The prohibitory impediments

It is asked whether the conjugal act is licit first in sacred times, then in certain other times in which the conjugal act brings greater or lesser harm either to one spouse or to the conceived offspring. These times are: the time of menstruation, pregnancy, purification, lactation, and infirmity. Concerning these universally it must be said: if there underlies danger of grave harm in health or life, the conjugal act is gravely illicit; if the danger of harm is light, it is prohibited under light sin; but a just cause, especially if the harm which is feared is light, renders the use of marriage licit. But the cause is judged to be just if the inconvenience which arises from abstinence outweighs, or at least equals, the harm which is feared from use. Therefore if only light harm is feared, but abstinence would be long-lasting, intercourse must be said to be licit, both because to abstain for a long time is very burdensome for spouses, and because long-lasting abstinence brings danger of incontinence.

81. 1. In sacred time, i.e. on feast days, during Advent, Lent, and Holy Communion, the conjugal act is licit, because it is prohibited by no law. And although it is counseled that spouses abstain from asking the debt on days which are especially dedicated to doing penance, and especially on days of Holy Communion,¹ nevertheless if on the preceding night they have had intercourse honorably, they are not kept from Holy Communion. But if in completing the act they have sinned venially, reverence toward the most holy sacrament requires that on that day they abstain from Holy Communion, unless there is a particular reason for communicating on that very day.

a. There does not exist, nor has there ever existed, an ecclesiastical law which prohibited the use of marriage on sacred days; but the words of the holy Fathers and the ecclesiastical canons which seem to prohibit it must be understood not of a law obligating in conscience, but of counsel.²

b. The opinion of St. Alphonsus is stricter, n. 922, affirming that one commits venial sin who after intercourse had from pleasure approaches Holy Communion. For spouses who are moved to perform intercourse by no other cause than pleasure do not sin even venially, and therefore can approach Holy Communion without sin, n. 78. But Laymann wisely teaches that the wife must be admonished not to show herself difficult in rendering the debt, especially if she is accustomed to communicate frequently, e.g. on all feast days. Hence she can indeed ask her husband to be willing to abstain from the conjugal act on days of Holy Communion; but if the husband bears this with difficulty, she herself is obliged to render the debt.³

¹ Cf. 1 Cor. 7, 5.

² Ballerini-Palmieri VI, n. 366.

³ Cf. Laymann, Theologia moralis, l. 5, c. 6, n. 16.

82. 2. During the time of menstrual flow. One must distinguish between the menstrual flow or ordinary flow of blood, concerning which above, n. 41, and the extraordinary flow, which comes from illness and sometimes continues for a longer time, up to fifteen days.

a. Intercourse which is had during the time of extraordinary flow never fails to bring harm to the health of the woman; wherefore abstinence from the use of marriage through that time is advised. But intercourse cannot be called altogether illicit unless, according to the judgment of a physician, grave harm threatens the wife, because it is burdensome for the man to abstain from intercourse so long.

b. During the time of ordinary flow, intercourse indeed is not illicit; nevertheless, for a twofold reason abstinence from the use of marriage is to be advised, especially since it is only of a few days. First, on account of a peculiar indecency, not moral but physical; wherefore the man, even with natural and innate nausea, turns himself away from a woman who suffers menstrual flow, and in like manner the woman at that time experiences an innate aversion from every marital intercourse. Then, on account of the danger to health which threatens the wife, whose genital organs at that time are already irritated of themselves.¹ Nevertheless, since each of these reasons is not grave, intercourse during the time of menstrual flow must be called licit, provided there is a reasonable cause of coming together. What the older authors feared, namely that offspring conceived at this time would be born infirm or leprous, is empty.²

In the old law the use of marriage during the time of menstrual flow was prohibited by a particular precept;³ the older theologians also in the new law held the use of marriage at this time to be gravely illicit, especially on account of harm to future offspring: for they thought that offspring, if conceived at this time, would be infirm or monstrous. Others said that intercourse through that time was at least lightly illicit, because the woman is then unfit for generation. Since today it is established that these reasons do not stand, the opinion of the older authors in this matter must be omitted: for offspring can be conceived more easily at this time than at another, and of itself it is healthy and firm.

¹ Capellmann, Medicina past.^9, p. 152.

² Olfers, Pastoralmedicin^2, p. 64.

³ Lev. 15, 19-20; 18, 19.

83. 3. During the time of pregnancy, intercourse can be illicit because it induces danger of miscarriage, especially if it is completed often and impetuously. But since danger of miscarriage properly exists only in the first months of pregnancy, and gradually vanishes as the fetus matures, but the state of beginning pregnancy can scarcely be known, intercourse at this time will have to be called simply licit; nevertheless moderation in both the number and the manner of intercourse is to be commended to spouses who suspect pregnancy.

What some authors teach is difficult, namely that intercourse with a pregnant woman is not free from fault because the semen is frustrated: for marriage is ordered not only to generation, but also to other ends, and especially as a remedy for concupiscence.

84. 4. During the time of purification after childbirth, conception indeed does not occur, and therefore from this side harm does not threaten the woman; but from intercourse itself danger of illness threatens the woman, both because of the great weakness contracted from the pains of childbirth and because of the genital organs wholly altered after childbirth. The danger, which in the first days after childbirth is greater, gradually diminishes and lasts as long as the genital organs have not yet been restored to their prior state. After about two months have elapsed, returning menstruation indicates that the organs have been restored to their places and that a new conception can occur. Wherefore in the first days after childbirth intercourse is gravely illicit on account of the danger of harm, afterward lightly illicit.

Capellmann judges that the danger of grave harm after childbirth continues for two weeks, and of light harm for the following four weeks.¹ Men must be told that they should either restrain concupiscence arising at this time or take care to quiet it by other licit modes. Nevertheless, if a grave cause, especially danger of incontinence, makes intercourse honorable, it is excused from sin even at this time.

¹ Capellmann, l. c., p. 153.

85. 5. During the time of lactation, a new conception ordinarily is not to be feared; nevertheless, if it occurs, soon the milk is also diluted and diminished, and in a short time ceases altogether. Since intercourse had at this time does not bring another harm, it will have to be called licit: for the offspring can be nourished in another way, namely by artificial lactation; moreover spouses would have to abstain too long from the use of marriage, since lactation continues beyond a year, if intercourse were not conceded during this whole time.

86. 6. During the time of illness, the conjugal act of itself is illicit if it brings danger to life or health; but from a grave cause it is licit, namely if otherwise spouses would have to abstain for a long time with danger of incontinence, provided proximate danger of death is not induced. In particular, one must distinguish between contagious diseases, syphilis, phthisis, and non-contagious diseases. A physician must be consulted concerning the quality of the disease. Therefore:

a. If one party labors under syphilitic disease, the French disease of theologians, the use of marriage seems illicit on account of the horrible consequences which it brings both to the other party and to offspring. Moreover the danger of infection is certain; but if the disease is light, it can be removed within a short time.

In this assertion the more recent authors, Lehmkuhl, Ballerini-Palmieri, Marc, etc., agree, led by the reasons which are brought forward by physicians. These are unanimous in describing the most grave evils which arise from this disease for spouses and offspring and gradually affect innumerable families, indeed an entire nation.¹ St. Alphonsus, who does not absolutely forbid the use of marriage in this case, n. 909, perhaps can be reconciled with recent theologians. For diverse degrees of the French disease are distinguished; therefore it can happen that the more recent authors deny concerning the highest degree what St. Alphonsus concedes concerning the milder degree. Let others judge whether, speaking absolutely, the use of marriage can be conceded even in the highest degree of the French disease, because it does not induce proximate danger of death to be undergone within a short time.

b. For those laboring under phthisis, the use of marriage is not illicit, both because phthisical persons ordinarily experience vehement concupiscence, and because grave harm does not come from a moderate use of marriage.

a. Although phthisis of itself is a contagious disease, nevertheless from the use of marriage it must rather be called hereditary, because danger of infection through intercourse is scarcely ever induced. Offspring generated from phthisical parents is not born affected by phthisis, but afterward very easily contracts it on account of the very great disposition to this disease received by heredity from the parents.

b. Because more frequent intercourse can harm those laboring under this disease greatly, great moderation in this matter is to be commended to them.

c. The fact that phthisical offspring, or rather offspring disposed to phthisis, is born does not impede the use of marriage, both because it is not certain that offspring will be generated from this particular intercourse, and if it is generated, it is not certain that it will be generated infected, since hereditary disposition often proceeds by a leap; and finally because for offspring which is generated infirm, "it is better thus to exist than not to exist at all."²

c. If diseases are not contagious, intercourse is licit where the diseases are lighter and not greatly weakening, because they are not made worse by intercourse; but it is illicit where the diseases are greatly weakening and joined with fever or great pain: for these ordinarily become much worse through intercourse. To this genus of diseases must be numbered illnesses of the genitals in the woman, which are accustomed to be so increased through the use of marriage that afterward they are healed with difficulty.³

Women for whom, according to the judgment of a physician, the next childbirth will bring death, ordinarily are not to be obliged to abstain from the use of marriage, both because conception is uncertain, and because judgments of this kind by physicians, as experience testifies, are often false.

¹ Cf. Capellmann, l. c., p. 158; Olfers, l. c., p. 67; Antonelli I, c. II, n. 393 ff.

