is so called from the office of the mother, as the Theologians commonly hold with St. Thomas, because in this society the principal parts appear to pertain to the mother. Matrimony is also called conjugium from the common yoke to which the man and woman are subjected. Likewise, it is called nuptiae or connubium from the verb nubere, because brides were formerly veiled when they were handed over to their husbands. Likewise, it is called a partnership because the man and woman have a common lot.

It is greatly useful to instruct the faithful concerning the excellence and sanctity of matrimony, while nevertheless extolling much more, as is fitting, the virtue of continence.

Ch. I, Article VIII: On Kisses and Embraces with Respect to Betrothed Persons · Ch. I, Art. IX, Embraces, and Other Touches with Respect to Spouses · Chapter IV: On the Use of Marriage · Ch. IV, Article I: On the Intrinsic Nature of the Use of Marriage

We must treat: first, of betrothals; second, of the proclamation of banns; third, of the nature and properties of matrimony; fourth, of its matter and form; fifth, of its minister and subject; sixth, of the impediments of matrimony; seventh, of the revalidation of an invalid marriage; eighth, of the conjugal debt.

Vol. II, Treatise on Matrimony, Ch. III, Article I. On the Nature of Matrimony

n. 744.

Definition. - Matrimony can be considered in two ways, namely, as a contract and as a Sacrament.

n. 744.

Matrimony as a contract is an agreement by which a man and a woman legitimately hand over to each other dominion over their bodies in relation to acts of themselves apt for the generation of offspring, and they obligate themselves to an undivided partnership of life.

n. 744.

Matrimony as a Sacrament is defined as a Sacrament of the New Law conferring grace for sanctifying the legitimate union of a man and a woman and for piously receiving and holily educating offspring.

Bucceroni, Commentaries (1910)

Gennaro Bucceroni, S.J. — 210 passages (filed under the subtopics)

Ch. I, Article VIII: On Kisses and Embraces with Respect to Betrothed Persons

n. 24.

1. Kisses, embraces, and other base or less honorable touches are illicit for betrothed persons in exactly the same way as for others. The reason is that betrothal gives them no special right to intercourse and venereal delectation; and therefore neither to those acts which contain a more or less proximate danger of venereal delectation. Billuart, l. c.; L. l. 6, n. 854.

n. 24.

Kisses, embraces, and other honorable touches, from their object and from the manner of performing them, are permitted to betrothed persons. The reason is that those acts are lawful in themselves, and therefore, as they are permitted to other unmarried persons, so also they are permitted to betrothed persons. But the question is moved specially concerning betrothed persons rather than concerning others, because in reality those acts can more easily be permitted to them on account of a special reason which has force for them, namely for mutually fostering benevolence, which is altogether necessary for them so that the future marriage may be completed. But as it is lawful to act with sensible delectation, but illicit to act on account of the same, by stopping in it, so it is altogether lawful for betrothed persons, as also for any others, to take sensible pleasure in these acts.

Hence there arises a threefold question that is altogether practical. The first question is: What is to be thought of those acts of betrothed persons, if they contribute to exciting venereal acts? - R. Here the general rule has force: these acts are culpable only when either the cause is bad, or there is present the proximate danger of consent.

The second question is: What if it is established for the betrothed man or woman that the other sins in these acts because of a depraved affection? - R. 1. If those touches are made before others, the other can lawfully permit those touches, lest he or she be defamed, or bring suspicion upon himself or herself, and lest others be scandalized. - 2. If those touches are made secretly, and it is certain that they are being made maliciously, when there is question of others and of betrothed persons, the doctors commonly teach that one is bound to repel those touches. But if there is question of betrothed persons, for whom often there could be a notable inconvenience in this matter, because the other will certainly withdraw from marriage, the general rule concerning scandal received seems to have to be applied, namely that this can be permitted if it cannot be impeded without grave inconvenience; but it must be impeded if this can be done without notable inconvenience.

Finally, the third question is: What is to be thought concerning these same acts when, from the frequency of lapses, the danger of consenting to the subsequent venereal delectation must be held as a proximate occasion of sinning? - And this question, as the preceding ones, can also be made concerning the looks and conversations themselves, which have a most just cause; whence parents can altogether lawfully permit such looks and conversations, although great caution and prudence must always be used in these matters.

R. Here the general rule concerning a necessary proximate occasion has force; for it is morally impossible that a betrothed man, seriously thinking of entering marriage, should not visit, look at, and speak to his betrothed woman, and according to custom exhibit to her other signs of benevolence which manifest his mutual love. Therefore the confessor will suggest remedies not only general, but also special, so that due moderation may be preserved and necessity may not be exceeded in exhibiting those signs; and then, so that he never act alone with her alone, care must also be taken that the marriage not be long deferred. But if those and other remedies do not obtain fruit, this one thing remains: that they be dealt with no otherwise than with recidivists. G. Ballerini, n. 413; Gury-Dumas, Cas., v. 2, n. 695; Reuter, Neo-conf., n. 112.

n. 26.

Another related question can be raised here: namely, whether it is lawful "for a marriageable girl to encourage several suitors to this end, that from them she may finally choose someone to whom she may be joined in marriage?"

n. 26.

R. 1. Negatively, "if, honesty being neglected, and not solicitous for modesty, they themselves both love and endeavor to be loved back." The reason is clear. - 2. Affirmatively, if it is done "with the greatest honesty on their part, and without any stain of modesty." The reason is that if "girls conduct themselves in this most honorable way, it makes no difference if at times they are loved basely by some one of the suitors, as can easily happen. For provided they are led not by this base end, but by an honorable desire of marriage, sin ought not to be imputed to the girls attracting suitors, but to him who takes the occasion to his own ruin, which honorable girls do not give him, while they use the right which they have to employ a means not evil of itself for the most honorable end of marriage. Therefore access is barred to all those dangerous familiarities, clandestine conversations, and unspeakable exchanges of letters; and if these are warded off by girls proceeding elegantly but modestly, no ground remains" whence the matter should be forbidden, though it must altogether be forbidden if otherwise, as often happens. Therefore as regards practice, since the matter is full of danger, great caution and prudence are needed. Ithurriaga, Cas. 14, n. 3 seqq. And here it must be noted that a girl per se sins who accepts gifts from a lover, if they come from base love, for they foster that base love; otherwise, however, as is clear, if they proceed only from honorable benevolence and friendship. G., v. 1, n. 240; L., l. 2, n. 76; La-Croix, l. 2, n. 264.

Ch. I, Art. IX, Embraces, and Other Touches with Respect to Spouses

n. 27.

It is a principle, already commonly admitted among theologians, that in this matter all things are lawful for spouses, except pollution and those things which participate in the malice of pollution, without grave sin, and without even venial sin, if a reasonable cause is present. Hence kisses, embraces, and other touches, even base ones, and generally all incomplete acts, whatever they may be and in whatever way they are performed, per se speaking, contain among spouses no grave guilt of fault, and with a sufficient reason added are not imputed even to venial fault. The reason is that in the married state, since intercourse is lawful, venereal delectation not consummated outside intercourse is lawful. For to him to whom the complete and consummated act is lawful, the incomplete begun act also is lawful, which from its intrinsic nature tends to the complete and consummated act; and such is the carnal venereal motion bringing venereal delectation. But those incomplete acts, which from their intrinsic nature do not pertain to lust but to sensuality, are prohibited insofar as they contain the proximate danger of venereal delectation, which, outside intercourse, not consummated, is not prohibited to spouses. Therefore, etc. Busenbaum apud L., l. 6, n. 932.

Corollaries. 1. Looks, kisses, embraces, and touches upon parts both honorable and even less honorable, indeed even simply base, are free from grave fault among spouses, provided, however, that they are done cautiously, so that the danger of pollution is absent. Thus the commoner and truer opinion from St. Alphonsus. "The reason is that, just as the conjugal state makes intercourse honorable, so also it makes touches and looks of this kind honorable; otherwise, since there is so great a society between spouses, and they often cannot have intercourse, they would be exposed to continual dangers if such acts were gravely illicit for them. But just as delectation sought in intercourse does not exceed venial fault, so also in these touches and looks." L., l. 6, n. 933; G., v. 2, n. 910.

The aforesaid looks and touches are per se altogether free from every fault, provided, however, as has been said, that they are done cautiously, so that danger of pollution is absent, whenever they are exercised for the sake of showing conjugal affection or fostering love. The reason is that such acts are in reality from their intrinsic nature means to this end of signifying and fostering conjugal love, and therefore lawful to those who by the matrimonial bond ought to become one heart and one flesh. - A fortiori the aforesaid looks and touches are per se free from fault if they are immediately referred to intercourse, or are necessary or useful for exciting nature; for then they are a certain preparation for intercourse and, as it were, its beginning. But if these acts, by which a spouse disposes himself or herself to the conjugal act, are such that they per se easily provoke pollution, they can be culpable if diligence is lacking for avoiding pollution outside congress; and omission of diligence of this kind, where it is such that through it one is thought nearly to will pollution outside the vessel, can even be grave fault. But if, due diligence having been used, such pollution follows beyond intention, there is no fault. G., l. c.; L., l. 6, n. 934.

Spouses do not sin gravely, even if from the aforesaid looks and touches, had even without intention of intercourse, there arises a commotion of the spirits or of the members serving generation, or if distillation follows; although these would be mortal in the unmarried. The reason is that, the crime of voluntary pollution outside the vessel or of sodomy being excluded, nothing is done against the good of marriage. But the light fault which can be in acts of this kind is easily excused by ends intrinsic to marriage itself or other extrinsic ends; for example because they are suitable for fostering affection or for calming concupiscence. - Indeed it is even probable, and an opinion sufficiently common, that these acts are excused from every fault even in the one requesting, although pollution is foreseen as about to follow in oneself or in the other, if nevertheless the pollution is not intended, nor is there danger of consent to it, and provided some grave cause is present, for example to foster mutual love or to avert the jealousy of the other. The reason is that then that just cause makes such acts honorable, which otherwise are not illicit among spouses; and if pollution occurs this will be per accidens. Wherefore, as is consequent, it is also probable that these acts are altogether lawful for the one rendering, although there is danger of pollution in either one, because then the one rendering gives his work to a lawful thing. - Diana, tr. 6, de Sacr. Matr., R. 207; L., l. 6, n. 934; Tamburini, Explic. Decal., l. 7, c. 3, n. 56; G., l. c.

But this doctrine, as is clear of itself, is not to be extended to those acts which so tend to pollution that they are, as it were, pollution begun, as if a woman were very lingeringly to touch and stimulate the genital members of the man, or a man were wholly lingeringly to insert a finger within the female vessel. Cf. Sanchez, l. 9, D. 45, 46.

Finally, to this doctrine a question is joined: Do spouses sin if, intercourse having been begun, they restrain insemination? - R. Per se speaking, they do not sin, at least mortally, if both spouses consent in this. The reason is that this penetration of the female vessel is reckoned as, so to speak, a touch of the private parts, which is by no means prohibited under grave sin to spouses. But it is said: 1. per se speaking; for an act of this kind, considered concretely, since it tends to pollution and is, as it were, pollution begun, is illicit concretely. Wherefore, if pollution would always or at least ordinarily follow in reality, then that withdrawal would per se in reality tend to pollution, and then it would be gravely illicit. But if pollution either never followed, or at least did not follow ordinarily, and only sometimes pollution followed, since this would be per accidens and beyond intention, that withdrawal would not then be gravely illicit. 2. At least mortally; for if there is a just cause for acting thus, for example because of poverty and multitude of offspring, and at the same time for calming concupiscence, every fault will be absent. 3. If both consent; for if one withdraws without the consent of the other, he certainly sins gravely. - L., l. 6, n. 918; Diana, tr. 6, de Sacr. Matr., R. 205, n. 2; R. 207; Sporer, de Matr., n. 500; Sanchez, de Matr., l. 9, d. 19, n. 3.

"Touches with oneself from venereal delectation, the other spouse being absent, according to the opinion of many, cannot be excused from grave sin, even with pollution or its proximate danger excluded. The reason is that the spouse does not have the right of using his own body in order to unfold pleasure with himself, but only in order to intercourse. La-Croix, n. 339, etc.; L., l. 6, n. 936. Yet not a few others apud St. Alphonsus say that, with the danger of pollution excluded, this does not exceed venial fault. St. Alphonsus judges the first opinion more probable and to be recommended." G. 920. Tamburini, however, says that each opinion is probable, Explic. Decal., l. 7, c. 3, n. 45. And Sanchez says the second is more probable, l. 9, d. 44, n. 16.

Now it must be noted here, according to the reason explained above in n. 27, that these acts, if they are venial, are venial only on account of the extrinsic disorder of the agent. Wherefore, consequently to the principle established above, we say that even these acts, exercised by one spouse alone, altogether apart from the other, per se speaking, or from their intrinsic nature, probably contain not even venial fault. And the reason is: 1. because if these acts are intrinsically culpable, since the matter here is always grave, they are either gravely culpable or in no way; 2. because mutual touch of a spouse with a spouse is probably lawful outside consummated intercourse precisely because that touch from its intrinsic nature is ordered to intercourse. Wherefore, just as consummated intercourse is lawful for spouses, so also intercourse only begun is lawful, which is contained in those acts. But any voluptuous touch of a married person from itself is referred to intercourse, which is already lawful to him or her. Therefore the light fault which can be in these acts can easily also be excused on account of an honorable end, because, for example, they are suitable for calming concupiscence and for avoiding another grave sin.

n. 29.

"How ought a woman conduct herself who is touched by a man not her own?" - R. "If she is touched in dishonorable parts, she ought in every morally possible way to repel the one touching. But that is called morally impossible which cannot be applied without such inconvenience as would outweigh, or at least be equal to, the endurance of this touch, such as would be danger of death, infamy, grave loss of goods, and similar things, if she resisted the one touching; in which cases, according to Lessius, l. 4, c. 3, n. 64, and Loth, the woman would not be bound to resist the exterior touch, because such a touch according to species is not evil on the part of the woman, as fornication would be, provided, however, that danger of consenting to interior lust is absent. Since I judge this to be very rare and very difficult, I also think that a woman is regularly bound to resist in every possible and lawful way, whatever may threaten her. But if a woman is touched in honorable parts, yet notices the lustful mind of the one touching, a distinction is needed. Either she is touched in the presence of others, who from the woman's resistance would conceive an evil suspicion concerning the one touching or embracing, or not. If the first, she is not bound to withdraw herself, because there is present a cause of neglecting the other's sin; if the second, she is bound, because we are bound to impede the sin of our neighbor when we conveniently can. Thus Sylvius here, conclusion 1, and others." Billuart, l. c. See about corollary 4. Cf. here n. 25.

Chapter IV: On the Use of Marriage

n. 137.

We have spoken chiefly in the preceding chapters about sins outside the use of marriage; now we must speak about sins within the very use of marriage. Therefore first it must be said concerning the lawfulness of this use, with attention to its intrinsic nature and extrinsic circumstances, and then concerning the right with respect to it and the consequent obligation.

Ch. IV, Article I: On the Intrinsic Nature of the Use of Marriage

n. 138.

The use of marriage can be considered in two ways, physically and morally; and, inspected physically and morally, it can still be considered in two ways according to the twofold circumstance physically affecting the aforesaid use, namely outside the case of impotence, and when impotence is present for completing that act.

n. 139.

If the use of marriage is considered physically and morally as to its lawfulness, it is had by the coitus of man and woman, with the bond of marriage preceding, and by the emission of the man's semen into the natural vessel of the woman and its retention there, so that generation can follow, whether the woman also seminates or not. The first reason is that the generation of offspring, which is the primary end of marriage, is naturally impossible unless the male semen is inserted and retained within the natural vessel of the woman. Therefore conjugal and lawful copulation must necessarily take place with the insertion and retention of semen within the natural vessel of the woman. The second reason is that generation is also naturally impossible if, although the male semen is inserted and retained within the natural vessel of the woman, that is, within the vagina, nevertheless by the use of some instrument it is impeded from reaching the uterus. Therefore that insertion and retention of semen must be such that from it generation can naturally follow. The third reason is that the semen of the woman is not absolutely necessary for generation. For today it is known that the true germ of offspring is present in the woman; but this consists not in the woman's semination, as it is called, or in the emission of vulvo-vaginal humor, but in the ovule secreted from the ovary, adhering to its surface, which gradually grows until, mature of itself, even without coitus, it is shed. This chiefly happens at the time of menstruation; and when thus shed, if it is still apt and nothing else stands in the way, it is fecundated by the male semen, and then offspring is conceived. Hence a certain sign of aptitude for fecundation in a woman is had from the presence of menstruation, since menstruation perfectly corresponds to ovulation; although the absence of menstruation cannot always be a certain sign of incapacity for fecundation, because several examples show the contrary.

n. 140.

Corollaries. 1. If, when copulation has begun, "the woman has already seminated, or is in probable danger of seminating, the man indeed cannot deliberately withdraw himself from semination without grave fault, because then he himself is the cause that the semen of the wife is wasted." L. 918.; Billuart, de Matr. Diss. 4. art. 3. at the beginning. Cf. here n. 136. But if the man has already seminated, whether the woman sins lethally if she withdraws from seminating is disputed among theologians. Some affirm, because the semen of the woman at least contributes much to the certainty and perfection of the offspring, since it was instituted by nature at least for this. But others more commonly and more probably deny, because the semen of the woman is not necessary for generation. Nor is it truly an objection that the semen of the woman contributes to the perfection of the offspring; for spouses are not bound to the more suitable mode of generating, but it is enough if they do not stand in the way of generation. L. ibid.

n. 140.

Concerning the first conclusion, modern authors say that the reason of St. Alphonsus rests on a false supposition, namely that the semen of the woman is frustrated. But the aforesaid reason does not rest on a false supposition. For although that semination of the woman is not necessary for generation, nevertheless, if it exists, it is intrinsically ordered by nature itself to generation. Hence it is that those same authors, with others, agree that it renders generation easier and more certain; and because it is destined by nature itself to generation, when copulation has already been consummated on the part of the man, the woman, if she has not completed the act, can seminate and complete the act. Therefore, if after the semination of the woman the man does not also seminate, the semination of the woman is altogether frustrated against the order of nature, and altogether against generation.

n. 140.

It is not necessary that each spouse seminate at the same time. For "since generation follows without that semen of the woman, not only where it is not poured forth at the same time, but afterward, no precept constrains them to pour it forth equally." Sanchez, l. 9. disp. 17. n. 9. Nor again is it an objection that this is more suitable for generation, because, as was just said, "spouses are not bound to choose the more suitable and easier way of generating, but it is enough for them if they do not stand in the way of generation." Sanchez, l. c. Therefore, if the man withdraws himself after his own semination but before the semination of the woman, she can at once excite herself by touches, because that semination of the woman pertains to completing the conjugal act. Likewise, immediately at the very beginning of copulation, the woman can prepare herself by semination itself for completing it, because that semination of the woman then pertains to the beginning of copulation and in reality, as physicians and experience testify, often renders it easier; and although it is not necessary for fecundation, nevertheless it is very useful, rendering fecundation more certain.

n. 141.

Note. Generation can take place without any introduction of the penis, but by the presence alone of sperm at the orifice of the vagina. Therefore, if by reason of the narrowness of the woman, or by reason of disease by which the organs of generation are affected, the man cannot penetrate the feminine vessel, it will be enough that he pour forth and apply the semen at the mouth of the vagina, the copulation being only begun. It is said, if by reason of narrowness, or by reason of disease; for this most imperfect mode of congress will be illicit if they can come together in the ordinary and natural mode. For although spouses are not bound to use extraordinary diligence so that offspring may more certainly follow, nevertheless they are bound to abstain from a less natural mode of coming together, by force of which generation can very easily be impeded, if they can come together in the natural mode.

n. 141.

But whether impotence is had and the marriage is null if the man, for example, from excessive heat or frigidity, cannot pour forth semen except above the vulva or near the opening of the vagina, is disputed. Some affirm, because there is truly power to generate. Others deny, because there is not power to generate in the natural mode. And otherwise excessive heat or frigidity would no longer be impediments of marriage, against the common opinion of the doctors and against the laws themselves. Acta S. Sedis, vol. 4. pp. 196. 197. Cf. here n. 152.

n. 142.

Is it a mortal sin to pour forth part of the semen outside the vessel?

n. 142.

These are the words of Sanchez, de matr. l. 9. D. 17. n. 12. 13.: "Voluntary effusion of semen outside the vessel, or that mode of coming together from which it follows, is a manifest mortal crime against nature, because it is opposed to the end of natural generation, to which nature itself has destined semen.... And this indeed must be taken whether in the whole conjugal act, or in part, or at its end, the whole semen or a part of it is poured outside the vessel. Thus Cajetan, 2. 2. q. 154. n. 1. Yet this must be tempered. For the man can be excused from fault if, besides his intention, while he is trying to come together legitimately, from a certain hastiness he pours semen outside, even if he approached with some motion of pouring forth in that way. For this must be attributed not to vice, but to the hastiness of nature." Diana, tr. 6. de matr. Res. 181. 185. 186. 187. But in the emission of sperm very many nemasperms or spermatozoa are emitted, of which only one is sufficient for generation. Antonelli, p. 108.

n. 143.

Corollary. Hence a woman who would try to cast out the semen, or part of it, after copulation has been had, can sin mortally, although this should be had in those circumstances in which generation perhaps cannot follow, or at least ordinarily does not follow, for example in the time of pregnancy. For then generation would now not follow from the very act of expelling the semen; and therefore that act, as being contrary to generation of itself, is mortal. Sporer, de matr. 490. 514.

Because of the sterility of a woman who cannot conceive, can the husband pollute himself outside copulation, so that afterward a physician may introduce the collected semen by means of an instrument into the uterus of the woman, and this in those circumstances in which it is morally certain, as the physician himself asserts, that generation will follow?

Resp. This is illicit, because that pollution outside conjugal copulation of itself in no way tends to generation; indeed, it is against generation. But that generation can be had, this is outside the intrinsic nature of that act, altogether from without and by accident; namely, it happens from without to that act already intrinsically evil. Nor does this principle stand in the way: in marriage there is lawful, at least without grave sin, whatever is not against generation. For this is true only in this sense: that, namely, at least gravely illicit is not whatever from its intrinsic nature does not impede generation. Cf. here n. 146.; Sanchez, l. 2. d. 12. n. 2. de Matr.; L. l. 6. n. 917. par. Dicunt.

Hence, with perfect copulation excluded, artificial fecundation of the woman is illicit. Holy Office, March 24, 1897. Artificial fecundation, namely, by which art is substituted for nature, not by which nature is merely aided by art.

Art is indeed substituted for nature if the man is first polluted and then the semen collected from that pollution is inserted into the vagina by some instrument. But nature is only aided if copulation is first performed in the natural mode, and then, whether by fingers or by a little syringe, the semen already inserted into the vagina is driven farther up to the opening of the uterus for more certainly obtaining fecundation. According to Sanchez, by illicit fecundation marriage is consummated. For he says: "Likewise they agree that marriage is consummated, by whatever art the semen is received within the natural vessel, without its penetration." L. 2. d. 21. n. 2. Sanchez cites several authors. But the contrary seems to have to be said. For that fecundation is not done by natural copulation. For marriage by nature itself is ordered to copulation and to generation through copulation, and through perfect copulation, which cannot exist without that penetration and the effusion of semen on the part of the man and the woman.

Vol. I, Matrimony, and Holy Orders, On Marriage (Volume I), On Marriage: Preliminary Notes · Vol. I, Matrimony, and Holy Orders, On Marriage (Volume I), Chapter I: On Marriage as Contract

And of the woman: for if many ancient theologians denied this, this was because they thought that "feminine semen is not necessary for generation." Sanchez, l. c. n. 10. But, because then the opposite was also probable, the same Sanchez, l. c. n. 11., says: "Therefore I conclude that it is probable that marriage is not consummated unless the woman also seminates, because for the consummation of marriage there is required copulation from which generation can follow." If, therefore, it is certain that for generation on the part of the woman the ovule and the fecundation of the ovule are required, it must consequently be said that marriage cannot be present if the woman perfectly lacks ovaries, or had an impervious vagina, so that the ovules could not be fecundated. Cf. here n. 150.

n. 145.

Does a man sin mortally by beginning copulation in the mouth, so that afterward he may consummate it in the due vessel?

n. 145.

Resp. These are the words of St. Alphonsus, 235.: "Sanchez, etc., deny, provided the danger of pollution is absent; but Sporer, etc., more truly affirm, both because in this act, because of the heat of the mouth, there is present the proximate danger of pollution, and because this of itself seems a new species of lust against nature, called by some irrumation; for whenever some other vessel besides the natural vessel instituted for copulation is sought by the man, there seems to be a new species of lust. Yet Sporer with Filliucci and Marchant excepts the case if it is done in passing; and Sanchez also seems really to think this, when he excuses that act from mortal sin if every danger of pollution ceases. Palaus, p. 4. par. 2. n. 6., excepts the case if the man did this so that he might excite himself toward natural copulation; but from what has been said, I think neither is to be admitted." Nevertheless the opinion of Sanchez does not seem altogether improbable; for as to the first reason, it does not seem true that there is always proximate danger of pollution if those parts are received by the mouth only in passing. But as to the second reason, namely that that act is a begun act and of itself tending to a new species of lust, it does not exceed the bounds of probability; and the same St. Alphonsus, l. 3. n. 466. at the end, more probably denies this peculiar species of sin. Cf. here n. 119.

n. 146.

Does a man sin mortally by beginning copulation in the preposterous vessel, so that afterward he may consummate it in the due vessel?

n. 146.

Resp. "Navarre, etc., deny, provided the danger of pollution is absent, because otherwise, as they say, all touches even venereal would not be illicit among married persons. But Sanchez, etc., commonly and more truly affirm. The reason is that coitus of this kind itself, even without semination, just as copulation itself in the natural vessel of another woman is true fornication although semination is not present." L. 916.

n. 147.

Note. 1. "Sanchez condemns as guilty of mortal sin the man who in the act of copulation would insert a finger into the preposterous vessel of his wife, because, as he says, in this act there is affection toward sodomy. But I judge that such an affection can indeed be found in the act, but, speaking of itself, I do not recognize this affection as implanted in such an act. Moreover, I say that spouses exercising such a foul act are always to be gravely rebuked." L. 935.

n. 147.

But is it mortal for a man to rub the male parts around the preposterous vessel of his wife? Sanchez and Bossius with Filliucci and Perez deny, because to touch the mouth of the preposterous vessel is not ordered to sodomitical copulation. Pontius, etc., affirm, and also Tamburini, "who testifies that from some codices the opinion of Thomas Sanchez was deleted; indeed Moya asserts that Sanchez himself retracted himself in the Antwerp edition of 1614. The reason is that at least such a touch cannot morally be done without sodomitical affection." L. 916.

n. 148.

When a man cannot coit with a virgin, is the wife then bound to suffer the cutting of the virginal enclosure by fingers or by another instrument, if there is need?

…and 170 more passages — all of them are listed on the topic page.

Tanquerey

Adolphe Tanquerey, S.S. — 573 passages

Vol. I, Matrimony, and Holy Orders, On Marriage (Volume I), On Marriage: Preliminary Notes

On Marriage — Preliminary Notes

The sacrament of Matrimony, like the sacrament of Order, contributes greatly to the good not only of the individual but also of society. For as by Order the ministers of God are propagated, who rule spiritual society, so by Matrimony the union of man and woman is sanctified, from which are begotten citizens who form each society, civil and ecclesiastical. How important it is to discuss this sacrament all those know who are persuaded that the happiness and prosperity not only of individuals, but also of families and societies, depends altogether on the procreation and good education of children.

n. 667.

1° The various names of marriage. Matrimony (matris munium) is so called because the mother regularly expends greater labor than the father in receiving and educating offspring, since the infant is known to have been for the mother "burdensome before birth, painful in birth, laborious after birth."¹ It is also called conjugium (cum, jungere), because it is, as it were, a common yoke, to which those who contract marriage spontaneously submit themselves; connubium, or nuptiae (from nubendo, that is, veiling), because in antiquity brides, when they were handed over to men, covered the head with a veil for the sake of modesty;² consortium (cum, sors), by which is signified the very close society of bodies and souls by which man and woman are joined together.

¹ Gregory IX, Decretal., l. III, tit. 33, c. 2.

² Gen., XXIV, 65.

n. 668.

2° Marriage as contract and sacrament. Matrimony can be considered as a natural contract and as a sacrament.

Matrimony as contract can be defined: a legitimate agreement between a man and a woman, conferring upon them a mutual, exclusive, and perpetual right both to acts of themselves apt for the generation of offspring, and to the fellowship of common life.

It is said: (a) a legitimate agreement... that is, entered into according to the laws, whether natural or positive, by which marriage is governed; and this is entered into between a man and a woman, who otherwise are by law capable of a contract of this kind.

(b) A mutual and perpetual right to acts... By these words the primary end of marriage is declared, namely the procreation of offspring and consequently education. But for the essence of marriage it is not required that children actually be begotten, since sterile persons lawfully marry; nor even the use of marriage, since the Blessed Virgin and St. Joseph were joined in lawful marriage, although they never used matrimonial rights; but a right suffices to those acts which of themselves are apt for the generation of offspring, although by accident generation sometimes does not follow, or the spouses do not use their right. Moreover that right is mutual, as is clear, and perpetual, so that thus vague and fornicatory mingling of the sexes is excluded.

(c) To the fellowship of common life: here is signified the secondary end of marriage, mutual help which arises from the love and society of each, according to that word of Scripture:¹ "It is not good for man to be alone; let us make him a helper like himself." - Wherefore spouses ought to be not only one flesh, so that they may generate offspring, but also one heart and one soul, so that they may bring help and solace to each other.

¹ Gen., II, 18.

Matrimony as sacrament is nothing other than the contract itself raised to the dignity of a sacrament, and is customarily defined: a sacrament of the New Law, by which, through the consent of the contracting parties legitimately furnished, grace is conferred upon spouses for rightly fulfilling the duties of marriage. The definition will be clearer from the things to be said below.

n. 669.

3° On other divisions of marriage. Matrimony can be considered under a multiple respect:

1° By reason of validity, it is distinguished into valid and invalid: (a) the former, which is also called true, is that which in reality has been contracted, without any diriment impediment; (b) the latter, which is also called null, is that which, on account of some defect or impediment, was not truly contracted; it is called attempted, insofar as one or the other party with knowledge of the impediment has dared to enter it; putative, when by the spouses themselves, or at least by one or the other, it is considered valid, although on account of a hidden impediment it is invalid.

2° By reason of dignity, it is legitimate or ratified: (a) legitimate, when it has been entered into according to the laws of natural and positive law, so that it is valid as a contract, although it does not attain to the dignity of a sacrament;¹ such is marriage lawfully contracted between infidels or the non-baptized; (b) ratified, that is received, when it is validly entered into between the faithful, so that it has the nature of a sacrament.²

¹ Formerly even the marriages of the faithful were called legitimate, when all the solemnities of law had been observed; but today the sense set forth above has prevailed. Cf. Benedict XIV, De Synodo, lib. VIII, c. 12, n. 5.

² Sometimes, however, but in an improper sense, even clandestine and consequently invalid marriages of the faithful are called ratified. Cf. Gasparri, n. 235.

3° By reason of effect, it is called ratified or consummated: ratified, when it has been celebrated, but not yet completed by carnal copula; consummated, when it has been completed by carnal copula of itself apt for generation, whether conception really follows, or not.

4° By reason of duration, marriage is an act or a state: the former is the passing agreement itself by which a right over bodies is mutually handed over in order to generation (matrimonium in fieri); the latter is the permanent state resulting from this passing act (matrimonium in facto esse).

n. 670.

4° Division. There will be four chapters: in the first, we shall treat of the contract itself of marriage; in the second, of the sacrament; in the third, of the impediments which sometimes stand in the way of the celebration of each; in the fourth, of dispensations which are customarily granted from these impediments. The two former chapters will be especially dogmatic, and in them we shall chiefly set forth natural and divine law concerning marriage. In the two others, we shall explain practical questions, namely moral and canonical ones, chiefly pertaining to positive law. Yet even in the former part, when occasion is given, we shall examine certain practical conclusions, lest we be compelled to treat twice of the same matter.

This division will be better understood from the following schema.

On marriage as contract

Its nature:

It consists in a stable contract.
The essence of the contract consists in consent.

Its properties:

unity.
indissolubility.

On marriage as sacrament

On the sacrament itself:

Existence.
Nature.
Effects.
The power of making laws concerning marriage.

On the celebration of marriage:

On the preliminaries to the celebration.
On the rite of celebration.

On the impediments of marriage

Prohibiting.
Diriment.

On dispensations

On dispensations themselves.
On the revalidation of marriage.

Appendix: On civil law with respect to marriage.

Vol. I, Matrimony, and Holy Orders, On Marriage (Volume I), Chapter I: On Marriage as Contract

n. 671.

On Marriage as Contract

Errors to be refuted. Today errors concerning the matrimonial contract are multiplying. (a) Many, especially evolutionists and materialists, holding that man descends from a brute animal, contend that promiscuity prevailed among the first men, as among the other living things, so that men were mingled indiscriminately with women and women with men, as occasion presented itself; and that to this promiscuity succeeded polygamy and polyandry, and only after long ages did monogamy prevail.¹ (b) Yet many moderns, even among evolutionists, admit that monogamy is more perfect than the other matrimonial contracts, and therefore is to be retained, provided, however, that divorce be easily admitted, and that it be permitted to spouses thus separated to seek new nuptials.² (c) Yet not a few, especially among socialists, favor free union: according to them, the chief end of union between man and woman is mutual pleasure; therefore for this union mutual love is required and suffices: those who mutually love each other, by that very fact, have the right to cohabit together; when love ceases, the union must be broken off. But the offspring born from free union will be nourished and educated by the care of the civil State, without the intervention of the parents.³

¹ Lubbock, The origin of civilization; Morgan, Systems of consanguinity, affinity and of the human family; Mac Lennan, Studies in ancient history comprising a reprint of Primitive marriage, London and New York, 1886; Giraud-Teulon, Les origines du Mariage et de la famille, Geneva and Paris, 1884.

² Thus, among others, Naquet, Dumas, Paul and Victor Margueritte, and others enumerated below where divorce is treated.

³ A. Bebel, La femme dans le passé, le présent et l'avenir (translated from German by H. Ravé), 1891; B. Malon, Le socialisme intégral, Paris, 1892, vol. I, ch. 7; G. Renard, Le régime socialiste, 1898, p. 59; Ch. Albert, L'amour libre, Paris, 1900; and others whom Turgeon enumerates, Le Féminisme français, Paris, 1902, vol. II, pp. 259-288.

Against these errors we shall set forth Catholic doctrine: 1° concerning the nature; 2° concerning the properties of the matrimonial contract.

Art. I. On the Nature of the Matrimonial Contract

To weigh the nature of this contract, we shall show two things: 1° that marriage consists in a stable contract; 2° that the essence of this contract is to be placed in consent.

n. 672.

§ I. On the Stability of the Matrimonial Contract

Thesis: By natural and divine law, marriage ought not to consist in a free and revocable union, but in a stable union apt for constituting a family. It is certain against socialists and other patrons of free union.¹

¹ Cf. Card. Billot, De Sacramentis, vol. II, th. 33.

Since our thesis is attacked by those who reject the authority of revelation, we shall first use historical and philosophical arguments, by which the way will be prepared for an exposition of Catholic doctrine.

n. 673.

1° Historical arguments. The adversaries contend that the union of the sexes in antiquity was free and promiscuous², and therefore that the modern manner of contracting marriage, as introduced only by customs and by civil law, can and ought to be abolished.

² Their arguments are enumerated and refuted by G. Fonsegrive, Mariage et Union libre, Paris, 1904.

They argue: (A) from the laws of evolution: they suppose that man descends from a brute animal, and thence infer that the first men were not alien to the morals of brute animals, among which promiscuous union prevails, not stable union; (B) from the present state of uncultivated tribes, which, they say, retain the morals of primitive men; for among them, they say, there prevails promiscuity of the sexes, or traces of the same remain, such as: matriarchy, or the state in which the mother enjoys principal authority in the family; the practice of drawing the genealogy of children not from fathers, but from mothers; polygamy and polyandry, or the union of several women at the same time with one man or conversely; (C) from certain ancient facts, which seem to be traces of primitive promiscuity, as were sacred prostitution, which flourished in certain temples, and also the right of the first night or the practice of handing over one's own wife to guests.

n. 674.

But we reply that many of the things alleged are not universal facts, but exceptions, and from them it is not inferred that promiscuity of the sexes or free union once prevailed; but on the contrary it is historically established that already from the first times the union of man and woman was ordered to constituting a stable family.

(A) Evolution, to which the adversaries appeal, is not a fact, but a hypothesis which the most distinguished transformists admit to be by no means proved, especially if there is question of the origin of man, as was said in the Treatise on God the Creator, nn. 838-839. But among those who think that man descends from a brute animal, the most learned say that the first men were not given over to promiscuity, and prove this from the very laws of evolution. For, according to Darwin,¹ the apes from which many evolutionists assert that man arose do not indulge in promiscuity, but some are monogamous, others indeed polygamous. For among them, as among men, the greatest jealousy concerning females prevails, and the males fight with the greatest zeal against others in order that they may exclusively possess the females which they have joined to themselves. Therefore if promiscuity of the sexes had prevailed among the first men, these would have been inferior to the apes themselves, and there would not be ascent and progress, but rather regression: which indeed openly contradicts the laws of evolution.

¹ Darwin, Descent of man, P. II, ch. 19; in French, La Descendance de l'homme, Paris, 1893, vol. II, p. 392. Cf. Letourneau, Evolution du mariage et de la famille, Paris, 1888, ch. 3; Westermarck, Origine du mariage dans l'espèce humaine, Paris, Guillaumin, 1895, chs. 5-6; G. Fonsegrive, Mariage et Union libre, Paris, 1904, pp. 19-29.

n. 675.

(B) But from the morals of uncultivated peoples it is not only not established that the first men were given over to promiscuity or free union, but it is inferred that among them a stable contract of marriage prevailed. For if the testimonies of those are weighed who lived for a long time, and not for only a few months, among them, these things are worthy of note: (a) promiscuity does not exist among uncultivated tribes except very rarely, and indeed especially where most corrupt men from Europe have brought in corruption of morals; almost everywhere the family is held as the foundation of society and the protection of the tribe; wherefore, even where divorce and polygamy are permitted, the matrimonial contract is entered into as of itself stable; (b) likewise exogamy, or the practice of seeking a wife outside the family and tribe¹, the custom of acquiring a wife or of assigning a dowry to her, show the will of constituting a stable family; (c) by strict laws provision is made for the chastity of girls and wives²: in many regions they inhabit the most remote rooms of the house, lest they be seen by strangers; elsewhere their faces are disfigured by mutilations lest they please other men; generally girls remain separated from men until nuptials; those who are seduced before marriage, and their corrupters, are punished with severe penalties; and adulteries are altogether reproved and strictly punished; all of which things indeed are very alien from promiscuity and free union.

¹ Cf. Msgr. A. Le Roy, La Religion des primitifs, Paris, 1911, pp. 106-109.

² Fonsegrive, op. cit., pp. 21-29.

n. 676.

(C) The same is established from the history of ancient peoples. (a) The most ancient code of laws, enacted about the year 2200 before Christ by Hammourabi, king of Babylon, not only excludes promiscuity, but also supposes that monogamy already prevails. The matrimonial contract must be entered into publicly; a man cannot take a concubine unless his wife is infirm or sterile: then he goes to the maidservant whom the wife substitutes for herself; if the maidservant likewise is sterile, he can take another wife. Divorce indeed is permitted, at the nod of the man: but if he dismisses his wife without sufficient reason, he must restore her dowry to her, indeed sometimes furnish her some compensation. Adultery, incest, and rape are strictly prohibited under grave penalties.³

³ Mémoires publiés sous la direction de M. de Morgan, vol. IV, Textes élamites-sémitiques, 2nd series, by P. Scheil, Paris, Leroux, 1902, pp. 145-150.

n. 677.

(b) Among the Egyptians, although polygamy and divorce were permitted under some restrictions, generally the custom prevailed of taking one wife only, as Herodotus relates⁴; moreover free union was by no means recognized, but adultery was strictly prohibited by civil law. - (c) Among the Indians, fifteen centuries before Christ, one lawful wife was taken, who could never be dismissed, yet several concubines were permitted. But promiscuity was by no means admitted; for adultery was held as one of the three greater sins. Afterwards, however, license was given to men of dismissing a wife if she was sterile or had borne only daughters, or suffered from defects which the man could not tolerate.¹ (d) In the Chinese empire, according to the law of Confucius, only one lawful wife must be taken; divorce indeed is permitted to the man, but only for a grave cause determined by law. (e) Among the Greeks and Romans, notwithstanding divorce, monogamy prevails, and adultery even of the man is considered as something indecorous and shameful; illegitimate children are not members of the family, nor can they have a part in domestic worship. Yet concubinage under certain conditions is permitted by law.² How honorable marriage was held among the Romans is established from the manner in which it is defined among the old jurists:³ "the fellowship of all life, an undivided custom of life, a sharing of divine and human law."

⁴ J. G. Wilkinson, A popular account of the ancient Egyptians, London, 1854, vol. II, p. 224; Maspero, Histoire ancienne des peuples d'Orient, 4° ed., Paris, 1897, vol. II, pp. 502-503.

¹ La Mazelière, Essai sur l'évolution de la civilisation indienne, Paris, Plon, 1902, vol. I, Introd.; vol. II, pp. 15, 306, etc.

² F. de Coulanges, La Cité antique, l. II, chs. 2-3; Denis, Histoire des théories morales dans l'antiquité, Paris, 1856, vol. I, pp. 69-73. - At Sparta, according to the laws of Lycurgus, the same woman could be possessed by several brothers; cf. Fonsegrive, op. cit., p. 36.

³ Modestin., Digest., XXII, 2.

From these testimonies and very many others which could be brought forward, it is clearly established that among ancient peoples promiscuity of the sexes did not prevail, nor free union, but that union of man and woman which is apt for constituting a family.

n. 678.

The facts alleged by the adversaries do not necessarily suppose promiscuity. (a) They say indeed that matriarchy was in use among many tribes, and that genealogies of children were drawn not from men, but from women. - A fact of this kind was not universal, but prevailed only among certain tribes; it is rather easily explained from the fact that, among those peoples, the man was absent for a long time for the sake of hunting, fishing, or making war; wherefore children, whose father was sometimes uncertain, and who moreover cohabited with the mother longer than with the father, were accustomed to receive the maternal name. But from this it by no means follows that promiscuity or free union was in common use.

(b) Sacred prostitution, which flourished in certain temples, and also the right of the first night or the practice of handing over one's own wife to guests, and other things of this kind, are abuses which arise from innate lust and a false conception of hospitality, but they cannot be called traces of ancient promiscuity.

But the few facts of polyandry or promiscuity which are alleged among certain tribes have themselves by way of exception, and do not weaken the general rule of stable marriage¹: polyandry was had where women were fewer in number than men; promiscuity, where it existed, is rather easily explained from a certain corruption of morals, without its being necessary to suppose that the first men were addicted to this vice.

¹ This is testified by Westermarck, otherwise an evolutionist, op. cit., ch. 6, pp. 128-129: "It is naturally not impossible that, among some peoples, the relations of the sexes have approached promiscuity. But there is not an atom of proof that promiscuity has ever been a general phase of the social history of humanity. The hypothesis of promiscuity, instead of belonging, as Giraud-Teulon thinks, to the class of hypotheses which science may permit itself, has no real foundation, no scientific character."

n. 679.

2° Philosophical arguments. From the very ends of marriage it is logically inferred that marriage demands some stability.

(A) The primary end of marriage is the procreation and education of offspring: for to this end the diversity of the sexes and conjugal society were instituted, that the human race might be propagated, as nature itself indicates; moreover, offspring having been conceived, by the law of nature the duty rests upon the spouses of rightly educating children, by providing them not only with food, but also with intellectual and moral nourishment, which the young could procure for themselves by their own powers only with difficulty and after a long time. But for each of these a stable union of parents is required², and a promiscuous or even free union does not suffice. For: (a) with respect to the generation of offspring, experience establishes that women who are mingled with several men rarely conceive; but free union, rescindable at will, given the mutability of the human will, often induces some promiscuity and voluntary sterility: for then pleasure rather than offspring is sought. (b) The right education of offspring requires still greater stability: 1) physical education: for in the last months of pregnancy, at the time of birth and lactation, the woman needs the cooperation of the man for providing for her own necessities and those of the offspring; 2) intellectual and moral education, for which the child needs not only the gentle love of his mother, but also the severe authority and prudence of his father.

² This St. Thomas lucidly sets forth, Contra Gentiles, lib. III, c. 122, where he shows, from a comparison between brute animals and man, that marriage among men ought to be stable. For he observes that animals remain together as long as is necessary for the education and instruction of the offspring, as is clear in certain birds, whose chicks cannot seek food for themselves immediately after they are born. "But it is manifest," he says, "that in the human species, the female would by no means suffice for the education of the offspring, since the necessity of human life requires many things which cannot be prepared by one alone... Again it must be considered that, in the human species, offspring does not need only nourishment as to the body, as among animals, but also instruction as to the soul; for other animals naturally have their prudences by which they can provide for themselves; but man lives by reason, which must come to prudence through the experience of a long time: whence it is necessary that children be instructed by parents as though already experienced; nor are those just born capable of this instruction, but after a long time, and especially when they shall have arrived at the years of discretion. For this instruction also a long time is required; and then also, on account of the impulses of the passions, by which the estimation of prudence is corrupted, they need not only instruction, but also repression. But for this the woman alone does not suffice, but in this the work of the man is more required, in whom there is both more perfect reason for instructing and stronger power for chastising. Therefore in the human species it is necessary to devote oneself to the advancement of offspring not for a short time, as among birds, but through a great space of life."

n. 680.

The Socialists indeed object that the duty of educating little children rests upon the State, which will gather all infants and hand them over to nurses to be educated.

Resp. Nature itself clearly shows that the work of physical and moral education is primarily to be performed by the parents themselves, insofar as this can be done. In truth, nature gave breasts to the mother for nursing children, strength to the father for seeking food and other necessities of life; to each parent, love at once tender and generous, by force of which they willingly hand over not only their own things, but even themselves and their own life for the welfare of the offspring. The same can be said of moral education: for there is implanted in parents a certain natural instinct and love, by force of which they are able to look into the mind of their children and detect their inclinations and direct them to the good; moreover, by a certain native inclination, children more willingly obey the commands and counsels of their own parents than of strangers. Therefore the duty of educating children rests primarily upon parents, and naturally flows from the very act of generation, and therefore supposes a union of itself stable.

n. 681.

(B) The secondary end of marriage is the mutual help of the spouses and the remedy of concupiscence. (a) By a certain natural instinct man and woman desire to be joined to each other by a special bond of love, "so that, one being helped by the aid of the other, he may more easily bear the inconveniences of life and sustain the weakness of old age."¹ The reason is because man and woman complete each other not only in order to the generation of offspring, but also with respect to mutual assistance and solace: the endowments of one are, as it were, the complement of the qualities of the other; therefore man by a certain natural instinct seeks the society of woman, who herself is delighted by the society of man. But they cannot provide this mutual help to each other unless by a contract of itself stable they are able to constitute a family and perceive the lawful joys of the family.

¹ Catech. Rom., On the sacrament of matrimony, n. 12.

n. 682.

(b) Another secondary end of marriage is to soothe and restrain concupiscence. In the state of fallen nature, concupiscence often burns forth, and only with difficulty is it contained within the limits which both the health of the body and the honesty of morals demand. Now stable marriage checks and restrains concupiscence within the limits of honesty. On the one hand, through the lawful use of marriage the ardor of concupiscence is soothed; and on the other, copula is had only with the person into whose body a lawful power has been handed over, to whom fidelity is owed in marriage, and indeed in that manner which is apt for procreating offspring. - But if free union revocable at will is admitted, concupiscence, far from being tempered, is increased not a little by the hope of entering new unions and experiencing new pleasures, with the greatest detriment to body and soul.²

² In this matter there is a great difference between man and brute animal: animals, led by instinct, mate only at certain times; but man experiences libido at every time, and only by the exercise of right reason and will can he check the abuse of venereal delight.

Therefore, having inspected the ends of marriage, whether primary or secondary, it is clear that conjugal union ought not to be promiscuous or free, but to enjoy that stability which is required for constituting a family.

n. 683.

3° It is confirmed by theological arguments. (a) For God, after the first man had been created, seeing that it was not good for man to remain alone, made for him a help like himself. Therefore He took one of the ribs of sleeping Adam, and built it into a woman and brought her to Adam. He said: "This now is bone of my bones, and flesh of my flesh; she shall be called woman, because she was taken from man. Wherefore a man shall leave his father and mother, and shall cleave to his wife; and they shall be two in one flesh."¹ For there especially five things are declared: 1) the formation of the woman made by God, that she might become the companion of the first man and a help like him; 2) the intimate union which ought to exist between man and woman both for the generation of offspring and for the fellowship of life; 3) yet a certain dependence of the woman upon the man, because she was taken from the man; 4) the unity of the matrimonial bond: for they shall be two in one flesh; 5) the stability of the same: a man shall leave his father and mother and shall cleave to his wife. Deservedly, therefore, Leo XIII says:² "That union of man and woman, in order that it might respond more aptly to the most wise counsels of God, even from that time bore before itself two chief properties, and these especially noble, as though deeply impressed and inscribed, namely unity and perpetuity."

¹ Gen., II, 18-24.

² Encycl. Arcanum.

(b) We indeed admit that this excellent form of marriage was adulterated among the Jews themselves, chiefly through polygamy and divorce. Nevertheless vague and free unions were strictly prohibited; thus girls who, at the time of the nuptials, were found to have lost their virginity were punished with death, as were those who committed adultery.³ For the union of spouses, even when several wives were permitted, was ordered primarily to procreating children and constituting a family, as is established from the whole history of the Israelite people, among whom stable families were held as the safest protection of the nation.

³ Deut., XXII, 20-22.

(c) But Christ recalled Christian marriage to its ancient unity and indissolubility; for, having been asked whether it was permitted to put away one's wife, He responded that this was not permitted, because God from the beginning said: "For this cause a man shall leave father and mother and shall cleave to his wife, and they shall be two in one flesh. Therefore now they are not two, but one flesh. What therefore God has joined together, let not man separate."⁴ This also St. Paul teaches, asserting that the woman who, while her husband lives, has been with another man is an adulteress¹, declaring the unity of marriage thus:² "Let each one have his own wife, and let each woman have her own husband." Now the unity and indissolubility of the matrimonial contract altogether exclude vague and free unions.

⁴ Matt., XIX, 4-6.

¹ Rom., VII, 3.

² I Cor. VII, 2. - This is proved more fully below, nn. 709, 716 sq.

(d) The Church not only retained this doctrine of the Master, but also strove with all its powers to bring it into practice, unceasingly teaching that nuptials are to be entered into not for the sake of lust, but for procreating and educating children in a Christian manner, and also for mutual help and solace. This, among others, St. Augustine declares, writing of wives:³ "For they were married for this purpose: that that concupiscence, reduced to a lawful bond, might not float about deformed and dissolved, having from itself the unrestrainable weakness of the flesh, but from nuptials the indissoluble society of fidelity; from itself the progress of immoderate intercourse, but from nuptials the measure of chaste procreation." - But how strenuously the Church fought against the lust of kings and peoples for protecting the sanctity and perpetuity of the matrimonial bond, we shall set forth below, n. 720.

³ De bono conjugali, cap. 5, P. L., XL, 377.

n. 684.

Corollaries. (a) Fornication and free and temporary union are opposed to the natural and at the same time divine law, since they are not only prohibited by divine law, but are also opposed to the essential ends of marriage, as is established from what has been said, n. 679.

(b) Marriage is impossible between persons who are not apt for generating, such as eunuchs, since the primary end cannot be attained.

(c) A marriage in which the primary end of marriage itself, that is, the end of the work, were positively excluded by the contracting parties would be illicit, indeed null; but the intention of the contracting parties (the end of the one acting) can be that of not pursuing the execution of such an end, provided that the right to that end is not excluded, or the right to the body (can. 1081, § 2).

(d) It is licit and valid, although less perfect, to contract marriage with this explicit end alone, not however exclusive, that poverty be removed, help and solace be found, passions be quieted, lawful delight be had, provided that the primary end is not excluded, in the sense already stated.

n. 685.

§ II. On the Essence of the Matrimonial Contract

Preliminary notes. From what has already been said it is permitted to infer that the essence of marriage, as contract, consists in mutual consent, by which a man and a woman, otherwise capable of marriage, hand over to each other in the present² a stable right over the body of the other for generating offspring, and for the fellowship of common life. Consequently the matrimonial contract does not consist directly in use or copula, but in the consent by which the right to copula is handed over. For, as St. Thomas rightly observes, "one does not receive power over that which is freely another's except through his consent. But, through matrimony, each spouse receives power over the body of the other... since previously each had free power of his own body. Therefore consent makes marriage."

¹ St. Thomas, Supplem., q. 45-48; Sanchez, lib. II-V; Salmantic., cap. 6-7; Billuart, diss. III, a. 1-5; St. Alphonsus, nn. 885-896; Carrière, nn. 455-505; Gasparri, nn. 770-870; Rosset, vol. I, nn. 88-237; Pesch, nn. 731-752; Billot, th. 34-35; Ball. P., nn. 262-305 (3rd ed.); Wernz, S.J., Jus Decretal., vol. IV, Jus Matrimoniale, Rome, 1904, nn. 45-47 and nn. 291-306.

² It is said in the present, because consent concerning the future indeed suffices for betrothals, but not for marriage.

n. 686.

Certain ancient authors taught that copula is necessary for constituting perfect marriage: "It must be known," says Gratian,³ "that marriage is begun in betrothal, perfected in commingling. Whence between bridegroom and bride there is marriage, but begun; between those joined by copula there is ratified marriage." A few commentators of Gratian proceeded further, teaching that copula is required for the essence of marriage. Freisen renewed this opinion, writing that the matrimonial contract is nothing other than a promise of future copula, and therefore does not differ from betrothals; but marriage properly so called is made through copula had with marital affection.⁴ - It is indeed true that marriage simply ratified is not so perfectly indissoluble as consummated marriage, as will be said below; yet it is true marriage and properly so called, as the common and certain opinion holds. (a) For the Fathers often teach this, when they write that Mary and Joseph were truly spouses, although they never used marriage: thus, for example, Origen, St. Basil, St. Ambrose, St. Jerome, St. Augustine;¹ hence Benedict XIV says: "Those who affirm that the marriage of the Blessed Virgin with St. Joseph consisted only in betrothals, think rashly and falsely. Therefore it must be held as certain that the marriage contracted between them was true and ratified."² (b) Pontiffs and Councils teach the same expressly, when they establish that marriage is perfected by the free consent of the contracting parties. Thus Nicholas I:³ "Let the consent alone of those concerning whose unions there is question suffice according to the laws. If this consent alone perhaps has been lacking in nuptials, the rest, even celebrated with intercourse itself, is frustrated, John Chrysostom, the great Doctor, bearing witness, who says: intercourse does not make marriage, but will." To the point is Trent:⁴ "There is no doubt that clandestine marriages made by the free consent of the contracting parties are ratified and true marriages." Afterwards it declares that ratified marriage, not consummated, is dissolved by solemn profession of religion; now a contract is not dissolved unless it already exists.

³ Dictum in Caus. 27, q. 2, c. 34; cf. c. 45. - There the word ratified from the context seems to signify a marriage which cannot be dissolved in any way.

⁴ Archiv für kathol. Kirchenrecht, LIV, 1885, p. 361 sq. - Yet he later retracted this error in the same periodical, LXVII, 1892, p. 381 sq.