² Antonelli, Medicina pastoralis II, n. 418.

³ Cf. Capellmann, l. c., p. 161.

498. Irregularities differ from simple impediments in this, that irregularities are perpetual impediments, but simple impediments are temporary. Seven are established by the new Code.¹ Simply impeded are:

1. Children of acatholics, as long as the parents remain in their error.

a. They are equally impeded whether born from an acatholic father or from an acatholic mother.

The Commission for interpretation of the Code declared on October 16, 1919, that one whose father or mother only is acatholic, even in that case in which matrimony had been contracted mixed with ecclesiastical dispensation, is to be counted among the impeded.

b. By acatholics are understood not only heretics but also schismatics, indeed even the non-baptized, such as infidels, Jews, Muslims.

c. It does not matter whether the parents persist in error in good or bad faith.

d. The impediment ceases if both parents recede from error through conversion. After the death of parents who died in error, the impediment still seems to remain.

e. The illegitimate son of an acatholic father is impeded. But if the father is unknown, or if it is doubtful whether he was acatholic, the son needs dispensation because of defect of birth; but from a doubtful impediment the ordinary can dispense.

2. Men having a wife. Therefore a husband can be ordained if the marriage has been dissolved either by the death of the wife, or by solemn profession, or by marriage of the wife in the case of the Pauline privilege, or by dispensation of the Roman pontiff. Otherwise he always needs apostolic dispensation in order to be ordained, even if, as it seems, perpetual separation from the wife has intervened; for he is always one having a wife.

3. Those who exercise an office or administration which clerics are forbidden to exercise, until, after the office and administration have been laid down and accounts have been rendered, they have become free.

Those bound to render accounts or reckoning are said to be those who from their office are bound to render account of money administered for another, whether public or private, such as magistrates, administrators, curators, tutors.

Those, however, who manage offices and administrations which are not forbidden to clerics can be ordained, even if they do not yet resign the office, provided they do not render account; thus they licitly manage the administration of money of their blood-relatives, of miserable persons, and of pious causes.

4. Servants in servitude properly so called before accepted liberty.

Servants properly so called, or slaves, subject contrary to nature to another's dominion, are impeded by defect of liberty.

5. Those who are bound by civil law to ordinary military service before they have completed it.

The canon regards those republics which by a law made compel all young men, even clerics, to military service, even in time of peace.

6. Neophytes, until in the judgment of the ordinary they have been sufficiently proved.

Neophytes are understood as those who from pagans, Jews, or other sects are converted to the faith in adult age and recently baptized,² until there is certainty concerning their firm faith from the declaration of the bishop.

7. Those who labor under infamy of fact, while by the judgment of the ordinary it endures. Infamy of fact arises not only from delicts determined in law, but from any enormous delict, such as homicide, perjury in court, adultery, sodomy, simony, public exercise of usury, etc. Good reputation can be restored by serious amendment of life or by divulgation of innocence, and it can cease by stay in a place to which the bad reputation has not come. Judgment concerning cessation of bad reputation is committed to the ordinary.

But if a cleric is condemned by a civil judge because of a crime of this kind, this condemnatory sentence itself is not yet of itself infamy, but the ordinary, after the cause has been examined in the ecclesiastical forum, ought either to absolve the cleric or to condemn him. By the fact that he condemns him, the cleric becomes infamous. Nevertheless, even by the sentence of a civil judge, at least because of actual divulgation of the crime, he is already held infamous.

Article Five.. Concerning Dispensation from Impediments of Ordination.

1. Impediments of ordination can cease in several ways: a. by removal of the cause, a temporal irregularity ceases; thus an irregularity from defect of liberty or reputation ceases when liberty or reputation has been recovered; b. by religious profession, irregularity from defect of birth ceases.

2. Nevertheless, irregularity properly so called is removed only through dispensation; for irregularity is established by law, and a law in force can be removed only by relaxation of the law or dispensation.

Not only religious profession but also dispensation removes irregularity by itself only for receiving orders, but not also for obtaining dignities and prelacies.

¹ Cn. 987.

² Cf. instruction of S. C. Ep. et Reg., January 11, 1908.

499. Who Can Dispense. 1. The supreme pontiff can dispense in every irregularity; for since every irregularity arises from the law of the supreme pontiff, it can also be removed by him. Yet there are irregularities in which the supreme pontiff is accustomed to dispense very rarely, such as: a. irregularity from true bigamy; b. irregularity from voluntary homicide, unless it is so hidden that it cannot be proved in court; c. irregularity from defect of body which is very deformed.

To obtain this dispensation, recourse must be had to the Congregation of the Discipline of the Sacraments if the irregularity is public and the dispensation is sought for the external forum; but to the Penitentiary if the irregularity is hidden and the dispensation is sought for the internal forum only.

2. The ordinary can dispense: a. his own subjects from all irregularities coming from hidden delict, except those which are contracted from homicide, procurement of abortion and cooperation in these delicts, or other delicts brought to the judicial forum;

b. both for receiving and for exercising orders;

c. either by himself or through another;¹

d. for the internal forum, whether sacramental or non-sacramental;

e. in all doubtful irregularities when there is doubt of fact.

3. The confessor can dispense: a. his penitents, e.g., priests or clerics indiscriminately, whether seculars or regulars of any diocese;

b. in hidden and urgent cases in which the ordinary cannot be approached and danger of grave harm or infamy is imminent;

c. only in irregularities from delict, except that which comes from voluntary homicide, from procurement of abortion and cooperation in these delicts, or others brought to the judicial forum;

d. but only to this extent, that the penitent can exercise orders already received;²

e. both within and outside confession.

A determined form by which the dispensation is granted is not prescribed. This or a similar one can be used: I dispense thee in the irregularity which thou hast incurred from this cause, in the name of the Father, and of the Son, and of the Holy Spirit. Amen.

¹ Cn. 990, 1.

² Cn. 990, 2.

500. Supplicatory Petitions for obtaining dispensation from irregularities or impediments are drawn up for the external forum under the true names of the petitioner.

a. All irregularities and impediments are to be indicated, and if there is question of irregularity from voluntary homicide, also the number of delicts must be expressed under penalty of nullity of the dispensation to be granted;

b. The causes of dispensation are to be reviewed;

c. The commendatory letters of the ordinary are to be added;

d. If irregularities or impediments are concealed in bad faith, the dispensation, even a general one, is not valid for those concealed, though whether it is valid for those not concealed is not clear from the text. But if they are concealed in good faith, a general dispensation, from all irregularities and impediments, is valid also for those concealed.

e. But if, although in good faith, an irregularity coming from voluntary homicide, procurement of abortion or cooperation in these delicts is concealed, or if the number of delicts is not indicated, or another delict brought to the judicial forum is concealed, the dispensation, even a general one, is not valid.

f. A general dispensation for receiving orders is valid also for major orders;

g. Dispensation granted in the internal non-sacramental forum must be consigned in writing, and there must be record of it in a secret book of the episcopal curia.¹

¹ Cn. 991.

561. Declaration. 1. Vow is understood as one which is immediately or mediately opposed to matrimony, because it induces an obligation which cannot be composed with the matrimonial state. Five vows of this kind are impedient of matrimony: a. the vow of not marrying, or of celibacy; b. the vow of virginity; c. the simple vow of perfect chastity; d. the vow of entering religion; e. the vow of receiving sacred orders. These vows do not dirimently impede matrimony, as is clear from law;¹ nevertheless they impede matrimony because the matrimonial state cannot be composed with their obligation.

The last two vows are mediately opposed to matrimony; immediately they oblige to taking up a state which then induces the obligation of perfect and perpetual chastity. The first three are immediately opposed to matrimony, but in a diverse way. For one vowing celibacy formally promises not to contract matrimony; one vowing chastity promises to abstain from every venereal delectation, whether illicit or licit in matrimony. There are those who distinguish the vow of virginity from the vow of celibacy, and if we regard the force of the terms, they rightly and deservedly do so; for one vowing virginity properly and strictly promises to abstain from the first act by which virginity is lost. But in practice this distinction is of scarcely any moment; for those who desire to remain virgins by vow vow either celibacy or chastity.

In practice it can sometimes be difficult to discern whether someone emitted a vow of not marrying, or of celibacy or virginity, or rather a vow of chastity. To discern the matter, the one vowing must be asked what he or she promised to God and with what intention the vow was emitted; for if that person emitted the vow with this intention, that, free from the burdens of matrimony, he or she could serve God more easily and perfectly, celibacy is judged to have been vowed; but if the vow was emitted from love of purity, chastity is rather judged to have been vowed.

2. He who, bound by any of these vows, contracts matrimony sins gravely; for the Church forbids contracting matrimony with any of them, because the one having the vow either renders the fulfillment of it impossible for himself, or at least exposes himself to the danger of violating the vow, or deceives the other party and therefore inflicts injury on that party. Therefore, in order that he can enter matrimony licitly, he must first seek dispensation from the vow.

a. The contracting party sins gravely: one having the vow of not marrying sins gravely by contracting matrimony, because by contracting he acts directly against the vow. One having the vow of virginity sins directly against the vow in the first conjugal act by which virginity is lost; but by contracting he sins both because he has the will of consummating matrimony, and because he renders the observance of the vow impossible for himself, because he hands over to the other party the right of demanding the debt. One having the vow of chastity does not act directly against the vow by contracting; nevertheless he sins gravely, because he has the will of consummating the matrimony and because he renders fulfillment of the vow impossible for himself, because he hands over the right of demanding the debt. One having the vow of entering an order sins by contracting, both because he has the will of consummating matrimony, which is indirectly and secondarily repugnant to the vow, and because he exposes himself to the danger of injuring the vow or deceiving the other party. One having the vow of receiving sacred orders sins gravely by contracting, because he renders fulfillment of the vow impossible for himself.

b. There are two cases, but very rare ones, in which one contracting while bound by any of these vows does not sin. One having the vow of virginity, chastity, or entering an order does not sin if he or she has the firm purpose, before consummation of the matrimony, of entering a religious order after dispensation has been accepted, Cn. 542, 1; but unless that person warns the other party concerning this matter, he or she sins gravely by deceiving the party. One having the vow of virginity or chastity does not sin if each party consents to preserving virginity and chastity in marriage; this, however, is rarely permitted because of great dangers of sinning.

To what is one held who, bound by one of these vows, has contracted matrimony? In general it must be said that he or she is released from the vow to that extent to which observance has been made impossible, but is held to the observance of the vow insofar as it can still be observed without prejudice to the other party, unless dispensation has been obtained. And ordinarily it must indeed be counseled that the obligation of the vow be entirely removed through dispensation, because of great dangers of sinning.

¹ Cn. 1058, 1.

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,

Three impedient impediments are enumerated in Canon Law, namely simple vow, legal relationship, and mixed religion.

776. • Formerly six impediments merely impeding matrimony were enumerated and contained in these verses:

The prohibition of the Church, and also the time of holy days, And catechism, crime, betrothals, vow.

But the impediments of catechism and crime are now held as obsolete by the consensus of all Theologians and Canonists. The impediment of catechism was contracted by one who answered for an infant when the ceremonies were supplied after baptism conferred in necessity. For from the old law there arose from this a certain spiritual relationship, no differently than for a baptismal sponsor, which constituted an impeding impediment in the same degrees as with the sponsor of Baptism and Confirmation. But according to the common opinion - see Schmalzgrueber, book 4, title 11, no. 67; Giraldi on chapter 5 of the same title; Barbosa, Collections on chapter Contracto 5, On Spiritual Relationship, no. 3, etc. - it passed into desuetude. Indeed, Gonzalez, on chapter Contracto 5, On Spiritual Relationship, brings forward two Declarations of the Sacred Congregation concerning this matter.

The impediment of crime, however, was a certain penalty imposed by the old law for certain graver crimes, by which the guilty party was prohibited from contracting any matrimony with any person, either altogether if celibate, or after the death of the spouse if married. Crimes of this kind were: first, incest ¹; second, the abduction of another's betrothed woman in order to disturb another's marriage, and also the consent of the betrothed woman to the same abduction; third, the killing of one's wife perpetrated unjustly and by private authority; fourth, presbytericide, that is, the unjust killing of a priest; fifth, the malicious receiving of one's own offspring from baptism, namely, in order to impede the rendering of the debt; sixth, public penance for as long as it continued; seventh, an attempted matrimony with a nun; > Incest, abduction of a betrothed woman, death of a woman [or: womanly death],

The receiving of one's own offspring, priestly death, Or if one does solemn penance, or takes a nun, These prohibit a marriage from being joined.

¹ The other matters having been passed over, it will not be useless, indeed it will be altogether advantageous, to add some things concerning the impediment of incest, the forgetfulness of which appears to have poured no small darkness upon certain questions of grave importance among more recent writers.

First, the Doctors do not agree how far the signification of incest extends when there is question of the penalty inflicted upon incestuous persons by the sacred Canons, namely, the impediment to marrying. I now pass over that most, against others, establish that intercourse which occurred between persons joined only by legal or spiritual relationship is not comprehended by this law. But it is further disputed whether this penalty also affects incest committed with a person related by consanguinity, or only with a person related by affinity. Schmalzgrueber (book 4, title 13, nos. 27-29), with St. Thomas, St. Antoninus, Turrecremata, Sanchez, Laymann, etc., maintains that the opinion which denies that the penalty extends to incest with one's own blood relative is to be preferred. The reason, he says, is that incestuous persons of this kind are nowhere expressly prevented from contracting marriages. For the texts alleged to the contrary speak only either of incest with a blood relative of one's wife or betrothed, or indeed of incest committed with one's own blood relative, but from whose company the delinquent, having been admonished to desist, did not obey ecclesiastical power. Hence, since those laws are penal, the incapacity for contracting matrimony with another established by those laws as a punishment for delinquents of this kind ought not be extended to incest committed with one's own blood relative without contumacy and contempt of ecclesiastical power. You will find the same defended by Pirhing (book 4, title 13, no. 7), Engel (book 4, title 13, no. 3), and Bonacina (On Matrimony, question 3, point 14, no. 10), who also cite several others.

It is likewise disputed among the Doctors what degree the incest must reach for the aforesaid penalty to be incurred. Thesaurus indeed (On Ecclesiastical Penalties, part 2, word Penalties of Incest, nos. 5-6), although he acknowledges that several Doctors held otherwise, nevertheless contends according to the more probable opinion that the penalty extends to every incestuous intercourse even without the appearance of matrimony. For this matter he does not hesitate to cite chapter 5, On the Reformation of Matrimony, session 24 of the Council of Trent, which in fact pertains nothing to this; just as he also invokes Sanchez with Gutierrez and Garcia, who have nothing of this kind in the places indicated by him. Indeed Garcia (On Benefices, part 8, chapter 3, no. 34) openly hands down the opposite. Moreover, Schmalzgrueber (l.c., nos. 8-9), bringing forward a lengthy catalogue of Canonists, establishes to the contrary that the penalty is incurred no further than the first or second degree. Indeed, Pichler (book 4, title 1, no. 92) attributes this effect only to incest in the first degree, so that thereafter no matrimony can be contracted licitly.

But what is especially important to observe here is that from this the true origin and reason are disclosed to us for the practice which prescribes that the circumstance of incest must not be left unmentioned whenever a dispensation is sought for contracting matrimony between persons related by affinity or consanguinity. From this it will also manifestly be evident why this dispensation was held subreptitious if that circumstance had been suppressed in silence.

Let us now omit certain few more recent writers who, appearing altogether ignorant of the reason for this controversy, seek the reason why incest must necessarily be expressed in the fact that this circumstance renders the Pontiff more difficult in dispensing and brings with it a greater composition. Vincent de Justis excellently replies to them (On Dispensations, book 1, chapter 4, no. 322) that so far is the Pontiff from being rendered more difficult in dispensing by the expression of intercourse of this kind, when it was had not from fraud but from human frailty, that it should rather be said that by the aforesaid expression he is more easily moved, in view of the probable and almost certain consequence of scandals which, because of the aforesaid preceding intercourse, could probably arise from denial of the dispensation, as Pontius, Cevallos, Escobar, Rodriguez, Diana, etc., well observe. And thus we see that in the nearer degrees, namely, within the second, in which the causes of narrowness of place, defect of dowry, and other similar causes are regularly not admitted, nevertheless in those nearer degrees - although in them the Council of Trent prohibits dispensation except among great princes and for a public cause - if intercourse is expressed together with the defamation of the woman and the consequent danger that she will remain unmarried and that grave scandals can probably arise unless matrimony is contracted between the petitioners themselves, the Pope dispenses not only with illustrious persons and princes, but also with others of the lowest condition. Indeed, it is singular that when intercourse is expressed every other cause ceases, as Pyrrhus Corradus observes (book 8, chapter 5, no. 58), where he testifies that this is observed according to the style of the Curia.

Others think the reason is found in the fact that where the circumstance of incest is expressed, a greater composition is imposed. Hence Father de Carboneano writes truly childishly (Appendix I to chapter 3, On Matrimony, Antoine): The Pope never intends to dispense with prejudice to a third party; but if the intercourse is not expressed, prejudice is done to a third party, namely, to officials of the Curia, who by its suppression are defrauded of the fee to which they have a right. The same de Justis had already replied to this absurd reason (l.c., no. 326): Although the expression of intercourse is the cause why a greater composition is required, nevertheless this does not pertain to the motive cause, but is imposed as a punishment for the incestuous intercourse, the absolution of which is accustomed to be committed to the delegate together with the dispensation concerning the impediment. For although incest is not an impediment reserved to the Pontiff, nevertheless, because the petitioners state that they committed it and seek absolution from him, the Pope as a punishment of the incest afflicts the petitioners with greater expense and penances, because incest is truly a most grave crime and worthy of a grave punishment.

Nor do certain others explain the reason for this practice more aptly, who sing this one thing in unison, that the expression of that circumstance is demanded by the style of the Curia. For even if it be granted, which several deny, that this is in fact required by the style of the Curia in such a way as to produce an obligation, nevertheless no one is ignorant that the style of the Curia and the forms to be observed both in petitioning for and granting dispensations were introduced by some law which governs either the special subject matter or the general nature of dispensations. Therefore, in reality, these men say nothing; for the reason why a practice of this kind was introduced into the style of the Curia still remains to be sought.