¹ Origen, homil. VI on Luke, P. G., vol. XIII, p. 1814 sq.; St. Basil, De sancta Christi generatione, nn. 3-5, P. G., vol. XXXI, pp. 1463-1467; St. Ambrose, De instit. virg., c. 6, n. 42, P. L., vol. XVI, p. 316; St. Jerome, Contra Helvid., n. 4, P. L., vol. XXIII, p. 185; St. Augustine, De nuptiis et concup., l. I, n. 12, P. L., vol. XLIV, p. 420.

² De Synodo dioeces., l. XIII, c. 32, n. 13.

³ In Mansi, Concilia, vol. XV, p. 403.

⁴ Trent, Sess. XXIV, de Reformat. matrim., c. 1.

It remains, therefore, that we accurately declare the qualities of matrimonial consent; therefore we shall speak: 1° on the endowments of this consent in general; 2° on conditioned consent in particular.

n. 687.

I. On the Endowments of Matrimonial Consent

Since marriage is a certain contract, the consent furnished in it follows the general laws of contract. But because it is a contract sui generis, in which a right over the very persons of the contracting parties is handed over, certain special things must be noted concerning it. We shall declare this by setting forth in what sense matrimonial consent ought to be internal, free, mutual, and externally manifested.

n. 688.

1° Internal, that is: (a) truly elicited by the will, (b) with a true intention, at least implicit, of handing over a right over one's own body and of receiving a right over the body of the other in order to the generation of offspring. This indeed is clear from the very nature of marriage; for this consists essentially in the right to acts of themselves apt for generating offspring; and moreover such a right cannot be handed over without the true consent of each party. Hence a union between man and woman entered into on account of other ends, for example, only for mutual help and solace, without the intention of granting the aforesaid right, is not truly marriage. Yet implicit consent suffices, such as, for example, is given by those who intend to do what others about to marry do, provided that they exclude nothing of those things which are required for the essence of marriage. What error vitiates consent will be declared below, nn. 934-936.

n. 689.

Corollaries: (A) He who simulates consent, while indeed seriously and duly pronouncing the words, but internally dissenting or jesting, contracts invalidly. Hence he cannot licitly use marriage; but the other party, who furnished true consent, is not bound to believe the simulator saying that he did not consent, but can ask for the debt.

(B) In the external forum, consent seriously given externally is presumed to be true and internal, unless the contrary is proved by certain arguments. (Codex, c. 1086.)

This proof is altogether difficult; for the affirmation even sworn of the simulator, or even of each spouse, does not suffice; but besides, two things are required: (a) the cause or motive of simulation must be explained, for example, it must be proved that consent was extorted by fear or fraud, or that the simulator willed nothing other than to obtain money or seduce the girl; (b) the simulation itself must be demonstrated from various circumstances preceding, accompanying, or following the marriage, which are such that they render the fiction morally certain; this can be done, for example, either by letters, or by words pronounced before witnesses, clearly manifesting this intention.¹

¹ You have examples in Gasparri, nn. 801 and 804; Acta S. Sedis, vol. XVIII, p. 14; vol. XXII, p. 529.

n. 690.

For, even if it is admitted with many theologians that in this case sacrilege properly so called is not committed², nevertheless one certainly sins against truth, by deceiving the other party and the witnesses; against justice, by inflicting grave damage on the other party, who will remain unmarried if the fraud cannot be proved, or will contract other nuptials only with difficulty if the fraud is detected; against chastity, if the consummation of this fictitious marriage is intended.

² For simulation of a sacrament it is required that some essential part be posited, while the other is omitted or mutilated; but he who simulates consent posits neither the matter nor the form of the sacrament, since each consists in consent itself; therefore he does not properly simulate the sacrament, nor under this head is he guilty of sacrilege. Cf. St. Alphonsus, n. 62.

Yet he is excused from sin who simulates consent on account of a grave and urgent reason, for example, because of grave fear, or to avoid scandal, if a diriment impediment is detected a little before the celebration of marriage, from which dispensation here and now cannot be obtained, and moreover to defer the ceremony is morally impossible.

n. 691.

(D) Grave injury brought about by deception of this kind must be repaired from justice, when the deceiver is the unjust, efficacious, and culpable cause of the damage which the innocent party suffers.

(a) Often the damage cannot be repaired except by furnishing true consent and thus revalidating the marriage; for since it is difficult and sometimes impossible to prove the fiction in the external forum, the innocent party is prohibited from passing to other nuptials, and a continued injury is done to him or her unless the marriage is revalidated.

(b) Yet the deceiver is not bound to marry the deceived party whenever this is morally impossible, for example, because one or the other party has already entered another valid marriage, or if unhappy outcomes are feared because the deceiver is of much higher condition; - or when the damage brought about can be compensated in another way and the injured party admits this compensation; - or if the deceiver himself was induced to contract by grave fear; - or if by his manner of acting he gave manifest signs of fictitious consent.

n. 692.

2° Free, that is, with advertence on the part of the intellect and consent on the part of the will, such as is required for mortal sin. For the matrimonial contract induces grave obligations, and indeed for the whole course of life; moreover no one is judged to undertake obligations of this kind unless he fully consents. Hence consent given in hypnotic sleep would not be valid.

This freedom is taken away by insanity, error, force, and fear, concerning which there is treatment where impediments are discussed.

n. 693.

3° Mutual, or given and accepted by each party; for here there is question of a bilateral contract, by which mutual rights are handed over and accepted, and mutual obligations are undertaken; but these two suppose the consent of each party, since no one can hand over rights and undertake obligations unless he wills.

Therefore it is required that the consent of one be intimated to the other and accepted by him or her; but it is disputed whether it is necessary that the very acceptance of consent be intimated to the other. The matter is controverted as for all contracts (see Treatise on Contracts, n. 624). Many and grave authors¹ required the intimation of consent. But the matter now has little importance in practice, since marriage cannot be contracted by letter, but the contracting parties must be present themselves in person or through a procurator (Codex, c. 1088).

¹ Lugo, Sanchez, D'Annibale, Gasparri.

Nor is it required that the consent of each party be given at the same instant; but that moral union suffices which exists whenever consent given by one still endures at the time when the other furnishes his or her consent. But how long consent once elicited perseveres, whether namely for a year, or for three years, or longer, cannot be determined absolutely, but depends on the various circumstances, and must be left to the judgment of prudent persons.

n. 694.

4° Externally manifested: for this is required by the nature of a contract, which among men is not valid unless it is expressed externally; and also by the nature of a sacrament, which consists in a sensible sign.

By natural and divine law any signs clearly manifesting consent suffice; by ecclesiastical law words regularly must be employed whenever this can be done, but not under penalty of nullity;² indeed, according to St. Alphonsus (n. 888), words are required only under venial fault, and shame or another reasonable cause excuses from this. Nevertheless the parish priest should require that those about to marry express their consent by words, if they can, and indeed clearly, so that thus he may meet many doubts and quibbles.

² Codex, c. 1088, § 2.

n. 695.

Therefore validly, and, a just cause being present, licitly, consent is expressed by various signs which suffice in other contracts; namely:

(A) By words which, according to received signification, express matrimonial consent in the present, for example, I receive thee as wife, as my own; as husband, as my own; I contract marriage with thee, etc. - It is said "in the present," because consent concerning the future signifies betrothals only. Yet sometimes words which, as they sound, seem to be concerning the future sufficiently designate consent in the present from the circumstances, for example, from now on, henceforth I shall have thee as wife. If the words are ambiguous, the sense in the internal forum depends on the intention of the one speaking; in the external forum it must be determined from the circumstances.

(B) By signs or acts, for example, if the woman nods by inclining the head to the parish priest or man questioning her; or if, while the man expresses consent, the woman of her own accord extends her right hand so that the man may put on the ring; likewise if the spouses, after the celebration of marriage, freely approach the sacristy with the witnesses so that there they may be inscribed by the parish priest in the book of marriages. But it is not permitted to spouses to use equivalent signs if they can speak.

n. 696.

(C) By letter marriage was contracted validly before the promulgation of the Code; but, from the Code, c. 1088, this cannot be done, since the contracting parties must be present in person or through a procurator. This indeed was wisely established so that frauds may more easily be guarded against.

n. 697.

(D) Through a procurator or through an interpreter marriage can be contracted, provided that "a just cause is present, and it is in no way permitted to doubt the authenticity of the mandate or the fidelity of the interpreter, the license of the Ordinary having been had, if time allows."¹

¹ Codex, c. 1091.

For marriage to be entered validly through a procurator, ") there is required a special mandate to contract with a certain person, signed by the mandating party and either by the parish priest or Ordinary of the place in which the mandate is made, or by a priest delegated by either of them, or by at least two witnesses; 2) if the mandating party does not know how to write, this is to be noted in the mandate itself and another witness is to be added who himself also signs the writing; otherwise the mandate is invalid; 3) if, before the procurator has contracted in the name of the mandating party, the latter has revoked the mandate or fallen into insanity, the marriage is invalid, although either the procurator or the other contracting party were ignorant of these things; 4) for the marriage to be valid, the procurator must perform his office himself in person."² Besides, the procurator must not exceed the limits of the mandate, and, where solemn form is required, he is bound to exhibit the mandate to the parish priest and witnesses, and to contract before them in the name of the mandating party.³

² Codex, c. 1089.

³ Codex, c. 1091.

n. 698.

II. On Conditioned Consent

1° On its liceity. Since marriage is a contract, nothing of itself prohibits that it can be entered into under a condition, provided that the condition is not repugnant to the substance of marriage. Yet regularly nuptials of this kind are not to be permitted, both because the Roman Ritual, handing down the form of marriage, describes no other than the absolute form; and because very great inconveniences are customarily born from added conditions, since from this certain marriages become doubtful, and moreover the contracting parties are exposed to the danger of living more freely before the condition has been fulfilled. Yet they can be permitted for a most grave cause and with the consent of the Bishop acceding; indeed, if there is question of revalidating a doubtfully contracted marriage, a condition must be added.

⁴ From the Code, c. 1092, "a condition once added and not revoked: 1° if it is concerning a future necessary event, or impossible, or shameful, but not against the substance of marriage, is held as not added; 2° if concerning a future event against the substance of marriage, it renders it invalid; 3° if concerning a future licit event, it suspends the validity of marriage; 4° if concerning the past or concerning the present, the marriage will be valid or not, according as that which is under the condition exists or not."

n. 699.

2° On its validity. Here a multiple distinction is needed.

(A) If the condition is concerning the past or concerning the present, whether it is honorable or not, (a) the marriage is valid immediately, if the condition is verified; and immediately invalid, if it is not fulfilled; for example, I contract with thee if my father is dead, or if thou hast truly killed my enemy, or if thou art a virgin, etc. In these or similar cases consent is, as it were, bound to the condition, and consequently the conditioned contract immediately passes into an absolute one if at that instant the condition itself has been fulfilled. Moreover, since this is concerning the past or concerning the present, it is not to be feared that the apposition of the condition, even one less honorable, is an incitement to crime.

(b) But as long as it is unknown whether the condition has been fulfilled or not, it is not permitted to use marriage, on account of the danger of fornication.

(c) In the external forum, if the condition has not been explicitly brought into the pact in the very act of marriage, it is difficult to prove its existence;¹ and for the marriage to be declared null under this head, three things must be clearly demonstrated: that a true condition without which not was added, - that the same was not revoked before the celebration of marriage, - and that it was not fulfilled.

¹ Gasparri illustrates this by various examples, n. 869.

n. 700.

(B) If the condition is concerning the future, likewise a distinction must be made:

(a) If it is concerning a future honorable and possible event (for example, I marry thee if my father consents), the marriage remains in suspense until the condition shall have been verified; but when the condition has been fulfilled, the marriage becomes valid, provided that the consent previously given perseveres. In this case the marriage is valid without any renewal of consent, according to the common opinion, safe in practice, which the Roman Congregations follow in their decisions;¹ for marriage, even if it has been raised to the dignity of a sacrament, has the nature of a contract, and therefore is perfected when the condition arrives, just as other conditioned contracts.

¹ Cf. Fagnanus, Commentar., cap. 5, De Conditionibus...; Gasparri, n. 850.

Yet according to all it is better, when the condition has been fulfilled, to renew consent. Indeed this is necessary if the marriage was contracted under this condition: "If the Pope shall have dispensed from such a diriment impediment"; for those who contract in this way are incapable of marriage before the dispensation is obtained, and their consent is null; whence new consent, once the dispensation has been obtained, must be expressed.²

² Lugo, De Sacramentis in genere, disp. VIII, n. 98.

n. 701.

(b) If the condition is concerning a future impossible or dishonorable event, yet not against the substance of marriage (for example, if you receive a golden mountain as dowry, if you kill your brother), the marriage is valid, and the condition is held as not added. For it is presumed that the contracting parties seriously wished to contract, and did not bind consent to such a condition. - Yet this is only a presumption of law, which admits proof to the contrary in the internal forum; whence if the contracting party bound consent to this condition, the marriage is null if the condition is not fulfilled, but valid when the condition has been fulfilled. But in the external forum, according to can. 1092, 1°, proof to the contrary does not seem ever to be admitted by the judge, lest jesting or a depraved intention prevail against marriage.

n. 702.

(c) If the condition is concerning a future event against the substance of marriage, and is brought into the pact by the two contracting parties, or consent is expressly bound to it by either one, the marriage is invalid. For then true matrimonial consent is lacking, since at least one of the essential properties of marriage is excluded.

But if a condition of this kind is posited by only one, the other contradicting, or at least manifesting dissent by silence, the marriage is presumed valid, because the former is judged to have withdrawn from the condition and to have contracted absolutely. Yet that presumption yields to the truth, if it is certainly proved that the former bound consent to this condition.

Likewise, if the condition is merely concomitant, so that consent is not bound to it, the marriage is judged valid. For in the conflict of two intentions opposed to each other, that one is efficacious which prevails in the mind of the contracting parties; but in the present case there is a twofold opposed intention, namely the intention of marrying and at the same time of doing something contrary to the essence of marriage; moreover the intention of marrying, from things commonly occurring, prevails in the mind of the spouses; therefore it is truly efficacious and marriage is contracted. Yet this is a presumption which yields to the truth, when this is certainly established from elsewhere.

Let us declare the matter by examples. 1) If a condition is added against the good of offspring, for example, "provided that we avoid the generation of offspring until we become richer, - provided that after one or another child we exclude offspring"; the intention of the spouses must be explored: if they intend to exclude the right to the legitimate use of marriage, the contract is invalid, because they do not grant a perpetual right over their own body in order to generation, which nevertheless is essential to the essence of marriage; but if, as generally happens, the intention of handing over that right prevails, with a secondary intention of abusing marriage, the contract is valid.

Likewise, where the law of divorce is in force, if those about to marry contract under the condition of dissolving the matrimonial bond in the case of adultery or disagreements,¹ so that they would not wish to marry unless divorce were permitted to them, the marriage is invalid; for they do not consent to a perpetual bond, which is of the essence of marriage. But if they are so disposed that they would wish to marry even if divorce were prohibited, the contract is valid.¹

¹ Thus the Congregation of the Holy Office declared, May 20, 1754, that a marriage entered before a Calvinist minister was invalid, because he is accustomed to use a formula contrary to the perpetuity of marriage, in Gasparri, n. 854. See also Instruction of the Holy Office to the Bishop of S. Alberti, December 9, 1874, in Collect. P. F., n. 1301.

¹ Thus the Sacred Congregation of the Council, January 31, 1891, declared valid a marriage in which the bridegroom had wished to contract only a soluble bond, but nevertheless truly to marry. Cf. Acta S. Sedis, vol. XXIII, pp. 711-736.

The same must be said of conditions against the unity of marriage, for example, provided that I may take another, - provided that for money you prostitute yourself. - In individual cases an investigation must be made to detect whether or not consent was bound to this condition, and this cannot be supplied by a general presumption. But to detect the intention of the contracting parties, not only must the words by which consent was expressed be considered, but also the facts and circumstances from which the sense of the words can be known.²

² Thus Congregation of the Holy Office, 1877, to the Bishop of Nesqually, in Collect. P. F., n. 1302.

But when doubt remains, one must stand for the validity of the marriage, until the Holy See has decreed otherwise. If the spouses wish to renew consent, this is altogether to be advised.

n. 703.

(d) If an honorable condition is added of abstaining perpetually from the use of marriage, for example, for preserving chastity, it is controverted whether the marriage is valid or not. Not a few affirm that it is, because a right over one's own body can be conferred and at the same time the exercise of the right can be excluded, on account of a good motive:³ for then there is a radical right, although bound, and this suffices for the essence of marriage. In this way it is easily explained how there was true marriage between the Blessed Virgin and St. Joseph, although they had vowed virginity. But others deny it;⁴ for a right is the power of using; now if a power of this kind is prohibited, no right is conferred. Moreover the marriage of the Blessed Virgin with St. Joseph was valid: for no condition was added, but the Blessed Virgin was made divinely more certain that St. Joseph had proposed to himself to preserve virginity, and therefore by contracting nuptials absolutely, she in no way committed herself to the danger of violating the vow.

³ Palmieri, De Matrim., p. 17; Ball. P., nn. 225-233; Lehmkuhl, II, n. 690; Gasparri, n. 858.

⁴ St. Thomas, 4, dist. 30, q. 2, a. 1, quaestiunc. 3, sol. 2; Benedict XIV, De Synodo, l. XIII, c. 22, n. 10. D'Annibale, III, 443, note 4.

n. 704.

Corollary. From these principles the question can be solved whether a marriage contracted by one who falsely thinks himself bound by a diriment impediment is valid. Certain authors deny it, because one cannot seriously will that which is impossible; moreover, he who is certain that he is laboring under an impediment of this kind, by that very fact knows marriage to be impossible. But others affirm it, because in this case the contracting parties consent insofar as they can; but in fact marriage is possible, since in reality there is no impediment; therefore they furnish true consent; and this must be held from the Code, c. 1085.

According to the principles set forth above, attention must be paid to the intention of the contracting parties: if they think themselves to be so bound by an impediment that they seek nothing other than concubinage, the marriage is not valid; but if they intend to contract insofar as they can, the marriage is valid.

…and 533 more passages — all of them are listed on the topic page.

Koch–Preuss

Antony Koch; adapted and edited by Arthur Preuss — 20 passages

Vol. II, Pt. II, Ch. II, Section 8: Matrimony

Marriage was instituted by God for the propagation of the human race.¹ Christ raised the contract to the dignity of a Sacrament.²

¹ Gen. I, 27 sq.; II, 18-24-—St. Augustine, Contra lulian. Pelag., Ill, c. 25, n. 57; ibid., IV, c. 7, n. 38 (Migne, P. L., XLIV, 731, 757)-

² Matt. XIX, 4-6; Eph. V, 21-32. —Conc. Trident., Sess. XXIV, De Matr., can. 1. —Cat. Rom., P. II, c. 8, qu. 14-16.

The Sacrament of Matrimony is a most important institution both from the moral and the social point of view. The duties it imposes may be briefly described as follows:

OBLIGATION. —No individual human being, whether man or woman, is obliged to enter the married state. The words of the Creator, "Increase and multiply and fill the earth," are to be regarded as a blessing;³ but even if they embodied a formal command, they would bind only the race as a whole, not each individual member, for the object of the command, i. e., the propagation of humankind, can be attained even though many remain unmarried.⁴ The New Testament distinctly teaches that marriage is not an obligation binding all, but that, on the contrary, virginity is a higher good (bonum melius) because it enables man to devote himself wholly to the service of God. To lead a single life for religious or moral motives is better than to marry.⁵

³ Gen. I, 26; cfr. Gen. V, *; VIII, 201 17; IX, i, 7; XVII, 20 sq.; XXVIII, 3; XXXV, 11; XLVIII, 3 sq.—St. Augustine, De Peccato Orig., c. 35, n. 40: "Those words of God, Increase and multiply, are not a prediction of sins to be condemned, but a blessing of fruitful nuptials." (Migne, P. L., XLIV, 405).

⁴ Cat. Rom., P. II, c. 8, qu. 12. — St. Thomas, Summa Theol., 2a 2ae, qu. 152, art. 2, ad i: "The command given concerning generation regards the whole multitude of men, for which it is necessary not only that it multiply bodily but also that it advance spiritually. Therefore sufficient provision is made for the human multitude if some devote themselves to carnal generation while others, abstaining from it, are free for contemplation of divine things, for the beauty and salvation of the whole human race; just as in an army some guard the camp, some carry the standards, and some fight with swords, all of which are nevertheless duties of the multitude but cannot be fulfilled by one person." —Ibid., 3a, Suppl., qu. 41, art. 1 sq. —H. Denifle, O.P., Luther und Luthertum, Vol. I, 2nd ed., pp. 268 sqq. (Volz's translation, I, i, Somerset, O., 1917, pp. 261 sqq.).

⁵ Matt. XIX, 10 sqq.; 1 Cor. VII, 25 sq., 32 sqq. —Conc. Trident., Sess. XXIV, can. 10: "If anyone says that the married state is to be preferred to the state of virginity or celibacy, and that it is not better and more blessed to remain in virginity or celibacy than to be joined in marriage, let him be anathema."

Besides voluntary virginity, just described, there is another kind, altogether involuntary or compulsory, due to physical, moral or social causes. The conditions of life in which a man is placed may be such as to preclude marriage. Thus he may be unable to find a mate, or he may be physically unfit, or suffer from defects or inclinations which make a happy marriage impossible or, at any rate, extremely doubtful. It is no sin to remain unmarried for such and similar reasons. But to refuse to assume the duties of the married state out of pure selfishness, e. g., be- cause of an inordinate love of pleasure, or in order to be able to continue in vicious habits,⁶ is contrary to the moral law and exposes a man to great danger.

⁶ "Non amator coniugii, sed libidinis servus." Cfr. St. Augustine, Confessiones, 1. VI, c. 15, n. 25 (Migne, P. L., XXXII, 732) ', C. Krieg, Wissenschaft der Seelenleitung, Vol. I, pp. 318 sqq.

However, we must be slow to condemn unmarried persons, for they may be actuated by perfectly legitimate motives which they do not care and are under no obligation to reveal even to their confessor.

One who is too weak to lead a chaste life and unwilling to employ the moral and religious means which would enable him to live continently,⁷ is in duty bound to marry, and the confessor should tell him so.⁸ However, it is necessary to proceed with caution in such cases, because the question of marriage is a most delicate and important one, and continence has to be practiced at certain times even in wedlock. St. Paul expressly teaches that no one should be forbidden to marry, and in spite of his high regard for widows, frankly admits that for many of them it would be better to marry again.⁹

⁷ Mark XIV, 38; 1 Cor. X, 13. — Conc. Trident., Sess. XXIV, can. 9: "If anyone says that all who do not feel that they have the gift of chastity, even if they have vowed it, may contract marriage, let him be anathema, since God does not deny that gift to those who ask rightly, nor allow us to be tempted beyond what we are able." —Sess. VI, cap. 11: “Deus impossibilia non iubet." —St. Augustine, Enarr. in Ps., CXXXI, n. 3: "Let no one presume that he will render by his own powers what he has vowed; He who exhorts you to vow Himself helps you to render it." (Migne, P. L., XXXVII, 1717).—St. Thomas, Summa Theol., 3a, Suppl., qu. 42, art. 3, ad 3: "A greater remedy against the disease of concupiscence is employed, through spiritual works and mortification of the flesh, by those who do not use marriage."

⁸ 1 Cor. VII, 9: "For it is better to marry than to burn." —On the meaning of uri and of the vow of celibacy see Denifle, Luther und Luthertum, Vol. I, 2nd ed., pp. 92 sqq. (English translation by Volz, I, i, pp. 100 sqq.).

⁹ 1 Cor. VII, 1 sq., 8 sq., 39 sq.; 1 Tim. IV, 3; V, 5, 14 sq.

DUTIES WITH REGARD TO THE RECEPTION OF THE SACRAMENT. —These are partly negative and partly positive. a) MOTIVES. —The motives by which a person is led to embrace the married state must be morally licit. a) Both parties must be convinced that they are called to the married state and that they possess not only the necessary knowledge but likewise the religious and ethical qualities without which married life cannot prove pleasing to God nor helpful to the contracting parties.¹⁰ As the sexes are drawn together indiscriminately by the natural stimulus of sensual and intellectual attraction, the gratification of the sexual instinct¹¹ ** is not a sufficient moral motive to justify mar' riage. The same is true of greed, Platonic love, so called, and other purely secular motives. None of these suffices to constitute matrimony a truly moral relationship.

¹⁰ Ecclus. VII, 27 sq.; 1 Tim. II, 15. —Rit. Rom., tit. 7, c. 1, n. 1: "Let each know the rudiments of the faith, since they must afterwards teach them to their children." —For the instruction of bridal couples in the duties of their new state of life there are available a number of useful books, e. g., Gerard, Marriage and Parenthood (New York: Jos. Wagner), and others.

¹¹ The Roman Catechism (P. II, c. 8, qu. 8) admonishes parish priests to teach the faithful that the nature and import of marriage consist in the bond and obligation, and that, besides the consent expressed in the manner prescribed by the Church, consummation is not necessarily required to constitute a true marriage. —Cfr. Pohle-Preuss, The Sacraments, Vol. IV, 2nd ed., pp. 184 sqq.

There is nothing wrong in attending to physical beauty and natural attraction in selecting a part- ner for life, but this motive should not be made a primary one.¹² Of considerably more importance than natural charms is the possession of material means assuring an income and a satisfactory social position which offers solid guarantees for the adequate support of a family. It is also perfectly legitimate to take into consideration the reasonable wishes of parents and relatives. Though the validity of marriage does not depend upon the consent of the parents (consensus parentum) of either party, both are in duty bound to pay due regard to the rights and interests of their respective families. A marriage contracted against the will or without the blessing of parents whose demands are reasonable, lacks one of the moral foundations of wedlock and one of the principal guarantees of marital happiness. ¹³ Commendable moral motives are: a de- sire for mutual happiness and sanctification, the wish to rear a family according to God's holy will, etc.

¹² Cfr. Gen. XXIV, 16; XXIX, 17. —Tertullian, De Cultu Fem., II, c. 2: "Beauty is not to be accused, as though it were bodily happiness, an addition to the divine workmanship, and a kind of becoming garment of the soul." (Ed. Leopold, II, 87).—St. Ambrose, De Offic., I, n. 83: "We certainly do not place virtue in bodily beauty; nevertheless, we do not exclude gracefulness, because modesty is accustomed to suffuse even the countenance with reserve and render it more pleasing. For just as an artisan is accustomed to work better in more suitable material, so modesty shines forth more even in bodily beauty itself." —IDEM, De Inst. Virg., n. 30: "Why do you seek beauty of countenance in a spouse more than beauty of character? A wife pleases by honorable conduct more than by beauty. We cannot censure the work of the divine Craftsman, but let one who is delighted by bodily beauty be delighted much more by that loveliness which is within according to the image of God, not that which is more adorned outwardly." (Migne, P. L., XVI, 48, 312). — IDEM, De Abraham, 1. I, n. 6: "Not so much a woman’s beauty as her virtue and dignity delights a man." (P. L., XIV, 423).

¹³ Conc. Trident., Sess. XXIV, De Reform. Matr., c. i; Cat. Rom., P. II, c. 8, qu. 26; Gury, Comp. Theol. Mor., Vol. II, n. 569 sqq.; Kenrick, Theol. Mor., Vol. II, pp. 289 sq.

Broadly speaking, it is better to marry young than to wait too long. Most of those who are called to the married state will find it to their advantage to marry at an age when they are still pliable and enjoy their full physical powers. If a man postpones marriage too long he is apt to lose courage and become unfit for married life. Husband and wife grow accustomed to each other more easily if both are young and tractable and inspired by high ideals. Needless to add, no man should marry until he is able to support a family.

Persons who are physically underdeveloped or suffer from some hereditary disease or other serious bodily ailment, should not marry. The normal development and good health of the female is of special importance. Marital happiness largely depends on the health of the wife. No girl ought to think of marriage before she is twenty. The husband should be several years older than the wife, and able to exercise self-control. A great deal of misery is caused by people marrying too young.

The Church discourages, and to a certain extent forbids, marriage among blood relations, because such unions frequently result in stunted and defective children. The Mosaic law forbade them as harmful for the offspring of the contracting parties as well as for the nation at large.¹⁴1* To prevent grievous disappointments, which are all too apt to endanger conjugal happiness, the contracting parties should be frank with each other in regard to their pecuniary means and all other temporal matters of importance.

¹⁴ Lev. XX, 17.

β) The Church earnestly warns her children against mixed marriages. Except for the gravest of reasons no sensible Catholic will marry a person belonging to another religion. The nature and purpose of marriage demand true piety and virtue in both parties, in order that they may assist and sanctify each other.¹⁵ The Catholic, therefore, who knowingly and willingly marries a person having no religious or moral convictions, or a false religion, commits a sin and is guilty of an immoral act. There can be no true unity of mind and heart, no harmony between husband and wife, least of all in the upbringing of children, if they differ in this most essential matter of religious belief. But the Church's opposition to mixed marriages rests on a more important consideration even than that. She regards the Sacrament of Matrimony as a symbol of Christ's union with His Church ¹⁶ and a nursery of souls. Hence she is perfectly justified in disapproving of mixed marriages and permitting them only with reluctance and under certain well defined conditions.¹⁷ b) PREPARATION. —As the reception of this Sacrament is a most important step, fraught with grave and lasting consequences, the contracting parties should prepare themselves carefully by cleansing their souls and rekindling their religious ardor. It is the fervent desire of the Church, and in full conformity with her practice, that both bride and groom go to confession and receive Holy Communion immediately, or at least within three days, before marriage.¹⁸ To receive this Sacrament in the state of mortal sin is in itself a mortal sin and a sacrilege. Making a general confession may be advisable, but is not, generally speaking, of obligation. The nupturients should abstain from undue intimacy before marriage and when the time has come to plight their troth, they should do so in the presence of the required witnesses. To be canonically valid a promise of marriage must be made in writing and signed by the nupturients, their pastor or bishop, or at least two witnesses.

¹⁵ Cfr. 1 Thess. IV, 3-7; 1 Tim. II, 15; 1 Pet. III, 1-7.

¹⁶ Eph. V, 22-23; cfr. 1 Cor. VII, 39; Col. III, 18. —P. Schanz, Die Lehre von den hl. Sakramenten, pp. 713 sqq.

¹⁷ Cfr. A. A. Lambing, Mixed Marriages, Their Origin and Results, Notre Dame, Ind., 4th ed., 1917; G. Schlachter, C.PP.S., Mixed Marriages, Collegeville, Ind., 1915; W. Fanning, S.J., in the Catholic Encyclopedia, Vol. IX, pp. 698 sq.; A. Devine, C.P., The Law of Christian Marriage, New York, 1909.

¹⁸ Conc. Trident., Sess. XXIV, De Ref. Matr., c. i: "The holy Synod exhorts spouses, before they contract, or at least three days before the consummation of the marriage, diligently to confess their sins and devoutly approach the Most Holy Sacrament of the Eucharist."

Persons engaged to be married should not live together under the same roof.¹⁹ Another thing to be discouraged is too protracted "company-keeping," which, as experi- ence teaches, is rarely compatible with chastity. Parents have a duty in this regard which they must not neglect. They should keep a watchful eye on their children even after they are "engaged." The young people themselves should remember that undue liberties taken before marriage, besides being sinful and highly displeasing to God, are apt to undermine that mutual respect which is so necessary an element of happiness in married life, especially after sensuality has abated.

¹⁹ Conc. Trident., Sess. XXIV, De Ref. Matr., cap. i. —Rit. Rom., tit. 7, c. 1, n. 14: "Let the pastor warn the spouses that before receiving the priestly blessing in the church they are not to live together in the same house, consummate the marriage, or even remain together unless some relatives or others are present."

As marriage is valid only when contracted in conformity with the rules of the Church, nupturients should scrupulously obey the precepts of Canon Law. Above all they should not attempt to get married if there is a diriment impediment between them. To do so would be a mortal sin and the marriage itself invalid. If two persons have married without being aware of the existence of a diriment impediment, they must stop conjugal intercourse as soon as they learn of the fact and have the marriage bond "healed," or else part forever.

To neglect to ask for a dispensation where there is a forbidding impediment, is also mortally sinful. Nobody is obliged to reveal the existence of a marital impediment if the revelation involves injury to his own good name or that of another,²⁰ and those who wish to get married should be instructed that dispensations for secret impediments need not be requested through their respective pastors, but may be obtained through any confessor.²¹

²⁰ Cfr. St. Alphonsus, Theol. Mor., 1. VI, n. 995.

²¹ Dr. Koch relegates the entire subject of marriage impediments to Canon Law, to which it properly belongs. For utility's sake we add the essentials in an appendix (pp. 215 sqq.) in the preparation of which we have had the valued assistance of two eminent canonists and a professor of moral theology.

Holy Scripture nowhere says that it is necessary to have an ecclesiastical ceremony in connection with mar- riage, but St. Paul's declaration that marriages are contracted "in the Lord" and "sanctified by the word of God and prayer," ²¹ naturally led the early Christians to ask the Church for her blessing when they were about to enter this holy state. That Matrimony between Catholics should not be contracted without the approbation and cooperation of the Church follows from its nature as a Sacrament. While civil marriage is per se neither immoral nor irreligious, yet as a consequence of the unnatural rupture between State and Church it necessarily involves disrespect to the latter and is sinful.²² That marriage should take place in facie Ecclesiae is a demand practically as ancient as the Church herself, though the Fathers regarded the blessing of bishop or priest merely as a condition of licitness, not of validity.²³

²¹ 1 Cor. VII, 39; 1 Tim. IV, 5; cfr. 1 Cor. X, 31; Col. III, 17; 1 Pet. IV, 11.

²² Pohle-Preuss, The Sacraments, Vol. IV, pp. 240 sq.

²³ St. Ignatius of Antioch, Epist. ad Polyc., c. 5: "It is right for men and women who marry to be united with the consent of the Bishop, that the marriage be according to the Lord, and not according to lust. Let all things be done to the honor of God." (Funk, Patr. Apost., Vol. I, 2nd ed., 292, 6; Kirsopp Lake, The Apostolic Fathers, Vol. I, London 1912, p. 272).

No matter what laws the State may make with regard to marriage, the rules of the Church never cease to bind the faithful and cannot therefore be disregarded without sin. Catholics who wish to contract marriage are in duty bound, after observing the formalities required by the State, to declare their mutual consent in facie Ecclesiae, i. e., ordinarily, before their pastor and two witnesses, and they should be reminded that it is only by virtue of this act that they really become man and wife, fully entitled to the privileges of the married state.

To seek a husband or a wife by advertising in the newspapers is sometimes justified by circumstances and therefore morally licit.

The wedding celebration should be kept within the bounds of decency and good order, so that Christ and His blessed Mother could attend without offence, as they did at the marriage feast in Cana of Galilee. Here, too, St. Paul's admonition should be heeded: "Rejoice in the Lord always!"²⁴ 2* Wedding feasts should not be celebrated on Saturday, because if the celebration extends far into the night, as often happens, there is danger that the participants may miss Mass on the Sunday following.

²⁴ Phil. IV, 4. —Conc. Trident., Sess. XXIV, De Ref. Matr., c. 10. —Rit. Rom., tit. 7, c. 1, n. 18-' "Marriage can be contracted at any time. But let the nuptials be celebrated with the modesty and decorum that befit them; for marriage is a holy thing and must be treated holily."

Vermeersch, What Is Marriage?, General Introduction · Vermeersch, What Is Marriage?, God's Part in Marriage · Vermeersch, What Is Marriage?, Man's Part in Marriage · Vermeersch, What Is Marriage?, Part Two: The Attack on Marriage · Vermeersch, What Is Marriage?, Part Two: The Attack on Ma…, The Campaign Against the Child

READINGS.—Th. Slater, S.J., A Compendium of Moral Theology, Vol. II, pp. 268 sqq.—Pohle-Preuss, The Sacraments, Vol. IV, pp. 140 sqq. —F. P. Kendrick, Theologia Moralis, Vol. II, pp. 279 sqq. —H. Noldin, S.J., Summa Theologiae Moralis, Vol. III, pp. 572 sqq.—M. A. Gearin, C.SS.R., "The Matrimonial Law According to the New Code," in the Ecclesiastical Review, Vol. LVIII, No. 5 (May 1918), pp. 473-495-—H. A. Ayrinhac, S.S., Marriage Legislation in the New Code of Canon Law, New York, 1919.

Vermeersch, On Forbidden Books

Arthur Vermeersch, S.J. — 1 passage (filed under the subtopics)

Tit. I, Ch. V, Art. 14, I. On Books Which Patroniz…, Suicide, Divorce

n. 81.

What duel is? Which things are touched here

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

What suicide is

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

Divorce?

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

What if they are said to be lawful by accident?

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

When they are established as lawful

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

¹ Cf. Gennari, cited place, p. 40.

Vermeersch, What Is Marriage?

Arthur Vermeersch, S.J. — 112 passages

Vermeersch, What Is Marriage?, General Introduction

What Motives Determined the Holy Father to Publish an Encyclical on Marriage?

Moved to compassion by the errors that are current in a society become partly pagan, by the ignorance to which many of the Faithful are becoming more and more the victims so far as to lose sight of the sanctity of their state of life, and by the growing corruption of morals against which nature protests, the Supreme Pastor declares that he yielded to an imperious necessity in publishing an encyclical which is doctrinal and which at the same time highly champions the cause of Christian marriage.

What More Definite Purposes Did He Have in View?

The Sovereign Pontiff wished to remind every one of what is now too commonly ignored, the sanctity of marriage, especially of Christian marriage; to stigmatize the false principles and practical abuses relating to it, and to win the Faithful away from them; and to point out the way of escape from the deplorable state of affairs, and give hope of a restoration beautiful in itself and salutary to society. To this end, the Vicar of Jesus Christ wishes through the voice of the Bishops to instruct the entire Church, and even the whole human race¹. On the nature and dignity of marriage, especially Christian marriage; 2. On the blessings and benefits which flow from it for the family and for society ; 3. On the prevailing errors on the subject of marriage; 4. On the abuses that are commonly practised against the conjugal state 5. On the principal remedies to do away with the abuses and to restore Christian marriage to its true place.

¹ P. 22 of the edition published by the America Press, February, 1931. (It is to this edition that all page references will be made.) All quotations in italics are from the Encyclical.

How Is the Encyclical Divided?

The encyclical falls naturally into three principal divisions : The fundamental principles, and the three great benefits and blessings of marriage: children, conjugal fidelity, and sacramental elevation;

Erroneous theories and the vices contrary to these three great blessings, together with their sad consequences; The principal remedies to avoid the abyss into which the abuses against marriage are drawing society, and to make way for the restoration of marriage to its true dignity.

Is This Encyclical the First Which Has Dealt Thoroughly With Christian Marriage?

By no means. Fifty years before, on February 10, 1880, Leo XIII published a doctrinal Encyclical beginning with the word “Arcanum.” Its chief purpose was to set forth the sacred character of every conjugal union, and to condemn purely civil marriages and divorce.

Does the New Encyclical Revoke the Former One?

On the contrary the Pope expressly desires to give it new force, and he makes all its teachings his own. More than once he appeals to it as an authority.

How Does the New Encyclical Differ From the Former One?

The new one has a more practical purpose. Whereas the Encyclical “Arcanum” concerned itself chiefly with theory and refuted the errors embodied in civil legislation, the Encyclical “Casti Connubii,” while not departing from theoretical principles, pays special attention to erroneous teachings which have more recently gained currency, and condemns the vices which are now perverting marriage. It is particularly designed to meet the needs of the present time.

Vermeersch, What Is Marriage?, God's Part in Marriage

What Is the First Fundamental Truth Taught by the Encyclical?

The Encyclical lays down to begin with this immutable fundamental doctrine: Matrimony was not instituted or restored by man, but by God ; not by man were the laws made to strengthen and confirm and elevate it but by God, the Author of nature, and by Christ our Lord by whom nature was redeemed.

How Do You Prove that Marriage Was Instituted by God?

The Encyclical tells us:¹ This is the doctrine of Holy Scripture, this is the constant tradition of the Universal Church, this is the solemn definition of the Sacred Council of Trent, which declares and establishes from the words of Holy Writ itself that God is the author of the perpetual stability of the marriage bond, its unity and its firmness. Genesis records that God gave the first woman as a companion to Adam, who, by Divine inspiration, as the Council of Trent tells us,² exclaimed: “This now is bone of my bones, and flesh of my flesh: wherefore a man shall leave father and mother and shall cleave to his wife: and they shall be two in one flesh.” This is what comes about by the use of marriage. God confirmed this inspiration by blessing them both and saying to them: “Increase and multiply.” Our Lord Himself quoted the words of Adam as containing the Divine law of unity, which limits true marriage to two persons.

¹ Pp. 22, 23.

² Sess. XXIV, De Sacramento Matrimony, at the beginning.

What Do We Mean by Saying that Marriage Has Received its Laws from God the Author of Nature?

We mean that these laws are written in man’s very nature, even apart from all revelation.

What Are These Laws?

The law of unity; the law of perpetuity; the law of indissolubility.

n. 11.

Are These Laws Equally Unchangeable?

By human authority, yes. Man, being subject to the rational moral order can in no case derogate from it even for purposes which he thinks good. But God, the Author of nature and of order, can without offense to His own wisdom make some exceptions to laws other than the most principal or most essential ones. This He may do by positive authorization of the exceptions, for ends worthy of Himself, or by tolerating them through consideration of the weakness of human nature, with due regard to all the circumstances. Never has He permitted adultery or free love or fornication ; but He did tolerate among the Jews a certain

polygamy, and even in certain cases the repudiation of the wife.¹

¹ “Every action,” says St. Thomas, whose doctrine we abridge (Supplement 3 P. q. 67, art. 15), “which contradicts the end which nature has in view, is called contrary to the natural law. But such an action may be contrary to a primary or to a secondary end . . . according as it entirely prevents the attainment of the end or only makes its attainment more difficult or less perfect. Thus if an act is so contrary to the end intended by nature as to render a primary purpose directly unattainable, that act is forbidden by a primary precept of the natural law; if it prevents in any way the attainment of a secondary end, or makes a primary end more difficult or less perfect in its realization, it is forbidden, not in virtue of the primary precepts of the natural law, but in virtue of the secondary precepts which are derived from the primary; and in this sense it is contrary to the natural law. Now marriage has for its principal end the procreation and education of children, . . . and for its secondary end, community of life. . . . Plurality of wives does not entirely suppress nor even prevent the attainment of the primary end, since one husband can be a father by several wives and can educate the children they may bear him. But, as regards the secondary end, polygamy, if it does not entirely suppress it, at least places a great obstacle to its realization, for peace will not easily reign in a family where several wives claim the same husband. Thus it is clear that polygamy is in one way contrary to the natural law, while in another way it is not.” It is for this reason that God, but God alone, was able to dispense from the Divine law which made unity a necessary condition of conjugal union. (The same work, art. 2, c.) As for the power of putting away the wife, St. Thomas is of the opinion that it did not render the act licit, but merely exempted it from the legal penalty, and that this power was accorded only to prevent a greater evil, that is the murder of the wife. (The same work, q. 67, art. 3, c.) In the preceding article, however, he names indissolubility among the secondary precepts of the natural law, in which God can give a general dispensation. For that matter, there is no doubt of God’s power to permit divorce for higher reasons of His Providence. (Compare Meyer, Institutiones Juris Naturalis, Part 2, Thesis XVII, p. 99, 5.)

n. 12.

How Do You Prove the Natural Law of Unity?

We prove it by the analysis of the sentiment which leads to the conjugal union; by the conjugal union considered in itself; and by the evil consequences of plurality. The sentiment of love, quite a different thing from that of quiet friendship, is jealous and exclusive. “Conjugal love,” says Abbé Dermine,¹ “must be exclusive under pain of dissolving itself. Conjugal love shared with another excites jealousy and divides the heart.” “I want to love you, you alone, you more than all the world. We want to belong to each other, live for each other, share joy and suffering together. That is the way this love expresses itself.”² Moreover the practically equal number of births of the two sexes shows that polygamy is possible only by the killing or mutilation of human beings—two abuses contrary to nature. Besides how could the mutual total self-surrender which the conjugal union implies be realized between more than two people?

Finally, plurality of wives reduces each one to a condition of too great inferiority; plurality of husbands lowers the male sex, and, by throwing doubt upon paternity, takes away from marriage one of the resources intended for the education of the child.

¹ Les lois du mariage chrétien, p. 103.

² Schilgen, Im Dienste des Schöpfers, p. 58.

n. 13.

How Do You Prove the Natural Law of Perpetuity?

We prove it by the natural aspiration of the sentiment of love which desires to last forever ; by the irrevocable character of mutual self-surrender, which takes away from the woman her integrity; by the duty of education, which by its nature requires years, and which goes on indefinitely, being renewed at every birth; finally, by the duties of mutual help and mutual upbuilding which are implied in marriage and which do not cease until death.

n. 14.

How Do You Prove the Natural Law of Indissolubility?

We prove it by the irreparable consequence which the consummation of marriage entails for the bride; by the obstacle which the mere possibility of divorce puts in the way of a perfect union between the spouses; and by the harm which the breaking of the bond necessarily inflicts upon the children. (See also Number 64 and the following sections.)

n. 15.

Why Do You Say that God, in the Person of Our Lord, Restored Marriage to its Pristine Purity?

Because Christ, in virtue of His Divine power, suppressed polygamy which, even for the Jewish people, had been merely tolerated under the Old Law; and abolished the repudiation of the wife which the law of Moses had allowed in certain cases. In this way He restored to marriage its primitive unity and stability. Therefore [says the Sovereign Pontiff] although before Christ the sublimeness and the severity of the primeval law was so tempered that Moses permitted it to the chosen people of God on account of the hardness of their hearts that a bill of divorce might be given in certain circumstances; nevertheless Christ, by virtue of His supreme legislative power, recalled this concession of greater liberty and restored the primeval law in its integrity by those words which must

never be forgotten: “What God hath joined together let no man put asunder.”¹

¹ P. 31.

n. 16.

How and Why Were Polygamy and the Putting Away of the Wife Tolerated Under the Old Law?

Polygamy and repudiation were tolerated in virtue of a Divine dispensation, as being reconcilable strictly speaking with the essential demands of nature. (See Number 11, above.) As regards the reason why, Our Lord Himself in the passage where He restores both the conjugal unity and indissolubility gives but this one reason for it: that the dispensations had been a concession to the moral weakness of the Jewish people.

n. 17.

Is Polygamy Now Suppressed Not Only for Christians But Also for Unbaptized Persons, So That No Conjugal Union Can Be Validly Contracted Between Several Spouses?

Yes, the Sovereign Pontiff expressly teaches in this Encyclical that all forms of polygamy are abolished for the entire world. After recalling the fact that the primitive law of marriage was monogamy, the Holy Father adds:¹ And although afterwards this primeval law was relaxed to some extent by God, the Supreme Legislator, there is no doubt that the law of the Gospel fully restored that original and perfect unity and abrogated all dispensations, as the words of Christ and the constant teaching and action of the Church show plainly. With reason therefore does the Sacred Council of Trent solemnly declare: “Christ Our Lord very clearly taught that in this bond two persons only are to be united and joined together when He said: ‘Therefore they are no longer two but one flesh.’” Consequently when the Holy Father, immediately after these words, declares that Our Lord wished “to condemn any form of polygamy or polyandry,” he evidently means a condemnation which applied to the whole world. The restoration of a law which was primitively universal, is itself universal.

¹ Pp. 27, 28.

Vermeersch, What Is Marriage?, Man's Part in Marriage

n. 18.

What Part Has the Human Will in Marriage?

It has the very noble part of giving rise to every particular marriage. Every marriage is created by mutual consent, and that consent no other human power can supply. (Canon 1081, §1.)

n. 19.

What Is the Essential Quality of This Consent?

It must be free. Each of the two parties must really wish to contract marriage, and to contract it with a certain determinate person.

n. 20.

Is the Marriage Valid Where This Consent Was Given Under the Influence of Fear?

If the consent were given under the influence of grave fear resulting from a human action, the marriage would be void, at least by ecclesiastical law.

n. 21.

Why Do You Say That the Grave Fear Must Result From a Human Act?

Because fear from any other cause (unless, indeed, it were so excessive as to interfere with the deliberation which is essential to any human act), for example the emotion arising from some misfortune, from a storm, an earthquake, an illness, the thought of the punishments of the future life, does not nullify marriage nor any other contract.

n. 22.

Why Do You Say, “At Least by Ecclesiastical Law”?

Because the invalidity or nullity of the marriage by the natural law is less evident; it is a disputed question.

n. 23.

Since Consent Is Essential to Produce a Marriage, May it Not Modify its Terms and Conditions?

Consent can change some of the accidental terms, such as the agreement to live in such or such a place, but it can alter neither the nature of the contract nor the essential laws which govern it, because these are fixed by the law of God. The nature of marriage [says the Encyclical] is entirely independent of the free will of man, so that if one has once

contracted matrimony he is thereby subject to its Divinely made laws and its essential properties.¹

¹ P. 23.

n. 24.

What Would Happen if the Parties Were Mistaken About Some of These Laws?

If the mistake were purely interior it might be implicitly corrected by the preponderant intention to contract marriage, but, as the Encyclical states, citing St. Thomas,¹ these things are so contained in matrimony by the very marriage pact that if anything to the contrary were expressed in the consent which makes the marriage, it would not be a true marriage.

¹ Sum of Theology, III, Supplement, question 49, article 3, body.

What Effect Does the Giving of Consent Produce?

By matrimony the souls of the contracting parties are joined and knit together more directly and more intimately than are their bodies, and that not by any passing affection of sense or spirit, but by a deliberate and firm act of the will; and from this union of souls, by God's decree, a sacred and inviolable bond arises.¹

¹ P. 23.

n. 26.

What Power Over This Bond Has Legitimate Authority, Civil or Ecclesiastical?

Lawful authority has the right and even the strict duty to forbid, prevent, and punish those shameful unions which are contrary both to reason and nature, [for example adultery, the corruption of children, etc., but] to take away from man the natural and primeval right of marriage is beyond the power of any human law.¹

¹ P. 23.

n. 27.

Cannot the Law Create Impediments to Marriage?

In the case of baptized persons, who in consequence of their baptism are subject to the authority of the Church, the peculiarly sacred character of their marriage has this consequence, that the Church alone can create impediments or sanction those which the civil law may have established. In the case of unbaptized persons, one may admit the competence of the civil authority, not as merely secular, but because for those persons the authority of the State is by

the very necessity of the case extended, with certain limitations, into the field of religion and morality.¹ The activity of the State as such should be restricted to regulating the civil effects of marriage: the tenure of property, the order of inheritance, the registry of births.

¹ Dermine, La doctrine du mariage chrétien, p. 28, note: “In pagan countries, marriage is regulated by the State, not as a civil but as a religious institution.”

Ch. II, Article III. The Neo-pagan Estimation of Matrimony · Ch. II, Art. III, § 1. On the Naturalists · Ch. II, Art. III, § 2. On the More Honorable Secularists

Why Cannot Human Law Do More Than This?

Because positive human law, while it may for the common good establish regulations for the use of a right, has no authority to suppress the right itself which is given by nature. Now nature, in bestowing upon human beings the power of generation, allows the normal use of that power. In other words, the office of a human lawgiver is to adapt the order of nature to varying circumstances and to supplement its general decrees by more definite provisions; but he cannot subvert or contradict that order, as he himself is subject to it.

n. 29.

Does Not a Fine Conclusion Follow from the Foregoing Considerations?

There follows from them this beautiful conclusion, that the sacred partnership of true marriage is constituted both by the will of God and the will of man; from God comes the very institution of marriage, the ends for which it was instituted, the laws that govern it, the blessings that flow from it, while man through generous surrender of his own person, one to another for the whole span of life, becomes, with the help and cooperation of God, the author of each particular marriage, with the duties and blessings annexed thereto from Divine institution.¹

¹ P. 24.

Vermeersch, What Is Marriage?, Part Two: The Attack on Marriage

n. 80.

Is Marriage, Christian Marriage, Appreciated at its True Value in the World Today?

It is not. Assaults are actually launched against it to ridicule and disparage it, to exalt the vices that violate its sanctity, and to substitute in its place monstrous unions which are more in accord with what is called the “modern mind,” that is the spirit which denies the Faith and the morality founded on Faith, under the pretext of “emancipating itself from ancient prejudices.”

n. 81.

How Are These Errors Propagated?

By all the channels of publicity which science places at the disposal of everyone: by books, not only obscene or subtly suggestive novels, but works that pretend to be scientific; by newspapers and magazines, text and illustration; by theaters, movies, the radio; by official propaganda as well as by advice given openly or under cover. These thoughts are instilled into men of every class, rich and poor, workers and masters, lettered and unlettered, married and single, the godly and the godless, old and young,— but for these last, as easier prey, the worst snares are laid.¹

¹ P. 35.

n. 82.

Do All the Adversaries of the Doctrine of Christian Marriage Go to These Extremes?

As in all errors, there are in this matter extremists and moderates; and the more moderate errors themselves admit of various degrees. As a matter of fact, it is the moderates who do the most harm, because they give less alarm and thus succeed more readily in seducing the mind and effecting a transition which paves the way for the worst excesses. The most moderate are those who, whilst they retain in theory the moral principles relating to marriage, believe that in practice certain concessions should be made to human weakness, that certain difficulties should be met by compromise. Not all the sponsors of these new doctrines are carried

to the extremes of unbridled lust. There are those who, striving as it were to ride a middle course, believe, nevertheless, that something should be conceded in our time as regards certain precepts of the Divine and natural law. But these likewise, more or less wittingly, are emissaries of the great enemy who is ever seeking to sow cockle among the wheat.¹

¹ Pp. 35, 36.

n. 83.

Whence Comes This Ungrateful Attitude Toward an Order Which Is so Beautiful, so Alluring to All the Higher Tendencies of Man?

It is deeply rooted in atheistic materialism, which is fatally blinded to whatever is above the things of the senses and of earth; in sensualism which mistakes sensual pleasure for happiness and governs everything by the dictates of the lower appetites; in a spineless education which no longer concerns itself with self-conquest; in a disregard of the Cross of Christ, which makes satisfaction instead of duty the absolute standard. Corrupted by these evil influences, man has forgotten how to look up, how to restrain his passions, how to practise the self-denial, at times heroic, which right conduct demands. The message of Christian doctrine is: Lift up your hearts! It says: Master your appetites. It preaches the Cross, and denial of self. It demands faith in Jesus crucified. If anyone wants to understand marriage, he must first understand Christ; and whoever wants to understand Christ must know the meaning of the Cross.”¹

¹ Dr. W. Spael, Le mariage chrétien. Premières considérations sur l’Encyclique . . . Kölnische Volkszeitung, Jan. 31, 1931. Supplément hebdomadaire, Im Schritt der Zeit. Documentation Catholique, 1931, p. 460.

n. 84.

What Are the Sources of These Evils According to the Encyclical?

Their basic principle lies in this, that matrimony is repeatedly declared to be not instituted by the Author of nature nor raised by Christ the Lord to the dignity of a true Sacrament, but invented by man. Some confidently assert that they have found no evidence for the existence of matrimony in nature or in her laws, but regard it merely as the means of producing life and of gratifying in one way or another a vehement impulse. On the other hand, others

recognize that certain beginnings, or as it were seeds, of true wedlock are found in the nature of man, since, unless men were bound together by some form of permanent tie, the dignity of husband and wife or the natural end of propagating and rearing the offspring would not receive satisfactory provision, at the same time they maintain that in all beyond this germinal idea matrimony, through various concurrent causes, is invented solely by the mind of man, established solely by his will.¹

¹ P. 36.

n. 85.