Nor is it difficult to find this reason, if it is sought among Theologians and Canonists rather than in compendia of doctrine or of daily practice, especially the more recent. You will find that the truest, manifest reason founded in law for the necessity of expressing intercourse is taken from the fact that incest is an impediment of matrimony, although not diriment but merely impeding. But the defect of subreption which renders invalid a dispensation concerning an impediment of affinity or consanguinity arises from that general principle that, where several impediments intervene, a dispensation is held subreptitious if one of them is suppressed in silence in the petition. Therefore, the dispensation is invalid if the circumstance of incest is kept silent.

Thus, therefore, to touch upon those who are cited by Barbosa for this doctrine (Canonical Votes, book 2, volume 17, no. 57), Friar Sarmiento gives the reason in Barbosa:

Because an incestuous person is prohibited from contracting matrimony. Peter Ochagavia (On Matrimony, tract 4, question 11, no. 4): The survivor, namely, the incestuous person, cannot pass to another matrimony. Peter de Ledesma (On Matrimony, question 56, article 4, doubt 2, difficulty 2): Because there are two impediments. John Gutierrez (Canonical Questions, book 1, chapter 15, no. 5): There appear to be two impediments, the one of consanguinity, the other of incest. Sanchez (On Matrimony, book 8, disputation 23, no. 7): I said that it is necessary for each impediment to be declared. Nicholas Garcias (On Benefices, part 8, chapter 3, no. 54): The unmentioned impediment increases the expressed one; it is necessary to make mention of each. Paul Comitulus (Moral Responses, book 1, question 104, no. 2): A double impediment is much greater than one which is simple. Reginaldus (Practice of the Forum of Penance, book 31, no. 200): If there are several impediments, all must be narrated; and thence he concludes that they ought to express their incest. Filliucius (tract 10, no. 337) denies that several acts of intercourse must be expressed in the case, because from all incestuous acts only one impediment arises. And Bonacina says to the same matter (On Law, disputation 1, question 2, point 5, no. 4): Because a new impediment, namely, besides the same one already expressed, is not induced through subsequent intercourse. Anthony Sanctarellus (Various Resolutions, question 52, no. 2): It is prohibited in law that incestuous persons contract matrimony; therefore it was introduced with the best right into the style of the Curia that those wishing to contract ought to make mention of the intercourse. Rodriguez (Summa, chapter 238, conclusion 7): Mention must be made in the supplication of both impediments, namely, consanguinity or affinity, and incest. The Salmanticenses Compendium (tract 34, no. 299): The intercourse must be disclosed, like the other occult offenses which induce some impediment. Verani (Canon Law, book 4, title 1, part 5, section 16, no. 89): Because incest is an impediment, it must therefore be expressed. He had premised, however (ibid., no. 4), that a dispensation is subreptitious even when one impediment is diriment and the other only impeding; for the dispensation is also subreptitious unless each impediment is expressed. To these let Marcus Paulus Leo be added, who published a work at Rome in 1644 with the title Practice Concerning the Letters of the Major Penitentiary and the Office of the Sacred Apostolic Penitentiary. For he writes (part 2, page 310): The reason appears to be that when two impediments coincide, the unmentioned impediment increases the expressed one concerning which dispensation is granted, and therefore it is necessary to make mention of each; otherwise the dispensation is null.

Finally, lest by empty labor we gather other witnesses here, it will suffice to heap upon the testimonies cited a Declaration of the Sacred Congregation of the Council which nearly all either transcribe from Rebellus or certainly cite, and which is read thus in Garcia (Canonical Questions, part 8, chapter 3, no. 66) and Pyrrhus Corradus (Apostolic Dispensations, book 8, chapter 1, no. 38): The Congregation of Cardinals judged a dispensation subreptitious if carnal intercourse had preceded between blood relatives or relatives by affinity, of which they made no mention in the supplication, because such blood relatives or relatives by affinity were rendered incapable of contracting matrimony through this carnal intercourse, from the fact that they are said to have committed incest, which impedes incestuous persons from contracting matrimony; therefore, for the validity of the dispensation concerning a prohibited degree, the expression of carnal intercourse is necessary by law, as the style of the Curia observes. From this declaration, as is evident, three things are clearly confirmed for our matter: first, that the expression of the intercourse was held necessary for this reason, that since incest was an impediment of matrimony, a dispensation was needed to contract it licitly; second, that for this reason the dispensation was held subreptitious and therefore null, when mention of the committed incest was not made in its petition, eighth, finally, the killing of one's own offspring. We read that these impediments were expressed in the following verses: because, when two impediments to contracting matrimony intervened, only one was expressed while the other was left unmentioned; third, that the style of the Curia, when it requires the expression of incest and holds a dispensation subreptitious if mention of it was omitted, rests altogether upon these principles and laws.

But if the matter stands thus, how could it have happened that very many and most weighty Authors, a list of whom can be seen in de Justis (On Matrimonial Dispensations, book 1, chapter 4, no. 279), and to whom others can easily be added, denied the necessity of expressing this circumstance and therefore defended the dispensation as valid even if the same circumstance had been omitted in silence from the petition? Again, how could it happen that although the opinion handed down above is supported by such certain and manifest law, it is nevertheless proposed even by its patrons almost only as more probable, truer, or safer?

The solution of this doubt is not difficult, first if those things are observed which Navarrus has in his Manual, chapter 22, no. 74: Because, he says, there was a great dispute in the sacred tribunal of the Penitentiary concerning the impediment of incest, when the most illustrious Cardinal Alciatus presided over it as Supreme Penitentiary with the greatest prudence and marvelous dexterity, and was most renowned for his encyclopedic knowledge of all disciplines, whether every incest produced this impediment, I substitute for the things which I said elsewhere here: First, nearly all experts of divine and human law strictly and properly call only intercourse with a blood relative or relative by affinity in a prohibited degree incest.... Second, all agree that from every incest there arises an impeding and diriment impediment of affinity. Third, all also agree that from incest committed with a relative by affinity during matrimony there arises an impediment impeding the contracting of matrimony with any other person.... Fourth, nearly all theologians hold that from incest with a blood relative there indeed arises an impediment of affinity, but no other impediment, whether it is committed before or after matrimony has been contracted; among these are St. Thomas, Soto, St. Antoninus, Sylvester, whom Covarruvias also follows. Therefore, if nearly all Theologians taught that this impeding impediment of incest did not arise except from incest with a relative by affinity during matrimony, what wonder if in other cases of incest they denied that a dispensation had to be sought, and therefore denied that the circumstance of incest had to be expressed in seeking a dispensation concerning an impediment of consanguinity?

But there is added a point of greater importance, which Navarrus himself also has (Consultations, IX, On Consanguinity and Affinity, no. 5), namely, that an impediment of this kind, according to Paludanus, whom St. Antoninus follows, appears to have been abrogated by custom, whom we believe. For if the impediment of incest can in fact be held as abrogated by custom, while the reason for expressing the circumstance of incest in the petition for dispensation flowed solely, as we showed, from the fact that incest induced another impediment, it is manifest that by that very fact the necessity of expressing this circumstance also altogether ceases. And again, when this impediment has been abrogated, there no longer stand two impediments - namely, consanguinity or affinity, and incest - against a matrimony to be contracted between incestuous blood relatives or relatives by affinity, but only the first of these. By that very fact, therefore, the reason collapses on account of which, as we have

Therefore the whole controversy is finally reduced to whether this impediment must in fact be considered abrogated. Moreover, no one can deny that in this matter there is now a unanimous and certain opinion of Theologians and Canonists that those two among the merely impeding impediments, namely, catechism and crime, have altogether ceased through custom. To take account only of more recent Authors, thus Babenstuber (tract 8, part 7, disputation 3, article 1, no. 5): All these impediments of crime have been abrogated through non-use, as the Authors most commonly teach and the practice of the Churches proves.

Billuart (On Matrimony, dissertation 6, article 1): Several impeding impediments formerly arose from crime, but these, like Catechism, have been abrogated by desuetude.

Cardinal Gotti (On Matrimony, question 8, doubt 1, no. 11): Several of the aforesaid impediments no longer have force, but have been removed by contrary custom.

Roncaglia (tract 21, chapter 2, question 1): From long-standing custom, very many crimes concerning which one reads everywhere among the Theologians are no longer considered as impeding matrimony.

Wigandt (tract 16, examination 5, no. 53): These impediments, according to the more common opinion, are no longer in use.

Marcus Struggl (tract 12, question 3, article 1, no. 6): These impediments of crime, like the impediment of Catechism, were long ago abrogated by non-use and the contrary practice of the Church.

Viva (On Matrimony, question 5, article 11, no. 2): Sanchez, Laymann, Ledesma, etc., teach that the impediment of crime has already been removed through non-use.

The Salmanticenses (tract 9, chapter 15, no. 15): Excepting interdict, vow, and betrothals, the remaining impediments are no longer in use but have been removed by custom.

Ferraris (word Impediment, no. 10): Of the six assigned impediments, since two no longer have force, namely, the impediment of crime having already been abrogated by long desuetude, hence there are four, etc.

Sporer (Sacramental Theology, part 4, chapter 1, no. 146): But all these impediments of crime have been removed by long desuetude according to the most common opinion of the Doctors and the practice of all the Churches.