What Are the Logical Consequences of This Doctrine?

That the laws and morals of marriage are variable, according to prevailing ideas and the shifting circumstances of human affairs; that the generative power has a wider range than matrimony; and hence that it may be exercised outside as well as within the confines of wedlock.

n. 86.

What Are the Aberrations of the Conjugal Union Which Are Here Condemned by the Holy Father?

The Holy Father repudiates in the name of Catholic morality, or rather in the name of natural morality: temporary marriages, contracted only for a definite time, for example whilst the parties live in a certain country or are engaged in a certain enterprise; trial marriages, entered upon as a provisional experiment; companionate marriage, based on a so-called friendship which claims the most intimate relations, but insists on their remaining unfruitful. Whilst he condemns these enormities, the Holy Father is even more severe against the effrontery of those who insist that these monstrosities be legitimatized by law or at least legally tolerated.

Vermeersch, What Is Marriage?, Part Two: The Attack on Ma…, The Campaign Against the Child

n. 87.

What Is the First Assault Upon the Child Which Is Branded by the Encyclical?

The Encyclical brands in the first place the base selfishness and the audacious lie of many who dare to call the

child “the disagreeable burden of matrimony”;¹ it brands the “criminal abuse”² of those who avoid children by frustrating the marriage act, whether they wish to gratify their passions without the consequent burden, or whether they excuse themselves on the ground of two concurrent impossibilities: that they cannot on the one hand remain continent, nor on the other have children. This last impossibility is claimed to exist either because of personal difficulties, or the condition of the mother, or family circumstances.

¹ P. 37.

² The same work.

n. 88.

What Does the Holy Father Say to These Excuses?

He rejects them all at one sweep by reminding us:¹ No reason, however grave, may be put forward by which anything intrinsically against nature may become conformable to nature and morally good. Conjugal relations debased in this way are nothing more than “a form of debauchery which the world has come to look upon as regular and permissible.”²

¹ P. 38.

² Paul Bureau, L’Indiscipline des moeurs.

n. 89.

How Does He Demonstrate the Absolute Opposition of These Practises to the Natural Law?

He does this in three ways: 1. By a proof from natural reason. It is a violation of nature to deliberately deflect from its natural end an act which belongs to the rational order to which we are subject. Now the marital act belongs to that superior order to which we are all subject. And its natural purpose is procreation. Hence any artifice which deprives the conjugal act of this its destiny is necessarily and always a violation of nature. 2. By Holy Scripture. According to the interpretation which is accepted in the Church, God struck Onan dead because he was guilty of this sin. 3. He proves it from the teaching of the Church, where he states that an uninterrupted traditional Christian teaching reprobates these practices, and where he solemnly confirms this teaching of the ordinary magisterium of the Church.

n. 90.

Are We to Understand This Solemn Promulgation as an Infallible Definition?

Before formally answering so grave a question it seems proper to quote the words of the Sovereign Pontiff himself.

Since, therefore, openly departing from the uninterrupted Christian tradition, some recently have judged it possible solemnly to declare another doctrine regarding this question, the Catholic Church, to whom God had entrusted the defense of the integrity and purity of morals, standing erect in the midst of the moral ruin which surrounds her, in order that she may preserve the chastity of the nuptial union from being defiled by this foul stain, raises her voice in token of Divine ambassadorship and through Our mouth proclaims anew: Any use whatsoever of matrimony exercised in such a way that the act is deliberately frustrated in its natural power to generate life is an offence against the law of God and of nature, and those who indulge in such are branded with the guilt of a grave sin.¹ Next, let us remember that the Pope, either alone or in union with the College of the Bishops, is the teaching Church, whose infallibility is guaranteed by Our Lord Jesus Christ. The Church speaks through the Pope, not as through her messenger, but as through her head and teacher. This mission of teaching and of defending the integrity of morals to which the Holy Father appeals here, is in himself. Infallible, in matters of faith and morals, is the traditional and constant doctrine of the Church treasured in the ordinary magisterium of the Bishops united to the See of Peter. Infallible is the solemn proclamation of a doctrine regarding faith or morals which the supreme Pastor, speaking as such to the universal Church, obliges it to hold. To what conclusion do these considerations lead us? We must conclude that the Holy Father, who, in this Encyclical, from the start, declares that he is addressing himself to the entire Church and even to the whole world: (a) States that on this question of conjugal onanism, there exists a Christian doctrine which has been transmitted from the beginning and which has been always faithfully kept, and hence is already infallibly taught by the ordinary magisterium; (b) Takes occasion from the departure from this doctrine on the part of some to promulgate it solemnly for all; and since he does this as teacher of the universal Church, conscious of his mission to teach, and as a sign of his Divine mission, he thereby obliges all to hold this doctrine. It is,

as he explicitly states, the Catholic Church which speaks by his mouth. In the presence of such language on the part of the supreme Pastor,² we cannot doubt that we are confronted with one of those cases, which are not infrequent, where the Pope teaches infallibly a truth already defined and believed by the Church. This is the reason why the Sovereign Pontiff can also declare himself an infallible interpreter of the primitive Church.³

¹ P. 38.

² The phrase in which the Holy Father declares that the Catholic Church speaks through his mouth on this subject, “is extremely solemn and impressive.” Dr. John Ryan, Ecclesiastical Review, 1931, p. 265, “The Moral Teaching of the Encyclical.”

³ We admit, however, that there are some very estimable priests who hesitate to recognize this as an infallible declaration ex cathedra distinct from the equally infallible teaching of the ordinary magisterium. On the other hand, a professor of theology, after a personal study of the passage, said to us: “If that is not an infallible definition, I do not know what terms the Pope could use in order to make one.” The manner in which the Belgian Bishops in their Pastoral on the Encyclical represent the role assumed by the Vicar of Jesus Christ in this memorable document, serves only to confirm our conviction. See Z. H. Paus, Pius XI, Wereld-brief “Casti Connubii” en het Belgisch Episcopaat (Vastenbrief 1931) over het Christelijk Huwelijk, p. 53.

…and 72 more passages — all of them are listed on the topic page.

Vermeersch, On Chastity

Arthur Vermeersch, S.J. — 21 passages

Ch. II, Article III. The Neo-pagan Estimation of Matrimony

n. 115.

Division of the argument. Rationale of the order.

115. Among those whom, because of their dogmatic agnosticism, to which moral skepticism is sometimes joined, we have assigned to the neo-pagans, some, who attempt to unite ancient moral views with recent "laicism," profess a moral doctrine concerning marriage which does not seem to depart greatly from the natural law, although they commend or proclaim institutions from which the Catholic Church greatly recoils. Therefore, once their defects have been disclosed, we shall have to strip these institutions of their honorable appearance. Others, devoted to "naturalism," attempt to reform conjugal institutions completely. We shall treat the latter first, because we can complete the matter more expeditiously and because we also treated them first in the preceding chapter.

Ch. II, Art. III, § 1. On the Naturalists

n. 116.

The views of the naturalists.

116. This is common to the naturalists, that they declare war on either all matrimony or at least perpetual matrimony, because it imposes a yoke to be borne even by the unwilling. Therefore, they wish that in place of a "marriage of compulsion" (Zwangsehe), or a marriage whose firmness is derived from compulsion and whose use, when it is exercised by spouses without love, they mark with baseness, there should succeed a union which draws its origin and happy firmness from free love, that is, love immune from juridical necessity: they claim that this is consonant with nature, that this is demanded by the present, or at least imminent, age of the human race and will be secured.

n. ¶618.

"Moral" adultery.

Secondary wishes are added to these essential wishes. Thus several desire that the covenant of sexual life, withdrawn from every public government, be placed altogether among private matters. Ellen Key, a sufficiently noted woman of Scandinavia, also devised "moral adultery." For it happens that two persons whom love no longer joins nevertheless ought, for just causes, for example philanthropic ones, to preserve a common external cohabitation. Then, this woman says, let legitimate permission be given to each, so that one may generate from another woman and the other may bear a child by another man: this "legitimate" intercourse with one who is not a spouse is adorned with the name of moral adultery.

n. 117.

They are refuted from the desires of nature itself.

117. These deliriums, which are at once vain and futile but pernicious to morals, must be refuted and reproved as abominable contrivances and endeavors against nature itself. And indeed:

n. ¶619.

1. At the suggestion of nature, man seeks in promises which induce a moral necessity a protection against his own or another's inconstancy, which even the angels possessed in the perfection of their will; and, when it seems to concern the public good, those promises are sanctioned by law itself.

n. ¶620.

Thus, in social life, military oaths, magistracies, the offices of rulers and of others occur; if these could be admitted and renounced at pleasure, civil life would be at an end. Without moral necessity and the legal sanction of covenants, what mutual fidelity will subsist, and what great or long-lasting work could be undertaken prudently? Yet ought not the "naturalists," if they are consistent with themselves, to repudiate every covenant as odious servitude?

n. ¶621.

Can they give a reason why in matrimony alone the firm bond of union should be cast aside, when nature herself demands one so intimate that it attains to a certain unity of two persons ¹? What, on the contrary, do we observe? Passions have a part in this union which are most prompt to promise and yet are shown to be most inconstant; there, between the nobler and the inferior appetites, conflict is most frequent; there, in domestic society, man at the same time hopes for himself a tranquil enjoyment toward which he is so greatly inclined. But take away the force of promises and the support of a juridical bond: from even a brief observation of the present nature of men, it is perceived that the door to mutual confidence is closed to most, while it is opened wide to suspicions, jealousies, and quarrels which make life anxious and troubled and often extinguish love, far from favoring it. Nowhere else, therefore, are promises so natural; nowhere is their efficacy more necessary.

¹ Compare what was said above, nos. 61 and 104, concerning the nature of matrimony.

n. ¶622.

2. At the suggestion of nature, besides the impulse of passion, the very intention of a nobler affection and the irreparable harm which a deflowered woman suffers move men to enter perpetual covenants of marriage. Nor does the lustful desire by which not a few unbelieving women hold a perpetual bond in hatred render doubtful this inclination of better persons toward perpetual marriages, or the lamentable condition which divorces create for many women.

n. ¶623.

3. At the suggestion, indeed at the command, of nature, the husband ought to be the guardian and protector both of the wife and of their common offspring; this offspring must be nourished jointly by both parents ². And it is so evident that free loves are contrary to offspring, whether to be begotten or to be educated, that some naturalists preserve a profound silence concerning offspring, while others wish the good of offspring to be preserved by inept devices.

² Compare what we said above, nos. 104-106, concerning matrimony.

n. ¶624.

4. What of the fact that a firm purpose and a bond of law have very great power over the very force and stability of the affections? We are taught this by the psychological observation of human nature, so that the naturalists depart so far from nature that those who preach marriages founded on love alone diminish love itself in marriages.

n. ¶625.

Do they have the merit of novelty?

Nor can they themselves boast of the new age which they wish to foreshadow. For that kind of union which rested upon no bond of law was admitted long ago in Roman law under the name of concubinage. In the society then greatly corrupted it existed together with marriage, and it was often practiced for this purpose, that an inequality of social condition might be preserved between those united. Wherefore an institution of this kind is not only opposed to good morals but is also insufficiently consonant with the democratic spirit of present institutions.

n. ¶626.

The objections are answered.

But, they object in this way, perpetual servitudes are repugnant to present laws. Moreover, the civil sanctions of religious vows have been suppressed: why should the legal servitude of matrimony be preserved as a vestige of a former age?

n. ¶627.

Response. Honorable spouses would consider it insulting for the name of servitude to be given to a covenant which they entered of their own accord with pure and free affection and from which they by no means wish to withdraw. Moreover, the name of servitude is not suited to every obligation or bond, but only to one which is imposed on an unwilling person, which is displeasing in itself, and which of itself yields entirely to the benefit of another.

n. ¶628.

Nor does the comparison limp only slightly in which the vows of religious, which are pronounced with a supernatural intention and do not constitute any institution necessary to the natural society of men, are compared with the matrimonial covenant, which is natural and, as the principle or first beginning, founds every other human society, and which also, since it is often sought for the sake of pleasure, stands in much greater need of the protection of an external law.

n. ¶629.

Although the expediency of laws by which religious profession is treated unfavorably is very doubtful.

n. 118.

A useful lesson from error.

118. - Yet there is no error which does not contain something true and useful. We can borrow this lesson from the naturalists: a matrimonial covenant is to be positively approved only between those persons whom sincere love has already joined spiritually.

Ch. II, Art. III, § 2. On the More Honorable Secularists

n. 119.

Order of treatment, according to the more honorable opinions of the secularists.

119. - The opinions of those who, outside the Church, profess themselves devoted to the natural law and to moral uprightness can be reduced to the following heads ¹.

¹ Errors concerning Christian matrimony are condemned in propositions 65-74 of the Syllabus of Pius IX, in the encyclical letter of Leo XIII Arcanum divinae sapientiae, February 10, 1880, and in canons 1012, 1013, 1016, 1960, and 1961 of the new Code.

n. ¶630.

1. Having wrested jurisdiction over marriages from the Church, they assign it to the civil power. Wherefore they defend the institution of civil marriage.

n. ¶631.

2. They acknowledge and defend the perpetuity of matrimony; yet in such a way that they contend that there are just causes on account of which civil divorce, although rarely, is to be granted.

n. ¶632.

3. They declare the use of marriage to be of itself consonant with nature. Yet, when compelled by the necessity of physical health, most do not dare to condemn either sterility sought through devices or abortion itself; indeed, several do not hesitate positively to advise devices of this kind.

n. ¶633.

Therefore, civil marriage, civil divorce, and the excuse of neo-Malthusianism must be discussed briefly.

Vermeersch, Theologia Moralis

Arthur Vermeersch, S.J. — 6 passages

Vol. III, Bk. II, Tr. VIII, Title IX: On Second Nuptials · Vol. III, Bk. III, Tr. II, Appendices, To n. 739. - Appendix XVI. Historical-Liturgical Matters Concerning the Sacrament of Matrimony

Vol. III, Bk. II, Tr. VIII, Title IX: On Second Nuptials

n. 830.

— By the two canons of this chapter the Code recalls that chaste widowhood is indeed more honorable, but that second nuptials are valid and licit if the dissolution of the prior marriage is established; and that a woman to whom the solemn blessing has already once been imparted cannot be blessed again.

n. 831.

Supplementary Notes — Various Things to Be Observed Concerning the Use, Obtaining, and Execution of Dispensations

Above, already, nn. 754-762, we have treated of conceded faculties. A few things seem to have to be added here concerning their right use.

The executor of a rescript of the Holy See can now, from c. 57, substitute another for himself.
Which bishop is to be approached? If the spouses belong to diverse dioceses, they are not, however, bound, for the dispensation, to have recourse to both proper bishops, but it is enough that they approach either one endowed with the faculty (Ferreres, II, 956). The proper bishop of either is competent, although the bishop of the bride is to be preferred; the bishop of the diocese in which the marriage is celebrated is also competent.
A faculty given when all things are already prepared for the nuptials, from the very nature of the matter, excludes the case in which the spouses do not wish to celebrate matrimony in the legitimate form. Here, moreover, an impediment is not detected, but the law of the Church is violated.
The Ordinary is not considered able to be approached if only the telegraphic or telephonic way is open. Cf. n. 758.

P. Cappello, III, 236, also denies the necessity of using the railroad, "bicycle or motorcycle," which are considered extraordinary means.

When an occult impediment concurs with a public one, in order that all things may be proposed together, a twofold way can be entered upon: either, the names having been revealed, the occult impediment is made sufficiently public, so that both impediments can be referred to the Sacred Congregation of the Sacraments or the competent Congregation in the external forum; or, while recourse is had to the Sacred Penitentiary for the internal forum, it is manifested that there is besides a public impediment for which dispensation has at least been sought or perhaps already obtained.⁽¹⁾
Impediments from which the local Ordinary can dispense, not by force of indult, but by force of ordinary power (a non-reserved vow, doubtful impediments), can be relaxed by him even if they concur with public impediments for which the Holy See must be approached. And it also seems that, in the same adjuncts, he can use a faculty which, even from an indult, he has had over occult impediments. This is borne out by a reasonable interpretation of c. 1050.

What if a new impediment is detected after the dispensation has been sought but not yet obtained? Cerato thinks that then also it is licit for the Ordinary to use his faculties. Since the words of the canon do not carry this, we think one must have recourse to the Holy See. But if, while the new petition is being sent, the grace previously sought is obtained, then, with a grave cause added, the Ordinary will be able to use his faculty.

⁽¹⁾ And that this is necessary is written, for example, by De Smet, 847, 882; Genicot, II, 527. But they gather this from the Instruction of 1877. And since now, as De Smet himself contends, when an occult impediment in which the Ordinary can dispense concurs with a public impediment concerning which the Holy See must be approached, he is not prohibited from the use of his faculty, would it not be better said that only public impediments are to be proposed together, and that this is declared by c. 1050? Was not the rule which the letters of the Sacred Congregation of Propaganda Fide of May 10, 1837 (Collectanea, II, 1674), had before mentioned more universally concerning all impediments deliberately tempered by the addition, in c. 1050, of the word public? If matters stand thus, the rule here set down in n. 5 must no longer be observed. A reason of moderation is added. The obligation of manifesting a public impediment which concurs with an occult one, concerning which the names of the petitioners are kept silent, is not free from inconvenience, from danger of revealing the secret (cf. Cappello, III, 275, sqq.).

n. 832.

— Causes for dispensing. Since the Code is silent concerning causes, we are referred to the received style of the Curia.

Therefore there must be distinguished honorable causes and infamous causes, to which a delict or sin gives origin; canonical causes, or those customarily admitted, and non-canonical causes, or extraordinary but reasonable causes. The Ordinary cannot use a delegated faculty unless canonical causes are present.

It happens that a sufficient canonical cause is composed of various causes not sufficient of themselves, or that several impelling causes, which help, complete one final or motive cause.

Moreover, the graver the impediment is, the more numerous or graver are the causes necessary.

The chief canonical causes are indicated by the Instruction of Propaganda Fide, May 9, 1877. They are:

Honorable causes: a) narrowness of place, i.e., when the place of origin, or even of domicile, is so narrow, or the family so large, that an honorable woman, at least after having been established for some time in marriageable age, would not find there an equal marriage except with a consanguineous or affinal relative. She is considered not to find one if in reality no other offers himself here and now, even if she herself has sought no one, or has rejected several. But place is not the parish, but is made by grouped houses (l'agglomeration), and places which are separated by a mile or a third part of a league are regularly considered distinct. A place is considered narrow which numbers only 300 hearths or 1500 inhabitants, not counting, as is likely, non-Catholics, with whom nuptials are forbidden;

b) superadult age of a woman who is not a widow, i.e., if she has begun her twenty-fifth year of age. The more advanced she is in age, the more urgent the cause will be esteemed;

c) defect or insufficiency of dowry, i.e., of material goods by which the burdens of matrimony are to be borne;

d) lawsuits arisen over succession of goods, or grave and imminent danger of them, i.e., if the woman will find in the husband a suitable patron of her cause;

e) poverty of a widow burdened with offspring, whom the man is prepared to help;

f) the good of peace to be procured either between families or, much more, between republics;

g) convalidation of a marriage contracted in good faith by at least one party;

h) excellence of merits, whether of the petitioners or of the parents.

Dishonorable causes: of themselves they are graver than honorable causes, and therefore they more easily give access to matrimony: a) excessive, suspicious, dangerous familiarity: you should understand that familiarity which gives place to whisperings, so that scandal must be avoided;

b) infamy of the woman from copula had, and scandals to be avoided thence;

c) danger of celebrating a mixed marriage or one before a non-Catholic minister;

d) danger of civil marriage;

e) removal of grave scandals, for example from a merely civil marriage;

f) cessation of public concubinage.

By this enumeration other similar causes are not excluded, for example danger of incontinence for a young widow. And if, in a narrow place, one or another also offers himself, that slight option between two will not prohibit the Holy See from granting a dispensation.

The componenda is sometimes called a cause without cause, i.e., a fixed sum of money which the petitioners pay for a pious cause. This covers other reasonable causes or is itself the cause, and indeed a public one, since it promotes the good of the Church. This is not admitted except by a Sacred Congregation, in the external forum. For a similar reason the tax is increased if dispensation must be made from a graver impediment.

The causes alleged are, as it were, proper to the woman. But similar ones in the man will not be rejected and can be admitted.

Non-canonical causes strengthen canonical ones and will suffice in impediments of lesser degree.

These examples are adduced by Noldin, III, 593: "1. On the part of the female petitioner: a) if she is deprived of either or both parents; b) born from illegitimate birth; c) detained by infirmity, deformity, or some other defect; d) has already been deflowered by another. 2. On the part of the male petitioner: a) if he is detained by infirmity; b) if he is a widower burdened with offspring, for whom he seeks a good mother; c) if he is in need of the help of this woman, e.g., for managing domestic affairs. 3. On the part of the marriage: a) the published proposal of contracting; b) the convenience of the marriage; c) the good morals of the petitioners; d) the good of the parents, if the father or mother needs help."

n. 833.

— Things to be observed concerning seeking a dispensation. 1. A petition for the external forum is better composed by the pastor; another, for the internal forum, by the confessor. In the latter the names of those who wish to be dispensed are kept back.

Each, unless secrecy stands in the way, is better directed to the local Ordinary, who himself not rarely will be able to grant the dispensation.
Besides the designation of the petitioners and of the diocese to which they belong, these things must be indicated: a) all impediments, at least public ones, and those in which the Ordinary cannot dispense by ordinary power (if the petition is sent to the Holy See), i.e., how many they are in species, how many in number. In today's law, it is not established that, for validity, the mixed degree as such must be indicated, since, from the Code itself, in an unequal collateral line, the degree is defined by the greater distance (cf. Vlaming, II, 453, 4°); b) circumstances which make it easier or more difficult to dispense. This, however, does not affect the validity of the rescript, unless the Sacred Congregation has required the declaration as substantial. Cf. c. 42, §1; c) the causes for dispensing; d) the economic status of the petitioners, so that a suitable tax can be exacted.

Before the Code, those were called miserabiles who had to seek livelihood for themselves by manual labor; truly poor, those whose goods did not much exceed 3000 francs; almost poor, those whose goods did not greatly exceed 10,000 francs. The goods of both petitioners together must be computed, without neglecting the office which they exercise, a legitimately expected inheritance, unless the other party is non-Catholic. For the patrimony of this party is not attended to, since nothing is conceded to him or her.

Before the reform of the Curia this distinction was of much greater moment, because the Sacred Penitentiary granted dispensations, even in the external forum, to the poor, and, for some regions, also to the almost poor. Today, since the distinction is no longer of such great moment, authentic definitions of the poor have not been given. Moreover, with regions the manner of indicating goods varies. Sometimes it is said what the petitioners are prepared to pay; or the Holy See admits what the parties offer of their own accord. Nor is payment of the tax a condition of validity.

A dispensation can be sought while one or even both parties are unaware. But they are not compelled to use the dispensation. Yet if the impediment affects both parties at the same time, as consanguinity, affinity, the acceptance of either party removes the impediment for both.

n. 834.

— Things to be observed concerning execution of a dispensation. 1. Before the rescript has been received, the faculty which it grants cannot validly be exercised, unless the very authority conceding it has permitted that in its name an oral message be given, or a telegraphic message be transmitted.

Clauses are to be observed accurately: all are preceptive; some must be executed for validity.
In the external forum, the truth of the petitions must be investigated before execution: this is usually done through the pastor. This investigation, however, is no longer required for impediments of lesser degree. Scandal, if present, must be removed, either through some separation of the spouses who live together scandalously; or, if that cannot be obtained, at least through a declaration before the pastor and two witnesses that they grieve over and detest the external fault, and are prepared to fulfill the penance. Then the delegate, by himself or by another, fulminates the dispensation, i.e., executes it. Execution is prescribed to be made in writing, with mention made of the faculty obtained and of the impediment from which dispensation is made. If the executor has erred in execution, he can better execute the dispensation again, without new recourse (c. 59).
In the internal forum, competent, from the very inscription of the letters, is any priest approved for confessions in the place where the dispensation is granted, and chosen by the petitioner. The clause: If matters are thus, obliges the confessor to ask from the penitent whether the things set forth are true. He can believe his or her affirmation, unless from extrasacramental knowledge he knows otherwise. The clause: Sacramental confession having first been heard, requires sacramental accusation, but not absolution or a confession worthily made. If this clause is absent, the dispensation can be granted outside confession. The clause: A salutary penance having been enjoined, demands a penance distinct from the sacramental penance.

Salutary is anything useful. Sometimes a grave and long penance (gravis et diuturna) is enjoined. These things are to be estimated relatively. What grave and long is, we said in n. 614.

The words grave and long sound less severe. Noldin, III, 602, has these things concerning it: "a work of penance which is imposed to be performed every week for a year or for a half-year, or even for a quarter-year, e.g., once or twice every week to recite the rosary, once every week to hear Mass, every Sunday to perform the way of the cross, at least once in the month to receive the Most Holy Sacraments." Most grave and perpetual would oblige to a similar work, or even to annual spiritual exercises, to be performed until death.

This penance must be imposed and accepted, but its omission or an intention of not fulfilling it does not stand in the way of validity.

The clause: The present letters being immediately burned, obliges to full destruction of the letters within three days from the moment indicated in the letters. But a transcript is not forbidden. One party alone is to be dispensed if the impediment is proper to that party, suppose a vow. If the impediment is common to both parties or induced by the fault of both, suppose crime, each party must be dispensed so that penance may be imposed on each. Therefore each must approach a confessor, not necessarily the same one. If two different confessors are chosen, the first confessor must return the rescript to the penitent, who is to hand it over to the other party so that this one also may be dispensed (so almost Noldin, III, 602). No special formula is required. It is granted orally. In confession it is to be given after the accusation, before or after absolution.

A well-conceded dispensation of itself remains efficacious, although before the marriage the cause has ceased: for example, the offspring has died (cf. t. I, 228).

Vol. III, Bk. III, Tr. II, Appendices, To n. 739. - Appendix XVI. Historical-Liturgical Matters Concerning the Sacrament of Matrimony

Vol. III, Pt. II, Treatise X. On Matrimony · Vol. III, Pt. II, Tr. X, Chapter I. On The Nature And Division Of Matrimony · Vol. III, Pt. II, Tr. X, Ch. I, Article III. On The Division Of Matrimony

I. Concerning the rites. 1. Present discipline. Since by divine law matrimony-sacrament is effected by the consent alone of capable parties, but by ecclesiastical law only this is imposed upon Catholics for validity, that they signify consent before a competent priest and two witnesses, no rite is essential; and, outside Mass, laudable usages or ceremonies of individual dioceses can be preserved. Therefore two parts are to be distinguished in the rite of the celebration of matrimony: the ceremonies with which the expression of consent before the priest and witnesses is clothed, and these can and do vary; and the solemnization of matrimony by Mass and blessing. That solemnization is not strictly imposed but is commended, and is to be carried out according to the Roman liturgy.

The variable part from the Roman Ritual is this: the spouses are ordered to join their right hands. The priest, after he has received their mutual consent unto matrimony, adds: "I join you in matrimony, in the name of the Father and of the Son and of the Holy Spirit," and sprinkles the married couple with lustral water. Then he blesses the ring of the bride, which the bridegroom inserts upon the finger of the bride, while the priest says: "In the name of the Father and of the Son and of the Holy Spirit." Finally several prayers are recited by the priest.

The Mass for bridegroom and bride recalls from Psalm 127 the happiness of the household where the fear of the Lord reigns. The Epistle recites the admonitions of St. Paul from the Epistle to the Ephesians, in which the union of Christ and the Church is proposed as the type of the love and affection of a spouse. The Gospel inculcates the indissolubility of matrimony. After the Pater Noster, the Mass is interrupted for the solemn blessing of the bride: it consists of two prayers, of which the second, the longer, is very beautiful. After Ite Missa est, the wishes of the Church over the spouses are expressed by the celebrant, and an argument of exhortation is suggested to him.

Origin of the ceremonies. Although, before the Council of Trent, the Church prescribed no form of consent to be observed for validity, nevertheless from the first times a special Mass was said, or certain rites, for example, the nuptial veil, had to be done at the end of the ordinary Mass. Already Tertullian (ad Uxorem, l. II, c. 9, P. L., I, 1302), in his magnificent description of Christian marriage, commemorates the intervention of the Church thus: "Whence shall we suffice to narrate the happiness of that matrimony which the Church conciliates, and the oblation confirms, and the blessing seals?" By Innocent I (402-417), in the epistle to Victricius, bishop of Rouen, c. 6 (P. L., XX, 476), there is mentioned "the blessing which is imposed through the priest over those marrying." The Leonine Sacramentary, which is assigned to the sixth century, contains formulas for the nuptial veiling (ed. Feltoe, pp. 140-142), of which the collect, secret, and postcommunion have been transferred to the Mass for bridegroom and bride.

From there also, with a few changes, the Ritual prayer Respice quaesumus is repeated. In the special Mass which the Gelasian Sacramentary proposes (with proper Preface and Communicantes), two prayers are had after the Pater Noster (as now) and a third before the Postcommunion. Nicholas I (858-867), in the Responsa ad consulta Bulgarorum, c. 3 (P. L., CXIX, 979, 980), first rather completely hands down "the custom which the holy Roman Church received in antiquity and holds hitherto..." The passage stands thus: "After the sponsals, which are the promised covenants of future nuptials, and which are celebrated by the consent of those who contract these things and of those in whose power they are, and after the bridegroom has betrothed the bride to himself by pledges through the finger of faith, marked by a ring from him, and has handed over to her before guests from both sides the dowry pleasing to each with a writing containing this pact, either soon or at a fitting time, lest namely such a thing be presumed to happen before the time defined by law, both are brought to the nuptial covenants. And first, indeed, in the church of the Lord they are stationed with the offerings which they ought to offer to God through the hand of the priest, and so finally they receive the blessing and the heavenly veil... Yet he who passes to second nuptials does not receive that veil. After this, however, having gone out from the church, they wear crowns on their heads, which are always accustomed to be reserved in the church itself... But we do not say that it is sin if all these things do not intervene in the nuptial covenant, just as you say that the Greeks assert... and on this account, according to the laws, the consent alone of those concerning whose unions the matter is being treated suffices."

We are taught by Duchesne (Origines, etc., p. 454) that this Ritual is the ancient Ritual of the Romans, to which the sacrifice of the New Law has been joined in place of the pagan sacrifice. In the prior part it contains the sponsals, that is, the manifestation of the consent of the spouses and parents; the handing over of the pledges, that is, of the ring made by the bridegroom to the bride; the written consignation of the dowry before witnesses of both parties. In the other part there is had the celebration of Mass before the married couple, the blessing or veiling, and the coronation at the departure from the church.

The veiling is omitted in the Roman Ritual, although it is most ancient and is already mentioned by Siricius (384-389), in the epistle to Himerius, c. 4 (P. L., XIII, 1136), and by St. Ambrose (epist. 19, 7, P. L., XVI, 984).

Formerly mutual consent and the handing over of pledges pertained to sponsals.

II. Concerning the closed time. By canon 52 of the Council of Laodicea (between 340 and 361), the celebration of matrimony in the time of Lent is forbidden (Harduin, Coll., I, 790). The prohibition is confirmed in the forty-eighth among the chapters of Martin, bishop of Braga (Harduin, III, 397). The Council of Benevento (1091), c. 4 (Harduin, VI, p. 2, col. 1696), decrees thus: "From the day of Septuagesima until the octaves of Pentecost (elsewhere, until the octave of St. Pascha), or from the day of the Lord's Advent until the octave of Epiphany, marriages are in no way to be contracted." By the Council of Trent, Session XXIV, De Ref. Matr., c. 10, only solemn celebration is prohibited from Advent until the day of Epiphany, and from Ash Wednesday until the octave of Easter, inclusive.

E. DE M., S.I.

Prümmer, Manuale Theologiae Moralis

Dominic M. Prümmer, O.P. — 8 passages

Vol. III, Pt. II, Treatise X. On Matrimony

n. 625.

625. Preliminary note.

a) The utility and necessity of this treatise, which is touched upon under diverse respects by diverse disciplines.

Since the source and origin of the family and of all human society consists in marriage,¹ the welfare of all society depends upon marriages rightly entered and holily preserved. Hence the history of all ages and regions has always proved that peoples, when the sanctity of marriage was violated, fell into the abysses of immorality, irreligion, and social misery. Therefore Leo XIII, near the beginning of his pontificate, wishing to provide for the happiness of the Christian people, sent the celebrated Encyclical Arcanum on marriage to all the bishops of the whole world. He deservedly writes: "You readily see, venerable Brethren, that these teachings and precepts concerning Christian marriage, which through these Our letters We have judged should be communicated to you, pertain greatly no less to the preservation of civil society than to the everlasting salvation of men. May God therefore grant that, the greater the moment and weight which they possess, the more docile and ready to obey may be the minds which they everywhere find." If, however, it is of such utility and necessity that true teachings and precepts concerning marriage be observed by peoples, these precepts must first be clearly known and taught. Now the office of teaching pertains to bishops and their assistants, the priests, who consequently are bound to know very well all things which touch upon Christian marriage. Certainly every priest, whether he is a pastor or a confessor (of adult laymen), is bound under grave obligation to know the laws concerning marriage enacted by God and the Church; and the better he knows these laws, and the more efficaciously and prudently he provides that they be observed, the more abundant fruits he will gather in the vineyard of the Lord.

From all these things it plainly appears that the treatise on marriage is exceedingly useful and necessary for almost all priests, although it has always seemed sufficiently difficult, so that St. Augustine already wrote:² "I am not unaware that the question concerning marriages is most obscure and most intricate. Nor do I dare to profess that either in this work or in another I have yet unfolded all its folds, or that I can now unfold them if I am pressed." Nevertheless, this difficulty ought by no means to deter us, and all the less because in present times it has been greatly diminished by the clear laws of the Church and the abundant explanations of learned men. This difficulty indeed appears chiefly to arise from the manifold aspect under which marriage can be considered. For marriage, insofar as it is a merely natural contract, is considered by the light of reason alone in Natural Ethics; insofar as it pertains to a dogma of faith, in Dogmatic Theology; insofar as its cases are judged in the ecclesiastical forum, it is considered in Canon Law; but insofar as it induces temporal obligations, for example, concerning the natural education of children, concerning the community of goods to be established between spouses, etc., it pertains to Civil Law. Moral Theology indeed ought to presuppose the natural principles from Ethics, the revealed principles from Dogmatics, the enacted ecclesiastical laws from Canon Law, and the just laws from Civil Law, and to treat only of the special moral obligations of spouses; nevertheless, in our times an almost universal custom has prevailed that Manuals of Moral Theology treat of marriage in such a way that they hand down the whole doctrine, knowledge of which is necessary for a priest exercising the care of souls. The reason for this method (certainly not altogether scientific) is practical utility. For today a Manual of Moral Theology is considered as a faithful guide and, as it were, a Vademecum, which accompanies every priest in almost all questions occurring in priestly practice. Hence juridical questions also, for example, concerning the impediments of marriage, are customarily treated with almost the same breadth in Moral Theology as in Canon Law.

¹ Cf. Leo XIII, Constitution Arcanum, February 10, 1880.

² De coniugiis adulterinis, l. 1, c. 25, n. 32 (Migne, Patr. lat. 40, 469).

n. 626.

626. b) The principal authors who wrote on marriage.

Since the treatise on marriage is of such utility and necessity, it is no wonder that in all times the more excellent authors wrote or spoke on this matter. Christ Himself performed His first miracle at the wedding of Cana, elevated marriage to a sacrament of the New Law, and established several statutes concerning the obligations of spouses in the Gospel.³ Likewise the holy Apostle Paul issued most salutary precepts concerning marriage.⁴ The Holy Fathers and ancient Christian writers very often speak of marriage. There is no leisure to enumerate them all here. Among the principal are held: St. Ignatius of Antioch,⁵ Hermas,⁶ Athenagoras,⁷ Clement of Alexandria,⁸ Tertullian,⁹ Augustine.¹⁰ But after the patristic age down to the Decree of Gratian, not so many treatises on marriage are had. Among the authors of this epoch are to be named Rabanus Maurus,¹¹ Ivo of Chartres.¹² Gratian, however, was the first who not only collected the canons of the Councils concerning marriage, but also composed, as it were, a scientific treatise on marriage in his "dicta" and observations. Several others walked the way thus opened by Gratian, for example, Master Roland¹³ (later Alexander III), Bernard of Pavia,¹⁴ Tancred,¹⁵ Peter Lombard.¹⁶ But in the thirteenth century, in which not only the theological and philosophical sciences, but also the science of Canon Law flourished exceedingly, several most celebrated authors wrote on marriage. Before all, St. Raymond of Pennafort of the Order of Preachers is to be named, who by command of Gregory IX collected and arranged the whole Canon Law in the Decretals. In the fourth book of the Decretals there is contained the complete matrimonial law, which afterward was explained by almost innumerable commentaries. St. Raymond himself treated matrimonial law specially for confessors in his Summa.¹⁷

After Peter Lombard and St. Raymond, almost all the great theologians and canonists wrote on marriage, for example, St. Thomas Aquinas, St. Bonaventure, Johannes Andreae, etc. Both the Council of Trent and the Code of Canon Law introduced great changes in matrimonial law, for example, concerning clandestine marriages, concerning impediments of natural, spiritual, and legal relationship, of public propriety, of affinity, etc. Among authors who wrote on marriage after the Council of Trent, Thomas Sanchez is eminent, extolled with great praises by some and vehemently censured by others, as though he had spoken too immodestly concerning certain matrimonial matters. In our times the following have written on marriage in an excellent manner: Feije,¹⁸ Gasparri,¹⁹ van de Burgt-Schaepman,²⁰ Wernz-Vidal,²¹ Leitner,²² Vlaming,²³ Vogt,²⁴ De Smet,²⁵ Linneborn (Grundriss des Eherechts), and others. Since in matrimonial cases certain questions occur which ought rather to be resolved by those skilled in the medical art, several authors have treated marriage also under this respect, for example, Eschbach,²⁶ Capellmann,²⁷ Surbled,²⁸ Antonelli,²⁹ and certain others. Several writers have also considered the civil laws concerning marriage in force in diverse regions in relation to Moral Theology, for example, in England: Stewart;³⁰ in North America: Bishop;³¹ in Germany: Vogt in the work already cited; in Austria: Rittner;³² in Italy: Ceraolo-Pisani;³³ in Spain: Abella.³⁴

c) Division of the treatise.

Since marriage can be considered under a manifold respect (as was stated above), it is no wonder that diverse divisions are employed by diverse authors in this treatise, according as they prefer one consideration or another. But wishing to provide both for scientific method and for practical utility, we shall treat marriage under the respect a) theological (cc. 1-5); b) canonical (cc. 6-8). At the end a dissertation on civil marriage will be appended. Therefore the whole treatise contains the following chapters:

On the nature and division of marriage.
On marriage, insofar as it is a sacrament.
On the properties of marriage.
On the goods of marriage.
On the obligations of marriage.
On preparation for marriage, namely, on betrothals, the examination of the betrothed, and banns.
On matrimonial consent.
On the form of the celebration of marriage.
On the impediments of marriage, and indeed a) impeding; b) diriment; c) on the dispensation from impediments.
On civil marriage.

³ Cf. Matt. 5:31 ff.; Mark 10:11; Luke 16:18.

⁴ 1 Cor. 7:12 ff.

⁵ Ep. ad Polyc., c. 5 (Migne, Patr. graec. 1, 723).

⁶ Pastor, mand. 4, 1 (Migne, loc. cit. 2, 918).

⁷ Legatio pro christianis, c. 33 (Migne, loc. cit. 6, 966).

⁸ Strom., l. 2, c. 23 (Migne, loc. cit. 8, 1086).

⁹ In several places, for example, De monogamia (Migne, Patr. lat. 2, 92).

¹⁰ In several books, for example, De bono coniugali (Migne, loc. cit. 40, 372).

¹¹ Tract. de consang. nuptiis (Migne, loc. cit. 110, 1085).

¹² Decretum, p. 8; Panormia, p. 6 (Migne, loc. cit. 161, 583 and 1243).

¹³ Summa Magistri Rolandi, ed. Thaner, and Die Sentenzen Rolands, ed. Gietl.

¹⁴ Summa de matrimonio, in Laspeyres.

¹⁵ Summa de matrimonio, ed. Wunderlich.

¹⁶ Sent., book IV.

¹⁷ Summa S. Raymundi, de poenitentia et matrimonio, with the commentaries of John of Freiburg, O.P., Rome 1603.

¹⁸ De impedimentis et dispensationibus matrimonialibus, 4th ed., Louvain 1893.

¹⁹ Tractatus de matrimonio. A new edition was prepared by Schaepman.

²⁰ Tractatus canonicus de matrimonio, Utrecht 1908.

²¹ Ius canonicum, vol. V, Rome 1925. Peter Vidal prepared this new edition.

²² Lehrbuch des kirchlichen Eherechts.

²³ Praelectiones de iure matrimoniali, 1921, 2nd ed.

²⁴ Das kirchliche Eherecht, 3rd ed., 1910.

²⁵ De sponsalibus et matrimonio, 2nd ed., Bruges 1921.

²⁶ Disputationes physiologico-theologicae, 2nd ed., 1901.

²⁷ Pastoralmedizin, new ed. prepared by Bergmann, 1922. It is an excellent work.

²⁸ La morale dans ses rapports avec la médecine et l'hygiène, 10th ed., Paris 1905.

²⁹ Medicina pastoralis in usum confessariorum, 3rd ed., Rome 1906.

³⁰ The Law of Marriage.

³¹ New Commentaries on Marriage.

³² Österreichisches Eherecht.

³³ Del matrimonio.

³⁴ Manual del matrimonio civil y canónico.

Vol. III, Pt. II, Tr. X, Chapter I. On The Nature And Division Of Matrimony

n. ¶89.

This chapter is divided into three articles: 1. on the nature of marriage; 2. on the intimate character of the matrimonial contract; 3. on the division of marriage.

Vol. III, Pt. II, Tr. X, Ch. I, Article III. On The Division Of Matrimony

n. ¶90.

Preliminary note. Matrimony is not divided in the same manner by diverse authors; indeed, the same division is not always taken in the same sense. For this reason confusions and disputes easily arise, as has in fact already happened concerning the notion of legitimate and ratified matrimony.⁷² But since there ought not to be a quarrel about words, we explain the following divisions of matrimony, leaving full liberty to anyone who prefers to adduce other divisions and explanations.

We therefore divide matrimony:

⁷² Cf. Freisen, Geschichte des kanonischen Eherechtes, § 10.

n. 638.

638. 1. Into legitimate, ratified, consummated.

Legitimate matrimony is a matrimonial contract validly entered into by two non-baptized persons.⁷³ Since these persons are not bound by purely ecclesiastical laws (because they are not members of the Church), but are bound by just civil laws and by the natural law, legitimate matrimony can therefore also be defined: a matrimony of non-baptized persons to which no diriment impediment, whether of natural law or of civil law, is opposed; or, still more briefly: every valid matrimony which is not a sacrament.⁷⁴ Hence it follows that the so-called civil matrimony of Christians is not legitimate matrimony, because it is either valid (for example, the marriages of Protestants), and then it is not only legitimate but also ratified, and a true sacrament; or it is invalid (because of some impediment), and then it is concubinage, at least material.

Ratified matrimony is a matrimonial contract validly entered into by Christians, to which, however, marital carnal intercourse has not yet supervened. Such a matrimony is called ratified because it is ratified by Christ and the Church through the sacrament; for in Christian matrimony the contract cannot be separated from the sacrament.⁷⁵

Consummated matrimony is that in which carnal intercourse has been had. Two things, however, must be noted here: a) A matrimony is not said to be consummated from the fact that carnal intercourse perhaps preceded the valid matrimony, but only from true marital intercourse, and that apt for generation. Therefore matrimony is not consummated even through onanistic or sodomitical intercourse;⁷⁶ but it is consummated through any penetration of the vagina made by the male member with seminal emission within it. b) Even the legitimate matrimony of non-baptized persons can be consummated, but it can never be ratified, because it is not a sacrament; but in the case in which both non-baptized spouses receive baptism, by that very fact the matrimony becomes ratified and a sacrament, provided, however, that the matrimonial consent perseveres (concerning which more fully below).

⁷³ Code of Canon Law, c. 1015, § 3. Formerly the matrimony even of Christians was called legitimate if all the legal forms had been observed (cf. c. 17, C. 28, q. 1, and Benedict XIV, De syn. dioec., l. 8, c. 12, n. 5 at the end). Since a valid matrimony between a baptized and a non-baptized person more probably lacks the sacramental character (cf. below, n. 649), such a matrimony also appears to be legitimate, but not ratified.

⁷⁴ This matter will be treated more fully below, n. 649.

⁷⁵ Cf. condemned propositions 66 and 73 in the Syllabus of Pius IX, cited above in n. 628, note 1.

⁷⁶ Cf. Eschbach, Disp. physiol.-theol., disp. 2, c. 2.

n. 639.

639. 2. Into public, clandestine, occult (secret).

Public matrimony is considered to be that which has been contracted in the face of the Church, or in another public manner recognized by the Church as valid. Hence, for example, those marriages are public which have been contracted before two witnesses and the pastor or another competent priest.

Clandestine matrimony⁷⁷ is a marriage entered into without the presence of the pastor and two witnesses. According to the discipline in force, there are no other valid clandestine marriages (outside a case of grave necessity) except marriages of non-Catholics.⁷⁸

Occult matrimony (or matrimony of conscience)⁷⁹ is that which is validly contracted before the pastor and two witnesses, but whose celebration is concealed from the people for a most grave reason. In order that this concealment may be obtained, the banns are omitted; the matrimony is celebrated in a secret place; the Ordinary or pastor and the assisting witnesses are bound to observe secrecy; the matrimony contracted is not recorded in the ordinary register of marriages, but in a special book to be kept in the secret archive of the episcopal curia. A special permission of the bishop is required, however, in order that a matrimony of conscience of this kind may be celebrated licitly.⁸⁰ The reason for which the bishop can permit such a matrimony is, on the one hand, the moral necessity of entering matrimony and, on the other hand, the moral impossibility of celebrating a public matrimony; for example, if, because of civil laws or other circumstances, someone cannot celebrate a public matrimony, and nevertheless matrimony is necessary in order to provide for the conscience of the contracting parties. Children born or to be born of an occult matrimony, after receiving baptism, are to be inscribed not in the parochial register of the baptized, but in some secret book preserved in the episcopal curia. The obligation of preserving secrecy on the part of the Ordinary ceases if some scandal or grave injury to the sanctity of matrimony is imminent, or if the parents do not take care that the children born be baptized, or neglect the Christian education of the children.⁸¹

Matrimony of conscience must by no means be confused with morganatic matrimony,⁸² which is a legitimate marital union between a person of great nobility and a person of very disparate condition, for example, between a prince and a theatrical actress, entered into with the agreement that, although the matrimony possesses full right before the Church, in the civil forum the wife and the children begotten of her do not fully succeed to the honors, dignities, and goods of the husband.⁸³ The name morganatic matrimony appears to have been taken from the German word Morgengabe, because on the day following the celebration of such a matrimony a morning gift was granted to the wife. Moreover, several things concerning the conditions of morganatic matrimony are still obscure.⁸⁴ Its practice is greatly limited in our times.⁸⁵ Its effects, being merely civil, do not touch Christian matrimony itself. When such a case occurs, the pastor should consult his own bishop, who is to decree according to his prudence what is to be done.

⁷⁷ [According to its native sense, clandestine matrimony signifies a marriage entered into secretly without witnesses, so that legitimate proof does not thereby appear. Later, those marriages were called clandestine which were celebrated without the customary solemnities (cf. De Smet, De sponsal. et matrim., n. 93). Perhaps it would be better if this whole terminology (which, moreover, is no longer found in the new Code) were now omitted, and marriages authentically celebrated in the Catholic Church and marriages validly entered into outside the Catholic Church were distinguished.]

⁷⁸ Cf. below, n. 754.

⁷⁹ Gewissensehe.

⁸⁰ Cf. Benedict XIV, Constitution Satis vobis, November 27, 1741; Leo XIII, Letter to the Bishops of Venice, February 8, 1893; Code of Canon Law, c. 1104.

⁸¹ Code of Canon Law, c. 1106.

⁸² It is also called matrimony ad manum sinistram or ad legem salicam. Cf. Leitner, Lehrb. des Eherechts, p. 76.

⁸³ Cf. Benedict XIV, De syn. dioec., l. 13, c. 23, n. 12.

⁸⁴ Cf. Staatslexikon, s.v. "Ebenbürtigkeit"; Freisen, Geschichte des kanonischen Eherechtes, § 8; Leitner, loc. cit., § 11.

⁸⁵ The most famous morganatic matrimony was contracted by Archduke Francis Ferdinand (murdered by a wicked assassination, together with his wife, on June 28, 1914), who on July 1, 1900, took Countess Sophia of Chotek in matrimony, after he had previously renounced for his wife the dignity of empress, and for the children to be born the rights of the kingdom.

n. 640.

640. 3. Into valid, invalid, putative.

Valid (true) matrimony is that to which no diriment impediment is opposed; but if a prohibiting impediment is opposed, the matrimony indeed remains valid, but is illicit.

Invalid (void, null) matrimony is that to which a diriment impediment is opposed; but if the contracting parties nevertheless entered the marriage in bad faith, that matrimony is called attempted.⁸⁶

Putative matrimony is called that which is indeed in reality invalid because of a diriment impediment, but which was contracted in good faith by at least one of the contracting parties. In order, however, that a matrimony of this kind be recognized by the Church as putative, it is required that the nuptials have been entered into publicly, and neither clandestinely nor while the Church opposed them.⁸⁷ Offspring born of a putative matrimony of this kind is ordinarily considered legitimate, and indeed both by Canon Law and by several civil laws, for example, in Germany,⁸⁸ France,⁸⁹ Austria,⁹⁰ and Spain.⁹¹ As soon as both putative spouses become certain of the nullity of the matrimony, that matrimony ceases to be putative,⁹² and consequently the putative spouses must then abstain altogether from the use of matrimony.

⁸⁶ Cf. the excommunication inflicted upon clerics in major orders and solemnly professed religious who attempt matrimony, n. 544.

⁸⁷ Cf. c. 2, §§ 11-14, X 1, 7, and c. 3, X 4, 3; Council of Trent, sess. 24, c. 1, De reformatione matrimonii.

⁸⁸ Civil Code, § 1699.

⁸⁹ Civil Code, arts. 201 ff.

⁹⁰ Civil Code, § 160.

⁹¹ Civil Code, art. 69.

⁹² Code of Canon Law, c. 1015, § 4.

n. 641.

641. Scholion. On presumed matrimony. Formerly authors discussed presumed matrimony at length, which in the external forum is presumed to exist from some fact until the contrary is clearly proved. Such a presumed matrimony was held to exist chiefly in three cases, namely, if carnal intercourse followed: 1. valid betrothals; 2. a conditional matrimony; 3. a matrimony contracted in impuberty. Presumed matrimony has certainly been abolished in the first and third cases,⁹³ and probably also in the second.⁹⁴

⁹³ Constitution Consensus of Leo XIII, February 15, 1892; Code of Canon Law, c. 1067, § 1.

⁹⁴ Cf., however, below, n. 738.

Marc, Institutiones Morales

Clement Marc, C.SS.R. — 239 passages

Vol. II, Part Third: On the Sacrame…, Treatise VIII: On Matrimony

n. ¶1948.

"Matrimony is so called from this, that a woman ought especially to wed for this reason, that she may become a mother; or because to conceive, bear, and educate offspring is the office of a mother. It is also called conjugal union from joining, because a lawful woman is bound to a man as if by one yoke. Furthermore it is called nuptials, because, as St. Ambrose says, for the sake of modesty maidens veiled themselves; by which it also seemed to be declared that they ought to be obedient and subject to men."¹

Peculiar study must be applied to learning this Treatise. For ministers of the Church ought especially to understand "how great and how many advantages can come to Christian society, if the faithful have known the sanctity of matrimony and preserve it inviolate; but on the contrary, if it is ignored or neglected, very many and very great calamities and losses are brought into the Church."²

Therefore, that we may be occupied in this study with due order and clarity, we shall distribute the long argument into many chapters, treating namely: 1. of the preparation of matrimony or of betrothals; 2. of the nature and properties of matrimony; 3. of its impediments; 4. of dispensation from impediments; 5. of the celebration of matrimony; 6. of the revalidation of invalid matrimony; 7. of the rights and duties of spouses.

Vol. II, Part Third: On the Sacrame…, Tr. VIII, Chapter I: On The Preparation Of Matrimony Or On Betrothals

n. ¶1949.

BETROTHALS are commonly premised to matrimony chiefly for three reasons, namely: 1. that matrimony can be entered more maturely; 2. that the spouses may dispose themselves more aptly and perfectly for the grace of the Sacrament; 3. that it can be known more safely whether some impediment is present.

It comes to be said: 1. of the nature of betrothals; 2. of their effects and obligation; 3. of their dissolution.

Vol. II, Part Third: On the Sacrame…, Tr. VIII, Ch. I, Article I: On The Nature Of Betrothals

n. ¶1950.

DEFINITION. "Betrothals are a voluntary, deliberate, and mutual promise, expressed by a sensible sign, of future matrimony between persons capable by law."³

It is said 1. A PROMISE, that is, not only a simple desire and purpose, although externally manifested, but an act of the will, by which someone sincerely, and with internal consent of the mind, obliges himself to future matrimony. - Hence he is not obliged who promises without the mind of contracting, or without the mind of obliging himself, although he knows the obligation. The reason is, because since obligation arises from one's own will, when the act of the will is lacking, the obligation also is lacking; and this, although the promise is confirmed by oath; for an oath follows the nature of the promise (cf. n. 615). - Therefore one promising fictitiously "is indeed bound by reason of deception to repair damages, but he is not bound by reason of the promise to put true consent and contract matrimony."⁴ But it must be said otherwise if defloration intervened; because then the deflowerer is altogether bound to matrimony, since he cannot repair the damage by another way sufficiently equivalently,⁵ as was said n. 959.

It is said 2. VOLUNTARY AND DELIBERATE, i.e., made with that knowledge, advertence, and liberty which is required for mortal sin; namely, that the one promising attend both to what he is doing and to what he is binding himself, and add consent with due liberty. For to induce a grave obligation, such as is the obligation of betrothals, full deliberation and free consent are required.⁶

Hence Betrothals are invalid: 1. Contracted by those who either habitually, or at least while they contract, do not have perfect USE OF REASON, such as children, the insane, the drunk, the mentally seized. But disturbance of reason arising from concupiscence commonly does not impede the validity of betrothals, because, although it is opposed to prudence and counsel, nevertheless it does not exclude deliberation of mind. 2. Contracted FROM ERROR concerning the substance, or concerning a substantial condition, e.g., if someone should promise expressly under such a particular condition; but if the error concerns an accidental condition, the betrothals are valid, but sometimes they can be dissolved, according to what is to be said below (n. 1960).⁷ - 3. Contracted THROUGH FEAR unjust, grave, and inflicted from without; for betrothals follow the nature of matrimony, which contracted by fear is certainly null. - It was said 1) through unjust fear; because if it were just, they would be valid no less than matrimony itself; 2) through grave fear; for if it were light, likewise they would be valid, according to the more probable and more common opinion, because he is judged to contract spontaneously who, when he could repel light fear, does not repel it: nevertheless in this case betrothals can be rescinded by sentence of the judge, on account of the greatest liberty which they require; 3) inflicted from without; for if fear arose from within, e.g., if someone promised in order to decline payment of debt, the promise would be valid.⁸

It is said 3. MUTUAL, i.e., made and accepted in turn by a man and a woman: whence, a promise of matrimony, even confirmed by oath, does not oblige as long as a return promise has not been made by the other party. But the acceptance of the promise and the return promise must be made immediately, and therefore, if the return promise has not been made, the one promising is not bound; nor can the promisee accept the promise alone and deliberate concerning making the return promise; because the promise is judged to have been made under the condition: if the promisee accepts it and returns the promise immediately; unless the contrary is expressly signified, e.g., if the one promising grants delay for acceptance and return promise, or at least for the return promise. If the promisee accepts a gratuitous and liberal promise, and does not yet return the promise, betrothals are not had; but only a promise which obliges, only under light fault, by reason of fidelity, unless the one promising wished to oblige himself under grave fault. If the promisee is silent while the promise is made, she is indeed judged to accept, because it is a question of a favor; nevertheless, her silence does not suffice for a return promise, because a return promise is a burden, and in onerous matters the axiom does not avail: "He who is silent seems to consent." But commonly a promise of matrimony is not judged to have been made gratis and liberally, but under the condition: if the other party also binds herself in turn. And this intention, in doubt, must be presumed.⁹

It is said 4. EXPRESSED BY A SENSIBLE SIGN; because a contract among men is made only by an external sign. - Hence, in betrothals, consent must be expressed:

a) Either BY WORDS, which, if they are doubtful, are to be interpreted according to the obvious sense and the custom of places, or also from the intention of the contracting parties. Certain words are these: I promise matrimony to you..., under my faith I will marry you, etc. But these are null, or very doubtful: "You will be mine..., to you I promise love, fidelity, etc...." He who should say: "I will marry no other than you," would indeed not be bound to marry her, but to marry no other, unless from the circumstances it is gathered that such a one truly wished to contract betrothals.¹⁰

b) Or BY SIGNS, e.g., by the extension of the right hand, namely when the circumstances are such that there can be no doubt concerning the value of the sign. But if there is doubt concerning this, liberty is to be favored;¹¹ nevertheless if copulation freely follows (not if it preceded), one must conclude in favor of betrothals. The mere handing over and acceptance of a ring is not a sufficient sign, unless such a custom is given somewhere. Betrothals can also, like matrimony itself, be contracted through a procurator, or through letters (cf. n. 1973).

c) Or BY THE WORK OF PARENTS, namely if a father or mother promised for a present and silent son or daughter: as is had from the law, saying thus: "Moreover, from betrothals, which parents commonly contract for their children whether pubescent or impubescent, the children themselves, if they expressly consented, or tacitly, or were present and did not contradict, are obliged."¹² - Yet it must be adverted: 1. that this is valid for the external forum; for, for the internal forum, the son is not bound, if he does not assent internally, or if he only has himself negatively: because positive consent is required for contracting some obligation; 2. that this proceeds only in the case in which the parents themselves promise; but not others, although they are guardians or curators, unless perhaps somewhere, as among the Indians, a custom is in force that consent is expressed through others; 3. that betrothals contracted by parents for an absent son are valid, if he, made more certain concerning the matter, ratifies them either expressly or tacitly.¹³

It is said 5. OF FUTURE MATRIMONY, namely to be entered in its own time. Therefore consent expressed through words concerning the present (since, the law standing in the way, it is not valid for matrimony) induces no obligation. Except the consent of impubescents, among whom words concerning the present have the force of betrothals: for in their case the rule is admitted, that an act which is not valid in the mode in which it is made, is nevertheless valid in the mode in which it could be made.¹⁴

It is said 6. BETWEEN PERSONS CAPABLE, namely between such as at some time are able validly and licitly to enter matrimony, since the promise of an illicit, or impossible, thing is of itself void. But if betrothals are contracted while some impediment stands in the way, it is to be distinguished thus: 1. If the impediment is perpetual and of such nature that it can be removed by no reason, the betrothals are invalid; 2. if it is temporary, e.g., a temporary vow of chastity, or if it can be removed by the industry of the contracting parties, e.g., if the non-Catholic party promises conversion, they are valid, and therefore matrimony, when now it can be contracted licitly, is to be contracted.¹⁵

n. ¶1951.

Questions. Q. 1. Whether children under parental power need the CONSENT OF PARENTS for contracting betrothals?

Resp. 1. For contracting validly their consent is not required, since this is prescribed by no law. - Nevertheless, if the parents justly contradict, e.g., on account of dishonor or scandal of the family to arise from such a marriage, the son by not obeying and by contracting betrothals would sin gravely; and therefore the betrothals, although confirmed by oath, would not oblige, because the promise would be concerning an illicit thing, and an oath cannot be the bond of iniquity.

Resp. 2. For contracting licitly the consent of parents is ordinarily required. For the reverence by which they are to be pursued demands for itself that, in a matter of such moment, their counsel be sought. Therefore children, contracting while parents are ignorant or unwilling, sin more or less gravely, according to the diversity of circumstances. - It is said consent is ordinarily required; for a son is not bound to obey parents, if they contradict irrationally, e.g., if they prohibit marriage, or if they prescribe it with an unworthy person.¹⁶ Consent reasonably presumed also suffices, e.g., if the father is so distant that he cannot conveniently be made more certain concerning the betrothals to be contracted, which are judged to have been going to have his approval.

Q. 2. Whether CLANDESTINE betrothals are valid?

Resp. Affirm.; for "the S. C. OF THE COUNCIL has often declared that the Council prescribed no form for contracting betrothals through words concerning the future, and therefore that they can be contracted in that mode in which they could be before the Council itself."¹⁷ Now, before Trent betrothals of this sort were certainly valid, therefore they are also valid at present. - Therefore generally no determined form is required for contracting them, although it is to be advised that they never be contracted without a witness, so that thus, when circumstances demand it, they can also be proved in the external forum.¹⁸ We said generally; for in Spain they are not valid if they are contracted without a public writing, on account of the Caroline Pragmatic, which, by legitimate customary law, has obtained for itself the authority of canonical discipline and the force of an ecclesiastical sanction. Thus from the decision of the S. C. C., January 31, 1880.¹⁹

Q. 3. Whether betrothals contracted between the ABDUCTED WOMAN and the ABDUCTOR are valid, at that time at which the woman was in the power of the abductor?

Resp. Affirm., according to the more probable opinion, provided that fear did not intervene, nor another impediment. For the disposition of law, by which matrimony is invalidated as long as the abducted woman remains under the power of the abductor, is not valid for betrothals, which, as rescindable, require lesser liberty.²⁰

Q. 4. What concerning betrothals entered UNDER CONDITION?

Resp. That betrothals, like any other contract, can be made under condition is certain. Nevertheless, concerning the diverse conditions which can be added, one must speak diversely, according to their variety, and indeed: 1. If the condition is concerning the present, the betrothals are immediately either valid or invalid, according as the condition is verified or is not verified. 2. If the condition is concerning the impossible, the betrothals are null, because the addition of an impossible condition naturally denotes dissent rather than consent, nor is there had the favor of positive law, as happens for matrimony. 3. If the condition is concerning a future necessary thing, it is held for completed, and therefore the betrothals are immediately valid and obtain their effects. 4. If the condition is concerning a future contingent and honorable thing, the betrothals become absolute when the condition has been fulfilled, and new consent is not required; for the consent which was given from the beginning suffices, provided it has remained. But from betrothals of this sort there arises an obligation of attending to the fulfillment of the condition; and indeed this obligation presses so much that any later betrothals, the prior ones not yet dissolved, are rendered invalid. The added condition is judged to have been renounced if the spouses, while it is still pending, have come together in venereal congress.¹ 5. If the condition concerning a future contingent thing is dishonorable, there does not arise from it an obligation of awaiting the event, since it induces to sin; but indeed, when the condition has been fulfilled, the betrothals are valid² (cf. n. 1057, 5).

Q. 5. Whether, some impediment standing in the way, betrothals contracted under the condition, IF THE POPE SHALL HAVE DISPENSED, are valid?

Resp. Dist. 1. If the impediment is such that the Pope never or rarely is accustomed to dispense in it, or if a just cause for obtaining the dispensation is lacking, the betrothals are not valid; because they are concerning an impossible thing. 2. But if it is a question of an impediment in which the Pontiff can and is accustomed to dispense, and at the same time sufficient reasons are had for seeking and obtaining the dispensation, the betrothals are valid, as we said concerning betrothals entered under a possible and honorable condition. Whence, although they are not absolute, nevertheless they induce an absolute obligation of seeking the dispensation and awaiting it; but when this has been obtained and signified to the parties, the betrothals are confirmed without new consent, provided the consent furnished from the beginning still perseveres.

But if the other party, before the verification of the condition, should enter new betrothals, these would be invalid, since it would be a promise concerning an unjust thing, which does not oblige. Thus the more common and truer opinion.³ - Nor do the laws and decisions of the S. C. C. which the opposite opinion alleges seem to stand in the way of this opinion; because, as will easily be clear to the reader, they are to be understood of the case in which either the Pope is not accustomed to dispense, or a cause for dispensing is not present, or other special circumstances of things occur, which weaken that promise.⁴

Note. - Very often, promises of future matrimony, which are customarily made among adolescents mutually loving each other, are not true betrothals, since they bear before themselves the conditions of a purpose rather than of an onerous contract. And thus it is especially in those regions where it is placed in custom that betrothals be entered with some solemnity. In practice, let attention be given especially to the intention of those promising.

Vol. II, Part Third: On the Sacrame…, Tr. VIII, Ch. I, Article II: On The Effects And On The Obligation Of Betrothals

n. ¶1952.

Principles. I. Betrothals OBLIGE under grave fault and from justice, to contracting matrimony either at the predefined time, or as soon as the other party shall reasonably have sought it. It is established from the nature of an onerous contract, which in a grave matter obliges under grave fault and from justice (cf. n. 1056 sq.). "But it must be noted, that if the other party from forgetfulness, fear, shame, or similar cause did not seek it, as chiefly happens in women: then the bridegroom is bound of himself, without petition, to contract matrimony, when he can conveniently do so. Conversely, if the other party, when she can conveniently seek, is silent, then she seems to consent to the delay.⁵ One receding can be compelled to matrimony, even by a judge through censures: which nevertheless is rarely expedient, on account of danger of an unhappy outcome.⁶" Recall what was said nn. 959-960.

n. ¶1953.

II. Betrothals induce a PROHIBITING impediment of matrimony with any other person, unless the prior betrothals have been legitimately dissolved. But later betrothals, although sworn, are altogether invalid; for a thing owed to one cannot licitly be handed over to another.⁷

n. ¶1954.

III. Betrothals induce the DIRIMENT impediment called of public honesty, which endures even when the betrothals have been dissolved. Concerning this, more below (nn. 2032-2034).

But whether betrothals sometimes pass over into matrimony, see n. 1972 at the end.

n. ¶1955.

Questions. Q. 1. If the bridegroom, against the fidelity of the prior betrothals, has CONTRACTED NEW ones, and copulation has followed these, with which of the two brides is he bound to contract?

Resp. 1. "If the second bride was conscious of the prior betrothals, matrimony (certainly) must be contracted with the first; because then the second was not deceived, but she herself wished to be deceived. Thus commonly."

Resp. 2. If she was not conscious of the prior betrothals, IT IS CONTROVERTED; but "the more common and more probable opinion says, the bridegroom is bound to contract with the first, even if copulation was present with the second." The reason is, because the promise made to the second was null, as concerning an illicit thing, nor does an injury inflicted on her take away the right of the first. But whether the first ought to yield to her right, lest the other undergo a most grave damage? Some affirm that she is bound from charity; but others, and not improbably, deny this: because the second must impute it to her own crime that she suffers such damage.⁸

Q. 2. What is to be judged concerning BETROTHAL EARNESTS, and also concerning the addition of PENALTIES?

Resp. 1. By the name of EARNESTS come the things which one of the spouses, or each, hands over to the other as a token of the contracted betrothals and as a pledge of entering matrimony.⁹ - The handing over of them is prohibited by no law. But when betrothals have been justly dissolved, they must be restored. But if the other party culpably recedes from the fidelity given, that party not only loses his or her own earnests, but is always bound to restore those accepted, and to repair all damages which arise from this receding.¹⁰

Resp. 2. A CONVENTIONAL PENALTY is an agreement added to betrothals, by which the spouses bind themselves mutually to a penalty, or to a certain sum of money to be paid, if they have not stood by their promises. It differs from an earnest in this, that the latter is actually handed over, and the penalty is promised; and that commonly an earnest is constituted in a small quantity, but a penalty in a greater, since each one is readier to promise than to hand over.¹¹ Now then: 1. The addition of a penalty to be paid by one receding, whether he recedes justly or unjustly, is altogether ILLICIT and INVALID, since such a stipulation injures the liberty of matrimony, and therefore is reproved by law. "And so, in such a case, he who recedes justly is not bound to the payment of the aforesaid penalty, although he had confirmed the promise by oath. And if the penalty has ever been paid, he who exacted it is bound to restore, as the more probable opinion holds; because for him there is no title by which he may retain it for himself, while the law altogether irritates such a promise." 2. But the promise of a penalty to be paid by one receding unjustly, according to the more probable opinion, is LICIT, since it is prohibited neither by natural law nor by positive law. It is not prohibited by natural law, "since it is equitable that he who recedes unjustly be subjected to penalty; but the liberty which is required in matrimony is rational liberty, not irrational; otherwise a judge could never compel spouses to contracting by censures or prison." Nor is it prohibited by positive law; for the disposition of law must be understood of a just receding, but not of an unjust one.¹² But indeed since the opposite opinion is sufficiently probable, one receding unjustly cannot be compelled to the payment of the penalty; but when payment has been made, it is licit for the innocent party to retain the money received.

NB. Concerning the PREPARATION of spouses for matrimony, recall what was said nn. 827 and 1850.

Vol. II, Part Third: On the Sacrame…, Tr. VIII, Ch. I, Article III: On The Dissolution Of Betrothals

n. ¶1956.

Betrothals, which consist in a contract soluble by its nature, are dissolved not only by the death of the other party, as matrimony is, but by various other causes.

Principles. I. Betrothals are dissolved among the pubescent BY MUTUAL CONSENT. - For with no law standing in the way, the parties can mutually remit to each other the reciprocal obligation by which they are held. But the same consent which was required for contracting is required for dissolving: namely voluntary and free consent, such that it is extorted neither by fraud, nor force, nor fear. If this has been given on both sides, the betrothals are immediately dissolved, although they had been confirmed by oath; and this not only validly, but also licitly, if a reasonable cause is present; otherwise it would be at least venial. Thus commonly.¹³

It is said among the pubescent; for as to impubescents there is present a special disposition of law,¹⁴ by which the dissolution of their betrothals is forbidden before they have arrived at the years of puberty, namely lest on account of unstable judgment, they easily and often rashly contract betrothals, and again dissolve them. But once the age of puberty has been reached, either spouse will be able, without waiting for the other, to recede from the betrothals, provided he protests before a judge or witnesses within three days, which begin not indeed from the time puberty is reached, but from the day when knowledge was obtained of the privilege of receding. But if the spouse dissents already before puberty, and perseveres in the manifested dissent, the betrothals are dissolved as soon as he arrives at the years of puberty.¹⁵

But mutual consent of receding is had: either 1. because a change of wills has intervened; or 2. because the betrothals had been entered under some resolutory condition, which was then verified; or 3. because they had been entered with the condition of contracting matrimony at a determined time, which has now elapsed. - But concerning this last cause of receding, some things are to be NOTED.

A term is added to betrothals either to urge the obligation of contracting matrimony, or to end it. "Then it is added to urge, when the parties therefore set a term, so that neither before it can compel the other to fulfill the contract. But then to end, when the term is added so that, when it has elapsed, no obligation remains."¹⁶ Hence, if the term added for ending the obligation has elapsed by the fault of both or of neither, the betrothals are dissolved on both sides; if by the fault of either, the innocent party remains free; but not the other party, who was in cause why the matrimony was not contracted.¹⁷

n. ¶1957.

II. Betrothals are dissolved BY ELECTION of a more perfect state. The reason is, because betrothals are judged to have been entered under the tacit condition: unless a more perfect state is chosen.¹⁸ Wherefore one party can also choose this without the consent of the other.

But concerning this it must be NOTED: 1. Through religious profession or reception of sacred Order the obligation of betrothals is so totally extinguished that it no longer revives.¹⁹

2. Through entrance into Religion, likewise through a vow, and even through a simple purpose, but duly manifested, of entering Religion or receiving sacred Order, the obligation of betrothals is similarly extinguished, but only for the party dismissed. But for the other party, the obligation remains only suspended, until the more perfect state has been immutably entered. Whence, if he recedes from the purpose, the obligation so revives, that he is bound to stand by the betrothals, if the dismissed party demands this.²⁰

3. Through reception of minor Orders, according to the more common and truer opinion, betrothals are not dissolved; "because in truth the state of minor Orders is not incompossible with matrimony, since someone can well become a married cleric."²¹ Nevertheless, if the reception is made with the will of progressing further, the bride is freed; indeed it can happen that she is freed on account of only the minor Orders received by the bridegroom, namely if she were so averse to matrimony with a cleric that, the change of state having been foreseen, she never would have contracted.

4. Through a vow of chastity made by one party, the other party is released from every obligation; because the one vowing chastity yields his right. But the obligation of the one vowing is not altogether extinguished, but only suspended, as long as he remains bound by his vow. Wherefore, if he afterwards obtains dispensation of the vow, and no other cause of dissolution is present, the betrothals revive.²²

n. ¶1958.

III. Betrothals are dissolved THROUGH ANY IMPEDIMENT WHATEVER by which the promised matrimony is rendered ILLICIT or INVALID.¹

For no obligation to contracting such a matrimony can be given. - Now, besides election of the more perfect state, concerning which we have already treated, FOUR impediments of this sort are commonly enumerated, namely: perpetual impotence, matrimony validly although illicitly contracted, affinity from illicit copulation, and dissent of parents.

1. Through perpetual impotence, which supervenes in either of the spouses, betrothals are altogether dissolved, since the promised matrimony becomes absolutely impossible.

2. Through a valid matrimony contracted by the other party, betrothals are dissolved as to the innocent party. But as to the guilty party, the opinion (St. Alphonsus judging) absolutely more probable teaches that the obligation is not extinguished, if the other party waits; but is only suspended, so that, when the marriage has been dissolved, he is bound to fulfill the prior betrothals. "The reason is, because it is proved by no law that betrothals are altogether irritated through a subsequent marriage: not by positive law, because this is nowhere had; not by natural law, because this only demands that while the marriage endures, the prior obligation does not bind."²

3. Through affinity from illicit copulation (concerning this impediment cf. below n. 2027) betrothals are dissolved on the part of the INNOCENT party, so that he or she is not bound to admit dispensation. But the mere fame of an impediment of this sort suffices, i.e., an opinion among the greater part of the neighborhood. But on the part of the GUILTY party, the more common and more probable opinion holds that the obligation of betrothals is not removed, but only suspended, until the impediment is removed; because it is not equitable that the delinquent derive advantage from his crime. Wherefore, he who placed the impediment is also bound, even setting aside the damage inflicted, to obtain dispensation, if this namely can easily be obtained; "otherwise, if great expenses and long delay would be required for it; because the obligation arising from betrothals presses the spouse to apply only ordinary and easy means, but not difficult and extraordinary means. Except nevertheless, unless damage of defloration or fame had to be repaired; because then he would be bound even to expend a great expense."³

4. Through the dissent of parents betrothals are sometimes dissolved, namely as often as they dissent justly: e.g., because the matrimony would verge to the dishonor of the family, since no one can be obliged to execute an unjust thing. - Indeed, they are dissolved through their unjust dissent, if a grave evil, e.g., disinheritance, were to be feared: "because all betrothals are understood to be contracted under this condition: if such a change does not occur, whence it is grave to contract matrimony. - Except, unless this disinheritance had already been foreseen; because then the one contracting is rightly judged to have yielded to his right."⁴

n. ¶1959.

IV. Betrothals are dissolved on the part of the innocent one, through any act whatever by which the other party is judged to have BROKEN betrothal FIDELITY.⁵ For fidelity must not be kept for one breaking fidelity. - Therefore the innocent party is altogether freed: 1. if the other party contracts new betrothals, although invalid (or civil marriage with another); 2. if he delays the celebration of marriage too much, e.g., for three years, or contrary to the judgment of a prudent man; 3. if he transfers his domicile elsewhere: for such things are opposed to betrothal fidelity.⁶

n. ¶1960.

V. Betrothals are dissolved through a NOTABLE CHANGE which supervenes when they have already been contracted, and which would have deterred from contracting them if it had been foreseen from the beginning. And the same must be said, IF THE STATE OF THINGS is found DIFFERENT from that which had been known. The universal reason is, because, as is handed down in law,⁷ the promise of betrothals is understood to have been made while things remain in the same state; and this, as St. Thomas teaches,⁸ lest conjugal union beget perpetual displeasure between the contracting parties, or obtain an unhappy outcome. But if ignorance of the change or defect was merely concomitant, and therefore not the cause of the contract, the betrothals are not dissolved. - But in doubt whether the defect (if it had been known) would have impeded the betrothals, it is presumed that it would have impeded them, if in reality, i.e., in the judgment of prudent men, it is grave in itself and notable.

Moreover, a notable CHANGE from which betrothals can licitly be dissolved can happen in a THREEFOLD way, namely:

1. In GOODS OF SOUL, e.g., when the spouse is discovered to be a drunkard, gambler, blasphemer, impious, a man harsh and hard in morals or savage; when he has committed an atrocious delict, e.g., homicide, grave theft, has fallen into heresy, etc. For the things which commonly suffice so that a marriage already contracted may be dissolved as to cohabitation, much more suffice so that it not be contracted; "for a guest is cast out more shamefully than he is not admitted."

But concerning supervening FORNICATION, or fornication newly detected, these things are to be noted. - If fornication follows betrothals, it effects two things: it breaks the fidelity given, and renders the party who has polluted himself or herself with it more base; if it preceded the betrothals, it produces only the latter effect. Commonly, this crime affects the bride with much greater baseness than the bridegroom. Wherefore it must be said: 1) on account of ANTECEDENT fornication the bridegroom can dismiss the bride; but not vice versa, unless perhaps the bridegroom has had offspring from another, or unless, on account of the frequency of the crime, he is known to be given over to this vice. - 2) On account of SUBSEQUENT fornication the innocent party (whether the bridegroom or bride) can similarly dismiss the guilty party, on account of betrothal fidelity not preserved. If each, by fornicating, has broken fidelity to the other, there is had compensation of delict, and neither can on that account recede. But the bridegroom (not the bride) can step back by another title, namely from this, that the bride has been rendered notably more base from fornication, and this even if she had been oppressed by force, or induced to consent from most grave fear. Likewise the bride can be dismissed who has permitted herself to be touched immodestly by another; but the bridegroom cannot on account of similar things, unless it can rightly be feared that he will not preserve fidelity to the bride.⁹

2. In GOODS OF BODY, e.g., if grave deformity, blindness, cutting off of a member, habitual and contagious disease supervenes on either party; provided at least a prudent suspicion concerning these is had.

3. In GOODS OF FORTUNE, e.g., if it is discovered that the bride does not have a dowry; if the bridegroom has made a loss of goods, or of the office by which he was sustained; if either tends toward want, or is disinherited by parents: provided at least a prudent suspicion concerning these and similar things is had.

Therefore on account of a notable change of this sort in one party, the other party can recede; but if he does not wish to recede, neither is it licit for the party who has suffered the change to depart, unless perhaps the change would render the burden of matrimony notably more grave.¹⁰

These things concerning a change for the worse. - But if the CHANGE had been made FOR THE BETTER, for example if an abundant inheritance unexpectedly comes to either, the very common opinion teaches that this change precisely in itself is not a sufficient cause why the fortunate party may recede from the betrothals, since that party was not deceived in the condition of the other party. - Nevertheless, if a far better marriage, on account of the change made, is offered, the party who has obtained the change does not seem altogether to be condemned, if, the first betrothals being set aside, he should enter new ones; for just as he would not be bound to stand by the betrothals with great damage to himself, so neither does he seem to be bound with the loss of great gain; for such a loss is equated with grave damage.¹¹

And generally it must be NOTED, that the obligation of betrothals CEASES when there is present a probable fear of an unhappy outcome. If the cause of fearing has arisen by the fault of one party, this party is bound to repair the damage inflicted on the other, e.g., on account of expenses already made.

IT IS ASKED. Whether the party laboring under an OCCULT DEFECT, sufficient for dissolving betrothals, is bound to MANIFEST it before betrothals, or when they have already been contracted, before matrimony?

Resp. Dist. 1. If the defect is pernicious, rendering matrimony odious and damaging to the other, such as a contagious, venereal disease, or infamy from delict, if e.g., the bride is pregnant from intercourse with another, if the bridegroom is burdened by debt: it must altogether be manifested, unless the other party also labors under the same defect. "The reason is, because just as he sins against justice who sells noxious wares to another believing them good, so a fortiori does he who wishes to contract matrimony with a pernicious defect." If therefore he does not wish to manifest the defect, he must abstain from contracting.¹²

2. If the defect does not render the nuptials noxious, but only less desirable, e.g., if the bride is falsely thought to be a virgin, rich, beautiful, it is indeed not licit for the bride to pretend that she is immune from defect, but neither is she bound to manifest it. "The reason is, both because it has already been received by custom, that there is no obligation of manifesting such defects to the other; and because no one is bound to reveal his own defect with his own infamy, if he does not injure the right of another." Thus commonly.¹³

Nevertheless St. Alphonsus adverts that the dissimulation of a defect, although it is not illicit, is not expedient, if it is prudently to be feared that after the marriage has been contracted it may be detected, and become a cause of discords.

n. ¶1961.

VI. Betrothals are dissolved THROUGH PONTIFICAL DISPENSATION. - For although through betrothals a strict right has been made for the other party, nevertheless the Supreme Pontiff can, on account of most grave reasons, prejudice this right. - Dispensation is customarily granted through the S. Congregation of the Council, after information has been received from the Ordinary, who, in this matter, from common law, possesses no authority.¹⁴

It must be noted: 1. The faculty of receding, concerning which we spoke, is to be taken in such a way that either spouse is able to renounce this right; wherefore, if the innocent party, having known his right, nonetheless ratifies the betrothals by words or deeds, and especially by carnal copulation, he cannot recede any more, because he is to be judged to have renounced his right. - 2. If the cause of receding is altogether certain, each can recede by his own right; but if a doubt either of law or of fact intervenes, the cause is to be referred to the ecclesiastical judge, i.e., to the Bishop.¹⁵

N. B. Concerning those things which regard the external forum, see the Canonists.¹⁶

Vol. II, Part Third: On the Sacrame…, Tr. VIII, Chapter II: On The Nature Of Matrimony

We shall treat: 1. of the notion of matrimony; 2. of the matter, form, and minister; 3. of the properties of matrimony.

Vol. II, Part Third: On the Sacrame…, Tr. VIII, Ch. II, Article I: On The Notion Of Matrimony

n. ¶1962.

DEFINITION. Matrimony (instituted by God the Creator) is the marital conjunction of man and woman, between legitimate persons, retaining an undivided companionship of life.¹

It is said 1. marital conjunction: by which words the very essence of matrimony is expressed, namely the mutual bond binding man and woman, from the fact that, through consent expressed concerning the present, they hand over to one another dominion of their bodies, in order to generation. - 2. Between legitimate persons: by which words are indicated the conditions of the subject, which ought to be such that the contracting parties are impeded by no law from contracting matrimony; - 3. retaining an undivided companionship of life, which words intimate the properties of matrimony, namely unity and indissolubility.

MATRIMONY, considered formally as a Sacrament, can be defined: the legitimate and indissoluble contract of baptized persons between a man and a woman, by which mutual power over bodies is handed over and accepted, in order to acts of themselves apt for the generation of offspring, elevated by Christ to the dignity of a Sacrament, and conferring grace ex opere operato. This definition will be made clear from what is to be said.

DIVISION. Matrimony is distinguished in many ways, namely:

Into legitimate, ratified, and consummated. - 1) Legitimate is that which is contracted by the non-baptized according to the norm of the natural law, and which lacks the power of a Sacrament; such is the matrimony of Jews and Infidels. - 2) Ratified, however, is that which has been contracted between baptized persons entangled by no natural or canonical impediment, between whom, however, after the contract, conjugal intercourse has not yet intervened. It is called ratified, insofar as the Church holds it valid. - 3) Finally matrimony is called consummated when to legitimate or ratified matrimony there has been added carnal conjunction of itself sufficient for the generation of offspring.²
Into true, presumed, and putative. True is that whose conditions all objectively stand. - Presumed is called that which, in certain circumstances, is presumed by law, without proofs being brought. - Putative is that which is judged to have been validly contracted, when nevertheless on the side of reality, on account of some latent impediment, it is null.
Into canonical, political or civil, and of conscience. Canonical is called that in which all things concur which are required by the canons of the Church. Political or civil is that (which, unless canonical matrimony is added, is called matrimony by injury) in which those things also intervene which civil law requires, such as dotal pacts, consent of parents, and other solemnities, without which it is deprived of civil effect. Matrimony of conscience is that which is contracted in the usual form, the denunciations being omitted, under this law, that it should always be hidden (cf. n. 2080 Note).

Near to this is morganatic matrimony, when a noble man, after the death of a wife who left him children, marries another less noble woman under this law, that she herself and her children are excluded from the dignity of the husband and father and are content with some gift (Morgengabe) for their honorable support; and further that they abstain from the other goods, titles, and paternal insignia, and this especially in favor of the children begotten from the former wife.

n. ¶1963.

Principles. I. The essence of matrimony considered in fieri consists in mutual consent duly expressed; considered in facto esse, in the permanent bond which arises from the aforesaid consent and has annexed to itself dominion or mutual right over the body of the other, without, however, the use of this right belonging to the essence of matrimony. The first part is clear from the decree to the Armenians, saying: "The efficient cause of matrimony is mutual consent regularly expressed by words concerning the present." From this the second part also is clear, both because from compact and consent there arise a mutual obligation and bond between the contracting parties;³ and because every legitimate handing over confers a right in the thing handed over, which thing in the matrimonial contract is the use of bodies in order to generation. Hence the Apostle (1 Cor. 7:4): "The woman does not have power over her own body, but the man. Likewise also the man does not have power over his own body, but the woman." But the third part is manifest from this, that the first parents before sin, at which time no intercourse of the flesh had intervened between them, as the Fathers testify, were plainly joined in true matrimony.⁴ It is confirmed also by the example of the Blessed Virgin Mary and St. Joseph, between whom it is altogether certain that true matrimony existed, yet no use intervened. Wherefore, in both laws the rule has been received: "Consent, not intercourse, makes nuptials."

n. ¶1964.

II. Matrimony of Christians, celebrated by legitimate rite, is a true Sacrament of the New Law. - It is of faith, from Trent (sess. 24, can. 1), defining: "If anyone shall have said that Matrimony is not truly and properly one of the seven Sacraments of the evangelical law, instituted by Christ the Lord, but invented by men in the Church, and that it does not confer grace: let him be anathema." Nor does Paul the Apostle obscurely intimate the truth of the proposition, saying (Eph. 5:25): "Men, love your wives, as Christ loved the Church and handed himself over for her," and soon adding (v. 32): "This is a great sacrament; but I speak in Christ and in the Church."⁵ And 1. indeed, it is a sign of a sacred thing, namely of that most holy bond by which Christ the Lord is joined with the Church, or the divine Word with human nature. - But 2. that grace also is signified and bestowed by this Sacrament, in which especially the nature of a Sacrament exists, these words of the Holy Synod declare: "But the grace which would perfect that natural love, and confirm the indissoluble unity, and sanctify the spouses, Christ himself, the institutor and perfecter of the venerable Sacraments, merited for us by his Passion." Nor 3. can it be doubted that, from the institution of Christ, matrimony, which before was only a natural and religious contract, was elevated to that dignity that it is a sign of a sacred thing, productive of grace, although it is not established concerning the time at which this was done. Therefore it is clear that nothing is lacking to matrimony from those things which belong to the nature of a Sacrament.⁶

It was said: matrimony of Christians; for matrimony of infidels, although perfect in the nature of a contract, cannot be a Sacrament, since Baptism is the gate of all the Sacraments.

But concerning the matrimony of INFIDELS who afterward were converted to the Christian faith, as also concerning the matrimony of a faithful person with an infidel, which has been contracted with previous pontifical dispensation: there are various opinions of Authors, since nothing has been defined by the Church, which may be seen discussed among the Dogmaticians. - Those things which are more approved by us are the following: 1. Matrimony contracted in infidelity, according to the opinion by far more probable, is raised to the nature of a Sacrament by the conversion of both spouses, but not by the conversion of only one spouse. When both turn themselves to the Faith, an express renewal of matrimonial consent is not required; sufficient for the nature of a Sacrament is that virtual consent by which the spouses, approaching Baptism, determine to persist in the matrimony previously entered upon, but in a Christian manner. 2. Matrimony which a faithful person contracts with an infidel, after previous dispensation of the Pontiff has been obtained, has, according to the truer opinion, the nature of a Sacrament on the part of the faithful person.⁷

n. ¶1965.

III. In Christian matrimony, the contract is NOT DISSOCIABLE from the Sacrament; and therefore a true and legitimate contract cannot stand without being by that very fact a Sacrament. - This is clear from the Encyclical Arcanum divinae sapientiae of Our Most Holy Lord Pope Leo XIII, in which the Pontiff speaks thus:⁸ "For Christ the Lord increased matrimony by the dignity of a Sacrament; but matrimony is the contract itself, if only it has been made by right. To this is added that matrimony is a Sacrament on this account, because it is a sacred sign and effective of grace, and bearing the image of the mystical nuptials with the Church. But the form and figure of these is expressed by that very bond of the highest conjunction by which man and woman are bound together among themselves, and which is nothing other than matrimony itself. And so it appears that every just union between Christians is in itself and through itself a Sacrament: and nothing is more abhorrent from truth than that the Sacrament is some adornment annexed, or a property having slipped on from without, which could be disjoined and separated from the contract by the will of men."⁹

From what has been said you will gather: 1. Matrimony is a contract sui generis, differing much from other contracts; and indeed: - 1) Matrimony has its origin and institution from natural and divine law; but other contracts from the law of nations, or from the special law of each nation. - 2) The object of matrimony has been determined by God in such a way that it cannot be modified by the stipulations of the contracting parties, while in other contracts many things are left to the judgment of the contracting parties. - 3) Matrimony, as regards validity, depends on divine, natural, and ecclesiastical law; but not, as civil contracts do, on civil law and the will of princes, who can do nothing in those things which pertain to the Sacraments (cf. n. 1994-1997).

Marriages entered into between HERETICS or SCHISMATICS, if no diriment impediment stands in the way, just as they are valid in the nature of a contract, so also truly have the nature of a Sacrament. But

IT IS ASKED. What is to be said of matrimony between BAPTIZED persons duly celebrated, with a positive will NOT TO RECEIVE the Sacrament?

Resp. Dist. 1. If the predominant intention was to exclude absolutely the nature of the Sacrament, and rather to omit matrimony than to receive the Sacrament, the matrimony is invalid in the nature of a Sacrament, and consequently also in the nature of a contract. - 2. If the predominant intention was to celebrate matrimony in the nature of a contract, and therefore to posit all things which are required for its validity, the matrimony is valid, both by reason of the contract and by reason of the Sacrament, although this has been received unworthily. - In doubt as to which was the predominant intention, judgment must be made in favor of matrimony; for everyone is presumed to will to exercise a valid contract, unless the opposite is proved.¹⁰

n. ¶1966.

IV. The ENDS which can be considered in matrimony are of three kinds, namely: intrinsic essential ends, intrinsic accidental ends, and accidental extrinsic ends.

The INTRINSIC ESSENTIAL ends are two: 1) the mutual handing over of bodies with the obligation of rendering the debt; 2) the indissoluble bond. - Hence it is certain that, if someone should contract while positively excluding these ends, namely with the mind of not undertaking the obligation of rendering the debt, or of contracting for a time, he would not only sin, but would enter into no matrimony.
The INTRINSIC ACCIDENTAL ends likewise are two: 1. The procreation of offspring: for just as matrimony, as a natural conjunction, was instituted from the beginning for propagating the human race, so afterward, that a people might be procreated and educated for the worship and religion of the true God and of Christ our Savior, the dignity of a Sacrament was bestowed on it. 2. The remedy of concupiscence, namely that he who is conscious to himself of his weakness, and does not wish to endure the battle of the flesh, may use the remedy of matrimony for avoiding sins of lust. Concerning which the Apostle (1 Cor. 7:2) writes: "On account of fornication let each man have his own wife, and let each woman have her own husband." And again (v. 9): "But if they do not contain themselves, let them marry; for it is better to marry than to burn." Wherefore neither does he sin in any way who marries principally on account of the remedy of concupiscence, provided he does not exclude the end of procreating offspring. For there is no disorder if, from two licit ends, the secondary is chosen before the primary, when the latter is not smothered by the former. - But if someone should exclude these two intrinsic accidental ends, he could contract not only validly but also sometimes licitly: for example, if he were an old man and married without hope of procreating offspring, nor intended the remedy of concupiscence; for it suffices that the substantial ends be saved.¹¹
The ACCIDENTAL EXTRINSIC ends can be very many, such as peace to be reconciled, nobility to be acquired, etc. Ends of this sort, if in themselves honorable, are not to be condemned, since they are not repugnant to the holiness of matrimony; indeed they can even be intended primarily, because it is not a disorder, as we already said, to choose one of the secondary honorable ends before the primary end, provided this is not excluded.¹²

IT IS ASKED. Whether matrimony is commanded by SOME LAW?

Resp. Although matrimony is ordered to the conservation of society, and it is necessary that some embrace this state, nevertheless concerning this no precept has been given to individuals. "But what was said by the Lord: Increase and multiply, looks to this, that the cause for which matrimony had been instituted be declared: not that it impose necessity on individual men. For now, the human race having already been increased, not only does no law compel anyone to take a wife, but rather virginity is commended exceedingly, and it is advised to each one in Sacred Scripture, as being more excellent than the state of matrimony, and containing in itself greater perfection and holiness"¹³ (cf. n. 764).

n. ¶1967.

V. "There are three GOODS of matrimony: offspring, fidelity, and Sacrament; by compensation of which those inconveniences are lessened which the Apostle indicates by these words (1 Cor. 7:28): 'such persons will have tribulation of the flesh'; and it is effected that conjunctions of bodies, which outside matrimony would deservedly have to be condemned, are joined with honorableness.

"The first good therefore is OFFSPRING, that is, children, who are received from a just and legitimate wife. For the Apostle esteemed this so greatly that he said (1 Tim. 2:15): The woman will be saved through the generation of children. Nor indeed must this be understood only of procreation, but also of the education and discipline by which children are instructed unto piety."¹⁴

"FIDELITY follows, which is the second good of matrimony, namely a certain faithfulness by which mutually the man binds himself to the woman and the woman to the man in such a way that one hands over to the other power over his or her body, and promises that he or she will never violate that holy covenant of marriage... But this fidelity of matrimony demands that husband and wife be joined by a certain singular, holy, and pure love; nor that they love each other as adulterers, but as Christ loved the Church."¹⁵

The third good is called SACRAMENT, and is found in the nature of a Sacrament.

Vol. II, Part Third: On the Sacrame…, Tr. VIII, Ch. II, Art. II, Form, And Minister

n. ¶1968.

Among all Catholic authors it is certain that the MATTER of this Sacrament is the matrimonial contract; as regards the FORM and MINISTER, various opinions have been handed down. - Certain Theologians, led by Melchior Cano, taught that the minister is the priest, but that the form is had in these words: "I join you in matrimony." But the opinion which has always been more common, and has now become common, teaches that the ministers are the contracting parties themselves, and that the form consists in their mutual acceptance. - With these things briefly set forth beforehand, let the following be held.

n. ¶1969.

Principles. I. The REMOTE matter of this Sacrament is the bodies of the contracting parties, to be handed over mutually, or the mutual right over the body of the other. The PROXIMATE matter is the handing over itself of the right in the bodies, made through words or signs expressing consent. Thus commonly.

For this Sacrament has the nature of a contract; therefore just as in other contracts the things are the remote matter, and the handing over of the thing the proximate matter, so consequently it is in matrimony, where the right in the bodies is handed over.¹

n. ¶1970.

II. The FORM consists in the mutual acceptance of the contracting parties, expressed by words or signs. Thus commonly, and it will be clear from what is soon to be said concerning the minister.²

n. ¶1971.

III. The MINISTERS of the Sacrament of Matrimony are THE FAITHFUL THEMSELVES contracting. - This is the common opinion, and altogether certain. The evident reason is that in places where the impediment of clandestinity does not exist, matrimony is contracted validly without the presence of a priest. Therefore if a true Sacrament is effected even when the priest is absent, it must certainly be concluded that the contracting parties themselves, and not the priest, are the ministers.³ Nevertheless the priest is the minister of the solemnity of matrimony, as will be explained below (n. 2073).

Hence, for the contracting parties there apply those things which were said in their places both concerning the administration and concerning the reception of the Sacraments (cf. n. 1416, 1433, 1434, 1436). But,

YOU WILL ASK: Whether it is licit to enter matrimony with a PUBLIC SINNER, and consequently to minister the Sacrament to him? - RESP. This is prohibited at least under venial sin, as many probably say; indeed according to St. Alphonsus, more probably under grave sin, on account of reverence due to the Sacrament. A just cause EXCUSES from every sin, e.g. if someone cannot withdraw from matrimony without grave inconvenience. Except, however, if the other is an excommunicate to be avoided, with whom to communicate in a sacred matter is altogether illicit.⁴

n. ¶1972.

IV. The CONSENT by which matrimony is perfected and the Sacrament is administered must be personal, internal, deliberate, mutual, concerning the present, and externally manifested.

It must be PERSONAL; for "in matrimony consent cannot be supplied by any human power."⁵
TRUE and INTERNAL; for it is an act of one's own will, which freely imposes on itself a new obligation. - Hence, if both, or either one of the contracting parties, should consent not from the soul but FICTITIOUSLY, there is no matrimony. In the first case the matter is clear of itself; in the other, because, since the matrimonial contract cannot limp, the consent of the other being lacking, the contract is null. The one contracting fictitiously commits both the sin of sacrilege, because he renders the Sacrament null; and the sin of injustice, if the counterpart contracts in good faith, because he deceives that person and inflicts on him or her a grave injury, which he is bound to repair by removing the fiction and truly contracting (cf. n. 2083). If this cannot be done, or if the deceived party does not will it, he is bound at least to repair the other damages. Except, if the other party also deceived, or if the deception was done in order that the deceiver might decline fear unjustly inflicted. Nevertheless Authors commonly say that it is not illicit to simulate the celebration of nuptials, on account of a just cause, e.g. on account of a diriment impediment, when namely the celebration cannot be omitted without grave damage, as was said n. 1430, at the end.⁶
DELIBERATE, i.e. furnished with sufficient knowledge and due liberty. Force and error stand in the way of deliberation; but concerning these there will be discussion where impediments are treated.
MUTUAL; because a contract burdensome on both sides and transferring a mutual right in the bodies, as the matrimonial contract is, is not effected except through the reciprocal consent of the contracting parties. Wherefore it must also be noted: union and at least moral simultaneity are required between the consent of one and of the other, such as namely is required in civil contracts (cf. n. 1044, 3).
CONCERNING THE PRESENT, namely by which the contracting parties mutually accept each other here and now as true spouses; for in this matrimony differs from betrothals (cf. n. 1950, It is said 5).
EXTERNALLY MANIFESTED; otherwise mutual acceptance would not be possible. - It is not indeed required for the VALIDITY of matrimony that consent be expressed by words; it suffices that it be expressed by signs, which Innocent III declared,⁷ saying: "The deaf and mute can contract matrimony through consent without words." A sufficiently adequate sign would be if the woman, after the man's consent has already been expressed, should extend her hand to him; but not if she should not withdraw her hand when it has been seized by him. Nor would the giving of a ring suffice, or the leading of the bride into the house of the man, unless by the custom of the place signs of this sort expressed consent. But as regards LICEITY, unless modesty or another reasonable cause excused, it would be a venial sin to express consent by signs alone; because it would be against the rubric of the Ritual and against the custom of the Church.⁸

But sometimes explicit consent is not required. For, in places where the impediment of clandestinity does not prevail, BETROTHALS THEMSELVES, to which free and consummated intercourse is added, pass into true matrimony; provided the intercourse was had with marital affection: and this affection indeed is always presumed in the external forum; but in the internal forum, presumption yields to truth.⁹

n. ¶1973.

Questions. Q. 1. Whether matrimony can be contracted VALIDLY and LICITLY THROUGH A PROCURATOR?

Resp. 1. It can be contracted VALIDLY, as is clear from law. The reason is that Christ, in elevating matrimony to the being of a Sacrament, did not change the nature of the contract, which is such that it can be entered into among absent persons through a procurator. - But for this many things are REQUIRED, namely: 1) A special mandate, which can be given orally; for writing is not demanded. - 2) That the mandate be concerning contracting with a determinate person. - 3) That the procurator contract by himself; for he himself cannot delegate another, unless he has express and special permission from the mandator. - 4) That the mandate has not been revoked by the mandator, even mentally, before the matrimony is celebrated. And this runs even if the revocation is made tacitly, namely if someone gave a mandate of contracting with one woman, and afterward celebrates betrothals with another. - 5) That, in places where the impediment of clandestinity prevails, the procurator show the mandate to the pastor and witnesses, and before them contract matrimony according to the form of Trent. - 6) That he not exceed the limits of the mandate. But in this it must be adverted that, if the condition is required by the mandator, namely that contraction be made with such a dowry, at such a time, etc., if the condition is not observed, the matrimony will be null. But if the condition is required by law, namely that contraction be made after denunciations have been premised, after permission of the Bishop has been obtained, etc., then the matrimony entered without them will be valid.¹⁰

Resp. 2. It can also be contracted LICITLY, but only when a grave cause suffices, as, e.g., among Princes; for one must not easily recede from the ordinary practice of the Church. And hence it is why the pastor ought not, without consulting the Bishop, to assist at such a matrimony.¹¹

Q. 2. Whether matrimony can be contracted through a LETTER?

Resp. Affirmatively, on account of the same reason as above. But it is contracted in the following manner: "The groom writes to the bride that he himself hands himself over to her as husband, and from that moment accepts her as wife. The bride writes the same in return to the man; this response is read before the pastor and witnesses. Moreover, it is also enough that the man write to the woman in the way related, and that the bride, without writing back to the groom, open the letters before the pastor and witnesses, and furnish her consent."¹² - But that this be done LICITLY, a grave cause is required. Hence it is plainly to be advised that the pastor do nothing in this matter without the permission of the Bishop. Except, unless perhaps it is a question of revalidating matrimony, in which case one party would refuse to present himself before the pastor.¹³

Q. 3. Whether matrimony can be contracted UNDER CONDITION?

Resp. Affirmatively, because neither the sacred canons nor the very nature of matrimony altogether impede certain conditions from being added to matrimonial consent. - But according to the variety of conditions, various things must be DISTINGUISHED:

If the condition, even a base one, is concerning the past or concerning the present, the matrimony is valid if the condition stands; on the contrary, if it is lacking, it is not valid, because consent is lacking.
If the condition is concerning a necessary future thing, e.g. if the sun rises tomorrow, the matrimony is valid at once, unless the contracting parties intend to suspend consent until the time of the fulfilled condition. Thus commonly.
If the condition is against the substance of matrimonial obligation, e.g. if one says to the other: "I contract with you, if you avoid the generation of offspring; or until I find another more worthy in honor or wealth; or if you hand yourself over to be adulterated for gain:" thus it must be DISTINGUISHED: 1) if the condition is added with the intention of not undertaking the obligations which are essential to matrimony, which can easily happen in regions where divorce is permitted by laws and is in use, the matrimony is invalid; 2) if it is added with the intention indeed of undertaking them, but of not fulfilling them, it is valid, and the depraved will must be corrected.¹⁴ - But here it is customary to ask whether the condition of not consummating matrimony is against the good of offspring? - The more common and more probable opinion denies it; wherefore matrimony entered into under this condition is valid, provided the contracting parties intend to hand over to each other the mutual right in the body and to bind only the use of it (cf. n. 1963).
If the condition is concerning an impossible or base thing, which nevertheless is not repugnant to the substance of matrimony, again it must be DISTINGUISHED: 1) if there is evidence of a serious will not to contract unless the added condition has been fulfilled, matrimony entered into under an impossible condition is null; but one entered into under a base condition is not null by that very fact, but before the condition has been fulfilled, it obliges to nothing; when it has been fulfilled, however, it becomes absolute matrimony. - 2) But if there is no evidence of that serious will, the base or impossible condition is held as not added, and the matrimony is immediately valid.
Finally, if the condition is concerning a future contingent and honorable thing, the matrimony remains suspended until the condition is fulfilled; but when this has been fulfilled, it becomes absolute. While the condition is pending, it is not licit for one, against the will of the other, to revoke consent.¹⁵

But note as regards LICEITY, that the pastor cannot, without a most urgent cause, admit conditional marriages of this sort; namely on account of the many inconveniences and difficulties which afterward can occur and be moved against their validity.¹⁶

Q. 4. Whether, when the condition has been fulfilled, NEW CONSENT is required for matrimony?

Resp. Some indeed affirm, because matrimony is not only a contract, but also a Sacrament, whose validity cannot be pending.

But others, more truly and commonly, deny it, because the condition having been fulfilled, the contract becomes absolute, and consequently by that very fact also is constituted in the nature of a Sacrament.¹

Q. 5. What if a demonstration, cause, or mode is added to consent?

Resp. DEMONSTRATION, e.g. I marry you, who are noble; CAUSE, e.g. I marry you, because you are a virgin; MODE, e.g. I marry you, that you may serve me, differ altogether from condition in this, that they do not suspend consent; wherefore matrimony becomes immediately absolute, unless perhaps the demonstration, cause, or mode have, in the mind of the contracting parties, the nature of a condition, or unless substantial error lies hidden in them.²

Q. 6. Whether the CONSENT OF PARENTS is required for the matrimony of children-of-the-family?

Resp. 1. Negatively, as regards validity: and this is of faith against the Lutherans and Calvinists. For Trent (sess. 24, cap. 1) "condemns with anathema those who falsely affirm that marriages contracted by children-of-the-family without the consent of parents are invalid, and that parents can make them ratified or invalid." Reason is added: for the contracting parties have power over their own body, nor do parents have power over the body of their children in order to matrimony. - But if CIVIL LAW requires the consent of parents for the validity of matrimony, its force extends only to merely civil effects.

Resp. 2. It is required, at least speaking regularly, for liceity; so that children-of-the-family sin gravely if parents justly contradict, or if they are judged to be reasonably unwilling. We said speaking regularly; for when a just cause intervenes, it is certain that children can, while parents are ignorant of it or even unwilling, enter matrimony³ (see n. 1951, query 1).

But when parents contradict justly, and when unjustly, cannot easily be defined: wherefore a prudent confessor will indeed persuade children that, in a matter of so great moment, they should not stand against the will of parents; but very rarely will he impose on them an obligation of withdrawing from entering matrimony, especially because greater evils, for the most part, are to be feared from this.

Vol. II, Part Third: On the Sacrame…, Tr. VIII, Ch. II, Article III: On The Properties Of Matrimony

n. ¶1974.

Matrimony, "that it might respond more aptly to the most wise counsels of God, either from the beginning bore before itself chiefly two properties, and these especially noble, as though deeply impressed and engraved, namely unity and perpetuity."⁴ Concerning these two properties one must now treat.

Vol. II, Part Third: On the Sacrame…, Tr. VIII, Ch. II, Art. III, § 1. On The Unity Of Matrimony

The UNITY of matrimony, which is also called monogamy, is situated in the conjunction of one man with one woman. To unity is opposed polygamy, which is twofold: 1. simultaneous, when one man joins several wives to himself in matrimony at the same time, and this is called simply polygamy; or when one woman marries several men at the same time, and it is commonly called polyandry or polyviry; 2. successive, when after the death of the spouse, the surviving party hastens to new nuptials.

n. ¶1975.

Principles. I. SIMULTANEOUS POLYANDRY is prohibited, by the consent of all, by the NATURAL law itself. - For it is directly opposed to the generation and education of offspring: to generation indeed, since a woman knowing several men at the same time generally remains barren; but to education, since the father of such offspring, if perhaps it is born, is uncertain. And hence it is that prostitution, to which polyandry is reduced, has at every time been held as infamous and flagitious.⁵

n. ¶1976.

II. SIMULTANEOUS POLYGAMY is prohibited in the New Law by DIVINE right. - For Christ expressly taught: "Whoever shall have put away his wife and married another, commits adultery against her" (Mark 10:11). But now, if he is an adulterer who, having put away his wife, marries another, much more will he be an adulterer who does this while retaining the former. Hence Trent (sess. 24, can. 2): "If anyone shall have said that it is licit for Christians to have several wives at the same time, and that this is prohibited by no divine law: let him be anathema." - Wherefore, if some infidel, having several wives, is admitted to Baptism, he must retain only one, namely her whom he validly joined to himself in the first place, or any one of the others who is willing to embrace the Christian faith; unless the Pope has otherwise determined or permitted, according to what is to be said n. 1980.⁶

As regards the natural law, Theologians, led by St. Thomas,⁷ hold that polygamy is not contrary to the primary end of matrimony; and therefore that it is not intrinsically evil, nor absolutely prohibited by the precepts of nature; yet that it is opposed to the secondary ends of marriage, of which sort are peace, tranquility, mutual services, etc.; and therefore that it is contrary to the secondary law of nature, in which God alone can dispense. And indeed, after the flood, for just causes, moderate polygamy was granted to the Patriarchs and to the Israelite people. Indeed the more common opinion teaches that the same dispensation was extended to the Gentiles. But from the beginning it was not so (Matt. 19:8); and Christ the Lord restored the law of matrimony, whether for Christians or for Gentiles, to its primeval integrity.

n. ¶1977.

III. SUCCESSIVE polygamy has never been prohibited; and therefore second and later nuptials are LICIT, both for the man and for the woman, even under the evangelical law. - This is clear from the authority and practice of the Church, and also from the words of Paul the Apostle (1 Cor. 7:39): "The woman is bound by the law as long as her husband lives; but if her husband sleeps, she is freed; let her marry whom she will, only in the Lord." Recalling these words, Eugene IV in the decree for the Jacobites declared: "not only second, but third and fourth and further nuptials, if some impediment does not stand in the way, can be contracted licitly."

Nevertheless, the Church of God has always followed widowhood with special honor, nor has she ever held second nuptials as honorable as first nuptials, since the union of Christ with the one Church is represented less perfectly through them (cf. n. 1937).

Note. From the modern Codes, a WIDOW cannot enter matrimony unless ten months have elapsed from the death of the prior husband, or she has given birth: nevertheless this prohibition does not have the force of invalidating civil matrimony.⁸

Vol. II, Part Third: On the Sacrame…, Tr. VIII, Ch. II, Art. III, § 2, Or On Indissolubility

n. ¶1978.

The INDISSOLUBILITY of matrimony is one thing as regards the bond, another as regards bed and cohabitation. The former belongs to the essence of matrimony, the latter to the offices of spouses. Here only the former must be treated.