Giribaldi (tract 10, chapter 17, no. 18): The Doctors commonly testify that these impediments which arise from crime no longer bind but have passed into desuetude; and Navarrus, in the Manual which he dedicated to Gregory XIII when already ninety years old, says that he had never heard that a dispensation concerning such an impediment of crime had been sought.

Holzmann (On Matrimony, no. 499): Crime, or altogether all impeding impediments of crime, have been abrogated by universal custom.

Mansi (Moral Theology, book 5, tract 10, part 4, chapter 15): Soto, Corduba, Navarrus, and Coninck testify that these impediments of crimes have been altogether removed by long custom.

Catalanus (part 3, On Matrimony, question 15, chapter 2, no. 15): In fact, through custom, all other impeding impediments except these four have been removed.

Ysambert (On Matrimony, disputation 9, article 2): A custom has prevailed that new marriages are entered without a dispensation from these impediments.

Mazzotta (tract 7, disputation 1, question 2, chapter 15): Formerly twelve impeding impediments were enumerated, but now partly by the Council of Trent and partly by custom they have been reduced to five (he adds, namely, the defect of proclamations).

Tamburini (book 8, On Matrimony, tract 1, chapter 16): These were formerly twelve.... Now, partly by the Council of Trent and partly by custom legitimately received, they have been reduced to four.

Potestas (volume 1, part 4, no. 3982): The common opinion is that they have been removed through non-use and therefore do not need a dispensation.

Elbel (On Matrimony, conference 3, no. 64): Formerly, indeed, under the old law various impeding impediments were enumerated. Under the new law, in fact, only four are commonly enumerated.

Bouvier (On Matrimony, chapter 4, article 3): Eight others are found in Canon law; but since they have altogether ceased, concerning the four still remaining, etc.

Concina (On Matrimony, book 2, dissertation 3, chapter 3, no. 15): The Authors observe that, except for interdict, vow, and betrothals, the other impediments have become obsolete.

Edmund Voit (volume 2, no. 1234), after enumerating the impediments arising from crime as they were set forth above, adds: The Authors everywhere testify that these have now been removed through non-use.

Indeed, all who now enumerate only four, or five (with the omission of the proclamations added), impeding impediments implicitly say the same thing. Thus Cuniliati (tract 14, section 14, no. 2): The impeding impediments at the present time are contained in this hexameter, etc. And Amort (tract 15, section 3, question 2): After the Council of Trent only four impediments, etc. And Antoine (On Matrimony, chapter 3, question 1): There are four which now certainly have force, contained in this verse, etc. And Reuter (part 4, no. 526): Those which now have force are four, etc. And Wagemann (part 3, tract 3, chapter 9, no. 135): Today the impediments are four, contained in this verse, etc. Tournely (On Matrimony, question 8, article 2): Formerly, under the old law, twelve were enumerated, which have been recalled and restricted to five. And Friar Antonius of Goritia (table 187): The impediments are four, etc. And Oberrauch (tract 20, chapter 5, section 2386): In antiquity the merely impeding impediments were more numerous; in the modern age only five obtain. Thus also Antonius of St. Joseph (Compendium of the Salmanticenses, tract 34, chapter 3, part 1, no. 165), Segna (On Matrimony, chapter 5, no. 390), Piselli (On Matrimony, part 2, chapter 4), Scavini, etc.

From the Canonists, however, it will suffice to bring forward what Giraldi, Engel, Reiffenstuel, Maschat, Schmalzgrueber, Pirhing, Pichler, and Krimer have.

Giraldi (Exposition of Pontifical Law, book 2, title 23, chapter 12, section 269): This Decretal, establishing that the crime of incest induces an impediment impeding matrimony to be contracted with any person, has been abrogated by contrary custom. For today there are only four impeding impediments, namely, etc.

Engel (book 4, title 13, no. 2): But this penalty of incest, like the other impediments, appears to have passed into desuetude.

Reiffenstuel (book 4, title 1, no. 352): The impeding impediments of crimes, however, are so held to have been abrogated that they are no longer in use.

Maschat (book 4, title 13, no. 4): The other impediment, lest the accomplices in incest be able to enter matrimony with any other person, has been abrogated by contrary custom.

Schmalzgrueber (book 4, title 13, no. 7): The impediment by which an incestuous person and his accomplice are prohibited from contracting matrimony with any other person has more probably been removed through non-use or contrary custom, as Navarrus, Perez, Wiestner, etc., rightly observe.

Pirhing (book 4, title 16, no. 12): All these impediments introduced by ecclesiastical law (except betrothals and a vow, and except a special interdict of a Superior) have today been altogether removed by long-standing custom,

according to which those thus impeded everywhere enter marriages without seeking any dispensation.

Pichler (book 4, title 1, no. 92): With Navarrus, Sanchez, Henriquez, and Coninck, Laymann, Pontius, Lessius, Illsung, and other Doctors everywhere observe that all the impeding impediments of crime, or those arising from an offense, have been removed by universal custom.

Krimer (book 4, title 13, no. 1174), to this objection: Incest furnishes a perpetual impediment to matrimony; therefore it is manifest that the incest must be disclosed, replies: This impediment long ago receded from use; hence by general custom it now happens that there is no fault in contracting matrimony with this impediment; and therefore no dispensation is sought from the Pope or Bishop on account of any incest.

What perhaps may appear surprising is that even the Holy Doctor Alphonsus judged that the same thing as the Doctors cited above must be defined concerning the cessation of this impediment as obsolete. Nor did he assert it in only one place, but several times plainly confirmed it by his vote. Indeed, from the first edition of his Moral Work in the year 1748, to these words of Busembaum (book 6, tract 6, chapter 3, doubt 1), But these impediments (namely, incest, the abduction of a betrothed woman, etc.) have been removed through non-use, the Holy Doctor had added his approval, adding (note f): as the Salmanticenses say with Sanchez and the common opinion. Elsewhere more explicitly (The Apostolic Man, tract 18, no. 53), where he enumerates the impeding impediments, he judges the same thing concerning incest, although perhaps he less aptly substitutes incest with one's own mother for incest with the blood relatives of one's spouse, that is, committed with a person related by affinity, as the text of the Decretal Constitution which imposed this penalty actually requires. Whatever may be said of this, behold the explicit words of the Holy Doctor: Under this name (CRIME) were formerly comprehended certain offenses, namely, incest with one's own mother, the abduction of another's betrothed woman, etc.; but this impediment also BECAME OBSOLETE BY DESUETUDE. And again, in the place to which he there refers the reader (book 6, no. 905), at the words of Busembaum reported above, namely, that the impediments of incest and of other crimes have been removed through non-use, the Holy Doctor adds: Thus also Concina and the Salmanticenses with Sanchez and the common opinion. And he repeats this even more explicitly (book 6, no. 857), where he further adds that this impediment has been so removed that it needs no dispensation. Thus the Holy Doctor, to the question whether betrothals are dissolved through a supervening impediment: If the impediment is impeding, Sanchez, Palaus, Escobar, etc., most commonly and more probably deny that the betrothals are dissolved, unless it arises from a vow of Religion, and very probably also from a vow of chastity. The reason is that the other impediments HAVE NO FORCE TODAY, NOR DO THEY NEED A DISPENSATION. Thus St. Alphonsus; whence also the abbreviators of the Holy Doctor, Neyraguet (On Matrimony, chapter 3, article 1, no. 4) and Galani (book 6, tract 6, no. 65), after enumerating the impeding impediments of crime, repeat: But these have been removed through non-use.

I said that this perhaps might appear surprising. And indeed it is known that St. Alphonsus elsewhere, against the most common opinion of the Doctors, as we shall see in its place, contended as though indubitable that the crime of incest necessarily had to be disclosed whenever a dispensation for contracting matrimony was sought from the Apostolic See on account of another impediment. But, as we have already seen above, not only from the authority of the Doctors, and especially from the testimony of Marcus Paulus Leo, who wrote expressly concerning the practice of the Sacred Penitentiary, but also from the explicit Declaration of the Sacred Congregation of the Council, the true reason why the crime of incest had to be expressed in seeking a dispensation for some other impediment, if perhaps it had intervened, rested in this: that the crime of incest of itself induced an impediment impeding matrimony, so that unless both impediments were expressed, the dispensation would labor under the defect of subreption. Therefore, can it not appear surprising that St. Alphonsus on the one hand contends as certain that in the case the crime of incest must necessarily be expressed, but on the other contends that the impediment of the crime of incest has no force today, but has been removed through non-use and in no way needs a dispensation? How will a dispensation necessarily have to be sought for an impediment which, by the admission of the Holy Doctor himself, needs no dispensation?