Principles. I. Matrimony duly entered into is so indissoluble that it can NEVER be DISSOLVED through divorce as regards the bond. It is of faith from Trent (sess. 24, can. 5 and 7). For "the perpetual and indissoluble bond of matrimony the first parent of the human race, by the instinct of the divine Spirit, pronounced, when he said: This now is bone of my bones and flesh of my flesh: wherefore a man shall leave his father and mother, and shall adhere to his wife, and they shall be two in one flesh."⁹ But the "firmness" of this bond, "pronounced by Adam so long before, Christ the Lord confirmed by these words: What therefore God has joined, let not man separate."¹⁰

To the Hebrews indeed, by divine dispensation, the faculty of a bill of repudiation was made, by which the bond of matrimony, in certain circumstances, could be dissolved (Deut. c. 24); but "Jesus Christ restored it to its primeval state, namely to indissolubility, not by establishing a new law, but only by removing the old indulgence, or dispensation conceded over the aforesaid indissolubility."¹¹

But this indissolubility arises from NATURAL LAW itself, at least secondary, because it is necessary for the education of offspring that parents perpetually devote themselves to its good. Thus most commonly the Authors, led by St. Thomas.¹² It is also clear from condemned proposition 67 of the Syllabus: "By the law of nature the bond of matrimony is not indissoluble, and in various cases divorce properly so called can be sanctioned by civil authority." - Hence, "what a mass of evil DIVORCES contain in themselves, it scarcely needs to be said. For by reason of them marital covenants are made changeable, mutual benevolence is weakened, pernicious incentives are supplied to infidelity; harm is done to the protection and instruction of children; occasion is furnished for tearing apart domestic societies; seeds of discords among families are scattered; the dignity of women is diminished and depressed, who come into danger lest, after they have served the lust of men, they be held as abandoned."¹³

But, although matrimony of itself is indissoluble, nevertheless in certain cases it admits dissolution of the bond; wherefore diverse degrees of indissolubility can be distinguished, as will be clear from what is soon to be said.

n. ¶1979.

II. Matrimony of the faithful RATIFIED and CONSUMMATED can never by any reason be dissolved as regards the bond, except THROUGH THE DEATH of either spouse. - Concerning this especially that word of the Apostle avails: "The woman is bound by the law as long as her husband lives." And Our Most Holy Lord Pope LEO XIII defined: "To dissolve the bond of marriage between Christians ratified and consummated is in the power of no one."¹⁴ The practice of the Church is added, which has never dispensed in matrimony of this sort.

n. ¶1980.

III. Legitimate matrimony of INFIDELS, even if it has been consummated, CAN BE DISSOLVED as regards the bond, in the case which they call that of the Apostle: namely if, with one spouse converted to the faith, the other refuses to be converted, or at least does not wish to cohabit without contumely of the Creator. - It is a privilege conceded by Christ the Lord in favor of the faith, as is clear from the testimony of Paul saying: "But if the infidel departs, let him depart; for the brother or sister is not subject to servitude in such cases" (1 Cor. 7:15).

Various things on this point occur to be OBSERVED:

From a threefold cause the convert can pass to other nuptials: 1) if the infidel refuses to dwell with him; 2) if he wishes to dwell, but not except with injury of the Creator, e.g. by retaining concubines;¹⁵ 3) if he wishes to draw him into mortal sin.¹⁶ But the convert can enjoy this privilege, even if the infidel spouse consented to cohabit peacefully for some time, indeed for many years, and afterward, with will changed, no longer wishes to do this. Thus from the Decree of the Holy Office, 5 Aug. 1759.¹⁷
The convert to the faith cannot use the aforesaid privilege unless there precedes an interpellation of the infidel spouse, whether he wishes to be converted to the faith, or at least to cohabit without contumely of the Creator.¹⁸ - This twofold interpellation, which must be made after Baptism, is required not only that new nuptials can be entered into licitly, but also validly: thus from the declaration of the S. C. de Propaganda Fide, 5 March 1816.¹⁹ But if interpellation is impossible or of the greatest difficulty, the Supreme Pontiff customarily grants an Indult, so that, it having been omitted, the convert can contract a new matrimony.²⁰ But indults of this sort, conceded either for various infidel regions or to Apostolic Vicars for a certain number of cases, cannot be extended to other regions or to other cases, unless recourse has been made to the Holy See.²¹ The Church then dispenses from the rigor of the interpellation, so that the convert is bound only to interpellate the infidel spouse whether he wishes to be converted to the faith; the other being omitted, namely whether at least he wishes to cohabit peacefully.²² This dispensation is more easily conceded in those places where a law prevails forbidding the faithful to cohabit with infidels, since then there is given a presumption of law concerning the danger of perversion to be undergone (cf. n. 448).
The bond of marriage is dissolved only then when the convert contracts a new matrimony. This is clear from the Decree of the Holy Office, 5 Aug. 1759.²³ Hence 1) if the infidel, after hearing the interpellation and giving a negative response, afterward embraces the faith before the other converted spouse has contracted new nuptials, the matrimony can no longer be dissolved by force of the Pauline privilege, but becomes altogether ratified. 2) If the first convert meanwhile has received sacred Orders, he cannot return to the spouse now converted, because the use of matrimony is no longer licit to him; for, after the negative response was received, he used his right by choosing a new state. But neither can the second convert enter a new marriage, because the first matrimony endures: unless the spouse has emitted solemn vows, as will be said below (n. 1981).

IT IS ASKED. Whether the Supreme Pontiff CAN DISPENSE over matrimony entered in infidelity, when ONE PARTY or BOTH are converted to the faith?

Resp. Dist. 1. If the matrimony after the Baptism of both has been consummated, it has become altogether indissoluble, and therefore a dispensation cannot be given.

If the matrimony has never been consummated, the Pope can dispense, as in ratified matrimony of Christians, concerning which we shall speak soon. - 3. If the matrimony was consummated only in infidelity, it is disputed. Some, among whom is St. Alphonsus,¹ whom we follow, affirm it, and they seek the reason from the Constitution Romani Pontificis issued by St. Pius V,² and from the Constitution Quoniam saepe contingit of Gregory XIII;³ through which Constitutions the aforesaid Pontiffs are said to have dispensed over such a matrimony.⁴ Others, however, deny it, from the fact that they judge the said Constitutions must be understood of dispensation from interpellation to be made, but not from the bond of marriage.⁵

Note. Only the baptized can enjoy the Pauline privilege, but not catechumens.⁶ Nor can that faithful person enjoy it who, after obtaining pontifical dispensation over the impediment of disparity of cult, contracted matrimony with an infidel, even if this one does not wish to cohabit peacefully. S. C. Off., 4 July 1855.⁷ But whether the privilege is to be extended to those who, by receiving Baptism validly, pass to some Christian sect, but not to the Catholic Church, is freely disputed.

n. ¶1981.

IV. Matrimony RATIFIED, but NOT CONSUMMATED, is dissolved by the very fact THROUGH SOLEMN PROFESSION of Religion by either spouse. - It is of faith from Trent (sess. 24, can. 6), affirming that this privilege was conceded by Christ the Lord in favor of the Religious State. Nevertheless Profession would be illicit "if matrimony were necessary for legitimating offspring, or for repairing scandal or the honor of the bride; for then the man could not become a Religious by leaving the bride, who on account of infamy would no longer be able to enter nuptials."⁸

But that the spouses may be able to use the aforesaid privilege, there is conceded to them a two-month period from the celebration of matrimony, within which time they are not bound to render the conjugal debt. And indeed each spouse can enjoy this concession, although he does not have the mind of entering Religion: for he uses his own right. But if, after the two-month period has already passed and the matrimony has not been consummated, one, with the other contradicting, embraces the religious state and emits vows: his profession is indeed illicit, but not invalid; wherefore in this case also the bond of matrimony is dissolved. - Nevertheless he would sin who, the counterpart not having been forewarned, should enter matrimony wishing to enter Religion; for besides other inconveniences which can most easily arise from such a manner of acting, the abandoned spouse would be bound to wait for his solemn profession until she should again enjoy the liberty of marrying.⁹

For the rest, this case is very rare, especially because civil laws, in many places, impede spouses from having recourse to the use of the privilege.

n. ¶1982.

V. Matrimony RATIFIED, but NOT CONSUMMATED, can, on account of a most grave cause, be dissolved through Pontifical DISPENSATION. - Thus commonly today Theologians and Canonists. This is clear especially from the continued practice of several centuries, at least after Martin V;¹⁰ nor in our times are examples of a dispensation of this sort rare.¹¹

The Supreme Pontiff remits the cause for dispensing to the S. Congregation of the Council to be weighed; and for the most part a cause is judged to be present, if the matrimony is likely invalid, without however its nullity being able to be sufficiently proved, and if otherwise it is plainly established that it was not consummated.¹²

Vol. II, Part Third: On the Sacrame…, Tr. VIII, Chapter III: On The Impediments Of Matrimony

n. ¶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

Vol. II, Part Third: On the Sacrame…, Tr. VIII, Ch. III, Article I: On Prohibiting Impediments

n. ¶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.

I. Prohibition Of The Church

…and 199 more passages — all of them are listed on the topic page.

Konings, Theologia Moralis

Anthony Konings, C.SS.R. — 211 passages

Vol. II, Treatise on Matrimony

Matrimony is so called from the office of the mother, as Theologians commonly have it with St. Thomas; because in this society the principal parts seem to pertain to the mother. Matrimony is also called conjugium from the common yoke to which man and woman are subjected. Likewise it is called nuptiae or connubium from the word nubere, because spouses formerly were veiled when they were handed over to their husbands. Likewise it is called consortship, because man and woman have a common lot.

We must treat 1° of betrothals; 2° of the proclamation of banns; 3° of the nature and properties of Matrimony; 4° of its matter and form; 5° of its minister and subject; 6° of the impediments of Matrimony; 7° of the revalidation of an invalid Matrimony; 8° of the conjugal debt.

Vol. II, Treatise on Matrimony, Chapter I. On Betrothals

1° Of the nature; 2° of the effects; 3° of the dissolution of betrothals.

Vol. II, Treatise on Matrimony, Ch. I, Article I. On the Nature of Betrothals

n. ¶1525.

1525. - Definition. Betrothals are a deliberate, mutual promise, expressed by a sensible sign, of future Matrimony between capable persons.

It is said: 1° deliberate, namely with the deliberation required for a vow (see n. 379).

It is said: 2° mutual. Hence, if one only of the contracting parties promises, the other simply accepting but not promising in return, there will be no betrothals. - Nevertheless acceptance is equivalent to a return-promise if a woman, who is honorable, is led into so great a dishonor to herself that after acceptance of the promise she suffers defloration, at least if it is not clear that she acted thus merely for the sake of fulfilling lust.¹

It is said: 3° expressed by a sensible sign. Hence there is no need of words; but tacit consent, not expressed by a suitable sign, does not suffice, unless, as Canon Law² disposes for the external forum, parents (i.e. father or mother) contract for children present and not contradicting, although they could easily contradict. - I said: a) for the EXTERNAL forum; for for the internal forum betrothals cannot be valid unless the children positively (i.e. not only by conducting themselves negatively) and internally consent. - I said: b) father OR mother; for the value of the betrothals, or the consent of the children, is presumed in Law, not from paternal power, by which children cannot be compelled to these things (see n. 425), but from parental affection, which is equally in the mother and in the father, and whose dispositions, as having been made in their favor, children are judged to admit. - I said: c) for children PRESENT; for although to St. Alphonsus the more probable opinion is that which affirms that parents can also contract for absent children (to be made more certain by themselves, or by letter or messenger), nevertheless he also holds the negative as probable. - I said: d) not contradicting, ALTHOUGH THEY COULD EASILY CONTRADICT; for betrothals would not be valid if there were a reason why they do not contradict, e.g. fear.³

It is said: 4° of future Matrimony. Hence betrothals would not be valid if the parties pledged only that they would never enter Matrimony with some other person, unless from the circumstances it is clear that such persons truly wished to contract betrothals, as if the words are of the present, namely: I want no one but you.¹

It is said: 5° between capable persons, i.e. persons prohibited by no impediment, whether diriment or impedient. Hence they are not valid if they are made between a Catholic and a non-Catholic, unless their execution has been remitted to the time at which this latter will have received the Catholic Faith.

n. ¶1526.

1526. - Division. They are: 1° Ecclesiastical or solemn, and private, according as they are celebrated either in the face of the Church, i.e. before the Pastor and witnesses; or are perfected privately by the consent alone of the contracting parties, or before parents in the midst of the family. 2° Absolute and conditioned, according as they are made without any condition, or with some condition added.

n. ¶1527.

1527. Principles. - I. For the validity of betrothals all the conditions contained in the definition are required, so that, if one of them is lacking, the betrothal contract must be held as null. The reason is clear from what was said concerning the nature of a contract, n. 828, 845.

II. Betrothals are valid in the same way, whether they are solemn or ecclesiastical, or private or clandestine, because the consent of two suffices for a true contract; nor has the Church ever invalidated private betrothals. Indeed now in most places solemn betrothals have gone into desuetude, nor are they ever contracted among us.²

III. Betrothals entered under a condition concerning the present are valid here and now, if the condition is verified; but if they are contracted under a condition concerning the future, they will be valid as soon as the condition is fulfilled, without a new consent of the contracting parties, provided neither has revoked the consent previously given. Meanwhile the contracting parties are held to await the fulfillment of the condition, if it is honorable and possible, and does not oppose the nature of this contract or of future Matrimony.

IV. When the words or signs are doubtful, in the forum of conscience one must stand by the intention of the contracting parties, if it is clear; but in the external forum, by the common understanding and sense of the words. But if doubt remains, one must incline in favor of liberty.¹

n. ¶1528.

1528. Questions. - Quaer. 1° Are betrothals contracted from grave fear valid?

Resp. Negatively, more probably, provided the fear is from without, unjustly, and inflicted in order to contracting. The reason is because Matrimony contracted from such fear is null, as is clear from Canon Law, and will be explained below. Therefore by that very fact betrothals entered from such fear also ought to be null. Cf. n. 854.

Quaer. 2° Are betrothals entered from light fear valid?

Resp. See n. 853. III.³

Quaer. 3° Among those having a diriment impediment, without new consent, are betrothals valid under the express condition: if the Pope shall have dispensed?

Resp. Affirmatively, once the condition has been fulfilled and the dispensation committed to execution. The reason is because the consent perseveres until the fulfillment of the condition.⁴

Quaer. 4° Are fictitious betrothals valid?

Resp. The question is to be resolved in almost the same way as the question concerning a fictitious oath (see n. 367. 1°. 2°). Therefore they are valid if someone had the intention of celebrating betrothals and binding himself, but not of satisfying the obligation. But otherwise, if internally he did not wish either to contract betrothals or to bind himself. Nevertheless through a fiction of this kind he sins gravely, and is bound to repair damages, indeed also to celebrate Matrimony if damages cannot otherwise be repaired.⁵ See nevertheless what was said n. 810.

Quaer. 5° Are betrothals valid: 1) of those not of puberty; 2) of those not seven years old?

Resp. to the 1st. Affirmatively in itself, because even in the betrothals of those not of puberty all essentials (n. 1525) can be present.

Resp. to the 2nd. Affirmatively, more probably, by natural law, if the one promising has the perfect use of reason and in some way comprehends the burdens of the conjugal state.⁶

Quaer. 6° Are they valid between absentees through an intermediary, letters, or procurator?

Resp. Affirmatively, provided, if there is question of a procurator, he 1) has a special mandate; 2) the mandate is concerning contracting with a determinate person; 3) the procurator contracts by himself; 4) the mandate has not been revoked by the mandator before the betrothals were contracted, whether mentally or tacitly, e.g. by celebrating betrothals with another; 5) the procurator does not exceed the limits of the mandate.¹

Quaer. 7° Must promises which are customarily made concerning entering Matrimony always be held as true betrothals?

Resp. It seems they must be denied; for often those promises bear the appearance rather of intention than of true promise. Therefore in practice attention must be paid to the particular intention of the promisors.²

Vol. II, Treatise on Matrimony, Ch. I, Article II. On the Obligation and Effects of Betrothals

n. ¶1529.

1529. Principles. - I. Betrothals oblige from justice, under grave obligation, to enter Matrimony, at the determined time, if any has been determined; but if no time has been fixed, as soon as one party reasonably demands. The reason is because, where there are true betrothals, there is a true contract in a grave matter, and thence follows a grave obligation. But this obligation presses both in the forum of conscience and in the external forum. Therefore the one withdrawing can be compelled by the judge to Matrimony, even by censures,³ although exhortations and admonitions ought first to precede,⁴ and coercion also must be abstained from if, the circumstances having been inspected, the judge prudently judges that from unwilling nuptials grave evils and scandals are to be feared, e.g. perpetual quarrels, the departure of the man from the wife, or even the murder of the spouse; for it is expedient that a lesser evil be permitted in order to guard against a graver one, and thus favor is also bestowed by the judge upon the Plaintiff.⁵

II. Betrothals induce an impedient impediment of Matrimony, or one prohibiting lest Matrimony be contracted licitly with another person, unless the prior betrothals have been legitimately dissolved. The reason is because, from what has been said, betrothals beget an obligation of justice.

III. Betrothals induce also an impediment which in law is called public honesty, by which, namely, one of the betrothed persons is rendered incapable of contracting Matrimony with the blood relatives of the other in the first degree.

IV. Betrothals, in places where the decree of Trent concerning the form of Matrimony does not have force, when carnal copula follows, become betrothals of the present or presumed Matrimony, concerning which below more fully.

Note. From betrothals among us there is no action in the civil forum, except for the reparation of damage coming to the innocent party from their dissolution.¹

n. ¶1530.

1530. Questions. - Quaer. 1° If someone has contracted betrothals with two women, and has sinned with the second, which one ought he to marry?

Resp. 1° Certainly Matrimony is to be contracted with the first, if, when the second was contracting, she was conscious of the prior betrothals. The reason is because then the second was not deceived, but wished to be deceived.

Resp. 2° More probably Matrimony is also to be contracted with the first, although the second was not conscious of the promise made to the other. The reason is because the promise made to the second is always null, as being concerning an illicit thing; nor does an injury inflicted upon another take away the right of the first; and this is valid even if the second promise was confirmed by oath.²

Quaer. 2° Must the prior betrothed woman then yield her right, if the other is going to suffer grave damage from defloration?

Resp. Negatively, not improbably. Namely, the second betrothed woman ought to impute damage of this kind to her own weakness. Nevertheless it would be advisable to the first that she renounce her right spontaneously, unless perhaps she herself would incur notable damage from this.³

Quaer. 3° Are earnest-gifts licit in betrothals?

Resp. Affirmatively. The reason is because they are neither prohibited by Canon Law, nor opposed to natural law.⁴

Quaer. 4° Must a penalty attached to betrothals be paid by one withdrawing, and can it, having been paid, be retained?

Resp. to the 1st. Affirmatively, more probably, if there is question of one withdrawing unjustly, since the attaching of a penalty against one unjustly withdrawing is prohibited by no law. Nevertheless the opinion of St. Alphonsus¹ denying is sufficiently probable, because even by the just attaching of a penalty the liberty of Matrimony suffers some lesion. - But negatively, if there is question of one withdrawing justly.

Resp. to the 2nd. Negatively, more probably, if there is question of a penalty paid by one justly withdrawing; because no title legitimizes retention of this kind.²

Quaer. 5° Must a betrothed woman return gifts accepted from the betrothed man, if Matrimony does not follow?

Resp. 1° Negatively, if the betrothals are dissolved from the fault of the betrothed man; because he, by culpably withdrawing from the promise, is deservedly judged to make the loss of these gifts. Thus common practice.

Resp. 2° Affirmatively, speaking in itself, if the betrothals are dissolved without fault of the betrothed man, and, a fortiori, if from the fault of the betrothed woman; for the betrothed woman cannot retain them without injustice, since they were conferred only in view of Matrimony. The same would have to be said if one of the betrothed persons, who accepted gifts or earnest-gifts from the other, is overtaken by death before Matrimony is entered; for according to what has just been said, the parents of the deceased are held to restore all things to the surviving betrothed person.

I said: speaking in itself; because, if, in view of the condition of the betrothed man, the gifts are of little moment, and he does not reclaim them, he is judged to remit them.

Quaer. 6° Must he who promised Matrimony to a girl, on the condition that he sin with her, marry her?

Resp. See n. 810.

Vol. II, Treatise on Matrimony, Ch. I, Article III. On the Dissolution of Betrothals

n. ¶1531.

1531. - Betrothals, according to the opinion of all, can be dissolved for just causes. But the principal causes are:

1° Mutual consent, freely emitted (without grave fear and deceit [see n. 1528. q. 1°. 2°]) between persons of puberty. I say: between persons of puberty; for the betrothals of those not of puberty, when puberty has been reached and either one only reclaims within three days before a judge or witnesses, are dissolved, namely from the privilege conceded by Law.¹ But that triduum begins to run from the time not now of puberty, but of the acquired knowledge of the privilege.²

2° A supervening impediment, namely a diriment one, and indeed one diriment by divine law, as e.g. a valid Matrimony contracted with another, at least while it lasts. I say: by divine law; for, if the impediment is diriment only by ecclesiastical law, the obligation indeed ceases on the part of the innocent party, even by the mere report of the impediment; nevertheless it does not cease on the part of him who induced the impediment by his own fault, but is only suspended; so that he, even excluding the damage of the innocent party (cf. n. 810), is held, if the injured party still wishes, to seek dispensation of the impediment, if it can be obtained easily and shortly, and once this has been removed, to fulfill the faith given to her.³

3° The choice of a more perfect state, e.g. religious Profession, reception of Sacred Order, a vow of Religion, and, probably, even of chastity or of receiving Orders. But by the mere entrance into Religion before Profession, betrothals, according to the opinion which St. Alphonsus calls the more common and to which he adheres, are dissolved only on the part of the one remaining in the world.⁴

4° A grave crime of the other, e.g. grave theft, homicide, or the like, which begets grave damage or infamy; likewise fornication of the betrothed woman, whether it preceded the betrothals (provided it was then unknown to the betrothed man, or even known, but the report was afterwards spread), or followed them; whether it was voluntary, or (according to the common and truer opinion) involuntary. I said: of the betrothed woman; for fornication of the betrothed man, even after the betrothals, according to the more common and more probable opinion, does not give the betrothed woman a right of withdrawing. The reason of each is that fornication renders the betrothed woman, but not likewise the betrothed man, more base according to the common estimation of men. - What was said concerning the betrothed woman who committed fornication, say the same of her who after the betrothals so conducts herself that she makes doubtful faith concerning her virtue, permitting herself to be touched immodestly by others, or otherwise acting less cautiously. - For the same reason the betrothed woman can withdraw if, after the betrothals have been celebrated, she learns that the betrothed man "has had offspring from another woman, or has frequently fallen" into fornication, "by having intercourse with many"; or even if, after betrothals, kisses or touches have intervened so frequently between the betrothed man and another "that they indicate a mind of the betrothed man very inclined toward the other," and "it can deservedly be feared that he will not keep faith with the betrothed woman."¹

5° A notable change of state, namely a circumstance which, if it had been known or foreseen, would have deterred from the betrothals.² For the external forum this can be determined by the judgment of prudent persons, or, if that cannot be had, by oath.³ But if ignorance did not give cause to the contract, i.e. if the betrothed man would have contracted even if the cause had been known beforehand, it would by no means be lawful to withdraw from the betrothals.⁴

6° An excessive delay of Matrimony. But delay is made either with a time for celebrating Matrimony having been attached to the betrothals, or without such a time having been attached; and, if a time is attached, it is attached either to end the obligation of the betrothals, or only to urge it.

If: a) to end the obligation, once the term has elapsed through the fault of one, certainly the other party is liberated;⁵ indeed, according to the more common and more probable opinion, even if the term has elapsed without fault of the betrothed man, suppose because he was detained by a just impediment. The reason is because the term is attached precisely for this, lest the party prepared remain long without nuptials. I said: the other party is liberated; for, according to the opinion which St. Alphonsus calls by far the more common and, with attention to the intrinsic reason, by far the more probable (although the opposite, as he says, "is not lacking in its probability, especially from the authority of St. Thomas"), the party who culpably placed the delay does not remain free. The reason is because no one ought to derive advantage from his own fault.

If: b) a time has been added to the betrothals only for urging the obligation, once the term has elapsed the betrothals still oblige. But when, in the case of further delay by one party, it is lawful for the other to withdraw, seems to have to be decided especially from the circumstances.

If: c) no time has been established, and the nuptials are delayed excessively, nor can dissolution of the betrothals by mutual counsel be obtained, the cause will better be remitted to the ecclesiastical judge, so that he may establish the things which he judges suitable.⁷

Note. - If the Confessor sees that Matrimony has been deliberately delayed without sufficient cause, let him not importunately exact the fulfillment of the faith given, but sometimes according to the circumstances let him rather advise reparation of damage or a free composition, since an unsuccessful Matrimony is to be feared.¹

7° The departure of the betrothed man to a far country, without the other having been consulted; for he who so departs is judged to yield to his right. But if he has gone to a nearby country, a distinction must be made. For either he has thus gone without the intention of returning, or with it. In the former case, it is to be resolved as concerning him who has gone to a far country; but in the latter, either his return must be awaited for a time to be determined by the judgment of a prudent man (or, if it can be done, of a judge), or he is to be admonished, and a certain time, as above, is to be fixed beforehand, within which he should return, and, once it has elapsed, the betrothed woman is liberated.²

n. ¶1532.

1532. Questions. - Quaer. 1° Is it a sufficient cause of dissolving betrothals if a rich inheritance comes to the betrothed man?

Resp. Some affirm; others most commonly deny, because the betrothed man has not been deceived in the condition of the betrothed woman, in which no change has occurred. But in the case in which a marriage with another richer woman is afterwards offered to the betrothed man, St. Alphonsus would not dare wholly to condemn the betrothed man, if the quality of the other betrothed woman were exceedingly better; but nevertheless he concludes that he would never dare to advise departing from the contrary opinion.³

Quaer. 2° Are betrothals dissolved by a vow of chastity, or a vow of receiving Sacred Orders?

Resp. 1° If the vow precedes the betrothals, it is certain that they are invalid. The reason is because the promise of Matrimony is concerning an illicit thing, and therefore does not oblige. - Thus commonly.

Resp. 2° If the vow follows, likewise the betrothals are probably dissolved. The reason is because the promise of betrothals is always judged to have been made under the tacit condition, unless a better state is chosen. But certainly they are dissolved on the part of the one not vowing.¹

Quaer. 3° Is dissent of parents a sufficient cause of withdrawing from betrothals?

Resp. Negatively, if the parents dissent unjustly, because the right of the children would be injured. But otherwise, if the dissent of the parents is just, e.g. if the other party does not befit the family by reason of condition, honor, etc.²

For our provinces, nevertheless, Kenrick³ notes the following: "Betrothals are for the most part made without the parents knowing, whose rights, according to our customs, can scarcely be said to be gravely infringed; and therefore those promising are excused from grave sin, although not from every fault, if nothing else occurs that is to be reprehended."

But as regards the dissent of parents on account of disparity of condition, the same author remarks:⁴ "In this region indeed, where no noble stock is acknowledged, all are judged to be of the same grade, although in reality they are very much distinguished among themselves either by birth, or by wealth, or by public office. The diversity of conditions having been neglected, for the most part it will be lawful to fulfill betrothals; for the objections of parents and relatives ought not" (here) "easily to obtain force against a certain right arising from betrothals; nevertheless sometimes they will have to be rescinded."

Quaer. 4° Is a party laboring under an occult defect held to disclose it before betrothals, or, these having been contracted, before Matrimony?

Resp. 1° Affirmatively, if that defect would be harmful or injurious to the other party, e.g. if the girl is pregnant, if the betrothed man labors under venereal disease, or is burdened with debt, etc. The reason is because, just as he sins against justice who, to one believing himself to be buying good wares, sells harmful ones, so a fortiori does he who with a harmful defect wishes to contract Matrimony. Therefore if he does not wish to disclose the defect, he ought to abstain from contracting. Except, unless the other party labors under the same defect.⁵

Resp. 2° But negatively, if the defect does not render the nuptials harmful, but only less desirable, e.g. if a girl who is thought to be a virgin is corrupted. The reason is because it has been received by custom that no one is held to manifest defects of this kind to the other. Besides, no one is held to manifest his own defect with his own infamy, when the defect does not injure the grave right of the other.¹ Nevertheless the other party, once the defect is known, has the right of withdrawing.²

Quaer. 5° Are betrothals dissolved by a subsequent Matrimony, so that, once the Matrimony is dissolved, they do not revive?

Resp. Negatively, with the opinion which St. Alphonsus thinks absolutely more probable.³ - The reason is because it is proved by no law that betrothals are altogether dissolved by a subsequent Matrimony; whence only the obligation of the betrothals is suspended while such Matrimony lasts, as happens in one who contracts Matrimony with a vow of chastity. Moreover in practice the betrothed person unjustly abandoned will rarely seek such an unfaithful one, nor would a happy outcome of a Matrimony of this kind be hoped for.

Concerning the judge in a cause of betrothals, see L. VI. 878.

Vol. II, Treatise on Matrimony, Chapter II. On the Proclamation of Banns

A bann is a German word which signifies the same as public proclamation. Therefore banns are public announcements by which the faithful are admonished concerning Matrimony to be contracted between certain persons.

We must treat 1° of the necessity of banns; 2° of their circumstances; 3° of their dispensation; 4° of the revelation of impediments.

Vol. II, Treatise on Matrimony, Ch. II, Article I. On the Necessity of Banns

n. ¶1533.

1533. Principles. - I. From the precept of the Church there is a grave obligation of proclaiming banns. This is clear 1° as to the precept from the Fourth Lateran Council and from Trent.⁴ - It is clear 2° as to grave obligation, because a general discipline prescribed by two General Councils, and supported by grave motives, begets grave obligation. - Nevertheless the decrees of the Lateran and Tridentine Councils differ in this: that from the Lateran at least one announcement had to be made; from Trent, three, and these in the way which the Tridentine law, which also had to be introduced among us after the Easter feasts in the year 1853,¹ prescribed. As regards the number of proclamations in places where Mass is not celebrated on single Sundays, consult the diocesan statutes.

II. The proclamation of banns is not required from the necessity of the Sacrament. For no law can be cited from which it is clear that the proclamation is required for the validity of Matrimony.

n. ¶1534.

1534. Questions. - Quaer. 1° Does the Pastor sin gravely by omitting the announcement, if he knows that no impediment is present?

Resp. Affirmatively. The reason is 1° because with difficulty can a Pastor be altogether certain that no impediment of Matrimony is present; 2° because, even if no impediment appears before the proclamation of banns, it can happen that, when they have been proclaimed, some impediment supervenes; 3° because, even if these reasons did not subsist, there always subsists the reason that the end of the law in the case ceases only privatively, as was said n. 165. 2°. I say: 2).²

Quaer. 2° Does the Pastor sin gravely if he omits only one proclamation without dispensation?

Resp. It is controverted. Some affirm, because one proclamation out of the three is to be held as a grave part of the whole precept. But others deny, whose opinion St. Alphonsus calls probable.³ It is more probable, however, that the omission of two announcements is a mortal sin.⁴

Notes near nn. 1533-1534, necessity of banns and omitted proclamations (printed pp. 224-225).

1 Conc. Pl. Balt. II. a. 331-333. | 2 L. VI. 990. | 3 Ib. | 4 Ib. | 5 Sess. 24. c. 1. de Ref. Matr.

Vol. II, Treatise on Matrimony, Ch. II, Article II. On the Circumstances of Banns

A threefold circumstance must be considered here, namely 1° of time; 2° of place; 3° of persons.

I. Circumstance of Time.

n. ¶1535.

1535. - Proclamations must be made on feast days of precept - continuously - during the solemnities of Masses. - Trent.⁵

It is said: 1° on feast days, i.e. on feast days of precept, at least in the place of the proclamations. Among feasts of precept can be numbered those suppressed feasts on which the functions and solemnities still have to be performed as before the suppression, and the people still come frequently to the churches. Thus from various resolutions of the Sacred Congregation of the Council, which the illustrious Feije reports and explains.¹ - Indeed, St. Alphonsus² teaches that probably this can be done also on a ferial day, at least without mortal sin, if for some reason a great concourse of people is made to the Church, because thus also the end of the Council is sufficiently obtained.

It is said: 2° continuously, i.e. with no feast day omitted from the first proclamation to the last. Nevertheless St. Alphonsus judges probable, and several others hold, that there is no grave sin if the feast days, with one or another interposed, are not continuous. The reason is because the danger that the people forget is slight, and the matter of transgression is judged light. But whether proclamations can be made on feast days immediately succeeding one another, if they occur, is controverted: there is a twofold probable opinion.⁴

It is said: 3° during the solemnities of Masses, i.e. in the parochial or conventual Mass, from the Decree of the Sacred Congregation of the Council. - Proclamations cannot be made in private Masses, nor at Vespers. - Roman Ritual. If nevertheless the Pastor had forgotten to make the last proclamation at Mass, and the nuptials press, he could supply it at Vespers. This is permitted from the Decision of the Sacred Congregation of the Council, October 25, 1586. - Ferraris. St. Alphonsus admits that probably proclamations can also be made in a sermon or on the occasion of a procession, when the people have been gathered.⁵

If, the proclamations having been made, Matrimony is not celebrated within two months, the proclamations are to be repeated, unless it seem otherwise to the Bishop. - Roman Ritual. - It is also advisable not to contract Matrimony immediately after the last proclamation, or on the same day on which this was made.

II. Circumstance of Place.

Notes near nn. 1535-1536, time and place of banns (printed pp. 225-226).

1 De Imp. n. 241-245. | 2 L. VI. 992. | 3 L. VI. 992. | 4 Ib. | 5 Ib. 991.

n. ¶1536.

1536. - From the Council of Trent, the proclamations of banns must be made in the Church, i.e. in the parochial Church of the contracting parties; but not in chapels, whether public or private, unless they hold the place of a parish, and parochial Mass is celebrated there. - The Pastor can make them either by himself or through another; nevertheless care must be taken lest they be made by a layman. - The opinion of several Doctors seems probable to St. Alphonsus, who say that proclamations can be made (at least without mortal sin, and, with cause, even without venial sin) outside the Church in a place of great concourse, because thus the end of the Council is already obtained.¹ But by parish is not understood the parish in which someone was born, or the parish of origin, but the parish of actual domicile, if the one to be proclaimed has lived there for a notable time.

Hence: 1° If the betrothed persons dwell in different parishes, the proclamation must be made in each. 2° If one or both have approximately equal domicile in two places, the banns also must be proclaimed in both. But if one of the two domiciles is principal, or properly so called, a double proclamation is not for that reason required. If someone, however, besides domicile, has quasi-domicile elsewhere, proclamations must be made also in the quasi-domicile.² 3° If the contracting parties have recently fixed domicile in the actual parish, the banns, much more probably,³ must also be published in the parish where they previously lived. But what domicile in this matter is to be called recent must be known from the diocesan statutes, or, these failing, from usage, Feije teaches.³

III. Circumstance of Persons, Namely of Minors, Soldiers, Wanderers, and Servants.

n. ¶1537.

1537. - 1° Minors. The banns of minors (n. 836), for the sake of prudence, ought not to be proclaimed except with the express consent of parents or tutors. I say: for the sake of prudence; but not from the necessity of any ecclesiastical law. Proclamation is to be made both in the domicile of fact and in the domicile of law, that is, both in the place where the minors here and now dwell, and in the place where the parents or their tutors live. But minors, by Canon Law, are males who have not yet completed the twenty-fifth year of age, and females who have not yet completed the twenty-first. Nevertheless a male orphaned of ascendants becomes a major as soon as he has completed the twenty-first year.

2° Soldiers. The banns of soldiers are to be proclaimed 1° in the place where they are in garrisons; 2° besides in the domicile of the parents, if they are minors; but if they are majors, in the place where they were residing before they took up military service; because they have not acquired another domicile of law. - Thus commonly.

3° Wanderers and foreigners. Their banns, according to the common opinion, are to be published in the domicile of fact and in the place of origin, if they have not obtained true domicile elsewhere, or at least in the place in which they dwelt for a longer time. Besides, authentic testimony concerning their free state is to be had, nor are wanderers to be joined in Matrimony without the license of the Ordinary, as Trent has.¹

Note. - I. Around those things which we have said in this and the preceding Number, the illustrious Heiss² remarks the following: "Since in these regions it is too difficult to observe this law strictly, it seems to us that this at least must be insisted on in diocesan statutes: 1) that announcements must always be made in each parish, if the betrothed persons are from different parishes; 2) that, if the betrothed persons besides true domicile also have quasi-domicile in some place, and it is not too distant, the nuptials should be announced in each place; 3) that, if because of too great a distance or a similar cause the announcements cannot be made in the way said, the defect should be supplied by some precaution, whether through witnesses or through oath."³

II. The form of the announcements ought to be such that with intelligible voice and accurately the persons and their parish are indicated, and which announcement it is, and this especially when dispensation has been made in some one, so that then it is expressed, e.g. that the one which is now made is the first and second. It is also preferable to make mention of the end of the announcements, namely, that those who know an impediment disclose it; but if this is done, let it be done uniformly for all, lest, if only sometimes, the Pastor seem to suspect an impediment, as "Past.-Blatt für Nordamerika" rightly admonishes.⁴

Vol. II, Treatise on Matrimony, Ch. II, Article III. On Dispensation of Banns

Notes near nn. 1537-1538, persons and dispensation of banns (printed p. 226).

1 L. VI. 991. | 2 Ib. | 3 De Imp. n. 251. 3°. | 4 Sess. 24. c. 7. de Ref. Matr. Collect. p. 437. n. 968. | 5 De Matr. § 21. V. p. 64. 4). | 6 Feije, de Imp. n. 252. | 7 7 Jahrg. S. 68.

n. ¶1538.

1538. Principles. - I. For a just cause dispensation can be made from the law of banns - Trent.¹ - But dispensation is made more easily from one or another proclamation than from all. But Benedict XIV² forbade Bishops to dispense from all, "unless a legitimate, most grave, and inescapable cause presses, as is clear from the Tridentine." But such a cause, since it is relative, will exist much more easily among us than elsewhere.

II. Dispensation of banns pertains to the Bishop as Ordinary. - It is likewise drawn from the Tridentine,³ where it is said that the faculty of dispensing is left to the prudence and judgment of the Ordinary.

III. But the legitimate causes of dispensation are some on account of which the Bishop ought to dispense, and others on account of which he can. Of the former kind are: 1° lest Matrimony be maliciously impeded; 2° grave damage, infamy, or scandal imminent from delay of Matrimony; 3° fear lest the man abandon a girl violated by him; 4° if, Matrimony already having been contracted civilly, the betrothed man does not wish to consent to three proclamations, and other similar things.⁴ - Of the latter kind are: 1° if nuptials are to be contracted among the great; 2° if the betrothed persons are very old, or very disparate in condition, age, wealth, or quality; 3° if it is morally certain that no impediment is present.⁵

Notes near n. 1539, delegation and epikeia for dispensation of banns (printed p. 227).

1 Sess. 24. c. 1. de Ref. Matr. | 2 Bulla, Nimiam licentiam. 18 Maii 1743. Item C. Satis vobis. 17 Nov. 1741. | 3 Sess. 24. c. 1. de Ref. Matr. | 4 L. VI. 1005. | 5 Ib. 1006. | 6 Ib. Vide Feije, n. 266.

n. ¶1539.

1539. Questions. - Quaer. 1° When the betrothed persons are from different dioceses, must dispensation be obtained from each Bishop?

Resp. Affirmatively, as it seems. The reason is because there is no connection between the dispensation of one and that of the other. From another source, only the Ordinary of the place can know concerning the cause of dispensation: for there can be reasons for dispensing for one party, without their being present for the other; and, if impediments are not detected from one side, it does not follow that they cannot be detected from the other. - Nevertheless St. Alphonsus⁶ does not correct those teaching the contrary.

Quaer. 2° Can the Vicar General, and likewise the Capitular Vicar (or among us the Administrator of the diocese), dispense from the proclamations of banns?

Resp. to the 1st. Affirmatively, more probably, according to the most common opinion, provided the Bishop has not reserved this to himself, or does not contradict. The reason is because the Synod concedes this faculty to the Ordinary; but under the name of Ordinary, if the matter belongs to his office and he himself is not expressly excluded, comes also the Vicar General, since he constitutes one tribunal with the Bishop.¹

Resp. to the 2nd. Affirmatively, and this is certain from the decree of the Sacred Congregation of the Council, March 2, 1624.

Quaer. 3° Whether and by whom can this faculty be delegated?

Resp. Affirmatively, by those who have it by ordinary right; therefore by the Bishop, by the Vicar General and Capitular Vicar, and, since his jurisdiction is quasi-ordinary or to the universality of causes, also by the Administrator of the diocese. Cf. n. 149, 150. - In very many dioceses this faculty is delegated, at least as regards one or another announcement, to all priests. Let each consult the letters of his Jurisdiction or the diocesan statutes.

Quaer. 4° Whether and when can proclamations be omitted through epikeia, without a preceding dispensation of the Ordinary?

Resp. Affirmatively, VERY probably, provided the following conditions concur: 1st that there be present a cause on account of which the Bishop ought to dispense (n. 1538. III.); 2nd that he (or, if he unjustly refuses dispensation, his Superior) cannot be approached; 3rd that there be danger in delay; 4th that it be clear that no impediment is present.² - Nevertheless Reiffenstuel³ rightly warns that omission is almost not to be advised when the Ordinary (outside the case of a concubinary dying, Feije⁴ aptly adds) has denied dispensation; for it belongs to the Ordinary to judge whether the alleged cause is of such a kind that dispensation is owed. - I add that it is also to be dissuaded in States in which proclamations are prescribed by civil law.

Here again I admonish that the aforesaid conditions occur more easily among us. Wherefore I adhere to the resolutions which Smith hands down on this matter.⁵

Note. - The Tridentine sometimes posits that dispensation be made in such a way that the announcements have place after Matrimony has been contracted, but before it has been consummated. Nevertheless it leaves to the judgment of the Ordinary that, if he prefers, he dispense simply. But today generally only this latter mode is used.

Vol. II, Treatise on Matrimony, Ch. II, Article IV. On the Revelation of Impediments

Notes near Article IV, revelation of impediments before Matrimony (printed p. 228).

1 L. VI. 1007. H. A. Tr. XVIII. 59. | 2 L. VI. 1007. | 3 L. IV. T. III. n. 46. | 4 De Imped. n. 268. | 5 Notes on the Sec. Plen. Counc. n. 302-304.

Notes near nn. 1540-1541, obligation and limits of revealing impediments (printed p. 228).

1 L. VI. 994. | 2 c. 3. | 3 c. 4. art. 4. | 4 n. 409. | 5 L. VI. 995. | 6 Ib. 994. | 7 De Imped. n. 269. | 8 Ib. | 9 L. VI. 995.

n. ¶1540.

1540. Principles. - I. There is in itself a grave obligation of revealing impediments of Matrimony, however occult. The reason is drawn from the motive of Religion and charity, and also from the precept itself of banns.¹

II. The obligation generally regards all the faithful of whatever sex, age, parish or diocese, etc., and also blood relatives and friends. The reason is because that law is borne in the name of the Church, to which all Christians are subject, and it rests upon the natural precept of Religion and charity, which regards all. Indeed, although, once Matrimony has been celebrated, the positive law of announcing ceases, nevertheless the law of charity can, according to the circumstances, demand the said revelation.

III. That obligation is to be fulfilled as soon as morally possible; because, if the betrothed persons perhaps obtain dispensation from one or another proclamation and contract sooner, time for making the revelation will not remain, etc.

n. ¶1541.

1541. Questions. - Quaer. 1° Must impediments known under even a committed secret be revealed?

Resp. Affirmatively, even if an oath not to reveal them has been added. The reason is because a natural secret, even committed and sworn, does not oblige when grave damage threatens the community or a third person. - If nevertheless the impediment is infamous, those about to marry themselves must first be admonished, unless either the admonition is probably not going to be profitable, or there is danger in delay.¹ Cf. n. 541. q. 1°.

Except, more probably, the secret of counsel, or a secret committed to a man exercising a public office for the sake of seeking counsel, e.g. to a physician, advocate, Pastor, etc., provided this is done by reason of their profession. For thus the common good seems to demand. - Collet,² Bouvier,³ Carriere,⁴ and others, against others. But even those who under a secret of this kind know the impediment ought at least to admonish the betrothed persons that they desist from Matrimony, unless the admonition probably is not going to be profitable.

Quaer. 2° Are you held to reveal an impediment with your grave inconvenience or detriment?

Resp. Negatively, generally speaking, because the law of the Church and charity do not oblige with so great an inconvenience. - Thus commonly.¹ The Doctors commonly excuse also in these other cases, namely: 1° when someone has only heard of the impediment, but does not know from whom, or has heard of it from a person not worthy of faith; - 2° if he probably judges that revelation is going to beget grave scandal among others; - 3° if he knows that the contracting parties have obtained an occult dispensation for the forum of conscience in an impediment whose report is not public,² and (Feije adds)³ which probably cannot be brought to the external forum; 4° if in another way he can impede the Matrimony and truly does impede it, or efficaciously sees to obtaining dispensation.⁴

Quaer. 3° Are you held to reveal an impediment if you alone know it and cannot prove it?

Resp. Affirmatively, because in the present matter the testimony of one person can suffice, at least for further investigation. - Thus the most common and truer opinion.⁵

Quaer. 4° Are the contracting parties themselves held to reveal an impediment?

Resp. Affirmatively. The reason is because here there is no question of a penalty to be inflicted, but of sin to be avoided; wherefore it is necessary either that they abstain from Matrimony, or disclose the impediments.

Quaer. 5° What must the Pastor do if he has knowledge of an impediment which is known or probably feared to be present, whether by himself or through others?

Resp. 1° If he acquired the knowledge outside Confession, he cannot pass on to the celebration of Matrimony, but must communicate the affair suitably to the betrothed persons, and, if doubt remains, refer it to the Ordinary.

Resp. 2° If it is clear to the Pastor concerning an occult impediment outside Confession, but the one who is bound by the impediment denies it, he will not be able to assist, whether Matrimony is sought secretly before witnesses, or (more truly according to St. Alphonsus) publicly. Cf. what was said n. 1229. Rule III. Except 2°.

Resp. 3° If he knows an impediment outside Confession, and at the same time knows that dispensation has been obtained for the forum of conscience, he can assist if the impediment is of such a kind that it cannot be brought to the external forum, or at least no probable reason for fearing this is present; otherwise, before he assisted, dispensation would have to be obtained for the external forum.

Resp. 4° Whether he ought immediately to cease from continuing the proclamations depends on the certitude or likelihood of the impediment. See Bangen.

Resp. 5° If he acquires the knowledge in Confession, see what is to be said n. 1556. q. 3°.

I. On the Inquiry into Impediments to be Premitted. - II. On the Necessary Instruction of the Contracting Parties in Christian Doctrine. - III. On the Confession to be Premitted to Nuptials.

Notes near the appendix to banns, inquiry and preparatory duties (printed p. 229).

1 L. VI. 1002. Dub. 1°. | 2 p. 71 sq. | 3 Bulla: Nimiam licentiam, 18 Maii 1743. § 10.

Notes near n. 1542, inquiry into impediments before proclamations (printed p. 229).

1 L. VI. 54. | 2 Heiss. de Matr. § 68. I. | 3 De Syn. L. VIII. c. XIV. n. 5. 6. | 4 Tr. VIII. 48.

Notes near n. 1542, Tridentine admonition and impediment inquiry (printed p. 229).

1 Sess. 24. c. 1. Ref. Matr. De hujus Tridentini moniti fine agit Nouvelle Revue Theol. T. V. p. 301 sv. | 2 Cf. Conc. Pl. Balt. II. n. 329. 330.

Vol. II, Treatise on Matrimony, Appendix

n. ¶1542.

1542. I. - 1. The obligation of inquiring into impediments is clear both from the very nature of the matter, or of the Sacrament (n. 1228. II. I said: 1°), and from the Roman Ritual.¹

2. The time, from the Roman Ritual, is that very time at which the Pastor is admonished concerning some Matrimony to be contracted in his parish. Therefore at least before he proceeds to the proclamations.²

3. The following mode, or one similar, is to be used, Benedict XIV³ admonishing. Witnesses having been removed, let the priest strive to explore carefully, and, as it is said, at the ear, both the betrothed man and the betrothed woman separately concerning the impediments which perhaps can be present; and let him especially press those things which, according to his own knowledge of the betrothed persons, he can prudently suspect to be present. First, let him inquire whether those about to marry have already given faith to another; whether thence an impediment of public honesty has not occurred; whether some impediment of cognation or affinity does not intervene? Likewise with due prudence and modest words let him advert to the impediment of affinity from illicit copula (but concerning this rather in the preparatory Confession), and, if one party has already been married, to the impediment of bond, crime, etc. - Then, if it can conveniently be done, let him also call witnesses, or relatives, or others well known to the betrothed persons, and similarly ask of them whether they have knowledge of some impediment intervening between the betrothed persons.

Note. - Prudence also demands that the Pastor inquire whether those things have been observed which are established by the civil law of the State in which Matrimony is contracted.

Notes near n. 1543, instruction of the contracting parties (printed p. 230).

1 Feije, de Imp. n. 276, 277. | 2 L. VI. 54. Cf. Vind. Ed. 2a. T. II. 607. CLVII. | 3 Feije, de Imp. n. 277. | 4 De Matr. § 69. III. p. 264. 2).

n. ¶1543.

1543. II. - 1. The obligation of instructing those about to marry before the proclamations in Christian doctrine: a) does not press in the case in which those about to marry are sufficiently instructed; b) as regards the rest, it presses, even by divine law, concerning those things which must necessarily be known by necessity either of means or of precept. For Matrimony is a Sacrament of the living; therefore no one can, without grave sacrilege, celebrate it in the state of mortal sin, nor can a Pastor licitly assist at the same Matrimony; but he who is ignorant of those necessary things, so long as he does not learn them when he can, remains in the state of mortal sin.¹ - I said: when he can; for, as Benedict XIV² remarks, those who are of dull mind, so that they do not admit of fuller Catechesis, should be taught at least the principal heads of faith. - But as regards those who lack knowledge of those things which are necessary by necessity of precept, the things which we said n. 261 can sometimes be used, especially among us. For, as Kenrick³ rightly observes, "since there is so great an ease of entering Matrimony before a heretical minister or magistrate, it is generally not expedient to repel them, although every effort must be applied that they be instructed as much as possible." I add that it is necessary that for the present they know, or be taught, those things which they ought to know in order that they may validly and licitly receive the Sacraments which they are to receive here and now. Cf. n. 260. 4).⁴

2. In the instruction of those about to marry, especially in these Provinces, the things on which one must especially insist are nearly the following.

The indissolubility of the matrimonial bond, - the right mode of baptizing offspring or a fetus in necessity, - the calling of a truly Catholic midwife, if she can be had, in childbirth, - the timely Baptism of offspring, - a nurse, if one is to be used, endowed with good morals, - the timely instruction of offspring in those things which must be known by necessity either of means or of precept, - the dangers of public schools, and how much it matters that, when they change residences, they prefer those places where a Catholic school can be approached, - the evils which are accustomed to follow from intemperance and frequenting taverns, - the horror with which secret societies are to be fled, - the obligation of contributing according to one's means to the support of Religion.

Besides these things, which are more proper to our regions, these things must be inculcated: - due preparation for the Sacrament through sincere Confession, and, if it can be obtained, a general one, the betrothed persons having been taught that those things which perhaps have been committed by them against chastity are equally sinful as if they had been perpetrated among persons not betrothed, and they having been admonished concerning avoiding suspected or solitary conversation both between themselves and with others, and cohabitation before Matrimony having been most severely interdicted, - the use of Matrimony commanded and licit, - concerning what things one must beware in time of pregnancy, - the danger of suffocation of offspring if, before the first year of age has been completed, it sleeps in the same bed with the mother, - the danger of perversion of children in the case in which they are not corrected when they transgress against modesty, even lightly, - the danger of the same perversion when those seven years old, or often even six years old, sleep in the same bed with parents or with children of the other sex, - caution to be applied when necessity compels that they sleep in the same room with the parents, - the obligation of going before one another and the offspring with good example, - mutual love and fidelity of the spouses, and the things contrary to these.

Nevertheless not all are to be taught all things, nor all in the same way; for the uneducated are to be instructed one way, but the cultivated another; the more honorable one way, the common people another.

Nor all things at the same time. For although instruction is not to be deferred to the day which immediately precedes Matrimony, nevertheless those things which pertain to the commanded and licit use of Matrimony must almost necessarily be remitted to that Confession which immediately precedes Matrimony. But the things which regard the choice of a truly Catholic midwife and of a good nurse, and also the danger of suffocating offspring, generally, and unless there is fear lest the occasion otherwise slip away, are more prudently deferred to the last months of pregnancy. Finally the dangers which threaten the offspring from modesty not very well observed, or from the same bed or room with parents or with children of diverse sex, generally can be relegated to that age of the children at which the danger is accustomed to arise.

The mode by which they are to be taught the commanded and licit use of Matrimony ought to be various according to the various condition of those about to marry. For if they have been of a freer life, that instruction can be somewhat more open, but always honorable, in words of this kind, e.g.: "In those things which pertain to receiving offspring, the consort is to be obeyed, and all things which conduce to this are lawful. If any doubts afterwards arise for you, disclose them candidly to the confessor; but meanwhile" (if there is question of instructing the betrothed woman) "obey your husband, as Superior, unless you clearly understand that something evil is being prescribed to you or demanded of you." - To betrothed persons who were not of a freer life, the same things can be said; but in place of the words: to receiving offspring, these are rather to be used: to the end of Matrimony; and in place of: to this, let it be said: to this end.

Notes near n. 1544, premitted Confession and Communion before Matrimony (printed p. 231).

1 Apud Heiss. de Matr. § 73. | 2 Heiss, de Matr. § 69. V. | 3 Past.-Bl. für N. Amer. 12th Jahrg. S. 140.

n. ¶1544.

1544. III. "It must also be striven for, and the Council of Trent earnestly exhorts, that those about to marry, before the celebration of Matrimony, and that not immediately but at least three days before" (its consummation) "approach the Sacraments of Penance and Eucharist. In many diocesan statutes there is also found either a counsel or a precept concerning this matter. That also is an excellent means of opportunely detecting an impediment, especially an occult one" (see above n. 1542 under 3), "or a circumstance to be expressed in the petition for obtaining dispensation, and of preventing grave inconveniences otherwise going to arise."

"If either party refuses to approach the Sacrament of Penance, the pastor will labor that he change his mind; but if he profits nothing, he will exhort that party at least to elicit contrition for sins before the celebration of Matrimony. But if each party refuses to approach the Sacrament of Penance, and the pastor does not profit by his admonitions, the judgment of the Ordinary must be invoked in places where Confession is prescribed; but outside this case the pastor will assist."¹

But if there is question of public sinners, the Pastor will be able to assist at their Matrimony "to avoid death, or other graver evils of the community, or of the contracting parties themselves, for example lest they themselves persevere in sin."² Therefore generally in this case assistance is to be denied, and it "will always be denied ... if each party openly refuses to confess in contempt of Religion or the Church, or if the very celebration of Matrimony of this kind is going to be a true scandal."³ Kenrick also excuses the assistance of the Pastor if there is reason to fear that those about to marry approach magistrates or heretical ministers; which opinion seems deservedly less probable to the illustrious Heiss,⁴ at least (I add) if there is question of places where the impediment of clandestinity does not have force.

In the case in which there were question of those who have notoriously incurred ecclesiastical censures, apply what was said n. 1231. q. 4°. But if there is speech concerning these, the celebration of Mass must always be excluded, as the Sacred Penitentiary adds in the Response which is related in the cited n. 1231; and, on account of parity of reason, it seems to me that the same must be applied also to the case of public sinners, although they have not notoriously incurred censures.