But, you will say, does not the same style of the Curia persist in this entire business of dispensations, which otherwise ought to be as a law? The reply to this question appears not difficult. For it must be conceded that the style of the Curia, whenever it is certainly established and the law by which that style itself was introduced and upon which it rests still has force, possesses the force of law. But at the same time it must not be denied that the force of custom, which itself assumes the nature of law, is such that it can abrogate both all human laws and also the laws upon which the style of the Curia rests, and consequently remove from that style every force of obliging. This remains true even though, just as Synodal and Pontifical Constitutions otherwise already abrogated by contrary usage remain unmoved in the Corpus of Law, so also the forms of style remain unmoved in the Curia, although their force has been abrogated by contrary custom and the laws upon which they rested have otherwise altogether perished. Nor are examples lacking which make this plain. Thus, in Marcus Paulus Leo, who describes the practice of the Office of the Sacred Penitentiary, you will find the form (Practice, etc., part 2, page 329) of absolution from incest with a dispensation, not indeed for contracting with the accomplice in that incest, but that, notwithstanding the said incest, you may mercifully dispense in the forum of conscience so that he may contract matrimony, with the form of the Council of Trent observed, with SOME OTHER WOMAN otherwise prohibited to him by no law, etc. Nevertheless, behold Martin Navarrus, already from that age solemnly testifying (Manual, chapter 22, no. 75, and Consultations, 9, no. 5) that in his whole life he had never read or heard that a dispensation concerning this sole impediment had been obtained, or that any incestuous person sought a dispensation from the Pope or Bishop. Concerning this matter Sanchez also says (On Matrimony, book 7, disputation 17, no. 8): That custom long ago prevailed whereby one affected by any of these impediments - and he expressly treats also of incest - enters matrimony without seeking any dispensation. This is established from the fact that ancient and more recent Doctors, and indeed eminent ones, who wrote and were occupied in diverse parts of the world, testify that this custom has been legitimately prescribed..., and especially Navarrus, who traveled through various regions and completed the hundredth year of his life, always being most intensely occupied with studies and consulted from every quarter concerning questions of conscience, and finally remaining a long time at Rome, to which these questions to be resolved are brought from all parts of the world, and nevertheless, speaking of incest, affirms... that at so great an age he had neither seen nor heard of a dispensation being sought; and thus that custom prescribed that a dispensation should not be necessary. But neither do we need the testimonies of others. For even now it certainly enters no one's mind that the incest of which someone is guilty induces a necessity of either seeking a dispensation if he wishes to contract with a woman otherwise prohibited to him by no law, or of expressing this circumstance in a supplication if a dispensation is necessary for marrying a woman prohibited for another cause of consanguinity or affinity; although in the latter case the same reason of nullity from the style of the Curia ought to have force, because, when two impediments concur, one of them would be suppressed. This can also be confirmed from the Acts of the Sacred Penitentiary. For it is not established that even after the age of Navarrus and Sanchez any dispensation was ever sought in the aforesaid circumstances, although the crime of which we speak certainly has not been absent from this world throughout those centuries. But from this also what we said above is confirmed: that forms of style are preserved in the Curia even if contrary custom possessing the force of law has taken all force from them.

Hence Cajetan Giraldi (Exposition of Pontifical Law, on book 4, title 13, chapter 1, section 714), when treating the interdict by which an incestuous spouse is thereafter prohibited from contracting matrimony with anyone - namely, the impediment of which we are speaking here - certainly recalls the style of the Penitentiary which enjoins this penalty in a dispensation for seeking the debt; he also recalls the style of the Dataria, which imposes the same penalty in a dispensation concerning consanguinity up to the fourth degree. Nevertheless, he does not hesitate to observe that this impediment appears to have been removed by custom, so that it is not necessary to seek a dispensation. And in fact we now perceive that the Sacred Penitentiary itself has at last begun to remove this style of the Curia, which rested upon an altogether antiquated impediment. For in dispensations which are granted to an incestuous spouse for seeking the debt, that aforesaid formula hitherto added according to the style of the Curia, If he survives his wife, let him remain without hope of marriage, has now begun to be omitted. To this may also be referred what we read in canonical question 183 of Benedict XIV. For he proposes to himself this objection from the style of the Curia: The distinguished Officials of the Dataria, after examining the Registers from the time of St. Pius V to the present,... endeavored to prove that marriages contracted between persons joined in the third and fourth degree, with a prior dispensation concerning the fourth but without declaratory letters obtained concerning the third, had always been held null and invalid. To these he replies: Just as it pertains to the distinguished Officials of the Dataria to defend the OPINIONS and rights of the Dataria, so it pertains to my littleness to defend the judgments of this Sacred Congregation, of which I am secretary. And in fact he defended his position against the alleged style of the Dataria in such a way that the Sacred Congregation of the Council rendered a definitive judgment for the validity of those marriages. From these things we are also taught that the style of the Curia must be judged in one way when there is question of a controversy already defined by certain laws, but in another when the judgment of the Curia follows an OPINION concerning which there is free disputation on either side in the Catholic schools. For in the latter case Benedict XIV, and indeed also the judgment of the Sacred Congregation rendered at the same time, manifestly establish that no force for defining theoretical questions is to be attributed to the style and judgment of the Curia, even if the validity or invalidity of matrimony is at issue. See also what we shall say in the note to no. 867.

Now, therefore, only four impeding impediments are enumerated, namely: first, a prohibition made by the Church for various causes; second, likewise a prohibition of the Church that at a certain determined time the solemnities of matrimony not be celebrated; third, a contract of betrothals already entered with another person and not legitimately dissolved.

seen, the dispensation was considered subreptitious, namely, as though, when two impediments concurred, only one had been expressed while the other was left unmentioned. Fourth, a vow which by its nature cannot be observed in the matrimonial contract or society.

These four are comprehended in the following little verse:

The prohibition of the Church, time, betrothals, vow.

It will suffice to add a few things concerning each.

777. • It is a prohibition, either particular or general, made by the Church or by some ecclesiastical Superior, lest a certain matrimony be celebrated.

1. A general prohibition exists especially in three cases, namely: first, that matrimony not be contracted between a heretic and a Catholic woman, and conversely; second, that it not be contracted without the proclamation of the banns; third, that it not be contracted without the duly required consent of the parents. The banns were already treated above, no. 734 and following; likewise the consent of parents, no. 754. But we shall speak below concerning disparity of worship, no. 824 and following.

2. A particular prohibition exists when, for a just and special cause, matrimony is forbidden to someone either by the Pastor or by the Bishop; for example, because a suspicion of a diriment impediment has arisen ².

² Three principal just causes for which, according to the common opinion of the Doctors, matrimony can be forbidden are enumerated: first, a complaint concerning betrothals by which one of the betrothed parties had previously bound himself to another person; second, a not groundless suspicion of a latent impediment between them, either diriment or even merely impeding; third, a not groundless fear that grave quarrels, enmities, scandals, or other inconveniences may follow from that matrimony. See Pirhing (book 4, title 16, no. 1).

778. • It is a certain determined time during the course of the year which is called a holy season and during which the Church forbids the solemnities of nuptials. Council of Trent, session 24, chapter 10. Such a time now ³ is that which runs from the first Sunday of Advent through Epiphany inclusively, and from Ash Wednesday through the Octave of Easter likewise inclusively.

³ It is said now, for before the Council of Trent the holy season was: first, from the first Sunday of Advent through Epiphany; second, from Septuagesima Sunday to the Octave of Easter; third, from the second day of the Rogations through the Octave of Pentecost; fourth, for two or three weeks before the Nativity of St. John the Baptist. - See Schmalzgrueber, book 4, title 16, no. 27.

Moreover, the Council of Trent prohibits only the solemnities of nuptials during the aforesaid time, namely, blessing the spouses, leading the bride home with festivity, and arranging more solemn nuptial banquets. It does not, however, prohibit the Pastor from privately joining the spouses, although in various places this also is prohibited because of custom ⁴. - Thus commonly.

⁴ Namely, the custom of certain places has it, not indeed that the proclamations not be made, or that the contract of matrimony not be celebrated, or that it not be consummated during holy seasons, but that nuptials not be celebrated unless either some necessity urges or permission of the Ordinary has been obtained, even in a case of necessity if this can be done; and it is fitting that Pastors accommodate themselves to this custom. Thus Reiffenstuel (book 4, title 16, no. 12), Schmalzgrueber (same title, no. 34), Wiestner (same title, no. 34), Konig (same title, no. 3), Schambogen (same title, no. 2), Schmier (part 3, On Matrimony, chapter 1, no. 105), Marchant, Gobat, Laymann, Sanchez, etc. Therefore it was not necessary for Lambertini (instruction 80, no. 14) to present this very thing to the Pastors of his Diocese of Bologna as a new and foreign piece of wisdom from the condemned Van Espen.

In the same instruction 80, no. 20, Lambertini again brings forward Van Espen also reproaching the Canonists as though they, too devoted to the rigorous expressions of the ancient Canons, had reduced abstinence from the consummation of matrimony during the holy season to a precept, when it was rather a matter of mere counsel, as St. Alphonsus also relates from Lambertini (book 6, no. 984). But even this reply to the ancient canons objected is false. The true reply is - see Schmalzgrueber, book 4, title 16, nos. 31-41 - that those canons speak only of the solemn leading of the bride, not of the consummation of matrimony; and thus it is not necessary to explain them as concerning mere counsel and not a precept, for that solemn leading is in fact forbidden by precept. But if the canons add that spouses who have solemnly celebrated nuptials contrary to the precept of the Church are to be separated, this would be a penalty to be undergone not for a counsel but for a precept. From these things we are certainly taught that the hope of those who, thinking that treasures of wisdom lie hidden in condemned works, strive to fish out foreign things from these putrid fountains rather than draw doctrine from the storehouses of the sincere Catholic school, is vain.