I said: that Confession be made advisedly at least three days before Matrimony, etc.; and this not only that impediments, especially occult ones, may be opportunely detected, but also that the contracting parties, who up to this point were living in the state of sin, not rarely as in quasi-concubinage, may more securely be disposed to receive the Sacraments worthily and fruitfully. Hence several advise that already before the first promulgation of the banns the contracting parties be induced (for the first time) to Confession, and indeed, if it can be done, to a general Confession, to be made either in the place of the contract, or elsewhere; and then again on the day before the celebration of Matrimony, on which occasion the altogether necessary instruction concerning the licit and due use of Matrimony can suitably be handed down. Holy Communion, if it is received, according to the Rubrics of the Missal (in the Mass for spouses, where it is read, "after the priest has received the Blood, let him communicate the spouses") ought to be received on the nuptial day itself, and this, if the nuptials are solemnly blessed, within the Mass, and indeed, as is inferred from the Response of the Sacred Congregation of Rites, June 23, 1853, in the case of Limburg,¹ by way of the Sacrifice, namely in this way, that two small hosts be consecrated in this Mass itself for the betrothed man and the betrothed woman.² - Nevertheless Mass can be celebrated and within it the blessing given, although the spouses do not communicate within this Mass. S. C. R. March 21, 1874.³

Vol. II, Treatise on Matrimony, Ch. III, Article I. On the Nature of Matrimony

n. ¶1545.

1545. - Definition. Matrimony can be considered in two ways, namely as contract, and as Sacrament.

1° Matrimony as contract is a convention by which a man and a woman legitimately hand over to one another dominion over their bodies in order to acts of themselves apt for the generation of offspring, and oblige themselves to an undivided society of life.

2° Matrimony as Sacrament is defined: A Sacrament of the new law conferring grace for sanctifying the legitimate conjunction of man and woman, and for piously receiving offspring and educating it holily.

But Matrimony is of precept as regards the community in general, but not as regards the individual members of the same, except accidentally on account of some other debt of justice or charity, for instance for legitimating offspring, for repairing the damage of defloration, or if someone were unwilling to employ other means for preserving continence. L. IV. 209.

n. ¶1546.

1546. - Division. Matrimony can be considered both as regards the conjunction of man and woman, and as regards the bond which arises from it; hence it is called:

1° In fieri or in facto esse. Matrimony in fieri is called the actual contract itself, which is perfected by the mutual consent of man and woman. But the continuing wedlock in the bond which proceeds from the matrimonial contract is called in facto esse.

2° Legitimate, ratified, and consummated. Matrimony is called legitimate when it is contracted according to the norm of natural and civil law, yet does not have the ratification of the Church or the character of a Sacrament, such as was once entered in the law of nature and the Mosaic law, and even now is entered among Jews and Gentiles. - Matrimony is ratified when it is contracted between Christians entangled by no impediment, between whom, however, after the contract, conjugal intercourse has not yet intervened. It is called ratified because not only nature and civil law, but also the Church approves it and holds it ratified. - Matrimony is called consummated when it has been completed by the copula of the spouses had after Matrimony has been contracted, and that, for the internal forum, probably perfected on each side; such copula is always presumed in the external forum, and in doubt is to be presumed also for the internal forum.¹

3° True, presumed, and putative.

It is called true when it has really and validly been contracted, and as such is proved by some one of those arguments by which other affairs also are wont to be proved, of which kind is the testimony of the Pastor or others, the book of Marriages, the confession of the spouses, etc.

It is called presumed when it is presumed by law; and this presumption of law has place especially in a threefold case, but only in places where the decree of Trent concerning the form of Matrimony is not in force, namely: 1° when, after betrothals absolutely entered between two capable persons, copula has followed, even if imperfect;² for then the consent concerning the future is presumed to have passed into consent concerning the present, and the copula is presumed to have been admitted with conjugal affection.³ 2° When, after betrothals entered under a condition, before the event of that condition, carnal intercourse has intervened between the betrothed persons; for then the Church presumes that the betrothed persons have receded from the condition, and therefore have wished purely and absolutely to contract Matrimony.¹ 3° When, after betrothals concerning the present invalidly contracted by the impubes (in whom malice does not supply age), signs of ratified consent intervene between the same persons when they have attained puberty; of which kind are not only carnal copula, but also kisses, embraces, cohabitation, etc.²

Finally, Matrimony is called putative when it is thought to have been legitimately contracted, while nevertheless on the side of the thing, on account of some latent impediment, it is null. The Doctors therefore inquire concerning this, that it may be clear when it has the force of legitimating offspring thence received, and the other effects of law. Moreover two things are necessary for this: 1° that it was contracted in good faith at least by one of the spouses, who was unaware of the impediment.³ Indeed neither error of law, nor doubt concerning the value of the Matrimony, excludes this good faith, as Covarruvias⁴ proves; but in doubt this good faith is presumed. 2° That the Matrimony was contracted publicly and in the face of the Church, i.e. before the Pastor and witnesses, and with the denunciations premitted, or at least dispensed.⁵

4° Canonical, political or civil, of conscience, and morganatic.

They call that canonical in which all things concur which are prescribed by the Sacred Canons for Matrimony.

They call that political or civil in which those things also concur which are required by civil law, namely certain solemnities, dotal agreements, etc.; without these Matrimony indeed is canonically valid, yet civilly is reputed illegitimate, and accordingly lacks civil effects.

Matrimony of conscience is celebrated secretly before the Pastor or another priest deputed by the Bishop, with two faithful witnesses, the banns omitted. Besides a most urgent cause (e.g. Matrimony to be contracted by concubinaries who are held as legitimate spouses), there is also required the license of the Bishop, to whom there must be sent a written document of the Matrimony so celebrated; this is to be kept by him and inscribed in the book of secret Matrimonies, with those things observed which Benedict XIV prescribes on this matter in the constitution Satis vobis, November 17, 1741, §§ 10, 11.¹

Morganatic Matrimony is that which a noble man enters before the Pastor and witnesses, with dispensation from the banns obtained, with a woman of a lower order, with this condition added: that both the woman and the children to be born from that Matrimony can acquire nothing of the right which coheres with the nobility of the man, and that they be content with those things which are necessary for living, or with a nuptial gift, or with a certain portion of goods determined by antenuptial agreement.²

n. ¶1547.

1547. Principles. - I. The Matrimony of Christians, celebrated by the legitimate rite, is a true and properly so called Sacrament of the new law. See the arguments among the Dogmaticians.

II. For the validity of Matrimony there is required true consent on the part of each contracting party; because Matrimony, as contract, is a convention between a man and a woman: but consent constitutes the essence of convention.

III. But the consent must be:

1° Mutual; for it consists in a contract, which is essentially the consent of two, or mutual consent. Hence, if it is lacking on one side, the Matrimony will be null.

2° Concerning the present; because by a promise concerning the future there are made only betrothals, not Matrimony.³

3° Deliberate and voluntary; because it is a contract concerning a grave matter, and therefore inducing a grave obligation; but no one is judged to impose a grave obligation on himself unless he freely and fully consents. This is clear from Canon Law, which invalidates Marriages contracted from grave fear, as will be said below concerning impediments.

4° Manifested by external signs; because every convention among men ought to be known by some external sign; for convention necessarily supposes mutual acceptance among the contracting parties.

n. ¶1548.

1548. Questions. - Quaer. 1° What manner is to be observed with those faithful who, in those places of our Provinces where the Tridentine decree concerning the form of Matrimony is not in force, after absolute and valid betrothals and copula had with one party, either wish to enter, or have entered, nuptials with another either civilly or in the face of the Church?

Resp. The copula was had either with marital affection, or with fornicatorial affection. - If with marital affection, they are to be prohibited from any other Matrimony. The reason is clear from what was said n. 1546. 3°. Yet in the external forum they would be compelled to remain with her with whom they had contracted nuptials in the face of the Church, if they could not prove the copula had with the first; but they could exercise no carnal intercourse with the second. - If with fornicatorial affection, distinguish between the external forum and the internal. - If the copula has been brought into the external forum, they could be held by the ecclesiastical judge as in the likeness of legitimate spouses, and therefore be prohibited from any other Matrimony, and, if they had already contracted nuptials with another, be compelled to return to the first, with whom, nevertheless, they will be able to exercise no carnal intercourse. The reason is because in the external forum a delict is not presumed, and therefore the copula is presumed to have been had with marital affection. - But that carnal intercourse cannot be exercised with the first is from this, that the copula, although presumed to have been had with marital affection, in reality was had with fornicatorial affection. - If there is question of the internal forum, the Matrimony with the other will be valid, and also licit, if a legitimate occasion for dissolving the preceding betrothals has offered itself. - See the Instruction of the Congregation de Propaganda Fide, p. LXV sq., which was communicated also to the Bishop of Alton, for the information of one recurring. Likewise Heiss.¹

Note. - 1° In the question it is said: after VALID betrothals; for while, e.g., Titius, after having contracted betrothals with Anna, contracted betrothals with Maria against Anna's will, and then knew each woman, that copula had with Maria could not be a sign of Matrimony contracted with her, because the betrothals with her were null; but that copula had with Anna could be a sign of Matrimony contracted with her; for although he had the will of receding from her betrothals by contracting betrothals with Maria, yet in fact he did not recede, and having copula with her, he must be judged to have approved the aforesaid contract and to have amended the attempted recession.²

2° For the internal forum the persuasion of the penitent that he can enter a valid Matrimony with another, in doubt, will be an argument that the copula was had with fornicatorial affection.

Quaer. 2° Must consent be expressed in words?

Resp. 1° Negatively, as regards validity, because by natural law in a contract it suffices that consent be certainly expressed by some sign,¹ e.g. by marital cohabitation or by writing.

Resp. 2° Affirmatively, as regards liceity, because otherwise one would act against the Rubric and the custom of the Church. Nevertheless it does not seem to exceed a venial sin if words are not employed; indeed shame or another reasonable cause would excuse from every fault.²

Quaer. 3° Does consent through a procurator suffice?

Resp. 1° As regards validity, affirmatively, provided the required conditions are present, because Matrimony has the whole character of a natural contract. But any contract can be made through a procurator.

But the conditions for contracting Matrimony in that mode are the same as those which are required for valid betrothals to be contracted in that mode (see n. 1528. q. 6°); to which, for places where the decree of Trent concerning the form of Matrimony is in force, there is to be added this sixth: that the procurator appear with the other party before the Pastor and two witnesses.

Resp. 2° As regards liceity, negatively, unless a very grave cause urges. The reason is because this mode of contracting is contrary to the ordinary practice of the Church, and scarcely are Marriages so made among others than Princes and Magnates. Hence the Pastor ought not by his own authority to bless Matrimonies of this kind, as is clear from the practice of the Church and the Ritual.³

Quaer. 4° Is Matrimony entered UNDER A CONDITION valid?

Resp. 1° It is certain that it is valid if the condition is concerning the past or concerning the present, and it is verified. The reason is because that conditioned consent immediately passes into absolute consent, and therefore nothing is lacking to the value of the Sacrament.⁴

Resp. 2° If an honest and possible condition concerning the future is added, I say: 1° The Matrimony is not perfected until the condition is fulfilled; because the contract ought to transfer a mutual right over the bodies concerning the present, as I said n. 1547, and hence, if one before the verification of the condition retracts consent, the Matrimony is null, since at the time in which the contract is perfected, mutual consent is lacking. I say: 2° But when the condition has been fulfilled, the Matrimony is valid; because a conditioned contract, when the condition has been accomplished, passes into an absolute contract, and by that very fact is valid by reason of the Sacrament, because among Christians the contract of Matrimony cannot be disjoined from the Sacrament. Hence more probably there is then no need of new consent; nevertheless more advisedly it is renewed.¹ (35) p. 423.

Quaer. 5° Is it licit to contract with conditioned consent?

Resp. Negatively. Such a mode of contracting is illicit, especially if the condition is concerning the future, unless perhaps, as St. Alphonsus² has it, there is present a most urgent cause which does not suffer delay, as if there is question of Matrimony with a dying person for legitimating offspring, in a case in which the death of the prior spouse is doubtful. The reason is because many and grave inconveniences can easily follow from such a mode of contracting, namely scandal, quarrels, complications, difficulties, etc. - Thus the more common opinion.

Quaer. 6° Is Matrimony entered under a base condition valid?

Things to be noted beforehand. - As regards the ends of Matrimony they distinguish: 1° intrinsic essential ends, namely a) the mutual handing over of bodies with the obligation of rendering the debt, if the other asks by right, and b) the indissoluble bond; - 2° intrinsic accidental ends, and indeed, as primary, the procreation of offspring; as secondary, the remedy of concupiscence; - 3° extrinsic accidental ends, as are, e.g., the peace of families, the obtaining of riches, etc.

Moreover the positive exclusion of essential ends in the celebration of nuptials renders Matrimony void; but not of itself the exclusion of accidental ends; indeed principally (with the relation of works to God saved) to seek nuptials either as a remedy of concupiscence (without, however, the end of procreating offspring being excluded), or on account of an extrinsic end, provided it is in itself honest, is no sin.³

With these things noted beforehand:

Resp. 1° Negatively, if the condition is repugnant to the substance or essence of Matrimony, namely to its threefold good, i.e. 1° to the good of Sacrament; 2° to the good of fidelity; 3° to the good of offspring; as it would be if the spouses, in contracting Matrimony, excluded the generation of offspring in the very use of Matrimony (but not if, out of love of continence, they excluded the use itself), or fidelity in marriage, or perpetuity in Matrimony. But for this it is required that a condition of this kind (namely for the external forum) be expressly posited, as is done in the formula of certain sects, by which perpetuity is excluded,¹ and that the spouses intend in mind to oblige themselves in no other way. But the Matrimony will be valid if this condition has itself concomitantly, and therefore is not the motive why the Matrimony is contracted, and otherwise there is present some general will of validly contracting. - Hence:

a) "The error of non-Catholics, by which very many think marriages can be dissolved by reason of adultery, or on some other account, by the authority of the State, does not obstruct the value of the contract; for the intention of contracting according to the law of nature and of Christ is stronger."

b) Matrimony is valid, although one of the spouses afterwards says that he had been ignorant of the Matrimonial debt, and, this having been known, affirms that he would not have entered Matrimony.²

c) The marriages of former "slaves, if the condition were added, 'so long as you shall have conducted yourself well,' are void."³

d) There was related to me the case of those contracting Matrimony before a magistrate or little heretical minister for this reason, that they believed the bond would thus be dissoluble, persuaded that it would be indissoluble if they contracted before a priest, whose ministry for that precise reason they did not use. I do not at all doubt that this Matrimony is null in the internal forum; for in this case error has itself antecedently to the contract, or they did not wish to enter any Matrimony other than a dissoluble one. But for the external forum, it would have to be clear concerning that matter from the confession or declaration of each spouse, against which the presumption of collusion does not militate. But if, as can easily happen among us, the confession of one party cannot be had, either because it is unknown where the party is, or because he refuses to appear, the sworn declaration of the other seems to suffice.⁴

Resp. 2° But if the base or impossible condition is not repugnant to the substance of Matrimony, distinguish. 1° It is judged valid in the external forum, unless the condition is proved to have been seriously posited; the reason is because in that case the condition is held as not added. 2° As regards the internal forum, distinguish. If it has been indubitably and seriously posited, it will be invalid: otherwise not. But in doubt a condition of this kind is presumed either not to have been posited, or not seriously, since in doubt judgment must always be made in favor of the value of Matrimony. Cf. n. 870. 2°. (36) p. 424.

Quaer. 7° What must be done if someone says that he consented fictitiously?

Resp. 1° As regards the external forum, faith is not given to him, unless either from the circumstances it is clear that he was deceived by fraud or induced by grave fear to contract, or by conjectures (which nevertheless is most difficult) fictitious consent is sufficiently proved. The reason is because it cannot be supposed that he who freely entered Matrimony consented fictitiously.

Resp. 2° As regards the internal forum, he who asserts that he consented fictitiously is to be obliged 1° to abstain from asking and rendering the debt until he truly consents; 2° ordinarily also to posit true consent, that thus he may repair the injury brought upon the other party. I say: ordinarily, because if the other party consents to separation, or fiction intervened also on the part of this party, or no damage is going to come to the party, or he who consented fictitiously was forced to contract, he is not held to supply consent.²

Besides, the spouse who posited true assent is not obliged to believe the other asserting that he consented fictitiously, even though he confirmed it by oath; and therefore would licitly ask the debt until the defect of consent was sufficiently proved.³

Quaer. 8° Is the consent of parents required for the validity or liceity of the matrimonial contract?

Resp. 1° As regards validity, negatively altogether; because the consent of parents is required neither by natural nor positive law. And 1° not by natural law; because the contracting parties have power over their own body, nor do parents have power over the body of their children in order to Matrimony; otherwise they could void the Marriages of these, whether justly or unjustly, which is altogether repugnant and adverse to the common sense of men. 2° Nor by positive law; for Trent¹ struck with anathema those who "falsely affirm that Marriages contracted by children of a family without the consent of parents are void, and that parents can make them ratified or void." But if civil law required the consent of parents for the value of Matrimony, its force would extend only to merely civil effects.² - Thus commonly all Catholic Theologians. Cf. n. 425.

Resp. 2° As regards liceity, affirmatively, generally speaking. This is clear from natural law, because children owe parents honor, reverence, and obedience, especially in those things which look to the whole family, of which kind is Matrimony, upon which very often depend the honor and peace of families, etc.

Quaer. 9° Can children sometimes contract Matrimony against the will of parents?

Resp. Affirmatively, if the parents unjustly refuse consent. But, since in this matter children of a family easily deceive themselves, before they celebrate nuptials they ought to consult prudent men and especially confessors, lest in a matter so grave and full of such great dangers they act imprudently, trusting their own judgment.

Quaer. 10° What must be done by the confessor or Pastor when children of a family wish to enter Matrimony against the will of parents?

Resp. 1° As regards the confessor, if he judges the reclamation of the parents just, he will persuade the children to accommodate themselves to the will of the parents. But if they are unwilling, and the conditions required by law in some State do not obstruct, he ought not to disturb them; for it would be imprudent, in a matter so difficult, to constitute himself judge between the father or mother and their children. Thus Gousset³ practically resolves the matter. But if the children, while the parents are unjustly opposing Matrimony, "betake themselves outside the limits of the State ... for contracting nuptials, or seek by another compact to evade the penalties of the laws, with truth uninjured, they do not seem to be blamed; otherwise if they accomplish the matter by false oath or false witnesses." Thus Kenrick.⁴

Resp. 2° As regards the Pastor, he ought not to assist at Matrimony unless the conditions prescribed by civil law have been fulfilled, on account of the inconveniences otherwise going to arise. See n. 426. q. 4°. R. II. a).

Vol. II, Treatise on Matrimony, Ch. III, Art. II, Namely, On Its Unity and Firmness, § I. On the Unity of Matrimony

n. ¶1549.

1549. - The unity of Matrimony is placed in this, that Matrimony is the conjunction of one man with one woman.

1° It is certain that polyandry conflicts with the natural law, because it is adverse to the principal ends of Matrimony, namely the generation of offspring and its good education. - Thus all.

2° It is certain that simultaneous polygamy is prohibited and void in every case, at least by the positive divine law of the new law, as is clear from Luke¹: Everyone who dismisses his wife and marries another commits adultery. It is likewise clear from Trent.²

3° It is certain that second nuptials and further ones are licit both for the man and for the woman, even under the Evangelical law. This is clear from the authority and practice of the Church, and also from Sacred Scripture³: A woman is bound to the law for so long a time as her husband lives; but if her husband shall have fallen asleep, she is freed: let her marry whom she wishes, only in the Lord.

Vol. II, Treatise on Matrimony, Ch. III, Art. II, Namely, On Its Unity and Firmness, § II. On the Firmness of Matrimony

A twofold firmness of Matrimony is distinguished: for one regards the bond, the other the bed.

Point I. On the Firmness of Matrimony Insofar as It Regards the Bond.

n. ¶1550.

1550. - Matrimony is indissoluble, i.e. once Matrimony has been contracted, divorce as regards the bond cannot be made, at least by positive divine law. It is of faith. It is proved: 1° from the words of Christ⁴: Therefore now they are not two, but one flesh. What therefore God has joined, let not man separate. 2° From the words of the divine Paul⁵: But to those who are joined in Matrimony I command, not I, but the Lord, that the wife not depart from the husband; but if she departs, that she remain unmarried, or be reconciled to her husband. And let not the man dismiss his wife. 3° From Trent.¹ Cf. n. 456. 9°, and n. 1053. q. 2°.

…and 171 more passages — all of them are listed on the topic page.

Merkelbach, Pastoral Questions

Benedict H. Merkelbach, O.P. — 1 passage

Merkelbach, Pastoral Questions, VII. On the Sacrament of M…, O.P. (1930), To the Benevolent Reader

n. ¶5467.

After the pastoral questions concerning the Sacraments of Baptism and Penance, learnedly and lucidly arranged by R. P. Merkelbach, O.P., our purpose is to attempt a similar work concerning the sacrament of matrimony, so that the pastoral treatise on the sacraments may thus be completed. The office of pastoral theology is wholly practical, since its proximate end is to guide pastors of souls in fulfilling their office faithfully, prudently, and with spiritual fruit. Therefore in this treatise concerning the sacrament of matrimony our scope will be above all practical: namely, to provide parish priests and confessors, and also young men who are being taught the pastoral art, with brief, clear, certain, and, so far as possible, complete notions concerning matrimonial matters insofar as these concern them. We cannot, indeed, pass over the dogmatic part altogether, since it exists in great part as the principle and source of matrimonial legislation. But it will be enough for us briefly to indicate the theses which pertain to that part. We have also judged it better to abstain from enumerating individually the authors who favor or oppose this or that opinion. Thus we believe that we are serving brevity and lucidity. The reader will at once notice, by scanning the index with his eyes, that we have omitted those things which pertain to the conjugal debt and the sins of spouses. The reason is that R. P. Merkelbach, in the excellent book Concerning Chastity and Lust, which was the first published among the Pastoral Questions, has arranged that matter very well. It was proper for us to refer the reader to his work, lest we do again what has already been done.

Merkelbach, Summa Theologiae Moralis

Benedict Henry Merkelbach, O.P. — 118 passages

Vol. III, Special Moral Theology: On…, Treatise: On Matrimony

Introduction.

S. Th., Suppl., q. 44.

n. 746.

746. The last sacrament is Matrimony. - As human society, as to bodily life, must be ruled by superiors and propagated and perpetuated by generation, so the sacrament of Order provides for the propagation of sacred ministers who must preside over the spiritual society of the Church, but Matrimony is the sacrament by which provision is supernaturally made for the bodily propagation of the Church of Christ. "Propagators and orderers of bodily life," says St. Thomas, c. Gent. IV, 58, "are regarded according to two things, namely, according to natural origin, which pertains to parents; and according to political rule, through which the peaceful life of man is preserved, and this pertains to kings and princes. Thus, therefore, it is in the spiritual life. For there are some propagators and conservers of the spiritual life according to spiritual ministry only, to which the sacrament of Order pertains; but some according to the bodily and spiritual together, which is done through the sacrament of Matrimony, by which man and woman come together for generating offspring and educating them for divine worship."

747. Matrimony according to the name is as if matris munium, i.e., the function or office of the mother, because a woman therefore marries that she may become a mother, and childbirth is more burdensome for her than for the father; since, says Gregory IX, l. III Decr. t. 33, c. 2, the child still an infant is known to need maternal solace more than paternal, and to have been burdensome to the mother before birth, painful in birth, laborious after birth... and from this the legitimate joining of male and female is called matrimony rather than patrimony. Patrimony, on the contrary, designates the external goods necessary to the family, because it belongs to the father or man to seek sustenance.

Thus a) matrimony is named according to effect;

b) according to the essence, which is the conjunction of man and woman, it is called wedlock (coniugium), i.e., the conjunction of two under the same yoke, because man and woman are bound, as it were, to one yoke, since they subject themselves to one and the same bond for bearing together the burdens of matrimony; likewise consortium, because they are joined among themselves by the closest society of bodies and souls, participants in the same lot or condition;

c) according to the cause, however, which is betrothal or the solemnity of the contract by which it is perfected: marriage (connubium) or nuptials (nuptiae) (from cloud or veil), because in antiquity the bride, when she was handed over to the man, covered her head with a veil, for the sake of modesty and submission.¹

¹ Nuptials sometimes, however, specially signified the solemnities and festivities joined with the matrimonial contract, or even the conjugal intercourse itself.

748. The real definition of Matrimony is handed down by the Scholastics after the Master of the Sentences, l. IV, d. 27: The marital conjunction of man and woman between legitimate persons, retaining an undivided manner of life. It is said:

conjunction, as the genus, which word is taken either causally, actively and in becoming, for the transient act of mutual consent, or the contract by which man and woman promise conjugal fidelity to each other; or essentially, as it were passively and in fact, for the conjugal society and state, or the permanent bond which results from mutual consent;

marital, as the specific difference taken from the proper end: namely, man and woman are joined into one legitimate principle of generation, and thus matrimony is distinguished from every other conjunction, for example, filial, fraternal, friendly, business, etc.; it is called marital from the husband, because the husband is the head of the matrimonial conjunction;

of man and woman, so that the subject of matrimony may be signified, which requires diversity of sexes;

between legitimate persons, so that the condition of the subject may be indicated, namely, that they are fit for contracting and impeded by no law or entangled by no impediment;

retaining an undivided manner of life, by which are signified the two properties of matrimony: unity and indissolubility, namely, that one undivided life, i.e., of one man and one woman, is retained perpetually and indissolubly until the death of either.

But since the very essence of matrimony among the baptized has been elevated to the dignity of a sacrament, the definition of the sacrament is the same; but that this may be signified explicitly, there can be added to the definition: and signifying the grace necessary for spouses to be conferred.

In most recent times another definition is accustomed to be handed down: a legitimate convention or union between a man and a woman, conferring upon them a mutual, perpetual, and exclusive right, both to acts of themselves apt for generation and to the consortium of common life.

Thus conformably to can. 1081, § 2, and 1128. It is said:

convention or union, which, if taken actively, i.e., for the act or mutual consent by which man and woman join themselves, will be matrimony in becoming; if it is taken passively, i.e., for the permanent moral bond which arises from that mutual consent, it will be matrimony in fact;

legitimate, i.e., entered according to the laws, both natural and positive, to which the contracting persons are subject and by which their contract is either confirmed or invalidated; but persons who according to those laws can validly and licitly enter matrimony are called capable by law;

between a man and a woman, by which words the subject of this contract is designated, which requires diversity of sexes according to the ordination of nature;

conferring a right to acts of themselves apt for the generation of offspring, by which words is designated the essential object, or the right to an act of itself apt for generation, and the primary end of matrimony, namely, the procreation of offspring and consequent education.

Let it be noted, however, that for the essence of matrimony a right to acts serving generation suffices, although there is not the use of that right, as in the matrimony of the Blessed Virgin and St. Joseph; or although accidentally generation does not in fact follow, as in sterile matrimony. Therefore let there be carefully distinguished: a) the right of using the body of the spouse for the conjugal act, which is called the right of asking the debt; b) the exercise or use of this right, which does not pertain to the essence of matrimony.

and to the consortium of common life, which is the secondary end of matrimony.

Among the Scholastics, as we have seen, the object and end of matrimony is called an undivided manner of life, which consists essentially in the mutual right and office as to bodies in order to the conjugal act; integrally, however, it also contains a common bed, table, and cohabitation.

749. Qualifications of matrimony and various divisions. - Matrimony can be entered between baptized persons, and then it is called Christian, and if it is valid, it is a sacrament; or between non-baptized persons, and then it is a merely natural contract, and exists only as it is in the office of nature. Hence:

A. By reason of property and dignity, the former, if it is valid, is called ratified (ratum) (bezegeld), i.e., firm, made firm by the ratification, approbation, and sacrament of the Church; the latter between non-baptized persons, if it is valid, is called legitimate (wettelijk).

Each, by reason of effect, is consummated (voltrokken of geslachtelijk voltooid).

Thus, if after matrimony has been entered a conjugal act has taken place between the spouses, to which by its nature the matrimonial contract is ordered and by which the spouses become one flesh, i.e., carnal intercourse of itself apt for generation; in this case Christian matrimony is called ratified and consummated (can. 1015).

B. By reason of celebration, matrimony is 1. public, i.e., authentic, which is celebrated publicly in the face of the Church, i.e., after proclamations have been premised, the form prescribed by the Church being observed; and it is a) solemn, which is done with the accidental solemnity of nuptial blessing and festivity, or b) less solemn, in which only the substantial solemnities are observed;

clandestine, which has been contracted with the prescribed form omitted;

occult, which, the prescribed form being observed but the proclamations omitted, is contracted secretly, and is called a marriage of conscience if it is done by that law that it ought not be published and manifested.

Only from a most grave and most urgent cause, and by the local Ordinary himself - the vicar general being excluded without a special mandate - can it be permitted that a marriage of conscience be entered (can. 1104), namely, if there is a moral necessity of now entering matrimony for consulting the difficulties of conscience, and at the same time there is a moral impossibility of celebrating it publicly because of civil law or other circumstances. In which case, the Ordinary, pastor, and assisting witnesses are bound under grave sin to secrecy; and also the other spouse, if the other does not consent to publication (can. 1105). The contracted matrimony is not inscribed in the ordinary book of marriages, but in a special book to be kept in the secret archive of the episcopal curia; likewise children born or to be born, after Baptism has been received, are not to be inscribed in the parish book of the baptized, but in the secret book preserved in the episcopal Curia (can. 1107). The obligation of preserving secrecy on the part of the Ordinary ceases: a) if some scandal or grave injury against the sanctity of matrimony threatens; b) or if the parents do not take care that children received from such a matrimony be baptized; c) or if they take care that they be baptized with false names expressed, without meanwhile providing to the Ordinary within thirty days notice of the offspring received and baptized with a sincere indication of the parents; d) or if they neglect the Christian education of the children (can. 1106).

From a marriage of conscience differs a morganatic marriage, which is contracted by a noble man with a woman of more humble condition, by this agreement, that both the wife and the children born from it, content with congruous sustenance or a certain part of goods, are excluded from dignities, titles, and succession of goods.

C. By reason of validity, it is 1. true or valid, which has been entered with all the conditions required for validity, and therefore without a diriment impediment, and it is licit or illicit, according as every prohibition or impeding impediment is also absent, or on the contrary is present; - or 2. invalid, null, or void: this, however, can be a) attempted when it is entered in bad faith, by both parties or by either party, dissembling, for example, an impediment; or b) putative when it has been celebrated before the Church in good faith, at least on one side, until the nullity is certainly established to both, and this suffices for the legitimacy of the offspring - Comm. I. C., June 26, 1949.

Moreover matrimony is called presumed, which does not exist, but by law, a certain fact having been posited, is presumed as existing (cf. can. 1972), as if two contract externally but one internally refuses to give consent. Thus formerly, once intercourse had taken place between the betrothed, by law they were presumed to have consented to matrimony.

750. Division of the treatise. - Since the sacrament of Matrimony is nothing other than the very contract which by the institution of Christ has been made a sacred sign and cause of grace, after each has been spoken of according to itself, we shall speak of both together as to the remaining things. But the treatise is divided into four parts.

The first part is: On Matrimony itself, namely, 1. on Matrimony as it is in the office of nature: a) on origin, b) on precept, c) on honesty, d) on ends, and e) on the essence of matrimony; - 2. on Matrimony as it is a sacrament: a) on institution, b) on the essence and constitutive parts, c) on the minister; - 3. on the effects and goods of Matrimony; - 4. on the cause of Matrimony or on consent: a) on the qualities, and b) on the defects of consent; - 5. on the properties of Matrimony: a) on unity, b) on indissolubility; - 6. on the governance of Matrimony.

The second part is: On the celebration of Matrimony: 1. on preparation for Matrimony or on betrothals; - 2. on the preliminaries to Matrimony or on the proclamation of banns; - 3. on the rite itself or form of celebration.

The third part is: On the impediments of Matrimony: 1. on impediments in general; - 2. on impeding impediments; - 3. on diriment impediments: a) on age, b) on impotence, c) on bond, d) on disparity of cult, e) on order and vow, f) on abduction and crime, g) on carnal, spiritual, and legal kinship, h) on affinity and public honesty; - 4. on dispensation from impediments; - 5. on convalidation of Matrimony.

The fourth part is: On the obligations of spouses: 1. on the conjugal debt: a) on the liceity of conjugal intercourse, b) on its circumstances, c) on acts connected with it, d) on excess, and e) on defect in the use of marriage; - 2. on cohabitation; - 3. on mutual love and assistance.

There is added an appendix on matrimony in civil legislation.

More recent authors for the most part follow the chronological order of time, or the order of the code of canon law; but since it is not the logical order conformable to the very nature of things, but either chosen for a peculiar end, it does not furnish the foundation for a truly scientific division, nor is it suited to a synthetic exposition.

…and 78 more passages — all of them are listed on the topic page.

Palmieri, On Christian Marriage

Dominic Palmieri, S.J. — 9 passages

Palmieri, On Christian Marriage, Preface to the Former Edition

In publishing a treatise on Marriage, now polished with a second care, we are surely conscious that we are treating that head of Catholic doctrine which is of the greatest moment and, especially in our age, demands most exact study and most exquisite diligence. For the matter at issue is one which, although it pertains properly to the Church, also touches civil society and pervades the family; from which it has come about that civil powers have not hesitated to assert for themselves a right over that which the Church testifies has been committed by God to herself alone, and thence a struggle of human authority against the divine authority of the Church has broken forth. But besides a dissension of this sort, which is due indeed partly to ignorance, but most of all to the malice under which certain men labor, who in these times preside, to our harm, over public affairs; if we wish to search out the cause and root of this very malice, there will appear another, deeper and more universal stain of evil, which strives to overthrow the divine right of the Church and the divine institution of marriage. It is that unbridled license, impatient of every obligation, which, first wandering and diffused, now reduced into a certain order and system,

attacks the foundations of civil and religious society and, while it turns all things upside down, abusing the divine gift of reason, endeavors also to shake the sanctity of marriage and to prostitute the chaste union of man and woman to ungoverned lust. For men in this our age do not merely wish to indulge their desires, but besides this they claim for themselves a right to fulfill them, and compel reason, if it can be done, to patronize their vices and to illumine with specious lights what is base and wicked. Now that opinion is spread abroad in books and resounds also in schools, which formerly was veiled by the darkness of mysteries and brothels. It is, namely, the doctrine of libertines, to which an atheistic society, having nothing to oppose, yields obedience even unwillingly: that the end of the coming together of a man with a woman is pleasure alone; that this coming together is determined by the love of the one toward the other; that those who love one another are spouses; that the man and woman are bound by no obligation; that she is not subordinated to the man; that any women whatever are common to any man, and conversely men to a woman; that there is no family; that the offspring which is begotten is to be nourished and educated by society, to which alone it belongs; whence, by the civil power already imbued with the principles of this doctrine, there are to be instituted establishments for the nursing of infants, and, for forming their minds as soon as they have scarcely attained the use of reason, public schools, to which all are to be obliged, every care or power concerning the instruction of offspring being withdrawn from parents. Thus the modern socialists and communists, the Fourierists, the Saint-Simonians, and others of the same bran; concerning whom see the excellent work of

Avogadro de la Motta, Teorica dell' Istituzione del Matrimonio, etc., part II, chapters 19 and 20. There is indeed nothing new in this battle against the divine institution of marriage except the excess of shamelessness and the veil of voluptuous science. For in the first centuries of the Church the Gnostics handed down the same principles and reduced them to practice. For, according to the witness of Clement of Alexandria, Stromata, book III, impious men existed who openly attributed to the devil the invention of that marriage, namely the society of man and woman which is joined with perpetual obligation; among whom the same writer counts Tatian the Syrian. And in the same place he reports that Epiphanes, from whom flowed the heresy of the Carpocratians, taught, among other things, this also: that since God had made all things in common for man, and had joined the female with the male in common, and had likewise coupled all living things, he proclaimed that justice is communion with equality; and therefore that one man can have intercourse with all women, as the other living things do. Whence he testifies that there are also those who proclaim common sexual intercourse to be a mystical communion, and practice it, and say that they do this in order to oppose the Creator who forbids fornication. He attributes the same doctrine to the Marcionites, concerning whose founder Marcion Tertullian testifies, Against Marcion, book I, chapter 1, that he abolished nuptials. The same things pleased the Manichaeans, who, according to the witness of Augustine, On Heresies, no. 46, if they used wives, nevertheless avoided conception and generation, lest the divine substance, which enters into them through food, should be bound in fleshly chains in offspring; whence in Against Faustus, book XXX, he says

Vol. II, Tr. XVIII, Ch. III, Article I. On the Nature of Marriage · Vol. II, Tr. XVIII, Ch. V, Article II. On the Subject of Marriage

that they especially detest that intercourse which alone is honorable and conjugal. This pest was derived to their heirs, namely the Albigenses in the Middle Age, who, poured out into every lust, abhorred nuptials. Cf. Natalis Alexander, century XIII, part I, chapter 3. Modern sects, moreover, are connected with the ancient ones in a continuous series.

n. ¶21.

It is indeed irksome to refute these most shameful inventions. The sole end of man is placed in animal pleasure; the human race is brought back to the multitude of swine from the herd of Epicurus; the foundations of all rights, by which rational creatures are mutually bound, are shaken; the family, only the appearance of it being retained, is utterly abolished; and the structure of all social life is dissolved, and in place of the moral law of justice, by which the human mind is to be ruled, physical and material force is substituted as the supreme reason. The propagators of these errors cannot be refuted by arguments of reason, since they are led by a perverse will alone, which refuses to look upon the light of truth. Their refutation, therefore, belongs rather than to theologians, to those to whom the care of society has been committed by God, and who can commit no greater sin than if they allow men of this sort to go unpunished.

n. ¶22.

These things, therefore, being set aside, we shall rather have to contend with those who, while reverencing the divine institution of marriage, nevertheless dissent in many things from the doctrine of the Church. To this doctrine, indeed, a splendid light has been added in this most recent age, with the Apostolic See bearing the torch before us, so that the darkness sent in by enemies may be dispersed. There exist, indeed, distinguished documents on this article of faith

n. ¶23.

which the most recent Roman Pontiffs have given us, especially the three Piuses, VI, VII, and IX, and most recently Our Most Holy Lord Leo XIII; by these the knowledge of the truth has received increase, so that many things are now investigated and certain for us which were doubtful and obscure to theologians not very far removed from this age. This fruit has been borne for us, as often happens, by the assault of adversaries, who, while they strive to extinguish the light of the Church, rather sharpen its force, so that they may be overwhelmed by its very brightness.

n. ¶24.

In this matter of Christian Marriage, dogmatic writers, moral writers, and canonists are engaged. But we shall have to treat only those things which Theology claims for itself as contained in the Word of God, whether written or handed down; for these things, and not others, our hearers required of us. The questions indeed are not many, but for the most part they are difficult, and one of them also (On the words of Christ, Matt. XIX, 3 ff.) does not yet seem to have attained full light. What lay in us, we have furnished for the benefit of our hearers, and now we publish the treatise in type: for by the same right by which the others have gone forth, this one also can be joined with them.

n. ¶25.

We said these things by way of preface in the former edition; now that this second edition follows, the reader must be admonished by us of this one thing: not a few things here have been changed, especially in the demonstrations to be brought forward.

Sabetti-Barrett, Compendium of Moral Theology

Aloysius Sabetti, S.J., and Timothy Barrett, S.J. — 17 passages

Vol. II, Tr. XVIII, Ch. III, Article I. On the Nature of Marriage

Clark, New Questions, Old Answers, Introduction, Setting the Scene · Clark, New Questions, Old Answers, Introduction, The Scope of This Book · Clark, New Questions, Old Answers, Chapter One: The Marital D…, Marital Debt? · Clark, New Questions, Old Answers, Chapter One: The Marital D…, The Doctrine of The Catechism of St. Thomas Aquinas

Marriage can be considered in two ways, namely as contract and as sacrament. Considered as contract, it is a covenant by which a man and a woman legitimately hand over to each other dominion over their bodies in order to acts apt of themselves for the generation of offspring, and oblige themselves to an undivided society of life. But considered as sacrament it is defined: a sacrament of the New Law conferring grace for sanctifying the legitimate union of man and woman and for piously receiving and holy educating offspring.

§ 1. The primary end of Marriage is the procreation and education of offspring; the secondary end is mutual assistance and the remedy of concupiscence (Can. 1013).

n. 853.

Marriage is divided in many ways, for it is:

1°. In fieri or in facto esse. - Marriage in fieri is said to be the actual contract itself, which is perfected by the mutual consent of man and woman. But the continuing wedlock in the bond which comes from the matrimonial contract is called in facto esse.

2°. § 1. A valid marriage of the baptized is called ratified, if it has not yet been completed by consummation; ratified and consummated, if between the spouses there has taken place the conjugal act to which by its nature the matrimonial contract is ordered and by which the spouses become one flesh.

§ 2. Once marriage has been celebrated, if the spouses have cohabited together, consummation is presumed until the contrary is proved.

§ 3. A marriage validly celebrated between non-baptized persons is called legitimate.

§ 4. An invalid marriage is called putative if it has been celebrated in good faith by at least one party, until each party becomes certain of its nullity (Can. 1015).

n. 854.

I say 1°. Marriage of Christians celebrated by a legitimate rite is a true sacrament, properly so called, of the New Law. It is established from Trent, sess. 24, can. 1, where it is said: "If anyone shall say that Marriage is not truly and properly one of the seven sacraments of the Evangelical Law instituted by Christ the Lord, but invented by men in the Church, and that it does not confer grace, let him be anathema."

And from Canon 1012:

§ 1. Christ the Lord raised the matrimonial contract itself between the baptized to the dignity of a sacrament.

§ 2. Wherefore, among the baptized there cannot exist a valid matrimonial contract without its being by that very fact a sacrament (Can. 1012).

I say 2°. § 1. The consent of the parties, legitimately manifested between persons capable by law, makes marriage; and this consent cannot be supplied by any human power.

§ 2. Matrimonial consent is an act of the will by which each party hands over and accepts the right over the body, perpetual and exclusive, in order to acts apt of themselves for the generation of offspring (Can. 1081).

C. 1, C. xxvii, q. 2: Intercourse does not make Marriage, but the will; C. 2, ibid.: Let the consent alone of those whose conjunctions are at issue suffice according to the laws. If this consent alone should perhaps be lacking in nuptials, all other things, even when celebrated with intercourse itself, are frustrated.

Every bilateral contract is constituted by the consent of parties capable of entering this contract. But marriage is a bilateral contract. Therefore marriage too is constituted by the consent of parties capable of entering it. Hence Eugene IV in the const. Exultate Deo: "The seventh is the Sacrament of Marriage, which is the sign of the conjunction of Christ and the Church according to the Apostle saying: this sacrament is great in Christ and in the Church. The efficient cause of marriage regularly is mutual consent, expressed by words concerning the present." And the error of the Armenians is condemned: "Also that among the Armenians there is no certain form of words expressing matrimonial consent between husband and wife; indeed many are compelled by parents and friends to come to the Church so that marriage may be made between them, and although one or both say that they do not wish to be matrimonially joined to each other, nevertheless marriage is made between them in the face of the Church." Thus Benedict XII to the Armenians, in the year 1341.

Besides, just as no contract can exist without consent, so neither can Marriage. Moreover, consent in every bilateral contract is an act of the will by which each party hands over and accepts that right which is proper to the contract. But the right proper to the matrimonial contract is the perpetual and exclusive right over the body in order to acts apt for generation. Therefore consent in marriage is an act of the will by which each party hands over and accepts a perpetual and exclusive right over the body in order to acts apt for generation. Consent must be mutual, perfectly deliberate, and manifested by external signs. The reason is that Marriage is a contract or covenant between a man and a woman, inducing a most grave obligation.

I say 3°. § 1. The internal consent of the mind is always presumed to be conformable to the words or signs employed in celebrating marriage.

§ 2. But if either party or each party by a positive act of the will excludes marriage itself, or every right to the conjugal act, or some essential property of marriage, he contracts invalidly (Can. 1086).

No one is to be judged to have said what he did not think in mind. The judge must take words according to their common signification; and even if the betrothed man proves that he had previously protested that he would not do the things which he says, nor wished to be understood according to the words, because he was going to speak fictitiously, he could recede from that will and express true consent into marriage; indeed he also seems to have acted thus according to that which he publicly did. Hence he is not believed, because interpretation must be made against him who employs deceit. Certainly in the forum of conscience one can believe him who accuses himself of fictitious consent; but in the external forum it is a question of administering justice according to assertions. Truly difficult is the proof of fictitious consent.

He enters a contract invalidly who excludes it by a positive act. Therefore he who by a positive act excludes every right to the conjugal act does not have matrimonial consent; but he who does not have matrimonial consent does not enter a valid marriage. He who by a positive act excludes the unity of marriage does not hand over and accept an exclusive right over the body; but such a one does not have matrimonial consent. He who by a positive act of the will also excludes indissolubility does not hand over and accept a perpetual right; but he who does not hand over a perpetual right does not have matrimonial consent.

I say 4°. Marriage enjoys the favor of law; wherefore in doubt one must stand for the validity of marriage, until the contrary is proved, with the prescription of Can. 1127 preserved (Can. 1014).¹

The marriage of the baptized is ruled not only by divine law, but also by canon law, with the competence of civil power preserved concerning the merely civil effects of the same marriage (Can. 1016).

¹ Cf. Addenda, p. 1129, n. 89.

n. 855.

Questions

Question 1. Must consent be expressed in words?

Resp. § 2. The betrothed are to express matrimonial consent in words; nor is it licit for them to employ equivalent signs, if they are able to speak (Can. 1088).

Words are to be employed for liceity; for the paragraph does not speak about validity.

n. 855, Q. 2.

Question 2. Does consent through a procurator suffice?

Resp. Affirmatively, provided the required conditions are present, because marriage has the whole nature of a contract; but any contract can be made through a procurator. Hence Canon 1088, § 1: For contracting marriage validly it is necessary that the contracting parties be present either by themselves or through a procurator; and the Roman Ritual, tit. VII, c. 2, n. 2: "Nor does the consent of one suffice, but it must be of both, and expressed by some visible sign, whether it is made by themselves or through a procurator." Personal presence now seems to be required except in the case of a procurator duly employed. But the conditions are declared in the following canon:

§ 1. With diocesan statutes added upon this matter remaining firm, in order that marriage through a procurator be entered validly, there is required a special mandate for contracting with a certain person, signed by the mandator and either by the pastor or Ordinary of the place in which the mandate is made, or by a priest delegated by either, or by at least two witnesses.

§ 2. If the mandator does not know how to write, this is to be noted in the mandate itself, and another witness is to be added who himself also signs the writing; otherwise the mandate is invalid.

§ 3. If, before the procurator has contracted in the name of the mandator, this latter has revoked the mandate or has fallen into insanity, the marriage is invalid, although either the procurator or the other contracting party was ignorant of these things.

§ 4. In order that the marriage be valid, the procurator must perform his office himself in person (Can. 1089).

n. 855, Q. 3.

Question 3. Is Marriage entered under a condition valid?

Resp. It is certain that it is valid if the condition is concerning the past or concerning the present and is verified. The reason is that that conditioned consent immediately passes into absolute consent, and therefore nothing is lacking to the value of the sacrament. But if an honorable and possible condition concerning the future is added, then certainly the Marriage is not perfected until the condition is fulfilled; because the contract must transfer the mutual right over bodies concerning the present. But once the condition has been fulfilled, the Marriage is valid; since a conditioned contract, once the condition has been fulfilled, passes into absolute, and by that very fact is valid by reason of the sacrament, because among Christians the contract of Marriage cannot be separated from the sacrament. - Although Marriage is firm even if the condition is fulfilled while the contracting parties are ignorant, nevertheless they themselves cannot use marriage before receiving knowledge of this fulfillment; otherwise at least in will and intention they would commit fornication. - Cf. S. Alphonsus, n. 890; Baller. note (a) and (b), p. 719.

n. 855, Q. 4.

Question 4. Is marriage entered under a condition concerning a necessary or impossible or immoral future thing, but not against the substance of marriage, valid?

Resp. The marriage is valid, because such a condition is held as not added. - Cf. Can. 1092.

A condition once placed and not revoked:

1°. If it is concerning the future and is necessary or impossible or immoral, but not against the substance of marriage, let it be held as not added (Can. 1092).

Consent concerning a necessary future thing is held in law as equivalent to consent concerning the present; and hence, by the addition of a condition concerning a necessary future thing, marriage is neither suspended nor vitiated, but immediately begins to be valid as if it had been contracted purely and without any condition; for example, I contract with you if tomorrow the sun rises.

In the same way the contract is not suspended if it is concerning an impossible thing; for unless certain indications to the contrary are present, in so grave an affair the contracting parties are deemed truly and seriously to wish to do something and not playfully. And thus in the chapter which is called notable and much allegable, Gregory IX says: "If conditions against the substance of wedlock are inserted, if one says to the other: I contract with you if you avoid the generation of offspring, or until I find another more worthy in honor or resources; or if for gain you hand yourself over to adultery; the matrimonial contract, however favorable it may be, lacks effect. Although other conditions placed in marriage, if they were immoral or impossible, ought on account of its favor to be held as not added." C. 7, X, IV, 5.

n. 855, Q. 5.

Question 5. Is marriage entered under an immoral condition against the substance of marriage valid?

Resp. Negatively; thus the new Code decrees the matter: A condition once placed and not revoked, if it is concerning the future against the substance of marriage, renders it invalid (Can. 1092, 2°).

Because then consent in the substance of the contract, which is altogether required, is not had. Consent into a perpetual and exclusive right is not had; therefore neither consent into marriage. Therefore, when contracting is done truly with a condition against the essence of wedlock, certainly the marriage is null; as when by heretics a formula is employed under that explicit condition that this marriage can be dissolved in the case of adultery, then it can no longer happen that error concerning marriage has been absorbed by the general will of contracting according to the intention of Christ. For marriages between co-parties, say heretical ones, can be valid with a concomitant error concerning its indissolubility, when, as very often happens, the will of contracting marriage according to the intention of Christ prevails, and that error is absorbed in this intention. But if it is certainly established that a condition has been added to the substance of marriage, and especially to indissolubility or perpetuity, such nuptials are invalid. Cf. S. Off., 18 Dec. 1872; 9 Dec. 1874; 2 Oct. 1860; 29 Nov. 1882.

It will have to be investigated whether a condition contrary to the perpetuity and indissolubility of the conjugal bond, in some manner, directly or indirectly, explicitly or implicitly, was brought into the pact by the contracting parties, or whether the marriage was contracted with a depraved will of not consenting to a perpetual bond.

n. 855, Q. 6.

Question 6. Is it licit to enter marriage through an interpreter?

Resp. Marriage can also be contracted through an interpreter (Can. 1090).

Just as in other contracts a notary and witnesses can be sufficiently informed through an interpreter, so in this case the pastor and witnesses are informed concerning consent through an interpreter.

n. 855, Q. 7.

Question 7. Is consent presumed to persevere?

Resp. Even if marriage has been entered invalidly by reason of an impediment, the consent given is presumed to persevere until its revocation has been established (Can. 1093).

n. 855, Q. 8.

Question 8. Is it licit for a pastor to assist at a marriage to be contracted through a procurator or interpreter without the permission of the Ordinary?

Resp. The pastor is not to assist at a marriage to be contracted through a procurator or through an interpreter, unless there is a just cause and it is in no way licit to doubt the authenticity of the mandate or the trustworthiness of the interpreter, and, if time allows, the permission of the Ordinary has been had (Can. 1091).

The reason for this canon is clear from the necessity of driving away every error in so grave a matter. Therefore the pastor, before he assists, must be certain concerning the just cause of this manner of contracting, concerning the authenticity of the mandate, and concerning the trustworthiness of the interpreter; nor ought he to assist without the permission of the Ordinary.

n. 855, Q. 9.

Question 9. What is that which the contracting parties must not be ignorant of?

Resp. § 1. 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 a man and a woman for procreating children.

§ 2. This ignorance is not presumed after puberty (Can. 1082).

For without an act of the will no consent is possible; but there is no desire of a thing unknown, nothing willed unless known; and therefore, in order that there can be consent, the one consenting must not be ignorant of that into which he consents. Thus Pirhing, book IV, title 1, sect. 1, n. 85, places among the things necessary for wedlock knowledge or the judgment of discretion, by which one understands what he does.

By law sufficient discretion is presumed in those who have arrived at puberty.

Vol. II, Tr. XVIII, Ch. V, Article II. On the Subject of Marriage

n. 865.

I say 1°. The subject of the sacrament of Marriage is every baptized human being, laboring under no impediment, whether natural or divine or canonical.

With this the Code harmonizes. All can contract marriage who are not prohibited by law (Can. 1035).

I said 1°. every baptized human being; for non-baptized persons are not capable of the sacraments of the Church, as is clear. - I said 2°. laboring under no impediment; for although of itself every baptized human being is a capable subject of the sacrament of Marriage, nevertheless per accidens many are barred from validly contracting Marriage on account of diverse impediments, both of natural law and of divine or ecclesiastical law, as will be said below in its place. Hence:

1°. The marriage of unbelievers, although it can be valid in the nature of a contract, nevertheless is not a sacrament. Indeed, the faithful person himself contracting Marriage with an unbeliever, even by dispensation of the Pope, according to many Doctors does not receive the sacrament. For the sign of the union of Christ with the Church, conferring sacramental grace, consists neither in the union of the man nor in the union of the woman, but in the union of both. Others, however, dissent, and say that the Marriage is then ratified and therefore has the nature of a sacrament on the part of the faithful person. - Cf. Baller. note (a), p. 749.

The Marriage of two unbelievers who are converted becomes a Sacrament when both are baptized, whether this happens successively or simultaneously. Namely, in that case the valid contract takes on the character or nature of a contract of one conjugal union among the faithful, which is a Sacrament; and at the moment of Baptism received by both, the marriage becomes efficacious of the grace itself. Thus with a better judgment preserved.

2°. Heretics and schismatics who, in entering Marriage, accurately and integrally observe the laws of the Church pertaining to the substance of the sacrament contract validly and are fortified by the sacrament, since there is nothing which can obstruct the value of this sacrament. The practice of the Church confirms this very thing, for she in no way compels them to renew consent if, coming to their senses, they return to the unity of the Catholic Church.

I say 2°. The betrothed contracting Marriage ought to be in the state of grace, because Marriage is a sacrament of the living. Those who contract while stained by mortal sin become guilty of sacrilege and do not perceive the sacramental graces necessary for spouses. Probably, however, those graces are only suspended, and, once the obstacle or mortal sin has been removed, they are applied to the soul. For practice, if no fruit is hoped from admonition, it will almost be better not to admonish the unworthy person concerning sacrilege, so that at least thus he sins less; and rather he will be induced to approach confession at least as soon as possible.

I say 3°. From a valid marriage there arises between the spouses a bond by its nature perpetual and exclusive; besides, Christian marriage confers grace on spouses not placing an obstacle (Can. 1110).

I say 4°. To each spouse from the beginning itself of marriage there belongs an equal right and office as regards the acts proper to conjugal life (Can. 1111).¹

I say 5°. Unless something else has been provided by special law, the wife, concerning canonical effects, is made a participant of the status of the husband (Can. 1112).

The woman retains the domicile and honor of the man. Cf. C. 3, de sepulturis, III, 12, in VI°.

Namely, the woman is the companion of the man, neither a handmaid nor a maidservant nor a slave. Unless special law establishes something else, she simply obtains the very status of the husband.

¹ Cf. Addenda, p. 1096, n. 32.

n. 866.

Questions

Question 1. Ought the Pastor to require that confession be premised to Marriage, or that a certificate of confession be exhibited by the betrothed?

Resp. He cannot absolutely and of itself require this, unless the synodal law in each diocese or a precept of the Bishop establishes it. The reason is that, although the state of grace is required for receiving this sacrament, nevertheless confession is not necessarily required, since contrition can absolutely suffice for those who are in the state of mortal sin. From another side, it is for the most part not known to the Pastor that the betrothed are not in the state of grace. - Cf. Second Plenary Council of Baltimore, n. 329.

n. 866, Q. 2.

Question 2. Who are legitimate children?

Resp. Legitimate are children conceived or born from a valid or putative marriage, unless the use of the marriage previously contracted was prohibited to the parents at the time of conception on account of solemn religious profession or a sacred order received (Can. 1114).

Those conceived or born from a valid marriage entered without a diriment impediment, or from an invalid marriage which nevertheless was celebrated in good faith by at least one party and hence is called putative, are legitimate unless conception occurred at a time when, on account of solemn religious profession or sacred order, the use of Marriage was prohibited. Therefore offspring sacrilegiously conceived, because the parent is a solemnly professed religious or in Sacred Orders, is not legitimate.

n. 866, Q. 3.

Question 3. Who is to be held as father, and which children are presumed as legitimate?

Resp. § 1. The father is he whom just nuptials demonstrate, unless the contrary is proved by evident arguments.

§ 2. Children are presumed legitimate who were born at least after six months from the day of the celebrated marriage, or within ten months from the day of the dissolved conjugal life (Can. 1115).

The reason for each is found in the necessary protection of the family and of hereditary succession. The first sentence is taken from Roman Law. Nevertheless, it admits proof to the contrary. The other part, in a similar way, provides for offspring and gives a principle for settling controversies, taken from natural law.

n. 866, Q. 4.

Question 4. What offspring is legitimated through subsequent marriage?

Resp. Through the subsequent marriage of the parents, whether true or putative, whether newly contracted or convalidated, even non-consummated, offspring is made legitimate, provided the parents were capable of contracting marriage between themselves at the time of conception, or of pregnancy, or of nativity (Can. 1116).

The threefold time is to be noted, of conception, pregnancy, or nativity, in which the parents must be capable of contracting. Although they were incapable at the time of conception, provided they afterward became capable, the children are legitimated by the aforesaid subsequent marriage. Thus offspring born at a time when the parents were joined in marriage is legitimate, although at the time of conception they were incapable on account of some diriment impediment.¹

Legitimated children, as far as concerns canonical effects, are in all things equated with legitimate children, unless something else has been expressly provided (Can. 1117). Thus, for example, such persons are capable for tonsure, minor and sacred orders, and dignities in the Church; but not for the Cardinalate or Episcopate. Therefore, excepting certain prelatures, those legitimated are simply assimilated to legitimate children.

¹ Cf. Addenda, p. 1117, n. 69.

Clark, New Questions, Old Answers

Eamonn Clark, S.T.L. — 56 passages (filed under the subtopics)

Clark, New Questions, Old Answers, Introduction, Setting the Scene

Think of a typical adolescent boy. He is just discovering things which have been well-known to others for a long time, unaware of how such things have been seen throughout history; he is experiencing a sort of freedom which was not previously available to him, and he longs for more; he is trying to fit in and be “trendy” according to the present cultural norms; he thinks himself to be misunderstood by his parents, whom he does not think to have very much wisdom at all compared to himself, which is obviously untrue, despite his good intentions and sincerity. He often thinks his parents are being “harsh” and “old fashioned”; he doesn’t really understand some of the more sophisticated language that his elders use or references they make to people and events, while his own vocabulary is full of neologisms and warped usages of older words, and his discourse in general is limited to simple topics and is sloppy when it isn’t. His attention is taken by celebrity gurus. He has a lot of energy, enthusiasm, and zeal for life, but he has few tools with which to solve serious problems and so often has to try to invent things on the fly – only when a true crisis occurs does he ask his parents for help, often without much thanks, and then he returns to his supposedly independent lifestyle. He is proud to have the last name that he has, and he does really love his family and will definitely stick up for his mother, but his filial piety is not always so evident, except maybe with a favorite uncle. However, it is true that his adolescence is different than it was for his parents, and he faces unique circumstances and problems which are largely unknown and sometimes inconceivable to his elders. New technology and social realities are a fact of his young life that were not for the generations preceding him. He is not interested in many of the same things which the older folks are, and this is his right insofar as taste admits of no disputation. However, he can be quick to call their tastes “lame” or “boring.” He doesn’t necessarily mean to be disrespectful, but it can seem that way sometimes; he is certainly unaware of the significance which those tastes have in the memory of those from earlier generations – how they acquired them, under what circumstances, and how they have shaped their lives. He does not realize that their tastes are, in some way, objectively better as well, having been acquired after much experience and cultivation.

This image gives one a decent picture of Catholic sexual ethics in the past 60 or so years, especially as presented in much of the popular literature. While there are exceptions to this rule, and rarely does one author exhibit all or even most of the negative characteristics just listed, the overall sense one gets when surveying the popular and even plenty of scholarly literature on Catholic sexual ethics is that, beyond reiterating a few completely uncontroversial or definitive positions on the major topics, the literature is a bit lost in itself. By this I mean that it infrequently grounds itself in the major extra-Scriptural sources of the theological tradition prior to the 1960’s or so except to make a passing mention of Casti Connubii or Arcanum, and it does not even seem aware that there is much to find before then. In a way, one might say that Humanae Vitae and The Theology of the Body have been to Catholic sexual ethics what Descartes or Kant were to Western philosophy: a turning point which people struggle to see beyond into the past, which make it so that everything must be reimagined and begun anew from the point of view contained therein – whether in agreement with the doctrines or not.

Perhaps all of this is somewhat of an exaggeration, but it is nevertheless quite evident that there is a great need for an authentic renewal in Catholic sexual ethics today. This book is a small step in that direction, and it focuses on only one of several topics which need a serious reappraisal in light of the wisdom of the Doctors and great manualists, especially St. Thomas Aquinas, St. Alphonsus Liguori, and Tómas Sánchez, SJ. So many authors do not even seem to be aware of what sorts of questions ought to be asked, let alone how to give the correct answers. What is more, some authors presume to give moral advice on less-than-clear issues without any serious education in moral theology, which is unwise both on the part of the authors and on the part of the readers who heed their uninformed (and usually seriously lax) advice. This problem is quite common in the contemporary popular literature.

Some of the issues within the world of Catholic sexual ethics today seem to stem from a decontextualized reading of St. John Paul II’s Theology of the Body. What is able to be loosely categorized as “personalist” sexual ethics generally takes its cue from the phenomenological aspect of John Paul’s teaching without serious advertence to the Thomistic foundations of his anthropological and ethical assumptions. This leads to a fixation on experiences and psychology, without much grounding for true moral judgments other than average subjective tastes coupled with some kind of fittingness. For example, one might consider the question, “Why should one not fornicate?” The “personalist” sort of answer might be: “Because marriage is an external sign of spiritual unity which is contradicted by the dishonesty of extramarital sexual encounters, and the bonding which accompanies sex cries out for a partnership which endures.” The better answer: “Because a child conceived will in principle lack a mother and father committed to each other for life, which is uncharitable towards the child as it is so risky to his welfare, and if contraception is used then the sexual faculty is perverted by essentially subverting its proper intentionality, thus undermining God’s design for the propagation of the human race, which is even more uncharitable and is so directly against God as Creator.”

The late Pontiff’s work on marriage and sexuality was in fact deeply informed by the thought of St. Thomas Aquinas in particular, and it is therefore a grave mistake to see the two authors as alternatives to each other.¹ There are rhetorical advantages to John Paul’s treatment of marriage and sexuality, but jettisoning “hardline” virtue ethics and the casuistry which evolved to draw definite conclusions on particular points of conscience is not only unnecessary but undermines the integrity and value of the Pope’s entire project. ¹ See Fr. Thomas Petri, OP, Aquinas and the Theology of the Body: The Thomistic Foundations of John Paul II’s Anthropology, CUA Press, 2016.

Another cause, perhaps the central occasion of the derailment of the traditional casuistic treatment of chastity, is the death of traditional courtship and the rise of dating. This seems to have occurred somewhat in conjunction with the advent of the car – suddenly it was no longer necessary to restrict one’s marriage prospects to one’s immediate vicinity where both families could and would be deeply involved in searching out the fittingness of a potential marriage. One didn’t need to plan travel by train either, leaving and arriving at precise places at scheduled times, though the rise of the railroad in the 1800’s began the erosion. From the 1920’s onward in the West, young men and women could go around quite easily by themselves and be far from home – anonymous. Then the expectation that one would build a family in one’s hometown began to fade as well; travel is easy enough, good opportunities could be far away… so be it. While the families of young men and women grew less relevant in their judgment of a partner, their emotions grew more relevant, and marriage slowly became more about one’s own personal existential fulfillment and less about fulfilling a public role in the community. With this new kind of relationship came several questions; there came especially an immediate need for precision on questions about remote expressions of affection – of the “how far can we go” variety – which had been treated by earlier authorities in a way that seemed to take for granted the non-existence of a body of social expectations which would force one to navigate this minefield so deeply.² Gone was the safety of the courtship paradigm, where a “couple” would hardly ever be alone together except by conscious deviance, deliberate disobedience, or by chance in the street – it eventually became normal and finally expected to spend long evenings together without supervision. From here we begin to see things unravel after World War II with the pill (1960), removing a major biological inconvenience to the working woman’s playtime – habitual fertility. Once this line was crossed, it was only a matter of time before the indissolubility of marriage became illusory; after all, if sex was not for producing children to such an extent that women can even disrupt the entire ovarian-uterine system’s well-functioning to maintain a career while “having fun,” why would marriage need to be forever? No-fault divorce came down the line quickly enough (1969 in California), followed shortly thereafter by movement towards abortion in the form of “privacy” in view of Sartrian self-determination, at least in the USA (1973). With the Supreme Court declaring that human nature did not exist,³ marriage was more than merely faltering as a coherent institution, evidently detached from conception and subject rather to the whim and pleasure of the man and woman who themselves allegedly do not have an inherent human nature. Therefore, it made no sense that a man would need to marry a woman and vice-versa. Once “same-sex marriage” became a widespread phenomenon (2004-2015 in the USA), it was not a large leap to accept that biological sex is actually ephemeral and can and should be changed to match one’s interior feelings about how one wants to be perceived and interact with others; or else, perhaps biological sex is not even real at all. ² This book will not address the topic of “remote signs of affection.” It is simply noted in passing as a topic that deserves a serious treatment. ³ See the U.S. Supreme Court decision in Roe v. Wade, 410 U.S. 113 (1973) authored by Justice Blackmun.

The most cursory study of attitudes and opinions of marriage throughout history and across cultures reveals that Westerners of the 21st century have an extraordinary fixation on romance. However, it must be noted that even St. Pius V was eager to point out that one of the principal motives for marrying is in fact the companionship contained therein: “We have now to explain why man and woman should be joined in marriage. First of all, nature itself by an instinct implanted in both sexes impels them to such companionship, and this is further encouraged by the hope of mutual assistance in bearing more easily the discomforts of life and the infirmities of old age.”⁴ By God’s design, men and women tend to enjoy being around each other in an exclusive relationship to help one another through their difficulties. While not a promotion or endorsement of marrying for “romance” or for “love,” we see that the saintly and ascetic Pontiff knew in the 1500’s that boys like girls and girls like boys, and he thought that this was a good thing. He continues: “If to these [aforementioned motives] we add other causes which induce to contract marriage, and, in choosing a wife, to prefer one person to another, such as the desire of leaving an heir, wealth, beauty, illustrious descent, congeniality of disposition, such motives, because not inconsistent with the holiness of marriage, are not to be condemned.”⁵ Later in the same chapter, however, he cautions against marriages driven by youthful desire: “But above all, lest young persons, whose period of life is marked by extreme indiscretion, should be deceived by a merely nominal marriage and foolishly rush into sinful love unions, the pastor cannot too frequently remind them that there can be no true and valid marriage unless it be contracted in the presence of the parish priest, or of some other priest commissioned by him, or by the Ordinary, and that of a certain number of witnesses.”⁶ ⁴ Catechism of the Council of Trent for Parish Priests (“The Roman Catechism”), promulgated by order of Pope St. Pius V (1566), translated by Fr. John McHugh, OP and Fr. Charles Callan, OP (1923), 16th edition (1962), p. 343-344. ⁵ Ibid., p. 344-345. ⁶ Ibid., p. 353.

Yet there is much to condemn in prevalent attitudes toward marriage today. In much of the United States, as elsewhere in the West, the average couple showing up for marriage preparation at their local parish is almost entirely unchurched, has little to no understanding of the Faith or commitment to practice it, is “living together,” and is using contraception of some sort (and perhaps practicing other unnatural vices) with no intention to stop doing so once married. Marriage for such people is seen more as being a rite of passage rather than as a fundamental change in the way they live their lives that brings distinct rights and obligations. Thus, the focus of such couples is so frequently on “the wedding” rather than on “the marriage.” Soon enough, the focus will be on the divorce proceedings and who gets to “keep the kids.”

This is the current state of things. Where we might go is a worthy topic of conversation but is not the conversation here, which is moral-ethical analysis rather than cultural-sociological speculation. My guess, however, is that the widespread use of “AI girlfriends,” including “deepfakes,”⁷ and perhaps a marked increased acceptance of polyamory are the next steps. ⁷ To have an avatar who is designed according to one’s tastes; who will say and do whatever one wants, whenever one wants, however one wants; who has no needs and will never grow old; who will never offer rejection and can be discarded and regained easily, without any consequence – this is alluring. Eventually there will likely be physical machines capable of simulating human interaction in a similar way, though this is perhaps a long way off.

The moral literature of the mid to late-1900’s is somewhat anemic compared to previous eras, despite some standout exceptions. This is not only due to the decline of casuistry in general and pollution of the field by the spirit of modernism and laxity, but it is also the case that after the explosion of interest in family life in the second half of the 1800’s in the run up to Italian unification (1870), the world and the Church of the 20th century were swept up by the practicalities and moral questions related to World War I, the Roman Question, World War II and the atomic bomb, the Second Vatican Council and its reforms, the reform of the 1917 Code of Canon Law (1983), the fall of Communism in Europe (1989), the invention and rise of the cell phone, the invention of the internet – hardly a moment to pause and think about how marriage had been subtly undermined by advances in transportation technology, beginning in the 1800’s and maturing in the 1920’s.⁸ The literature related to marriage ethics came largely as a response to Humanae Vitae, itself a response to the creation of “the pill” and the subsequent so-called “Sexual Revolution,” more or less taking place from the late 1950’s to the late 1970’s, which constituted a particular kind of crisis in its own precise context. Without the technological advancement of oral contraceptives, the ethical reflection would have likely remained at the level which Pius XI had left it with Casti Connubii when addressing the same general question in response to the Anglicans’ approval of contraception at Lambeth in 1930. Note that Casti Connubii is an attempt at playing catch-up, just as Humanae Vitae would be almost four decades later.⁹ ⁸ Pope Gregory XVI (d. 1846), a noted luddite, once exclaimed, “Chemin de fer, chemin d’enfer!” (“Road of iron, road to Hell!”) He prevented the construction of a rail system in the Papal States during his reign. While certainly too cautious about new technology (he also disliked gas lamps), we can note that his famous utterance was in a way prophetic. ⁹ The topic of contraception had already preoccupied Pius XI’s close friend and advisor, the famous Fr. Gemelli, but we find relatively little treatment of it at the Roman level before Casti Connubii.

n. 11.

Now, with the decline of dating, the ubiquitousness of pornography, (including the startling applications of AI to such degeneracy,) and the “Tinderization” of relationships, a whole other range of psychosocial problems has arisen which preoccupies authors. Nowadays, young people are asked unironically by casual semi-romantic partners to “DTR” – “define the relationship.” This is often in an effort to avoid languishing in what is called a “situationship.”

n. 12.

While the psychosocial trends are no doubt an important field of inquiry, the literature leaves unexplored the specific on-the-ground problems which “dating” poses and leaves unsolved any number of vexing casuistic puzzles related to the use of marriage¹⁰ that were never definitively settled in the manuals or by Roman authority. (When authors do seek to treat these topics, they do so rather poorly.) Since it is all but impossible to recover courtship, “dating” is now seen as something traditional and ideal, as opposed to aggressive patterns of fornication or ill-defined non-committal long-term semi-romantic partnerships. The moral aspects related to dating therefore need to be treated more surgically.¹¹ What is more, the field of inquiry of the life of chastity for the married couple remains ripe for the intellectual harvest with great pastoral benefits awaiting, including, in the present author’s view, providing the correct point of departure for understanding chastity and purity (its annexed virtue) between potential spouses, especially including the integration into the evaluation of “romantic acts” of a thorough treatment of the concupiscible passions in relation to various objects of love, desire, and delight, but also perhaps including the irascible passions of hope and daring. ¹⁰ The euphemism “using marriage” refers to conjugal relations. ¹¹ The major lacuna in the classical literature appears to be a failure to integrate a robust treatment of how the passions are related to lawful but remote natural union. This problem afflicts both the treatment of the unmarried (“6th Commandment”) and the married (“Use of Marriage”) – in fact, the pathway to a fuller understanding of what is lawful “to feel” and “to want” when unmarried will likely only proceed from an accurate vision of what is lawful for spouses. Unfortunately, apart from totally uncontroversial points, there is a shocking amount of inconsistency on the latter topic among the older authors when there is not silence. The case of the amplexus reservatus (intentionally incomplete natural union) is paradigmatic in this regard (although it is now indirectly condemned as at least venial sin by Pius XII). Some older opinions about chastity in marriage are also founded upon faulty biological assumptions about the mechanics of conception. These discussions exceed the scope of the present text but lurk in the background nonetheless.

Clark, New Questions, Old Answers, Introduction, The Scope of This Book

The present text does not seek to provide an exhaustive treatment of particular questions related to chastity, nor does it evaluate the contemporary literature of Catholic sexual ethics in detail; rather, it is focused exclusively on proposing a teaching on the use of what is commonly called “Natural Family Planning” (NFP) with respect to the motives for the marriage act itself which is more rigorous than what is commonly found in any number of books, websites, journal articles, or parochial and diocesan programs. It does not advocate for an abandonment of the practice of using NFP to avoid having children, as some in their misguided zeal for chastity mistakenly think is necessary, but instead argues in part that there are moral rules for its right use beyond simply having a justification for avoiding having more children in the first place. A mechanism is also proposed for how to evaluate whether avoiding having children is justified, a principle which is admitted by every author but is explained in serious and morally useful detail by exceedingly few.

The doctrines laid down here are, of course, only safe and probable, in the technical sense of these terms; one remains free enough to disagree and pursue his or her own way, possibly without actually offending God unless his or her conscience is truly convicted by the arguments set down.¹² Furthermore, the subject matter is arguably complicated enough that in following and using the laxer opinion one might do what is venially sinful according to its structure but without any guilt (so-called “material sin”), or have only very slight guilt. However, the motivation remains to propose the theses, along with any number of disputed questions of casuistry. Why? ¹² Moral science does not admit of the same degree of certitude as dogmatic theology, which itself admits of disputes, even on important matters; the reality is uncontestable that many points which refer to sin, even mortal sin, are not settled doctrine, despite being closely related to moral data which are settled, whether by direct revelation or authoritative determination. Sifting through opposing opinions on conclusions in moral theology on finer points, often called “casuistry,” is the bulk of the work in St. Alphonsus Liguori’s Theologia Moralis. Readers should not be disturbed by such disputes, nor claim that such-and-such is “Catholic teaching” when significant dispute exists and no definitive decision has been made by the Holy See, or at least a decision which binds one to religious submission of intellect even without being fully definitive.

As for the more rigorous doctrine on NFP vis-à-vis the use of marriage which will be presented, it is necessary for two reasons. First, because many devout couples have the strong suspicion that something is not quite right with the thought that one’s marriage is fully chaste by merely abstaining from relations for a week each month and doing whatever they like the rest of the time, specifically in the context of trying to avoid having children. They feel like they are somehow “cheating the system,” and they are right in their intuition, despite their lack of an ability to articulate their reasoning. This text seeks to help bring those couples to the “next level” and introduce them to the discipline which is proper to marital chastity, which they will find to be a welcome challenge. Such a way of living conjugal life will be found empowering to the soul, and it will even likely enhance the experience of the marital act itself on account of the act’s purified significance and less frequent use. This doctrine also evades the overly rigorous error into which many people fall, namely, that the use of “NFP” to avoid conception is “diet contraception” (or is simply contraceptive strictly speaking) and is therefore immoral in itself.¹³ Second, because if my thesis is correct the vast majority of couples who are sincerely trying to live out the Christian duties of married life are engaged unwittingly in at least material venial sin. True enough, material sin does not actually offend God – only formal sin does (that which is known to be sin or that which one is obliged to know is sin but does not) – but material sin nevertheless sets the individual on a path towards formal sin by weakening the will’s perception of what is truly good and possibly occasioning other acts which are indirectly or directly occasioned by material sin. This is especially true with regard to sexual matters, towards which humans are violently inclined by the intensity of pleasures, which pleasures God placed in our nature so that we would keep the human race in existence. Furthermore, one can rarely be sure that material sin is merely material sin except in special cases. In any case, as just noted, taking on the proposed modus vivendi, the couple will experience the interior freedom which will improve their spiritual lives and their marriage. ¹³ Some even make the claim that NFP is “Modernist” – not only is this to misunderstand what Modernism is, but it also is hilariously ignorant of the fact that Fr. Andreas Steinhuber, SJ, the individual who gave the major positive consultation on NFP as reflected in the 1880 responsum of the Apostolic Penitentiary, was also a principal ghostwriter for the great anti-Modernist encyclical Pascendi Dominici Gregis. (In some months after the release of the present text, I will publish the full text of Fr. Steinhuber’s consultation – however, while cautiously positive, the text is mostly interesting from a historical point of view rather than for its moral analysis per se.)

With regard to the motive for elaborating a clearer mechanism by which to evaluate the legitimacy of avoiding children, one need only ask any group of pious couples what exactly a “just cause” is to use NFP, and one will see the problem in the discussion which ensues. In the best case, the discussion will end with, “Be prudent and generous.” This is not untrue, but it is not particularly helpful either.

This book is not meant as an introduction to the topic of NFP, especially its biology, psychology, or practicalities. It is not a survey of the history of NFP, as it has been treated in older popular literature or in broader “cultural” and ecclesiastical contexts (though such a book should be written). It is also not an introduction to Catholic sexual ethics in general, though some explanation is given on the most relevant points. It takes for granted that the reader is at least somewhat familiar with the topic already, especially the incompatibility of Catholic morals with consequentialism in its various forms.¹⁴ It furthermore takes for granted the value of synthesizing and reconciling the major authorities in Catholic moral theology, in particular papal magisterial texts, St. Thomas Aquinas (the Common Doctor), and St. Alphonsus Liguori (the patron saint of moral theologians). It is assumed that the popes and great moral doctors of the Church generally have serious extrinsic authority and are therefore much more important guides than the latest trends in popular Catholic literature on the same topics, and so a goal to reconcile “the authors” as far as is honestly possible has been adopted.¹⁵ Readers who do not intuitively appreciate such a goal or method will probably not like this book. Finally, this text does not present in any rigor the historical context of or developmental narrative between major sources except in a single case (viz., the Sacred Penitentiary decisions). This is because the development of the literature on the role of pleasure in conjugal life and the particulars of the tradition’s treatment of the marital debt is largely irrelevant to the point being made, and other authors have done some of this kind of work already, such as John Noonan in Contraception.¹⁶ There is, however, some serious discussion of the solam voluptatem (“pleasure alone”) debate by way of offering my own solutions to this rather vexing, relevant, and complicated problem. ¹⁴ The way in which a good is obtained potentially matters in an of itself; to steal money and to earn money are both “taking money from someone” but are very different kinds of acts. This is the beginning of the critique against those who say that NFP is contraception because both “stop conception.” It matters what one does, not only what happens because of what one does. ¹⁵ I do not here enter into any discussions regarding the “doctrinal weight” of propositions or “extrinsic authority” of texts. Overall, common sense informed by piety will suffice for the purposes of the present argument. ¹⁶ Noonan’s research is excellent, though his theological reasoning is not always the best. He is also helpful as a guide through the history of the topic of pleasure in the use of marriage. I do not present any material about the shift in perspective between St. Thomas and St. Alphonsus but instead point to Noonan’s work as a starting point for this kind of research.

Readers who are entirely unfamiliar with the concept of the “marital debt” will find only a brief introduction to the topic in Chapter One; they may be startled to learn that such a principle exists and is in fact strongly rooted in the greatest authorities, including Sacred Scripture. They ought to allow themselves to be challenged by the discussion. For a relatively recent text which gives some more explanation, I recommend the fine volume prepared by Frs. McHugh and Callan¹⁷ which addresses this topic with great clarity and marvelous efficiency, though much more could be said (and is said by many older authors). I do not bother to defend the legitimacy of the principle of the marital debt in this book at any length – once again, to dismiss something which has been held by so many weighty authors, and which rests so squarely upon Sacred Scripture (1 Cor. 7:2-5) as well as upon the natural logic of marriage is extremely temerarious at best and possibly next to heresy (proxima haeretica) or worse. (An extended discussion of the marital debt also exceeds the scope of the purpose of this book, which is quite narrow.) Instead of seeing the highly unpopular and little-discussed positions of our famous elders in theology – decorated war-heroes, as it were – as primarily constrictive, we ought to see them as helpful guides towards the infinite freedom and perfect goodness of union with Christ. Even though we face new problems which many of them never faced themselves, they offer us powerful tools with which to solve those problems. We do not need to reinvent the wheel, even if we need to repurpose it. ¹⁷ Fr. John McHugh, OP and Fr. Charles Callan, OP, Moral Theology: A Complete Course Based on St. Thomas Aquinas and the Best Modern Authorities, #2614-2616; see also #2622 for their treatment of periodic continence (wherein they also reference an interesting text by Cardinal Hayes, of September 8, 1936); the famous moralist Fr. Dominic Prümmer, OP also gives a helpful summary in his one-volume Handbook of Moral Theology, #860-861. Both texts are easily found online.

Furthermore, despite the fact that we are today freer than in past centuries to publish books and articles with all sorts of questionable positions even on settled doctrine, such as on consummated unnatural vice (i.e. contraception, homosexual acts, self-abuse), this is not a good use of our time. We ought to be orthodox, and we ought to be thorough. In fact, there is much to the world of sexual ethics which is left practically untouched which would be more theoretically and pastorally useful than is commonly imagined. We ought to use the guidance of our elders for all it is worth; there is no need to walk alone when they have already largely done the work for us. Finally, we should take a genuine interest in the methods and focus of the older sources. While we need not imitate their style, or speak exclusively about the same topics, we ought to take them as cues for what the important issues are. The matter of theology, especially sexual ethics, is not simply a matter of taste – souls are on the line, more than with any other matter, and they are threatened by distinct and identifiable errors. While it can be interesting and even very profitable to meander through the psychology or cultural significance of various sexual behaviors, as is so common today in the popular literature, in the end, moral theology includes judgments about what is right, what is wrong, and what is wrong enough to lose one’s soul to the pains of unending Hell. One might even conclude that such considerations ought to take center stage, albeit without limiting the entirety of moral science thereto; after all, one can do more than simply not offend God, one can positively please Him in various degrees.

In this book I will argue for two principal theses, fully aware that the first in particular is extremely unfashionable and that both are possibly wrong. First, contrary to St. Thomas and St. Augustine, but in line with both St. Alphonsus and modern papal magisterial literature, I will argue that the request for the marital debt can be without sin when not intending procreation; however, I will conclude that it is only licit under a certain condition, namely, the legitimate need for the relaxation of concupiscence on the part of the one making the request, rather than for “sexual recreation,” no matter what other non-procreative goods are being pursued thereby (i.e. increased bonding, health, honor, expressing affection, settling a dispute, etc.) so long as the couple is not attempting to have children. As will be discussed, this thesis is in sharp contrast to the thought, seemingly originating with Gury’s manual (1852) and today left practically unchallenged, that the use of marriage is sufficiently justified by the exclusive intention to “express affection” or provide some kind of affective or social good.¹⁸ Second, I will argue that the intention to avoid pregnancy by recourse to using marriage during infertile periods alone must be evaluated by a method of evaluation that is analogous to the judgment which ought to be made in giving alms. Finally, as a conclusion, I will offer some limited observations about the spiritual significance and pastoral application of the doctrines presented herein. ¹⁸ Of course, the thought that conjugal relations have to be excused at all in the first place is almost totally alien to mainstream contemporary Catholic sexual ethics. This is a sign that something is wrong with the literature’s framing of the entire topic.

Clark, New Questions, Old Answers, Chapter One: The Marital D…, Marital Debt?

The marital debt is the duty to have intercourse with one’s spouse upon request, usually said with respect to such an act as a means to prevent the strain of the concupiscible passions from becoming psychologically painful or even from growing into a nearly uncontrollable urge to sin, whether through self-abuse or infidelity of some other sort.¹⁹ Each spouse owes this debt to the other, at least in proportion with the seriousness and reasonableness of the request, as a fundamental part of married life.²⁰ This debt is better characterized as a “legal debt” rather than a “moral debt,” meaning it is owed in strict justice rather than merely according to a kind of fittingness. It is not simply “the appropriate thing to do,” like signs of respect toward superiors we are not subject to, it is the strictly necessary thing to do under terms of commutative justice between spouses.²¹ According to St. Thomas, the payment of the debt is even more formally significant as to the good of fidelity (bonum fidei) than the duty to refrain from adultery.²² In other words, it is a worse sin to deny one’s spouse his or her rights (understood correctly) which were positively promised (“I will”) than it is to commit adultery, which was merely negatively promised (“I will not”). She owes him, and he owes her, in virtue of their marriage, unless the most serious problems obtain.²³ (Adultery implicitly renounces this right.)²⁴ The relaxation of “concupiscence” (here meaning “sexual desire,” especially when occurring unwillingly,) is one of the classical motives for marriage,²⁵ with direct Scriptural foundations in 1 Corinthians 7, verses 2 and 9, annexed to the good of fidelity, the bonum fidei, as a secondary good or end of marriage and its act.²⁶ St. Paul’s explanation of the marital debt conveniently falls in between these same verses (3-5). ¹⁹ Sometimes “marital debt” or a similar phrase will be used simply to indicate conjugal relations. ²⁰ The ability to pay the marital debt is so important that those who are perpetually impotent are unable to marry for the reason that they cannot pay it if requested, failing to fulfill a basic part of what it means to be married. See Canon 1084, §1 in the CIC (1983); see also St. Thomas Aquinas, Summa Theologica, Suppl., q. 58, a. 1. (Hereafter cited as ST.) Note that the debt may not be extracted by force. ²¹ See ST, I-II, q. 80; q. 102, a. 2, ad. 2. ²² ST, Suppl., q. 49, a. 2, ad. 3: “Just as the marriage promise means that neither party is to have intercourse with a third party, so does it require that they should mutually pay the marriage debt. The latter is indeed the chief of the two, since it follows from the power which each receives over the other.” (All translations are from the Second and Revised Edition [Blackfriars: Westminster, UK, 1920]. Online edition transcribed for New Advent by Kevin Knight, 2017.) In the exchange of consent at a wedding, one promises (implicitly) both not to have relations with anyone else and to be available to the other – and not simply based on one’s own feelings about having relations at a given time. ²³ In the young St. Thomas’ Commentary on the Sentences, we find a protracted casuistic examination on the use of marriage, including the following case: suppose a man contracts leprosy, a contagious and hideous skin disease which can even kill. The leprous man requests his wife to sleep with him. Is she bound to acquiesce? The answer given is a resounding, “yes,” though he clarifies that she is not bound to live in the same house with him, lest she contract the disease by prolonged exposure. See ST, Suppl., q. 64, a. 1, ad. 4. (The content of the Supplementum is essentially identical to the Commentary on the Sentences; I use the Supplementum references for the convenience of the reader.) In the Response to the Third Objection in the same Question, we are told, however, that the request for the debt is excessive in various ways and therefore unnecessary (or even immoral) to pay, such as being asked for repeatedly or in a case where it would be physically harmful. ²⁴ See Canon 1152 (CIC, 1983); cf. ST Supp., q. 62 – St. Thomas is here using the ecclesiastical jurisprudence and law of his time and place. Note in Article 3 his explicit reference to the fact that the Church could compel a spouse to pay the debt by the sentence of an ecclesiastical court. (Contracting a spiritual relationship with one’s spouse also has implications for the marital debt in the ecclesiastical law of St. Thomas’s world. See ST Supp., q. 56, a. 1.) ²⁵ See ST Suppl., q. 54, a. 5; Interestingly, the fact of the usefulness of marriage for concupiscence as a natural motive for marriage seemingly implies that those who fully reach the acquired virtue of chastity while unmarried in fact ought to presume themselves to be in possession of the charism to live in celibacy unless otherwise evident. ²⁶ The three “goods” (“blessings”) of Matrimony are children, fidelity (or faith), and sacrament. See ST Supp., q. 49.

Now concerning the matters about which you wrote. It is well for a man not to touch a woman. But because of the temptation to immorality, each man should have his own wife and each woman her own husband. The husband should give to his wife her conjugal rights, and likewise the wife to her husband. For the wife does not rule over her own body, but the husband does; likewise the husband does not rule over his own body, but the wife does. Do not refuse one another except perhaps by agreement for a season, that you may devote yourselves to prayer; but then come together again, lest Satan tempt you through lack of self-control. I say this by way of concession, not of command. I wish that all were as I myself am. But each has his own special gift from God, one of one kind and one of another. To the unmarried and the widows I say that it is well for them to remain single as I do. But if they cannot exercise self-control, they should marry. For it is better to marry than to be aflame with passion.²⁷ ²⁷ 1 Corinthians 7:1-9 (NSRVCE).

The use of the marital debt protects the uniqueness of the couple’s union: the availability of sexual goods from one’s spouse removes or at least diminishes the felt desire to seek such goods elsewhere. The “one flesh union” of marriage is a major renunciation of the control over oneself as a sexual being; one is giving that control in large part to one’s spouse.²⁸ ²⁸ Another major source for this discussion is St. Thomas’ Commentary on 1 Corinthians (§320-329). Yet another is found in the De Malo q. 15 a. 2, where St. Thomas urges against “unnecessary” uses of marriage due to such acts being venial sins. The doctrine presented in the De Malo is largely a reiteration of what is presented in the Commentary on the Sentences.

If the marital debt is a category belonging to commutative justice, among the spouses as equals, rather than to domestic justice which is distributive from husband to wife, then it appears that it cannot be a sin in and of itself to request the marital debt, including to avoid sin, which is a good end.²⁹ This is because one cannot sin in asking for what one is truly owed. However, the Commentary on the Sentences does directly imply that requesting the debt to relieve concupiscence is venial sin, in line with the doctrine of St. Augustine, but it does not explain very deeply why this is the case.³⁰ In Article 8 of Question 64 we read on whether it is a mortal sin to ask for the debt at a holy time. The Answer: “To ask for the debt on a feast day is not a circumstance drawing a sin into another species; wherefore it cannot aggravate infinitely. Consequently a wife or husband does not sin mortally by asking for the debt on a feast day. It is however a more grievous sin to ask for the sake of mere pleasure, than through fear of the weakness of the flesh.”³¹ Given the lack of an explanation, including elsewhere in the Question, we are left wondering why making use of marriage at least to avoid sin is itself imputable as sin.³² The best direct response to this comes much earlier, in Question 49, Article 5, in the Reply to the Second Objection: ²⁹ See ST II-II, q. 57, a. 4. ³⁰ For some examples, see St. Augustine, On Marriage and Concupiscence, Book I, ch. 16, and On the Good of Marriage, §6 and §11. ³¹ ST Suppl., q. 64, a. 8, resp. Note that St. Thomas distinguishes between the request being “for mere pleasure” and being “for relief of concupiscence to avoid sin.” Evidently, these are not quite exactly the same thing to him, a distinction with relevance for the deeper discussion which this book takes on later. ³² Article 7 of Question 64 also seems to imply the opposite by specifying that it is not lawful to ask for the debt on holy days when one must be specially given over to prayer; were it never lawful, the more appropriate formulation of the Article’s thesis would be whether it is mortal sin rather than whether it is “lawful,” which we are given in the following Article (8), which then proceeds to presume sin in the asking of the debt by arguing circumstance cannot aggravate the sin into grievous guilt as it does not draw the act into a new species. Evidently, for St. Thomas, that a request for the debt is “lawful” in this sense does not mean free of moral guilt but rather that it exercises a binding claim over the other such that it would be immoral to refuse – “legal” debt.

If a man intends by the marriage act to prevent fornication in his wife, it is no sin, because this is a kind of payment of the debt that comes under the good of “faith.” But if he intends to avoid fornication in himself, then there is a certain superfluity, and accordingly there is a venial sin, nor was the sacrament instituted for that purpose, except by indulgence, which regards venial sins.³³ ³³ ST Suppl. q. 49, a. 5, ad. 2.

The Question does not address the issue of the possibility of concupiscence hindering the ability to pray or do good deeds by a kind of distraction. In the so-called Catechism of St. Thomas, (specifically the sermons constituting the Commentary on the Ten Commandments,) written in the last period of the saint’s life, we will see a similar treatment of the matter which provides a very succinct formula for the evaluation of the motives for the use of marriage.

A natural reading of 1 Corinthians 7:6, the verse regarding allowing the use of marriage for the removal of temptation by concession or permission (συγγνώμην) rather than by command (ἐπιταγήν) is that the Apostle is saying that he is not imposing an obligation on married persons to use their rights to conjugal acts in order to remove temptation; rather, he is merely allowing them to do so, indicating that it is not necessarily sinful in itself. In fact, this helps to make more sense of the following verse in which the Apostle explains that he wishes all were continent like himself, not needing such assistance but rather disciplining oneself through total continence; this regards a higher pursuit of perfection, rather than merely avoiding sin. Were St. Paul speaking of venial sin in the use of marriage to remove temptation “by concession,” it seems he would have contrasted this with the use of marriage to procreate rather than with perfect continence and celibacy.

Of course, Christ Himself counsels celibacy. The apostles decline from the Lord’s words forbidding divorce and remarriage and thus lead themselves to the conclusion – “It is better not to marry.” (Matthew 19:10) Their selfish motives for desiring celibacy are the upshot of their selfish motives for marriage, yet they are valid motives nevertheless – it is easier to absent oneself from such trouble as might lead to the desire for divorce and then be unable to do so in view of marrying again. The propensity for a spouse to misuse their rights to conjugal acts, in favor of children or not, is in fact a similar reason why it is better to avoid marriage. One must realize that marriage is a true renunciation of self – a risking of one’s whole life.

It must be noted that the fundamental concern of St. Augustine and St. Thomas – and essentially the entire body of classical authors, ancient, medieval, and baroque, even up to the 1900’s – is about the suspension of the act of reason by which we know, love, and serve God. Because of its intense pleasure, the sexual act inhibits the reason’s proper functioning, like drunkenness. This is why there is a need to excuse the marriage act.³⁴ ³⁴ See ibid., a. 1.

Clark, New Questions, Old Answers, Chapter One: The Marital D…, The Doctrine of The Catechism of St. Thomas Aquinas

We return to a central question: what would St. Thomas say about NFP? Several distinctions must be made before providing an answer, after which we will consider the recent magisterial literature and then find a solution for how to reconcile St. Thomas with common teaching. We look now at the text of The Catechism of St. Thomas Aquinas on the use of sex within marriage.

Moreover, it must be known that the Commandment, “Thou shalt not commit adultery,” not only forbids adultery but also every form of immodesty and impurity. There are some who say that intercourse between married persons is not devoid of sin. But this is heretical, for the Apostle says: “Let marriage be honorable in all and the bed undefiled.” (Hebrews 13:4) Not only is it devoid of sin, but for those in the state of grace it is meritorious for eternal life. Sometimes, however, it may be a venial sin, sometimes a mortal sin. When it is had with the intention of bringing forth offspring, it is an act of virtue. When it is had with the intent of rendering mutual comfort, it is an act of justice. When it is a cause of exciting lust, although within the limits of marriage, it is a venial sin; and when it goes beyond these limits, so as to intend intercourse with another if possible, it would be a mortal sin.⁵⁸ ⁵⁸ The Catechetical Instructions of St. Thomas Aquinas, p. 80; trans. Collins, Joseph (1939), made available online by The Catholic Primer, 2004. Cf. ST Suppl., q. 49, a. 4; see also Commentary on 1 Corinthians, §328-329, which reiterates largely the same doctrine.

There are these four categories of the use of the marriage bed: virtue, justice, venial sin, and mortal sin.

First there is “virtue,” which is dependent upon direct or “actual” or at least “virtual” procreative intention willed in an act of intercourse.⁵⁹ The generosity of the spouses towards the possibility of receiving children and thus building up the community and raising souls to love and serve God is thereby manifested, making it “virtuous.” ⁵⁹ I take here Fr. John Hardon, SJ’s definition of “virtual intention,” aware that there could be other ways to define the term. “An intention that was once made and continues to influence the act now being done. But it is not present to the person’s consciousness at the moment of performing the act. This kind of intention is sufficient for a human act to be voluntary and therefore morally responsible.” See “Virtual Intention,” John Hardon’s Modern Catholic Dictionary (Eternal Life), https://www.catholicculture.org/culture/library/dictionary/index.cfm?id=37121. To interrupt or stop a virtual intention towards children in one’s use of marriage would require some positive mental act or desire for such interruption, even if only vaguely.

Second, and most interestingly for us, there is “justice,” which is the case of the marital debt. The text here does not give a detailed explanation of the marital debt the way the Commentary on the Sentences does. A plain reading of the text, however, in particular due to the word “mutual” in the phrase “rendering mutual comfort,” implies that the request to have one’s concupiscence calmed is just insofar as it requests what is rightfully one’s own, which is the spouse’s body in marital union. It could be imagined here that such union is the due means of the preservation of oneself from the possibility of illicit sexual activity or even merely from annoying distraction from the normal pursuit of rational and social goods; to give this to one’s spouse is righteous, for the preservation of one’s spouse from sin and assisting him or her in pursuit of holiness is one of the main purposes of the sacrament of Matrimony. The one who renders the comfort is also comforted him or herself, thus contributing to the overall psychological health and friendship of the spouses. However, this is a deliberate eisegesis – it is quite clearly at odds with St. Thomas’s intention. If he was disagreeing with his previous teaching on this point, we would expect him to be clear about it.

Third there is “venial sin,” which is mere pleasure seeking (contradistinguished from the need to pay or receive the debt and also from the intention towards procreation), and fourth there is “mortal sin.” These two cases are explained in the Commentary on the Sentences in the following way:

[If] pleasure be sought in such a way as to exclude the honesty of marriage, so that, to wit, it is not as a wife but as a woman that a man treats his wife, and that he is ready to use her in the same way if she were not his wife, it is a mortal sin; wherefore such a man is said to be too ardent a lover of his wife, because his ardor carries him away from the goods of marriage. If, however, he seek pleasure within the bounds of marriage, so that it would not be sought in another than his wife, it is a venial sin.⁶⁰ ⁶⁰ ST Suppl., q. 49, a. 4.

The case of venial sin in relation to the case of “justice” is what is most interesting for us in our inquiry. The meaning of “seeking pleasure” seems to indicate the use of sex to “recreate” within the bounds of marriage, and this must also in fact imply an absence of an actual or virtual procreative intention, or else it would be in the category of “virtue.” In fact, “sexual recreation” is the very same “excitement of lust” which is spoken of in the Catechism text quoted above, and it is treated in the Commentary on the Sentences as a movement based on sexual appetite as opposed to a movement of reason which would entail virtue.⁶¹ This sort of sexual activity is an unnecessary and therefore demeritorious momentary inhibiting of the powers of reason and a movement toward the creation of a habit of such activity, together with the onset of a general dulling of the spiritual senses over time.⁶² Thus it is not eutrapelia either, which merely relaxes the mind through recreation but does not make one lose the power of reasoning altogether as does sexual union.⁶³ Any social goods which such recreational sexual activity can produce in the couple can and should be pursued by other means – and St. Thomas was certainly not unaware of the social or psychological benefits of conjugal activity, which point functions as the anchor for the contrary argument today, insofar as an argument is even made.⁶⁴ ⁶¹ Ibid. ⁶² See ST II-II q. 153, a. 2, ad. 1; a. 5. ⁶³ ST II-II q. 168 a. 2 resp. ⁶⁴ See SCG III ch. 123, 6: “Furthermore, the greater that friendship is, the more solid and long-lasting will it be. Now, there seems to be the greatest friendship between husband and wife, for they are united not only in the act of fleshly union, which produces a certain gentle association even among beasts, but also in the partnership of the whole range of domestic activity. Consequently, as an indication of this, man must even ‘leave his father and mother’ for the sake of his wife, as is said in Genesis (2:24). Therefore, it is fitting for matrimony to be completely indissoluble.” St. Thomas Aquinas, Summa Contra Gentiles, ed. Joseph Kenny; trans. Vernon Bourke; (Hanover House: New York, 1955-1957).

It is clear that for St. Thomas it is always a venial sin to request the debt, unless this be for the sake of procreation, and the spouse is morally obliged to pay the debt, even if the spouse does not presently wish to have children. St. Thomas would say that the one requesting the debt outside of this purpose would be owed its payment by strict or legal debt, and that this is simply a bad use of what one is owed by justice. Only the gravest sort of reason would allow for a spouse to withhold the payment of the debt; the analogy which comes to mind is the example St. Thomas gives of the rebel who wishes to claim his deposited sword, which return may be refused him.⁶⁵ ⁶⁵ ST II-II, q. 120, a. 1; the treatment of the “bottom line” regarding cases of requesting and refusing the marital debt goes beyond the scope of this book. St. Thomas does treat the issue at some length in the Commentary on the Sentences.

Diss. I, Chapter I — On the essence and institution of matrimony · Diss. I, Chapter II — On the matter, form, and minister of the sacrament of matrimony · Diss. I, Chapter III — On the conditions of the mutual consent necessary to matrimony · Diss. I, Chapter IV — On the properties of matrimony, and on simultaneous and successive polygamy

While interiorly coherent reasoning, one is still left with the sense that this treatment simultaneously overstates the claim a spouse has on the other’s body (viz., to use it for one’s sin), and underappreciates the utility of the use of marriage in easing concupiscence insofar as marriage and its act exist secondarily for this end. Yet we should not easily stray from the teaching of St. Thomas, and indeed we see that some have clearly gone too far.

n. 11.

Some contemporary authorities, such as those seeking to popularize and promote the teachings of St. John Paul II on human sexuality, might even go so far as to imply that the marital act is a spiritual act or experience, which is utterly foreign to the thought of St. Thomas and to the general moral-ascetical-mystical tradition.⁶⁶ On the contrary, it is noted by Pius XII that the use of mutual abstinence in marriage is helpful for freeing oneself for prayer in a way that is superior to the habitual use of marriage.⁶⁷ Thus we can certainly understand the conclusion of St. Thomas that the desire to use pleasure in the marital act (and to use the marital act itself) is legitimate only when annexed to the payment of the marital debt or to an intention to conceive children by the sexual act, especially given that this is rooted so deeply in the teaching of St. Augustine.⁶⁸ Besides, the more one enjoys an act chosen under the impulse of reason as opposed to passion, the more virtuous that act will be, as one is desiring it with his whole self, rather than forcing a part of himself by a kind of violence.⁶⁹ ⁶⁶ ST II-II, q. 186, a. 4: “The religious state requires the removal of whatever hinders man from devoting himself entirely to God’s service. Now the use of sexual union hinders the mind from giving itself wholly to the service of God, and this for two reasons. First, on account of its vehement delectation, which by frequent repetition increases concupiscence, as also the Philosopher observes (Ethic. iii, 12): and hence it is that the use of venery withdraws the mind from that perfect intentness on tending to God. Augustine expresses this when he says (Solil. i, 10): ‘I consider that nothing so casts down the manly mind from its height as the fondling of women, and those bodily contacts which belong to the married state.’” (The second reason is related to the preoccupation of caring for one’s household, which arises from marriage and offspring.) See also ST Suppl., q. 41, a. 3, ad. 3. ⁶⁷ Pope Pius XII, Sacra Virginitas (Vatican City: Libreria Editrice Vaticana, 1954) §38: “Or rather does not the Apostle Paul admit [1 Cor. 7:5] that they have the right of abstaining for a time from the use of marriage, so that they may be more free for prayer, precisely because such abstinence gives greater freedom to the soul which wishes to give itself over to spiritual thoughts and prayer to God?” ⁶⁸ Following on the analogy with communication, an analogy with digestion could also be made, namely, that to eat only for pleasure without any bodily benefit foreseen, i.e., intentional overeating, would also be sin. See ST II-II q. 148, and SCG III ch. 127, 1. However, the digestive faculty is not structured entirely the same way as the sexual faculty, and this analogy faces the similar problems which are explored in Chapter Three with regards to solam voluptatem. ⁶⁹ ST I-II, q. 24, a. 3, ad. 1.

…and 16 more passages — all of them are listed on the topic page.

Concina, Compendium

Daniele Concina, O.P. — 220 passages (filed under the subtopics)

Diss. I, Chapter I — On the essence and institution of matrimony

I. St. Augustine, Book 1 On Adulterous Marriages, to Pollentius, says: I know not whether the question concerning marriages be not the most obscure and most implicated. Nor do I dare to profess that I have as yet unfolded all its recesses either in this work or in another, or that I am now able, though it press to be explained. In the time of Augustine heretics, in our age not a few Moralists, have by diverse ways obscured this tract.

II. The conjunction of male with female the ancients called matrimonium rather than patrimonium, because it belongs to the woman to bear, to nourish, and to educate offspring. Nuptiae also is called matrimonium from nubendo; and conubium, and conjugium from the common yoke to which both man and woman are subjected.

III. Matrimony is regarded in three ways: 1. As a natural contract; 2. As a civil contract; 3. As a sacrament of the new law. Absolutely it is described as the marital conjunction of a man and a woman between lawful persons, retaining an undivided companionship of life. But it is added, as it is a sacrament divinely instituted, a sign of the conjunction of Christ with the Church, having the promise of grace for uniting the souls of the spouses, and for educating offspring piously and holily in the Christian faith. Lastly matrimony is threefold: legitimate, ratified, and consummated. Legitimate is that which is by the law of nations, contracted according to the norm of the civil laws, such as is that even of unbelievers. Ratified is that which is perfected according to the laws of the Church, and which is approved by the Church. Consummated is when the spouses are mingled together by carnal copulation.

n. IV.

IV. It coalesces out of several things: 1. Mutual consent; 2. An external promise; 3. A reciprocal delivery of bodies; 4. Thence results a perpetual bond; 5. The mutual obligation of rendering the debt; 6. The right which each has in the other; 7. Carnal copulation.

n. V.

V. All Catholics deny that the essence of matrimony is set in carnal copulation. Between Adam and Eve there was true matrimony before their commixture. True was the matrimony of the Patriarch Joseph with the Blessed Virgin, all carnal copulation being utterly excluded.

n. VI.

VI. The mutual consent of the contracting parties is the efficient cause of matrimony. The Encratites, Marcionites, Manichees, and Priscillianists denied matrimony to be honourable and good. But the holy Scriptures and all Catholics execrate the error of those ravers. Since indeed matrimony was instituted by natural and divine right. The precept of contracting matrimony regards not individuals but the multitude.

n. VII.

VII. QUESTION I. Whether in the old law matrimony was a sacrament? ANSWER. The character of a sacrament can be regarded in two ways: 1. In the broader signification, according as in whatsoever manner it is called a sign of a sacred thing; 2. Inasmuch as it is a practical and efficacious sign of sanctifying grace. The common opinion of theologians denies that matrimony before the coming of Christ was a true sacrament. But that in the broader signification it was a sacrament, all concede, since, instituted in the state of innocence itself, it was a sign of the conjunction of Christ with the Church. This now is bone of my bones, and flesh of my flesh. … Wherefore a man shall leave father and mother, and shall cleave to his wife: and they shall be two in one flesh. Genesis 2.

n. VIII.

VIII. QUESTION II. Is matrimony in the evangelical law a true sacrament? ANSWER. Hus, Luther, Calvin, and the Protestants deny it; but it is of faith that it is a true sacrament, St. Paul saying, Ephesians 5: For this cause shall a man leave his father and mother, and shall cleave to his wife, and they shall be two in one flesh. This is a great sacrament; but I speak in Christ and in the Church. There is added the perpetual tradition of the Church, whose documents I have given in Vol. X, Book 2, dissertation 1, chapter 4.

n. IX.

IX. QUESTION III. Whether matrimony celebrated between absent faithful through a proctor be a true sacrament? ANSWER. Soto, Isambert, Gotti, Tournely, and very many others affirm it. Victoria, Cano, Cajetan, Catharinus, Vanroy, and others deny it. This second opinion is to me the more probable. For no sacrament is celebrated between the absent. Nor do these words I join you together, and so forth, require the contracting parties present any less than those other words I absolve thee require a present penitent. The use of absolution given to one absent Clement VIII condemned. Tournely answers that absolution given to one absent is not against the nature of the sacrament, and could be given, did not the prohibition of Clement VIII stand in the way. This answer seems futile. Did Clement VIII condemn the aforesaid opinion at his own arbitrary pleasure? He condemned it because these words I absolve thee require a present penitent. Valid therefore will be a matrimony entered upon between absent parties through a proctor in the character of a natural and civil contract; but that it is not a true sacrament is to me the more probable.

n. X.

X. The matrimony of unbelievers after the promulgation of the evangelical law is not a sacrament. Similarly the matrimony of a believer with an unbeliever is not a sacrament, as seems to me the more probable. If unbelieving spouses be converted to the faith, their matrimony does not become a sacrament according to the more probable opinion: because a later intention cannot bring it about that a contract entered upon, which was not a sacrament, should afterwards become one.

n. XI.

XI. Marriages of Catholics with heretics are altogether unlawful, as all theologians confess. But no law declares them invalid.

Diss. I, Chapter II — On the matter, form, and minister of the sacrament of matrimony

I. QUESTION I. What is the matter of the sacrament of matrimony? ANSWER. I could recount more than seven opinions of theologians in designating the matter and form of this sacrament. But these being dismissed, with St. Thomas, to whom theologians commonly subscribe, I say it is the acts of the contracting parties. These are his words, Supplement, question 42, article 1, reply 2: The sacrament of matrimony is perfected by the act of him who uses that sacrament, as is penance. And therefore, just as penance has no other matter save the acts themselves subject to sense, which are in place of the material element, so is it of matrimony.

II. QUESTION II. Whether the priest assisting the contracting parties be the minister of the sacrament, and whether his words have the character of the form? ANSWER. There are two opinions, each of which has its most grave patrons, even in the Thomist school. Gonet, Gotti, and very many others teach that the contracting parties themselves are the ministers of this sacrament, and that their words are the form of the sacrament.

III. On the contrary, that the priest himself assisting is the minister of the sacrament, these most grave men maintain: William of Paris, Melchior Cano, Cardinal Toletus, Peter Ledesma, Peter de Marca, Maldonatus, Francis Sylvius, Assius, Natalis Alexander, Tournely, Le Drou, Gibert, Herminier, Du Hamel, Juvenin, Florentinus de Coq, Vanroy, Piette, Bannez. And by these arguments they evince their opinion.

n. IV.

IV. Trent, session 24, chapter 1 On Reformation, established: Let it be proceeded to the celebration of matrimony in the face of the Church, where the parish priest, the man and the woman being questioned and their mutual consent understood, shall either say: I join you together in matrimony, in the name of the Father, and of the Son, and of the Holy Ghost; or shall use other words according to the received rite of each province. It seems to be gathered hence clearly enough that the priest is the minister of this sacrament, and that the words which he brings forth are the form. For the Council prescribes the words to be employed, or others according to the rite of each Church. In the same place it subjoins that this blessing is to be made by the proper parish priest. Several Councils — of Cologne, Cambrai, Rheims, Tours — which Sylvius reports, I pass over.

n. V.