779. • All betrothals, whether ecclesiastical or private, seriously contracted, unless they have been legitimately dissolved either by the mutual consent of the contracting parties or for another just cause, are an impediment impeding matrimony. This is evident from natural law, for there exists a grave obligation of justice to observe a pact arising from an onerous contract. But if someone, notwithstanding that impediment, contracts nuptials, the matrimony will indeed be valid, since this impediment is only impeding, but not licit.

A fourfold vow impeding matrimony is distinguished, namely: first, a vow of chastity; second, a vow not to marry; third, a vow of entering Religion; fourth, a vow of receiving sacred Orders.

780. I. A Vow of Chastity. - 1. One who has emitted such a vow sins gravely by entering matrimony with the intention of consummating it, because he breaks the vow.

2. Even apart from this intention, he sins gravely because he exposes himself to the danger of violating either the vow or the right of the other spouse.

3. Once matrimony has been contracted, during the first two months he can neither seek nor render the debt, because by a divine privilege the spouses are exempt during this time from the obligation of the conjugal debt, according to what was said above, no. 759. But after this time has elapsed, he can indeed render the debt and satisfy the right of the other, but he cannot seek it without a dispensation from the vow, or without a suspension or indirect invalidation of the vow effected by the other spouse.

4. He must altogether abstain if the other consents or has lost the right of seeking, for example, because of adultery or incest. But if he can abstain only with difficulty, he must seek a dispensation as soon as possible or seek the aforesaid invalidation from the other spouse.

5. If the other spouse dies, he cannot pass to new nuptials unless he has obtained a dispensation from his vow also for this effect. - Lacroix, book 3, no. 564.

781. II. A Vow Not to Marry, or a Vow of Virginity. - 1. One who contracts matrimony after emitting this vow sins gravely, as is manifest.

2. Once matrimony has been contracted, he can render and also seek the debt, because observance of the vow has already become impossible.

3. For the same reason, after the spouse has died he can at least probably contract a new matrimony.

In practice it is sometimes doubtful whether someone vowed virginity or celibacy, or rather chastity. The penitent must be asked whether he was led by the intention of freeing himself from the burdens of matrimony and serving God more holily, or solely by the love and affection of purity. In the first case he must be judged to have vowed celibacy and virginity, but in the second true chastity. - Lacroix, no. 357.

782. III. A Vow of Entering Religion. - 1. One who has emitted such a vow sins gravely by entering matrimony, both because he deceives the other and because he exposes himself to the danger of violating the vow.

2. Before the consummation of the matrimony he is bound to enter Religion; and therefore he sins mortally when, whether by seeking or rendering the debt for the first time, he consummates the matrimony, because he must fulfill the vow when he can. But he can fulfill it by not consummating the matrimony in the first two months, since then by a divine privilege either party can enter Religion, and, when the spouse solemnly professes, the other party is freed from the bond of matrimony, according to what was said above, no. 759.

3. After the matrimony has been consummated, he can seek and render the debt, because execution of the vow has become impossible, and the seeking of the conjugal act is not contrary to his vow, since he vowed not chastity but Religion.

4. Even after the matrimony has been consummated, he is of himself bound to enter Religion whenever he can do so without injury to the right of the other party; for example, if the other consents, or loses the right of seeking the debt perpetually, or if the matrimony is dissolved by death, because the obligation of the vow always remains. In practice, however, in these cases it is more expedient to have recourse to a dispensation ⁵.

⁵ In practice the circumstances may have been so changed by reason of age, offspring perhaps born of the matrimony, the state of fortunes, and also fitness for religious duties that, because of the change of matter, the obligation of the vow almost ceases of itself and there is no need of a dispensation.

783. IV. A Vow of Receiving Orders. - 1. One who has emitted that vow sins gravely by entering matrimony, as is evident.

2. He is bound to receive Orders if he can, for example, if he obtains the consent of the other. According to many, he is bound to enter Religion before the consummation of the matrimony, even against the will of the other, so that he may be able to fulfill the vow. But others more probably deny this.

3. Once matrimony has been entered, he can consummate it if he can no longer fulfill the vow.

784. Questions. - QUESTION 1. Who can dispense in impeding impediments?

Reply 1. No one, not even the Supreme Pontiff, can dispense from an impediment arising from valid betrothals, since in this matter there is question of a strict debt of justice. The same must be said of the necessity of parental consent, which is derived from natural law; this, however, naturally ceases if the parents dissent unjustly.

Reply 2. Bishops, or Ordinaries who are Pastors of souls and enjoy full jurisdiction in the external forum, can dispense: first, in the obligation of the banns; second, as regards contracting during a holy season where custom also forbids this; third, in a vow of temporary chastity and of virginity or not marrying.

But they cannot dispense: first, as regards a vow of perpetual chastity ⁶; second, as regards a vow of entering Religion; third, as regards the impediment of disparity of worship between Catholics and heretics. For this threefold impediment is reserved to the Pope.

⁶ Understand this before matrimony has been contracted; for after matrimony has been contracted, the Bishop can dispense for seeking the debt. See St. Alphonsus, book 6, no. 987. Say the same of a vow of continence by which either spouse bound himself after matrimony had been contracted. For since by force of this vow he is indeed prohibited from demanding the debt, but can and indeed must render it, it is not a vow of perfect chastity and therefore is not reserved to the Supreme Pontiff. The opposite must be said if each spouse, by common consent, had vowed perpetual continence. See St. Alphonsus, ibid., no. 986.

Reply 3. By their privileges Regulars can dispense, merely for the internal forum, in a vow of virginity or of not marrying ⁷. - Recall what was said concerning the privileges of Regulars in the Treatise on States, no. 175.

⁷ From the general principle that by force of their privileges mendicant Regulars can dispense in all those vows in which Bishops can dispense by ordinary law, St. Alphonsus (book 6, no. 987) rightly infers that the same Regulars can dispense not only in a vow of not marrying, as the Author has it, but also in a vow of temporary chastity or in one not perfect for any other cause, for demanding the debt after matrimony has been entered. Indeed, since there is a sufficiently probable opinion, as the Author intimates a little later in question 2, that it pertains to the ordinary right of a Bishop, even in a vow of perfect chastity, to grant a dispensation for contracting matrimony if necessity urges, by force of the aforesaid principle this also belongs to mendicants, as several Doctors in fact concede. See St. Alphonsus, book 6, no. 1128.

QUESTION 2. Can a Bishop, when necessity urges, namely, when there is danger in delay, dispense from a vow of chastity for contracting matrimony?

Reply. Yes, provided that the danger is truly present and access to the Pontiff is not readily available. - St. Ligorius, no. 987. - Suarez, Sanchez, Navarrus, etc.

892. That the Church has the right of establishing prohibiting impediments is certainly inferred from the fact that it can also decree diriment ones, as was proved above, n. 814. Now in the Church there enjoy this power both the Roman Pontiff and a general Council, in whom resides full power of enacting laws, and indeed exclusively for the baptized, so that Bishops cannot establish impediments by way of law¹. Yet they can, for a particular case, for a time, for a just cause, prohibit some marriage, and punish with severe penalties those violating this interdiction². - Besides, from the Code, c. 1041, "a custom introducing a new impediment or contrary to existing impediments is reprobated."

¹ Code, c. 1038, § 2.

² Code, c. 1039.

By the old law there were several impediments of this kind, which have now departed from the court³.

³ Such were catechism, that is, the impediment which was contracted by him who answered for the infant, when the ceremonies of baptism were supplied, in almost the same manner as a sponsor today contracts the impediment of spiritual relationship, as will be set forth below; and certain graver crimes, namely incest, spouse-killing, killing of a priest, killing of an infant; an attempted marriage with a nun, abduction of another's betrothed woman, conferral of baptism on one's own offspring outside a case of necessity, public penance. Cf. Clericati, Decis. 37 de Sacr. Matrim., n. 19 sq., Ballerini P., n. 534 sq., ed. 3; Feije, n. 548; Gasparri, n. 433. - On the origin and historical evolution of the various impediments of marriage see J. Freisen, Geschichte des canonischen Eherechts bis zum Verfall der Glossenliteratur, Tübingen, 1888; a summary of which is to be found ap. Canoniste, 1890, p. 433; 1891, p. 214; 1892, pp. 268, 344, 407, 459, 584, 705; 1893, p. 65; 1895, pp. 409, 667, etc.; Esmein, op. cit., t. I, p. 203-402.

Today, since espousals are no longer a prohibiting impediment, there are three, besides the prohibition of the Church, of which we shall treat: vow, mixed religion, and legal relationship.

I. FORBIDDING IMPEDIMENTS. —Forbidding impediments (impedimenta impedientia) are those which interdict a marriage under pain of mortal sin, yet do not render it invalid if it is contracted in spite of the prohibition. The state of mortal sin or excommunication prohibits marriage, though this is usually not counted as a forbidding impediment. The forbidding impediments in the strict sense are:

1. The prohibition of the Church, viz., if the Pope for the whole Church, or the bishop for his diocese interdicts an intended marriage for grave reasons. Such reasons would be, for instance: (a) Grave suspicion that impediments exist to the proposed marriage; (b) Fear that the marriage will cause great trouble; (c) Refusal of parents to give their consent to the marriage of their children, etc.