V. To these are added very many Rituals. The old Roman one of 1494 collected by Fr. Castellanus O.P. Another Roman one published by the command of Paul V prescribes these words I join you together, and so forth, to be brought forth by the parish priest as the minister of this sacrament. Fr. Martène On the Ancient Rites of the Church, Vol. II, Book 1, chapter 9, adduces several others upon this matter. Let it suffice to praise one, the Milanese, in which St. Charles Borromeo, part 4, took care to insert this: namely that there are only five sacraments which a parish priest can by office administer — Baptism, the Eucharist, Penance, Matrimony, and Extreme Unction.

n. VI.

VI. More clearly is this opinion confirmed by an argument which admits no solid answer. The Lutherans and Calvinists deny matrimony to be a sacrament, and study to elude with acute cavillings the testimonies of the Scriptures by which we evince that it is a sacrament. I yield. By what reasonings do we explode their comments? By none other than by the apostolic and universal tradition of the Church, of all the Fathers and Councils. Now all the Fathers with one voice call the nuptials sacred, because they are consecrated by the sacred blessing of the priest. The testimonies of the Fathers I have given in Vol. X, Book 2, dissertation 1, chapter 4, where they can be read.

n. VII.

VII. Adversaries reply that the priest's blessing, which all the Fathers require, is indeed necessary by the Church's mandate as an accidental ceremony for the greater solemnity of the nuptials, but not for the necessity of the sacrament imposed by divine precept. This answer to me is false. Let adversaries answer: Whence shall we draw arguments from tradition, that we may evince against the Protestants that matrimony is a sacrament, if the recounted answer stand? Assuredly, if the blessing of the priest, by which all the Fathers affirm that the nuptials are consecrated, so that they may show matrimony raised to the dignity of a sacrament, be a merely accidental ceremony, then all the safeguards fetched from tradition are taken from us, by which we may fight against the innovators denying matrimony to be a sacrament. For the tradition of the universal Church being taken away, which is the lawful interpreter of the sacred Scriptures, we are altogether unarmed in the contest, and fall from our cause against those same innovators.

n. VIII.

VIII. Besides, the sacraments are ceremonies and sacred things of Religion: therefore a sacrament is a work of Religion. Further, not every sign of a sacred thing is a sacrament, but only that which is sacred. Since therefore matrimony is contracted civilly and profanely by the words alone of the man and the woman, although it be a seal of a sacred thing, it is nevertheless not a work of sacred Religion, and so not properly a sacrament. Otherwise the brazen serpent and the manna in the desert would have to be called sacraments. Therefore marriages without a sacred minister and without a sacred ceremony of Religion are not sacraments.

n. IX.

IX. What more? The Council of Florence, the seven sacraments of the new law being enumerated, thus defines: All these sacraments are perfected by three things: namely by things as the matter, by words as the form, and by the person of the minister conferring the sacrament; and if one of these be lacking, the sacrament is not perfected. Who is the ordinary minister of the sacrament, without whom the sacrament is not perfected? The spouses themselves? Are lay men the ordinary ministers of the sacraments? A woman baptizes when necessity urges, but she is not the ordinary minister; the priest is. Priests alone, consecrated by the sacrament of Order, are the lawful dispensers of the mysteries of Christ, as the Apostle Paul says, 1 Corinthians 4: Let a man so account of us as of the ministers of Christ, and the dispensers of the mysteries of God. By what right therefore can this power of administering the sacrament of matrimony — which is called by the same Paul a great mystery — be taken away from them and ascribed to a woman, to whom it is not even permitted to speak in the Church? Whence do the patrons of the adverse opinion gather that lay contracting parties are the ordinary ministers of the sacrament? From what testimony of the Scriptures, from what Council, from what tradition of the Fathers do they draw that the character of the sacrament of matrimony is diverse from that of all the rest? Assuredly they can adduce no monument of sacred antiquity. The ordinary minister of all the other sacraments is a priest. Christ in the new law raised matrimony to the dignity of a sacrament. And did he not institute a priest as minister of this sacrament alone? Solid and perspicuous reasoning evinces that, just as he raised matrimony to the dignity of the other sacraments, so, just as he instituted priests as ministers of the other sacraments, he instituted priests as ministers of matrimony also. This reason evidently demonstrates; this tradition confirms. That they may except the sacrament of matrimony from this universal rule and just principle, it does not suffice to bring one or another conjecture or an ambiguous testimony; but there are required most clear testimonies and a manifest exception.

n. X.

X. The spouses receive the sacrament of matrimony. Of the sacraments which consist in the action alone, the minister is distinguished from the receiver. For no one can baptize, confirm, or absolve himself. How therefore can it come about that the spouses receiving the sacrament of matrimony are at the same time the ministers? For either each contracting party administers the sacrament to himself, or one to the other. Not the first: because, as I have said, no one can administer to himself a sacrament set in an action. If the second, two effect the sacrament: for neither is the sacrament so divisible that one minister should perfect one part and another minister the other part. For although two ministers can confer a sacrament upon a third at the same instant, yet it can in no way be perceived by what reason two spouses can effect one minister who should administer the sacrament to themselves. On the other hand neither can perfect the sacrament without the other. And then it is asked whether the man confers the sacrament upon the woman first, or the woman upon the man. The words therefore of the contracting parties are the matter of the sacrament; they are not the form. For the form of every sacrament is sacred, from which it is called a sacrament. These words I take thee as mine are in no way sacred. For these or like words were employed before Christ instituted matrimony a sacrament, and are employed by those destitute of all reason and Christian faith. If I wished to recount all the trifles which some — says Melchior Cano, who first of all brought this opinion into the light — have devised, that they might distinguish the matter from the form of this sacrament, I should fill leaves. This one says that the contracting parties themselves are the matter of the sacrament; that one, not they themselves but the consent; another, the gestures and nods which are employed by the man and the woman apart from the words. Another affirms that the words of the first speaker are the matter, those of the latter the form. Which things — would that they were said gravely and probably, lest we be by right derided by the heretics! To what end, in a matter most grave and necessary to faith and religion, to philosophize thinly, not to say ridiculously?

n. XI.

XI. Lastly this opinion is safer, and at the same time exceedingly probable, as being maintained by most grave theologians. Wherefore Benedict XIV, Book 8 On the Synod, chapter 13, no. 5, says: But although the opinion of Melchior Cano hitherto explained be fortified by so many suffrages of Doctors, and exceedingly probable, and it be free to anyone without the note of error to embrace it, and so forth. Not merely probable, but exceedingly probable is this opinion. But on the other hand it is at the same time safer. For all theologians to a man confess that matrimony blessed by a priest with the ecclesiastical rite is a true sacrament. On the contrary very many and most grave theologians deny that, the aforesaid rite being taken away, it is a sacrament. But that opinion is the safer concerning which no one of the theologians is in doubt. Therefore this of ours is the safer, and the contrary the less safe. All these things are certain and beyond controversy. And yet by the decree of Innocent XI, when there is question of the validity of the sacraments, out of two probable opinions disputed on either side by theologians, the safer is to be chosen. Therefore this ours is to be embraced, and the other rejected.

n. XII.

XII. The things which are objected against it by adversaries are, as I at least judge, of no moment. I have weighed them all in Vol. X, Book 2, chapter 2, and rejected them, and you can read them there, that I may avoid prolixity.

Diss. I, Chapter III — On the conditions of the mutual consent necessary to matrimony

I. QUESTION I. Whether, that matrimony be valid, the consent of each spouse be required? ANSWER. All affirm it. That consent must needs be internal, sincere and not feigned, free and not forced, immune from error, public, and manifested by an exterior sign. For in no way does internal consent suffice, unless it be manifested by an exterior sign. Because that consent is the matter of the sacrament, which must necessarily be sensible. But that consent ought to be expressed outwardly either by words, or by nods clearly indicating the internal consent. Those nevertheless sin, as a rule, who being able to speak, words being omitted, employ nods or other signs. Except girls of excessive modesty, who today occur exceedingly rarely.

II. Consent feigned and simulated internally, although outwardly expressed by words, does not suffice for matrimony. He sins mortally who contracts feignedly and simulatedly, and is bound to consent truly and sincerely. Nor is credence given in any tribunal to one asserting that he contracted feignedly and simulatedly, nor is it to be given; but rather he deserves to be struck with penalties. And simulators of this kind are by no means to be absolved, until they have given true and sincere consent.

III. If a man contracted feignedly with the first, and afterwards the simulator contract with a sincere and true mind with a second, the ecclesiastical judge commands that he remain with the first: because judgment and right bring forth sentence according to those things which appear and are presumed. For the rest, if with the first the consent was in truth before God feigned, and sincere with the second, then let him rather (says St. Thomas, Suppl., q. 45, art. 4, reply 3) sustain excommunication than approach the first wife, or he ought to flee into other remote regions. For the second in this case would be the true wife. And when certain and undoubted arguments of the feigning with the former woman appear, then the ecclesiastical judge, a penance being imposed and the loss inflicted upon the former woman being repaired, ought to absolve the guilty party and to declare the first matrimony null.

n. IV.

IV. Offspring received from a feigned matrimony is to be held legitimate, until the feigning be proved, as all teach. When one of the spouses knows that a former matrimony dissolved by the judge's sentence is before God valid, he cannot enter upon a second marriage.

n. V.

V. QUESTION II. Whether consent extorted by fear makes matrimony null? ANSWER. Theologians distinguish manifold fear. One is grave, which is conceived concerning some grave evil imminent, as death, exile, prison, mutilation; or it can be grave from the vehement apprehension of the one fearing. To a woman an evil can be grave which to a man is slight. Slight fear is concerning a slight evil, both in itself and in respect of the person fearing. Besides, one fear arises from a natural internal cause, which impels to act for the preserving of life, or for the fleeing of eternal punishment. Another proceeds from a cause acting outwardly. And this is twofold: for either the cause acting outwardly is only an occasion, as is a tempest of the sea in respect of a merchant; or the cause directly strikes in fear, as a robber who with drawn dagger threatens death, unless money be consigned to him. Moreover another fear is just, struck in by a judge or lawful superior from a just cause; as when a judge casts the violator of a girl into prison, and binds him to take her in matrimony. Another is unjust, which is struck in without a just cause. Another lastly is reverential fear, such as is that of children toward parents.

n. VI.

VI. Matrimony celebrated from grave fear unjustly struck in is null and void, as all confess: because that consent extorted by such fear fights with a perpetual concord of souls and with benevolence. This matrimony is null by ecclesiastical right, most consonant with natural right, as seems to me the more probable. Matrimony on the contrary from fear justly struck in, whether from a natural and internal cause or from an external one, is valid, just as matrimony celebrated from slight fear.

n. VII.

VII. Hence: 1. He who takes a concubine for fear of death contracts a valid matrimony. 2. He who, justly condemned to death, if he be sought in marriage by some woman that he may decline death, contracts validly. 3. Valid also is the matrimony of him who, the judge threatening death or prison, marries the woman he deflowered.

n. VIII.

VIII. Sempronius, having suffered an injury from Titius by theft or another crime, threatens to accuse him before a judge unless he marry such a girl: the matrimony would be null, because Sempronius has no right of compelling Titius to marry such a girl, although he has a right of accusing him for the theft. He who under an unjust fear was compelled to marry is not bound to render the debt.

n. IX.

IX. Matrimony entered upon under compulsion becomes valid through free consent, provided that in the other party which contracted freely the consent persevere. Temporal lords and magistrates who directly or indirectly unjustly strike in grave fear, that they may compel someone to contract matrimony, are by that very deed excommunicated by the Council of Trent, session 24, chapter 9 On Reformation.

n. X.

X. Consent limited by a condition makes matrimony null. Wherefore if anyone say, I take thee as my wife, if my father shall have consented, the matrimony is null, because the condition suspends the consent. General and necessary conditions, as if you say, I will marry thee, if it shall please God, in no way suspend the matrimony. If they be impossible or shameful, which do not infect the substance of matrimony, they are held as not added. All conditions which infect the substance of matrimony make it null, as are these: I take thee as mine, if thou shalt bear me no sons, if thou shalt avoid generation, if thou shalt take the poison of sterility, if thou shalt prostitute thyself to be an adulteress. I contract with thee until I shall have found a fairer or richer. These and like conditions destroy the very substance of matrimony, and make it null.

n. XI.

XI. If to matrimony or to betrothals conditions be appended concerning the present or the past, the condition being posited, the betrothals and the matrimony subsist; and the condition being taken away, the betrothals and the matrimony are null: as if you say, I take thee as mine, if thou be a virgin, if thou be the firstborn, if thy parents consent, if thou be noble, if thou be legitimate. If, the matrimony being consummated, it be detected that at the time of contracting she was not a virgin, nor legitimate, nor noble, nor firstborn, the matrimony is null; nor can carnal copulation make it valid. If anyone say, I take thee as mine, if it shall please thy father, and knew that the father was dead, the condition is held as not added. But if he was ignorant of the father's death, a new consent is necessary, that the matrimony be valid. For it is null by reason of the first conditioned consent, because the condition suspends the effect. If the father live and be silent, because the contract pleases him, then the matrimony is valid. If it be detected that he is silent because it displeases him, then the contract is null. If it be doubted why he is silent, the contract is to be suspended until he declare himself. If he consent, and afterwards dissent, the matrimony is valid, provided they persevere in the will of contracting until the father's consent. There is need nevertheless of prudence, and it is to be gathered from the circumstances regarded whether the father's consent was in fact full and true. Nay, prudence dictates that these conditions, as being wellsprings of doubts, are in a contract of so great moment — namely matrimony — altogether to be rejected; and that either one must contract absolutely, or abstain from such a contract.

n. XII.

XII. An honourable condition contrary to the goods of matrimony makes matrimony null; as if they contract under the condition of perpetual chastity, then no right to copulation is given. But this right being taken away, the matrimony is null. Nay, although there can be conjoined with matrimony an intention of not asking the debt, yet if this be brought into an agreement, the substance of matrimony is destroyed. The Blessed Virgin and the Patriarch Joseph contracted absolutely, and mutually transferred power over their bodies, no reciprocal agreement being added, although they had the mind of abstaining from all carnal copulation, God so illuminating their minds.

n. XIII.

XIII. Those entangled in a diriment impediment who contract, the condition being added if the Pope shall dispense, effect a conditioned marriage; but conditioned marriages of this kind are never to be admitted, whether the impediment be of those in which the Pope is wont to dispense, or of another kind.

n. XIV.

XIV. Consent is to be expressed by those formulas of words which according to the custom of the country declare a consent true, sincere, reciprocal, and of the present, such as are these: I take thee as my wife; I take thee as my husband, and so forth.

Diss. I, Chapter IV — On the properties of matrimony, and on simultaneous and successive polygamy

I. Three are the properties, or goods, of matrimony, namely fidelity, offspring, and the sacrament. Fidelity is here taken for that faithfulness by which promises are fulfilled, and it is a part of justice. Spouses violate fidelity if they know another man or another woman. Offspring is the end of matrimony. The sacrament signifies and confirms indissolubility. In fidelity therefore the conjunction of one with one is understood.

II. To the oneness of matrimony there is opposed simultaneous polygamy, or a plurality of wives. It is agreed among all that the polygamy by which one woman should marry several men is against natural right, both primary and secondary. It is disputed only concerning the polygamy by which one man takes several wives, whether it be adverse to natural and divine right.

Slater, Cases II, Matrimony, Case 1. Informal Betrothal · Slater, Cases II, Matrimony, Case 2. An Action for Breach of Promise · Slater, Cases II, Matrimony, Case 3. A Promise Confirmed by Oath · Slater, Cases II, Matrimony, Case 4. Debts of Betrothed

III. The common opinion of theologians is that polygamy is adverse to natural right. It is nevertheless to be adverted that natural right is of one kind invariable and immutable, of which sort are the first universal principles which regard the primeval end of nature. In these no dispensation, no interpretation falls. For the things which are forbidden by this right are intrinsically evil. Another is natural right obnoxious to variation by reason of times and circumstances. This variety God alone, the founder of the right of universal nature, and its most wise comprehender and moderator, knows. Therefore he alone can dispense, or rather interpret and declare, when and how man is obnoxious to this right.

…and 180 more passages — all of them are listed on the topic page.

Slater, Cases II

Thomas Slater, S.J. — 447 passages

Slater, Cases II, Matrimony, Case 1. Informal Betrothal

Titius, a missionary priest, wishes to know whether, by virtue of the decree Ne temere of the Sacred Congregation of the Council, Aug. 2, 1907, a mutual, serious, and deliberate promise of marriage between capable persons, but not made in writing, is of no effect, or whether, notwithstanding the decree, it has the force of a private contract binding gravely in conscience. Furthermore, he asks whether under the name of parish priest in the cited decree are comprehended not only the principal priests in a mission but also their assistants, if there are any. Hence it is asked:

What is the purpose of the decree Ne temere?

What does that decree establish concerning betrothals?

What power do assistant missionaries in England have?

What is to be said of Titius’s difficulties?

Solution

What is the scope of the decree Ne temere?

The scope of this decree was to alter the law about clandestinity so as to remove its uncertainties as far as possible, and to prevent the evils which frequently arise from private and informal betrothals. (Proœmio decreti Ne temere.)

What does the decree lay down about betrothal?

“ Only those betrothals are considered valid and produce canonical effects which have been contracted in writing signed by both the parties and by either the parish priest or the ordinary of the place or at least by two witnesses. In case one or both the parties be unable to write, this fact is to be noted in the document and another witness is to be added who will sign the writing as above, with the parish priest or the ordinary of the place or the two witnesses ” (Sect. 1).

What authority have coadjutor missioners in England?

They are delegated by the bishop to exercise the cure of souls, but according to the Provincial Councils and the declared intention of the bishops, they must exercise it in dependence on the head priest. 1

What about the difficulties of Titius?

One of the objects of the new law was to prevent the inconveniences arising from mutual promises of marriage privately entered upon. For as the decree says: “ Experience shows that they are an incitement to sin, causing the deception of inexperienced girls, and afterward giving rise to inextricable dissensions and disputes.” The first section of Ne temere, therefore, provides that “only those,” etc., as above. This section would be valueless for the object in view unless it invalidated betrothals made otherwise than is laid down. So that we must conclude that betrothal not made according to the decree has no binding force directly and of itself. The

S. C. super neg. eccles. extraord., 5 Nov. 1902, decided that informal betrothals were invalid in conscience and in law in Spain and in Latin America, where a similar law 1 Manual of Moral Theology, vol. i, 630.

to Ne temere has long been in force. This doctrine is maintained by most commentators, e.g., by Gennari, Ojetti, Vermeersch, Ferreres, Besson.

The term parish priest comprises the coadjutors as well as the head priest, but the former are bidden to exercise their authority in dependence on the head priest; with dependence upon the Rector.

Slater, Cases II, Matrimony, Case 2. An Action for Breach of Promise

Titius, the son of a wealthy family, seriously, but only by words and love letters, promised marriage to Catherine, an honorable girl. For two years Catherine admitted him to the familiarity customary between betrothed persons, when his love began to grow cold; after some months he contracted marriage with Bertha, who was much richer than Catherine. The abandoned Catherine has scarcely any hope or desire for another spouse, but asks her confessor whether she can safely in conscience bring an action against Titius for breach of promise, since otherwise she has no means by which she may be honorably supported. Hence it is asked:

What is required for betrothals to be valid?

Does any obligation arise from informal betrothals?

If some right arises from informal betrothals, is it lawful to pursue it in a civil court?

What is to be said of the case?

Solution

What is required for valid betrothal?

The decree Ne temere lays down that: “ Only those are considered valid and produce canonical effects which have been contracted in writing signed by both the parties and by either the parish priest or the ordinary of the place, or at least by two witnesses.”

The second question was answered above, p. 244.

But here it must be borne in mind that although no obligation arises directly from informal betrothal in itself, yet obligations do arise indirectly from such betrothal when they are the cause of serious injury to another. There is always an obligation in justice to make reparation for wilful and culpable injustice done to another.

If any right arises from informal betrothal may an action be brought in the civil courts?

Per se questions about marriage and betrothal belong to the ecclesiastical courts. But in countries like England and the United States where no legal force is recognized in ecclesiastical sentences of the Catholic Church, certain cases may be brought into the civil courts which would otherwise have to be tried in the ecclesiastical courts.¹ In cases especially where the injury is not doubtful, and the only practical question is one of damages claimed for the injury, there seems no objection against applying to the civil courts.

1 Manual of Moral Theology, vol. ii, 282.

The case. Catherine has a right to damages for the cruel deception that was practised on her, and for the ruin of her prospects, although the betrothal was not valid in itself. English law gives her a right of action in such a case, and the Church certainly does not wish to deprive her of it. Her confessor, therefore, may tell her that she is perfectly justified in suing Titius for damages for breach of promise in the civil court.

Slater, Cases II, Matrimony, Case 3. A Promise Confirmed by Oath

Titius, a Catholic, formed a familiarity with Titia, likewise a Catholic. One day, overcome by temptation, Titius wished to induce Titia to sin with him. When Titia resisted, he promised, even under oath, that he would afterwards take her as his wife; having heard this, Titia consented to fornication. After some months, when she became pregnant, Titia began to press for fulfillment of the sworn promise. But since Titius now knows her disposition better and, because of her harshness, has no hope of a happy married life with her, and since his love has also grown cold, he asks a confessor whether he is bound to stand by the sworn promise. Hence it is asked:

Do sworn betrothals bind although not written?

To what and how do betrothals oblige?

How are betrothals dissolved?

What is to be said of the case?

Solution

Does a sworn promise to marry bind when it is not in writing?

An unwritten promise to marry is made null and void by the decree Ne temere, and what is invalid can not be made valid and obligatory by adding an oath — accessorium sequitur principale.

To what and how does betrothal bind?

Valid betrothal binds the parties by a serious obligation of justice to fulfil the contract at the time fixed, or if no time was fixed, then at a reasonable time.¹

1 Manual of Moral Theology, vol. ii, 256.

Betrothal may be dissolved by mutual agreement of the betrothed, by the happening or detecting of a circumstance of importance by one of the parties which would have prevented him from making the engagement if it had happened or been known before, by embracing a more perfect state of life, by a dispensation of the Pope for good reason.²

2 Ibid., 260.

The case. Neither the promise made by Titius nor the oath which he took are valid or obligatory in themselves. It was a turpis contractus, and moreover it was not in writing, and so it was invalid by the decree Ne temere. The oath as being accessory was also invalid. However, Titius by an invalid promise has induced Titia, who otherwise was unwilling, to commit sin with him, and she is now pregnant. She will be injured for life unless he marries her. He will be justified in offering her money and trying by other means to induce her to free him from his obligation to prevent harm following to her from his action. But if nothing but marriage will satisfy her and safeguard her reputation, Titius will be bound to marry her, unless indeed incompatibility of temper makes a happy marriage utterly hopeless.³

3 How is betrothal dissolved?

3 Bucceroni vol. ii, n. 920.

Slater, Cases II, Matrimony, Case 4. Debts of Betrothed

Pt. III, Ch. VI, Section I. Of the Institution of Marriage · Pt. III, Ch. VI, Section II. Of the Unity of Marriage · Pt. III, Ch. VI, Section III. Of the Indissolubility of Marriage

Titia, a widow who had promised to marry Paul, approached a confessor and asked whether she was bound to disclose to her betrothed that she was burdened with debts amounting to two hundred pounds sterling and had no means to pay them; for she feared that Paul, when he heard about the debts, would withdraw from the betrothal. Hence it is asked:

…and 407 more passages — all of them are listed on the topic page.

Rickaby, Moral Philosophy

Joseph Rickaby, S.J. — 19 passages (filed under the subtopics)

Pt. III, Ch. VI, Section I. Of the Institution of Marriage

Marriage is defined by the Canonists: the union of male and female, involving their living together in undivided intercourse. In the present order of Providence, the marriage contract between baptized persons is a sacrament, under the superintendence of the Church, the fertile theme of canonists and theologians. As philosophers, we deal with marriage as it would be, were there no sacraments, no Church, and no Incarnation, present or to come. This is marriage in the order of pure nature.

It is natural to all animals to propagate their kind, natural therefore also to man; and being natural, it is so far forth also a good thing, unless we are to say with the Manicheans, that the whole of corporeal nature is an evil creation. Nay, so urgent is the natural appetite here, that we must argue the existence, not of a mere permission, but of an exigency of nature, and consequent command of God (Ethics, c. vi., s. ii., nn. 11, 12, p. 122), for the propagation of the human species. Besides, there is in the individual the duty of self-preservation, therefore likewise in the race. Again, the old cannot subsist at all without the support of the young, nor lead a cheerful existence without their company. Imagine a world with no youth in it, a winter without a spring!

There is this difference between self-preservation and the preservation of the race, that if a man will not eat, none can eat for him; but if one man omit the propagation of his kind, another can take it up. There are many things necessary for the good of mankind, which are not to be done by every individual. Not all are to be soldiers, nor all builders, though houses are needful, and sometimes war. Nor is it desirable that the human race should be multiplied to its utmost capacity. It is enough here to mention without discussing the teaching of Malthus, how population presses on the means of subsistence, the latter increasing in an arithmetical, the former in a geometrical ratio. Without going the whole way with Malthus, modern economical writers are commonly a little Malthusian, and shrink from giving to all and each of their species the word to "increase and multiply."

But, it will be said, sickly and consumptive subjects, and still more those who have any tendency to madness, may well be excused from having children; so too may they be excused whose poverty cannot keep a family; excused too is the inveterate drunkard, and all habitual criminals, by the principle of heredity, lest they transmit to posterity an evil bodily predisposition; but the healthy and the virtuous, men sound of mind and limb, of life unspotted, and in circumstances easy, the flower of the race,—none of these surely should omit to raise up others to wear his lineaments: we want such men multiplied. I answer, on natural grounds alone: You may counsel, but you cannot compel, either by positive law or ethical precept, any man or woman to seek to have children. You surely will not breed men by selection, like cattle, as Plato proposed. The union of the sexes, especially the married union, is an act to be of all others the most entirely free, spontaneous, uncommanded, and unconstrained. It should be a union of intense mutual love. But a man may not meet with any woman that he can love with passion; or, meeting such, he may not be able to win her. Nor, considering the indeterminateness of points of health, capacity, and character, could any certain list be drawn up of persons bound to have issue. Thus the utmost that can be argued is a counsel in this direction, a counsel that mankind ordinarily are ready enough to comply with. But if any one of seeming aptitude excuses himself on the score of finding no partner to his liking, or of a desire to travel, or of study, or still more, of devotion—and why should not a man, ever of natural piety, go out into solitude, like St. Antony, to hold communion with his Maker?—all these excuses must be taken. It is lawful then in the state of mere nature, upon any one of many sufficient grounds, to stand aside and relinquish to your neighbour the privilege and responsibility of giving increase to the human family.

But if it is no one individual's duty to propagate his kind, how is it that we have laid down that there is such a duty? For the duty is incumbent upon them that alone can do it, and it can only be done by individuals. The answer rests on a distinction between proximate and remote duty. The propagation of the race is the remote duty of every individual, but at present the proximate, duty of none. A remote duty is a duty not now pressing but which would have to be performed in a certain contingency, which contingency happening, the duty becomes proximate. If there appeared a danger of our race dying out, the survivors would be beholden, especially those in power, to take steps for its continuance. Rewards might then be held out, like the jus trium liberorum instituted at Rome by Augustus; and if necessary, penalties inflicted on celibacy. In this one extreme case the matrimonial union might be made matter of legal constraint. But when will such constraint become necessary?

The continuance of the human race must be wrought out by man and woman standing in that abiding and exclusive relation to one another, which constitutes the state of marriage. Nature abhors promiscuity, or free love. It is the delight of writers who use, perhaps abuse, Darwin's name, to picture primitive mankind as all living in this infrabestial state. But "the state supposed is suicidal, and instead of allowing the expansion of the human race, would have produced infertility, and probably disease, and at best only allowed the existing numbers to maintain, under the most favourable circumstances, a precarious existence. To suppose, therefore, that the whole human race for any considerable time were without regular marriage, is physiologically impossible. They could never have survived it." (Devas, Studies of Family Life, § 101.)

Even if the alleged promiscuity ever did prevail—and it may have obtained to some extent in certain degraded portions of humanity—its prevalence was not its justification. The practice cannot have been befitting in any stage of the evolution of human society. As in all things we suppose our readers to have understanding, we leave it to them to think out this matter for themselves. Suffice it here to put forward two grand advantages gained and ends achieved, which are called by theologians "the goods of marriage."

The first good of marriage is the offspring that is born of it. Nature wills, not only the being, but the well-being of this offspring, and that both in the physical and in the moral order. Very important for the physical health of the child it is, that it be born of parents whose animal propensities are under some restraint; such restraint the bond of marriage implies. Then, in the moral order, the child requires to be educated with love, a love that shall be guided by wisdom, and supported by firmness. Love, wisdom, and firmness, they are the attributes of both parents; but love is especially looked for from the mother, wisdom and firmness from the father. And, what is important, both have an interest in the child such as no other human being can take. We are speaking of the normal father or mother, not of many worthless parents that actually are; for, as Aristotle often lays it down, we must not judge of a thing from its bad specimens. No doubt, the State could establish public nurseries and infant schools, and provide a staff of nurses and governesses, more scientific educators than even the normal parent; but who, that has not been most unhappy in his origin, would wish his own infancy to have been reared in such a place? What certificated stranger can supply for a mother's love?

The second good of marriage is the mutual faith of the partners. Plato never made a greater mistake than when he wrote that "the female sex differs from the male in mankind only in this, that the one bears children, while the other begets them;" and consequently that "no occupation of social life belongs to a woman because she is a woman, or to a man because he is a man, but capacities are equally distributed in both sexes, and woman naturally bears her share in all occupations, and man his share, only that in all woman is weaker than man." (Republic, 454 D; 455 D.) Over against this we must set Aristotle's correction: "Cohabitation among human kind is not for the mere raising of children, but also for the purposes of a partnership in life: for from the first the offices of man and woman are distinct and different: thus they mutually supply for one another, putting their several advantages into the common stock." (Ar., Eth., VIII., xii. 7.) Elsewhere he sets forth these several offices in detail: "The nature of both partners, man and woman, has been prearranged by a divine dispensation in view of their partnership: for they differ by not having their faculties available all to the same effect, but some even to opposite effects, though combining to a common end: for God made the one sex stronger and the other weaker, that the one for fear may be the more careful, and the other for courage the more capable of self-defence; and that the one may forage abroad, while the other keeps house: and for work the one is made competent for sedentary employments, but too delicate for an out-door life, while the other makes a poor figure at keeping still, but is vigorous and robust in movement; and touching children, the generation is special, but the improvement of the children is the joint labour of both parents, for it belongs to the one to nurture, to the other to chastise." (Ar., Econ., i. 3.)

These passages are enough to suggest more than they actually contain, of two orders of qualities arranged antithetically one over against another in man and woman, so that the one existence becomes complementary to the other, and the two conjoined form one perfect human life. This life-communion, called by divines fides, or mutual faith, is then the second good fruit of marriage. Indeed it is the more characteristically human good, offspring being rather related to the animal side of our nature. But as animal and rational elements make one human being, so do offspring and mutual faith constitute the adequate good of that human union of the sexes, which we call marriage.

Whatever good there is in marriage, connections formed by either party beyond the marriage-bed, are agents of confusion to the undoing of all that good and the practical dissolution of the marriage.

Readings.—Contra Gentes, iii., 122; ib., iii., 126; ib., iii., 136; Devas, Studies of Family Life, §§ 90-101, where he disposes of the proof of primitive promiscuity, drawn from the fact that in early societies kinship is traced and property claimed only through the mother.

Pt. III, Ch. VI, Section II. Of the Unity of Marriage

Both man and woman are by nature incapable of a second marriage, while their former marriage endures. No woman can have two husbands at the same time, which is polyandry; and no man can have two wives at the same time, which is polygamy. The second marriage attempted is not only illicit, but invalid: it is no contract, no marriage at all, and all cohabitation with the second partner is sheer adultery. This is a great deal more than saying that polyandry and polygamy are unlawful.

That is by nature no marriage, which is inconsistent with the natural ends of marriage, offspring and mutual faith. But polyandry is thus inconsistent with the good of offspring, and polygamy with mutual faith. It is not meant that polyandry makes the birth of children impossible. But nature is solicitous, not for the mere birth, but for the rearing and good estate of the child born. Now a child born fatherless is in an ill plight for its future education. Posthumous children in lawful wedlock are born fatherless: that is a calamity: but what shall we think of an institution which makes that calamity to the child sure always to occur? Such an institution is polyandry. For in it no man can ever know his own child, except by likeness, and likeness in a baby face is largely as you choose to fancy it. Again, is the polyandrous wife to be, or not to be, the head of the family? If not, the family—for it ought to be one family, where there is one mother—will have as many heads as she has husbands, a pretty specimen of a house divided against itself. If she is to be the head, that is a perversion of the natural order of predominance between the sexes. In any case, polyandry is little better than promiscuity: it is fatal to the family and, fatal to the race; and children born of it are born out of marriage.

Against polygamy the case in natural law is not quite so strong as against polyandry. Still it is a strong case enough in the interest of the wife. The words spoken by the bride to the bridegroom in the marriage rite of ancient Rome, Ubi tu Caius, ego Caia, "Where you are master, I am mistress," declare the relation of mutual faith as it should be, namely, a relation of equality, with some advantage, preference, and pre-eminence allowed to the husband, yet not so great advantage as to leave him free where she is straitly bound, and reduce her to the servile level of one in a row of minions to his passion and sharers of his divided affections. Polygamy in all ages has meant the lowering of womankind:

He will hold thee—
Something better than his dog, a little dearer than his horse

At its strongest, the love of man for woman, where polygamy obtains, is a flame of passion, that quickly spends itself on one object, and then passes to another; not a rational, enduring, human affection. It is also a fact, that the increase of the race is not greater in polygamy than in monogamy. Thus, as a practice that runs strongly counter to one of the great purposes of marriage, and is, to say the least, no help to the other, and carries with it the humiliation of the female sex, polygamy is justly argued to be abhorrent to nature.

It is beside the purpose of this work to enter into the questions of morality that arise out of Holy Scripture, considered as an inspired record of the actions of the Saints. But the polygamy of the patriarchs of old so readily occurs to mind, that it is worth while to mention four conceivable explanations, if only to indicate which is and which is not reconcilable with our philosophy. The first explanation would be, that polygamy is not against the natural law, but only against the positive divine law, which was derogated from in this instance. We have made it out to be against the natural law. The second explanation would be that God gave the patriarchs a dispensation, strictly so called, from this point of the natural law. We have maintained that God cannot, strictly speaking, dispense from one jot or tittle of natural law. (Ethics, c. viii., s. iii., nn. 1-3, p. 147.)¹⁹ A third explanation would be founded on the words of St. Paul to the Athenians (Acts xvii. 30), about "God overlooking the times of this ignorance." This would suppose that mankind, beginning in monogamy, from passion and ignorance lapsed quickly into polygamy: that the patriarchs in good faith conformed to the practice of their time; and that God, in their case as with the rest of mankind, awaited His own destined hour for the light of better knowledge to break upon the earth. A fourth explanation would be this. God by His supreme dominion can dissolve any marriage. By the same dominative power He can infringe and partially make void any marriage contract without entirely undoing it. The marriage contract, existing in its fulness and integrity, is a bar to any second similar contract, as we have proved. But what, on this theory, the Lord God did with the marriages of the patriarchs was this: He partially unravelled and undid the contract, so as to leave room for a second contract, and a third, each having the bare essentials of a marriage, but none of them the full integrity.

But, for the author's final view, see Appendix.

Readings.—Contra Gent., iii., 124; Suarez, De Legibus, II., xv., 28. ¹⁹ Dispensatio is the Latin for [Greek: oikonomia], and in this case means an "economy" of law, in the sense that God did not press the marriage law beyond the capacity of the subject (Matt. xix. 7,8). See my Newman Index, s.v. Economy. The schoolmen missed this meaning, and took dispensatio in the canonical sense.

Pt. III, Ch. VI, Section III. Of the Indissolubility of Marriage

This section is pointed not so much against a separation—which may take place by mutual consent, or without that, by grievous infidelity or cruelty of one party—as against a divorce a vinculo, which is a dissolution of a marriage in the lifetime of the parties, enabling each of them validly and lawfully to contract with some other. The unity of marriage is more essential than its indissolubility. Nature is more against polygamy than against divorce. Even Henry VIII. stuck at polygamy. In the present arrangement, a divorce a vinculo is obtainable in three cases. First, when of two unbaptized persons, man and wife, the one is converted, and the unconverted party refuses to live peaceably in wedlock, the convert may marry again, and thereupon also the other party. So the Church understands St. Paul, I Cor. vii. 13, 15. Again, the Pope can grant a divorce a vinculo in the marriage of baptized persons before cohabitation. Such a marriage in that stage is also dissolved by the profession of one of the parties in a religious order. Beyond these three cases, the Catholic Church allows neither the lawfulness nor the validity of any divorce a vinculo by whomsoever given to whatsoever parties.

It is ours to investigate the lie of the law of nature, having due regard to the points marked, antecedently to our search, by the definition of infallible authority. Nothing can be done in the Church against the law of nature: since therefore divorce a vinculo is sometimes recognized in the Church, it may be contended that marriage is not by nature absolutely indissoluble. On the other hand, it is a proposition censured by Pius IX. in the Syllabus, n. 67: "By the law of nature the bond of marriage is not indissoluble." Thus it appears we must teach that marriage is naturally indissoluble, still not absolutely so, just as a safe is justly advertised as fire-proof, when it will resist any conflagration that is likely to occur, though it would be consumed in a blast-furnace or in a volcano. So marriage is indissoluble, if it holds good for all ordinary contingencies, for all difficulties that may be fairly reckoned with and regarded as not quite improbable, for every posture of affairs that the contracting parties before their union need at all consider. Or, if the three cases of divorce actually allowed are to be traced to the dominative power of God (Ethics, c. vii., n. 2, p. 129), we may teach that marriage is by nature absolutely indissoluble, and that divorce is as much against the law of nature as the killing of an innocent man, excepting in the case of God's dominion being employed to quash the contract or the right to life. But against this latter view is to be set the consideration, that God is manifestly averse to using His dominative power to overturn natural ordinances. He does not hand the innocent over to death except in the due course of physical nature: why then should He ever put forth His power against the marriage-tie, unless it be that nature herself in certain cases postulates its severance? But if such is ever nature's petition, the universal and unconditional permanence of the marriage-tie cannot be a requisition of nature, nor is divorce absolutely excluded by natural law.

Thomas Sanchez, than whom there is no greater authority on this subject, records his opinion that "a certain inseparability is of the nature of marriage," but that "absolute indissolubility does not attach to marriage by the law of nature." He adds: "if we consider marriage as it is an office of nature for the propagation of the race, it is hard to render a reason why for the wife's barrenness the husband should not be allowed to put her away, or marry another." (De Matrimonio, I. ii., d. 13, n. 7.) We proceed to prove that "a certain inseparability is of the nature of marriage," so that marriage may truly be said to be indissoluble by the law of nature. Whether this natural indissolubility is absolute, and holds for every conceivable contingency, the student must judge by the proofs.

If a divorce a vinculo were a visible object on the matrimonial horizon, the parties would be strongly encouraged thereby to form illicit connections, in the expectation of shortly having any one of them they chose ratified and sanctified by marriage. Marriage would be entered upon lightly, as a thing easily done and readily undone, a state of things not very far in advance of promiscuity. Between married persons little wounds would fester, trifling sores would be angered into ulcers: any petty strife might lead to a fresh contract, made in haste and repented of with speed: then fond, vain regrets for the former partnership. Affinity would be a loose bond of friendship between families; and after divorce it would turn to enmity. The fair but weaker sex would suffer the more by this as by all other matrimonial perversions: for the man has not so much difficulty in lighting upon another love, but the woman—she illustrates the Greek proverb of a fallen estate:

Mighty was Miletus in the bygone days of yore.

The divorced wife offers fewer attractions than the widow.

Vol. I, Case IV: Legalization of an Illicit Union · Vol. I, Case XIX: The Marriage Tie · Vol. I, Case XXVIII: The Pauline Privilege

It is well to bear in mind that, at least by the positive ordinance of God in the present order of His Providence, the marriage of baptized persons, after cohabitation, is absolutely indissoluble; and no marriage can be dissolved except in the three cases specified. (n. 1.)

Readings.—Leo XIII., Encyclical on Christian Marriage, Arcanum divina sapientia; St. Thomas, Contra Gent., iii, 123.

The Casuist

Various; ed. S. Woywod, O.F.M., and J. A. McHugh, O.P. — 602 passages (filed under the subtopics)

Vol. I, Case IV: Legalization of an Illicit Union

Mr. X, a Catholic, left his lawful wife, some years ago, and took up with another woman. He had to promise this other woman that he would marry her as soon as his legitimate wife died. This was the only condition on which she would live with him. After sometime, Mr. X's lawful wife died, but he did not marry the woman with whom he was living. The woman kept urging him to get married, but he delayed for one reason or another, until finally he fell dangerously sick. He called in the priest, and before making his confession, he told him that he had never been married to the woman with whom he was living, that he had begun to live with her while his first wife was alive, and they had promised one another to get married as soon as the first wife should die, but had neglected to do so. After this much information, the priest suggested that as he was sick, he would marry them right away, with a dispensation, as the woman was a non-Catholic. The sick man then told the priest that such a course was impossible as the impedimentum impotentiae had existed in his case for the last few years, and in the opinion of several reliable physicians, his condition was permanent. He could not leave the woman, as every one thought they were husband and wife, and he did not have long to live. What could be done for them?

Answer. In the first place when Mr. X left his lawful wife, and went to live with another woman, under a mutual promise of marriage, in the event of the first wife's death, he was barred from ever marrying this second woman by the impedimentum criminis adulterii, which is a diriment impediment. If this were the only difficulty in the way of Mr. X's marriage to the second woman, the case would be very simple. All that would be required, would be a dispensation "super impedimento criminis adulterii" and then a marriage ceremony with the exchange of marriage vows. The woman being a non-Catholic, another dispensation would be required, namely "dispensatio super impedimento mixtae religionis." But in the mean time a new impediment to the marriage has arisen, viz., "impedimentum dirimens impotentiae." This impediment is created by the law of nature, and lies outside the jurisdiction of the Church. The Church has no power over it, and cannot therefore remove it. It stands, therefore, as an effectual bar to the contracting of this marriage. But could the Church not grant a "sanatio in radice"? We know that the Church does sometimes grant a sanatio in radice even when a diriment impediment juris naturae has arisen in the mean time. But the Church grants a sanatio in radice only when there was from the beginning a real marriage, which was invalid on account of a diriment impediment of the Church's own making.

In this event, there has been a mutuus consensus from the start, but this mutual consent has been prevented from producing its natural and legitimate result, viz., a valid marriage, by reason of an impediment that the Church herself, by her own legislation, has put in the way. The mutual consent of both parties to the marriage contract is supposed to be enduring at the time the sanatio in radice is granted. This original mutual consent is what the Church cures. And it is cured by the removal of the impediment which rendered it inoperative. As the impediment was of the Church's own making, she can remove it. In which case, the mutual consent of the parties to the marriage immediately goes into effect and creates a valid marriage. It is evident that if the mutual consent was rendered inoperative in the beginning by an impediment of the divine law, or the natural law, the Church, having no jurisdiction, could not remove such impediment, and therefore could not cure the original consent. It is evident also, that in the case of the original consent being ineffective or inoperative by reason of an ecclesiastical impediment, the consent can be rendered effective and operative, or in the technical language of the law, cured, by the removal of the impediment even though, in the meantime, a diriment impediment juris naturae, v. g. impotentiae, has arisen. For while this new impediment would act as an effectual bar to a new consent, it would not affect the consent that was given before it arose, and which consent is still enduring. In the case of Mr. X, if there had been a marriage ceremony performed between him and the second woman immediately after the death of his first wife, the marriage would have been invalid propter impedimentum criminis, but still it could have been cured in radice, by the removal of the impedimentum criminis, which is of ecclesiastical origin, supposing that the consent of both parties is still existing. And that consent is not vitiated, to use the language of the law, by the subsequent natural impediment. The only thing that prevented that consent originally from creating a valid marriage was the impedimentum criminis, and the only obstacle that bars its way at present is that same impediment of crime. The subsequent impediment of "impos" would be an effective bar to anew or renewed consent, rendering the same impossible by a law of nature, but would not affect a consent given before it arose. Mr. X, however, did not enter into a marriage contract with this second woman, and therefore there existed no marriage consent which might be cured. He desires now, for the first time, to elicit such consent. But now it is too late, for nature has intervened and rendered Mr. X incapable of entering into a marriage contract, and any consent that he gives now is, by the law of nature, invalid. Nothing can be done now to legalize, coram Deo et Ecclesia, Mr. X's marriage. What further steps should be taken by the priest, will depend on circumstances and the priest's good judgment. If Mr. X has but a short time to live and if, from the nature of his malady, there is no hope of his recovery, it might be best to leave him where he is, as from his statement there is no periculum peccandi to be feared. Under other circumstances, it would be advisable to remove him to a hospital

Vol. I, Case XIX: The Marriage Tie

Applied correction from Woywod's opening insert: CASE XIX must be placed in the time before the "Ne temere" decree came into force, viz., 19 April, 1908. As regards the statement on page 80 about the marriage contracted against the bona essentialia of marriage the New Code in Canon 1086 says very plainly: "If one or both parties by a positive act of the will exclude marriage itself or all right to the conjugal relations or any of the essential qualities of the marriage (which are its unity, indissolubility and the primary purpose of marriage) the marriage is invalid."

Titus, without the least scruple of conscience, has changed his religion a number of times, for the sake of worldly gain. At present, however, he is back in the Catholic Church, and to all appearances, for good. It happens now that he ruins a poor Catholic girl, and she becomes a mother. She insists on his marrying her. He agrees, but on one condition only, namely, that they both go over to Calvinism first, and as members of the church of Calvin, get married. For, says Titus, in case this marriage turns out a failure, and we should wish to have it dissolved, we can get a divorce very easily in the Calvinistic church. And so it happens. They both become Calvinists, and as members of the Calvinistic church are married by the preacher. But the marriage turns out badly. Titus abuses the wife, until at last she is compelled to seek a divorce in the civil courts. The divorce is granted and the woman leaves Titus for good.

She remains single for some time, and then falls in love with a Catholic man, whom she finally marries before a civil magistrate. Some time after this she goes to the priest and begs to be received back into the Catholic Church, and to have this, her second marriage, made or declared valid by the Church.

The question is, What is to be done under the circumstances?

Answer.—In order that Lucy's second marriage, i. e., with the Catholic man, be a possibly valid marriage at all, before God and the Church, it must be proven that Lucy's first marriage, i. e., Calvinistic marriage with Titus, was invalid from its very inception. For if the first marriage was at any time valid and consummated, then it can not be dissolved, quoad vinculum, by any power on earth.

However, there are good grounds for suspecting that Lucy's first marriage, that is, her Calvinistic marriage with Titus, was invalid from the very start. The view non-Catholics take of marriage, namely, that for specified reasons it may be dissolved, quoad vinculum, does not necessarily render the marriage of non-Catholics invalid. For their prime purpose is to contract a real and true marriage. Their belief that marriage is dissoluble is only a concomitant error. But when the main purpose of the contracting parties is to contract a dissoluble marriage, then the marriage rights themselves, which constitute the subject matter of the marriage contract, and which are mutually transferred in marriage, are materially and substantially vitiated and destroyed. There is a real and substantial defect present in the contract, a so-called shameful condition which reaches into the substance of Marriage (Lehmkuhl, II., n. 688).

According to the Canon Law, the shameful conditions contrary to the substance of marriage, when incorporated into an agreement, render the marriage null and void. In like manner, the Instruction issued under Gregory XVI. to the bishops of Hungary, April 30, 1841, on mixed marriages, holds indeed for the validity, generally, of such marriages, notwithstanding the false opinion of Protestants on the dissolubility of marriage; still this same Instruction calls attention to the fact that the Congr. of the Holy Office, October 2, 1680, to the question: “Whether a marriage contracted between a Catholic woman and a schismatic with the intention of violating or dissolving the marriage is valid,” gave the following answer: “If these things were incorporated into the agreement, or if the marriages were contracted under that condition, they are null; otherwise, they are valid” (Denziger, Enchiridion, n. 1485).

In the case before us there is no question of a mixed marriage. But the grounds for its eventual invalidity are not to be sought for in its character of mixed marriage, as such, but in the false view of non-Catholics concerning the object and conditions of the marriage consent, which false view of Protestants may easily enter into and affect substantially the object and conditions of the marriage consent.

This was true in the case of Titus. He stated expressly that he wished to contract a dissoluble marriage. It was for this express purpose that he joined the Calvinistic church—that his marriage might be more easily dissolved in case he should, in the future, desire its annulment. There is no room, therefore, to doubt the invalidity of the marriage between Titus and Lucy. And consequently there is no room for questioning Lucy's ability to contract a valid marriage with the Catholic man and to be received back into the Church. As marriages of baptized persons before a civil magistrate, though mortally sinful, are nevertheless valid in most places, where the Tridentine Decree, "Tametsi," has not been published, this second marriage of Lucy to a Catholic, before a civil magistrate, was a true marriage before God and conscience, although mortally sinful, provided only Lucy and the Catholic man intended, at the time, to enter into a true and valid marriage contract, binding before God and in conscience. But the whole case should be brought before the Ordinary of the Diocese, who will name the conditions on which Lucy will be reconciled with the Church.

But if Lucy's marriage with the Catholic man before the magistrate was not looked upon by them as a real marriage, but only as a civil ceremony, prescribed by law, as happens in some countries, then, of course, Lucy's marriage to the Catholic, before the magistrate, was no marriage. The pastor should not lend his countenance to it, nor bless it, before he has laid the whole matter before the bishop. It is the bishop's office to determine the invalidity of Lucy's first marriage, with Titus, because that marriage had all the appearances of a valid contract "in foro externo" and before the public. Only after competent Church authority shall have declared it invalid can Lucy proceed to a second marriage. It will be necessary, however, to produce satisfactory proof of Titus' intention, when he married Lucy, of forming a dissoluble union only.

Vol. I, Case XXVIII: The Pauline Privilege

Case submitted:

A certain unbaptized lady was married to an unbaptized man. They separated before the civil court. The lady got married again, and wished to join the Catholic Church with her husband. Not having been informed about her former marriage to the infidel, and finding them sincere and well disposed, I baptized them and married them.

I did it because, 1, they live in the mountains, among the Mor mons, and everything was prepared when I arrived there; 2, because I thought that she had the privilege by the "Casus Apostoli," although "interpellatio non facta fuit." Our bishop says that he doubts whether in his faculties he has the power to dispense in the "interpellatio partis infidelis." Do you know whether the Holy Father gives this power to the bishops in this country? Some say that they have the power.

It would be too bad, not only for that couple, but for numerous relatives, who desire to enter the true Church. In case the "interpellatio" is necessary "quoad validitatem," must I procure a dispensation "in radice"?

Solution:

The case here submitted gives rise to the following questions:

Is the "interpellatio partis infidelis" required "ad validitatem" or only "ad licitatem novi matrimonii"?

Have the bishops of the United States faculties to dispense "a facienda interpellatione"?

What ought the priest to have done as soon as he learned of the first marriage?

What is to be done now?

Is the interpellation required for the validity of the new marriage, or only for its licitness?

Answer.—The theologians are not agreed as to whether the interpellation of the unbaptized party is required for the validity of the new marriage, or only to make it licit. The greater number favor the opinion that the interpellation is of divine command—juris divini —and that its omission, without Papal dispensation, makes the new marriage invalid. Card. D'Annibale (l. III. n. 476) says to the question “whether interpellation is necessary by divine law? The far more common opinion answers affirmatively.”

The theologians who hold that the interpellation is required for the licitness only of the new marriage, contend that the validity of the new marriage, contracted without the interpellation and without a Papal dispensation, will depend, "ex jure divino," on the willingness or unwillingness of the unbaptized party to be converted or to cohabit in peace, etc. The new marriage of the baptized party will be valid or invalid, according as the subsequent investigation shall prove that the unbaptized party to the first marriage was willing or unwilling to be baptized or to dwell with the Catholic party without sin, etc.

These theologians hold that the interpellation is a “a means of ascertaining whether the Pauline case is in fact verified, just as an inquiry into the death of a spouse is required for the lawful celebration of a new marriage, but its omission does not cause the new marriage to be null and void.”

Thus Ballerini-Palmieri (VI. n. 619), “But I do not know why, in our case also, one should not reason in the same way (as in the case of establishing the fact of the husband’s or wife’s death before contracting a new alliance), namely, that he who contracts a new marriage without the unbelieving party having been interrogated certainly sins, but contracts validly if the unbelieving party was unwilling either to cohabit or to be converted, and invalidly if that party consented to conversion or cohabitation.” Indeed, there are some theologians who argue that the omission of the interpellation would not even render the new marriage illicit, if the unwillingness of the unbaptized party to be converted had been proven for certain in some other way. But whatever may be said of the probability of these opinions which deny the need of interpellating "quoad validitatem novi matrimonii," it must be admitted that the greater number of theologians hold that the interpellations are "juris divini," and their omission, without Papal dispensation, renders the new marriage invalid. Moreover, innumerable decrees and answers of the Holy See prove beyond doubt that it is never licit to omit the interpellation without the permission of competent authority.

In the year 1884, the Bishop of Portland consulted the S. Congr. de Prop. Fide on the following question: “Whether, where the dissolution of a marriage contracted in unbelief is in question... and where the unbelieving party, released from her husband by legal divorce, has proceeded to another marriage, interpellation would be altogether necessary, even with the following very great inconveniences, namely: 1, the unbelieving woman regards the interpellation as injurious to herself; 2, her new husband hears the interpellation with indignation, and if the interpellation is made orally, the messenger will sometimes discharge his office not without danger; 3, where the man or woman released by divorce has already passed to another, as they say, marriage, he or she could not return to the former spouse: for the civil law stands in the way.”

To this question the S. Congr. de Prop. Fide replied as follows: “According to the intention. The intention is that neither divorce nor a second civil marriage is sufficient to exempt a party from the obligation of interpellation. But insofar as it is established at least summarily and extrajudicially that interpellation will be either impossible or useless, the Bishop shall use the faculty of dispensing, if he possesses it; if not, petition must be made to His Holiness for the faculty for ten cases. His Holiness approved and granted the faculty.” (G. P. F. 1360). Feije (Disp. n. 493) says: If the baptized party contract a new marriage, without interpellating, and without procuring a dispensation from the interpellations, then the baptized party sins grievously. The validity, however, of the marriage, in the opinion of many theologians, will depend on the subsequent consent or refusal of the unbaptized party to be converted and to cohabit peaceably, etc. This opinion, however, continues Feije, does not agree with the decisions of the S. Congr. de Prop. Fide (March 5, 1816), which Congregation has declared, in some particular cases, a marriage invalid which was contracted without first interpellating or procuring a Papal dispensation.

Little, if anything, can be concluded from the rulings of the S. Congregations concerning the necessity of interpellating on pain of invalidating the new marriage. The decisions of the Sacred Congregations refer to particular cases, and they purposely refrain from using terms that might be construed as settling a general point in dispute among the theologians. Thus the Propaganda was asked, March 5, 1816, “whether interpellation is of divine law and therefore so necessary that, if it is neglected, there is plainly no possibility of dissolving the marriage,” and returned this answer, “that it did not wish to answer this petition expressly,” etc.

There is no foundation for the categorical statement that "outside of the case of a Papal dispensation, the interpellation is always required, jure divino, and that on pain of invalidity of a new marriage" (Smith, Marriage Process, n. 305).