The Church also forbids (α) Marriage between a Catholic and a non-Catholic; and (β) Marrying without the publication of the banns.

2. Solemn marriages are forbidden from the first Sunday of Advent, inclusive, till the day after Christmas, exclusive, and from Ash Wednesday, inclusive, till the Monday after Easter, exclusive. During this time marriages may take place, but without the solemn blessing of the bride, except by special permission of the Ordinary.

3. A simple vow of virginity, of perfect chastity, of not marrying, of receiving sacred orders, or of embracing the religious state, also hinders marriage (can. 1058, § 1), and a man (or woman) who would marry while bound by such a vow would commit a mortal sin, unless he had the firm will to keep his vow in the married state, —which would, however, be deceiving the other party, or unless both parties consent to respect the vow during the marriage, —which can hardly be allowed to them on account of human frailty.

4. Another and a new prohibitive impediment set up by the Code (canon 1059) is legal relationship arising from adoption in countries in which the civil law renders such marriages unlawful. Accordingly, a boy who is legally adopted by a family cannot marry the daughter of the couple who adopted him in places where the civil law forbids it.

5. The main prohibitive impediment under the new Code is that called mixed religion. It interdicts marriage between Catholics and baptized heretics or schismatics. Canon 1060 " most severely " forbids such marriages, and adds that “if there is danger that the Catholic party, or a child born of the union, may lose the faith, the marriage is forbidden also by divine law."

Canon 1061 states the conditions under which the Church grants a dispensation for a mixed marriage, viz.: (a) For just and grave reasons; (b) Upon a written guarantee that the non-Catholic party will not interfere with the religion of the Catholic spouse, and that all children born to them will be baptized and brought up in the Catholic faith; (c) Upon the morally certain assurance that these conditions will be fulfilled.

Canon 1062 adds that "the Catholic party is obliged prudently to try to convert the non-Catholic party."

Canon 1063 warns the parties to such a mixed mar- riage not to attempt, either before or after the ceremony in the Catholic Church, to have the marriage blessed by a Protestant minister.

Canon 1065 (§ 1) exhorts the faithful not to marry persons who have publicly given up the faith, or joined a condemned society, and (§2) forbids pastors to assist at such marriages without grave reasons and the permission of the bishop. Lastly, canon 1066 commands pastors not to assist at the marriage of public sinners if they refuse to go to Confession, unless for a grave cause, concerning which they should, if possible, consult the Ordinary.

Apart from the dispensation, other circumstances may exist which may render the marriage decidedly inadvisable, or, it may be, even sinful.

2. NULLIFYING OR DIRIMENT IMPEDIMENTS. —As the word itself implies, diriment impediments (impedimenta dirimentia) are such as not merely forbid a marriage but render it invalid. There are sixteen such diriment or nullifying impediments.

— I. A simple vow. The Code numbers five vows: of virginity, of perfect chastity, of not marrying, of receiving sacred orders, of embracing the religious state.

The first three, strictly accepted, differ formally, in such a way that a vow of virginity, after the first completed use of the venereal faculty, and a vow of not marrying, after marriage has been celebrated, have become impossible of execution; but often those making vows use one name to designate a vow of perfect chastity: their intention is to be explored. Nor do vows of virginity or of perfect chastity of themselves, or with the positive disposition of c. 1058 omitted, exclude a marriage to which, by mutual consent, there is added a purpose of continence. The two latter vows are not opposed to marriage except mediately, insofar as the Church requires celibacy from the ordained and from religious (cf. Wernz, IV, 564).

At the same time by the Code we are warned that by no simple vow, without a special prescription of the Holy See, is marriage invalidated.

— Adoption,* according to the provisions of civil law prohibiting nuptials, because of legal kinship arising from adoption (c. 1059).

And for the very extension of the impediment the Church here has accommodated her law to civil law.

Since civil law cannot establish impediments for the marriages of the baptized, the faculty given to the civil power of erecting adoption into a prohibiting or even diriment impediment (c. 1080) seems to have to be explained by the tacit concession of the Church. That is, the impediment indeed formally has force only by force of canon law. But the Church seems tacitly to permit the civil power to keep citizens from nuptials because of this cause. However, she does not formally look to civil marriage as such. The matter could nevertheless be explained in this other way. Civil law can establish even diriment impediments for its non-baptized subjects. Therefore what civil law efficaciously defines concerning adoption for the non-baptized, ecclesiastical law transfers to the baptized.

Before the Code, the matter was directly decided by ecclesiastical law: where full adoption was admitted, it created a diriment impediment; where only imperfect adoption existed, it was not an impediment.

Moreover, by Italian law (art. 60), Spanish law, and Brazilian law, adoption is constituted a diriment impediment. By the Code of France and Belgium (art. 348), according to the more common opinion, it is established only as prohibiting. In the German Code, art. 1311, it is a prohibiting impediment. But by Lusitanian law and that of many States of Latin America it does not even seem to be an impedient impediment (thus Ferreres, II, 1048). The same must be said of the law of Holland, England, and the United States of America (excepting Puerto Rico and the Philippine Islands).

Moreover Italian law has it thus: "Marriage is prohibited: between the adopter, the adopted, and his descendants; between the adoptive children of the same person; between the adopted person and children later born to the adopter; between the adopted person and the spouse of the adopter, and between the adopter and the spouse of the adopted." The Code of France and Belgium has the same.

Concerning this impediment Cappello, S.J., discusses broadly and learnedly in the journal Ius Pontificium, II, 93 ss., where on p. 95 ss. he more fully sets forth the varying civil law. Yet we warn that not all things are equally established.

— III. Mixed nuptials, that is, between a Catholic party and a party ascribed to a heretical or schismatic sect. The prohibition is urged most severely by ecclesiastical law, and, "if there is danger of perversion of the Catholic spouse and of the offspring, the marriage is forbidden even by divine law itself" (c. 1060). Wherefore:

1. these conditions of dispensation are set down: just and grave causes; a caution, that is, a formal promise, regularly written, of the non-Catholic spouse concerning the removal of the danger of perversion from the Catholic spouse, and of both spouses concerning all offspring to be baptized and educated only in a Catholic manner; moral certitude concerning the fulfillment of the cautions (c. 1061);

2. the obligation of the Catholic spouse of prudently caring for the conversion of the other party is recalled (c. 1062). The obligation is from charity. Before the Code this care had to be formally promised;

3. it is wholly prohibited that before or after the marriage a non-Catholic minister, as one devoted to sacred things (he is permitted to be approached, if civil law commands this, as a civil official for completing the civil act), be approached for furnishing or renewing consent. If the pastor knows certainly that the spouses will violate this law, or have already violated it, he is not to assist at their marriage, unless from most grave causes, scandal having been removed, and the Ordinary having first been consulted (c. 1063);

4. it is enjoined upon Ordinaries and other pastors of souls a) that they deter the faithful from mixed nuptials as much as they can; b) that with all zeal they take care that they are not contracted against the laws of God and of the Church; c) after the nuptials have been celebrated, whether in their own or in another territory, that they diligently watch that the spouses stand by their promises; d) that, when assisting at the marriage, they indeed make the interrogations by which they require and receive the consent of the contracting parties, but abstain from every sacred rite, unless the Ordinary has permitted one for avoiding graver evils, with the celebration of Mass always excluded (cc. 1064; 1095, §1, 3; 1102).

For the most part these marriages are so harmful that dispensation and assistance can simply be denied, if in this way several other mixed nuptials are impeded. Yet per accidens it can happen that in certain regions, through these nuptials cautiously made, conversions are prepared and the Gospel is propagated. Then there will be place for epikeia.

By decree of May 21-23, 1912, given on June 21 of the same year, the Holy Office had commanded that, if at any time a pastor had to assist at the mixed nuptials of those who obstinately refuse the cautions, he should abstain from interrogations and furnish merely passive assistance (Per., VI, p. 260). But on March 13, 1921, IV, to 13, it was responded that the assistance of the pastor cannot even be permitted "if in this way celebration before a non-Catholic minister or civil magistrate can be impeded." But wherever, because of peculiar circumstances and graver reasons, his presence is tolerated, it will now be safer, after the Code, that he make the interrogations which of themselves are required for validity.

— The Code, c. 1065, indeed does not extend the impediment of mixed nuptials to nuptials with notorious apostates who have given their name to no non-Catholic sect, nor with members of a condemned society. Yet it wills that the faithful be kept away from nuptials of this kind, nor does it permit assistance by the pastor except after the Ordinary has been consulted, who can grant this, provided a grave cause is urgent and he prudently judges that provision has been made for the Catholic education of all the offspring and for the removal of the danger of perversion of the faithful spouse.

— The matter is handled somewhat more mildly with a public sinner or a man who is bound by censure. If he first approaches sacramental confession, he is no longer a public sinner, and he is admitted to nuptials as the rest of the faithful. You may say the same of one censured who is reconciled with the Church. But if they have refused this, the pastor is not to assist at their marriage, "unless a grave cause urges, concerning which, if it can be done, he should consult the Ordinary" (c. 1066).

Therefore the obligation of consulting the Ordinary is urged less absolutely.

— The impediment of closed time today has been removed by c. 1108, §1; nor does a more severe custom seem to be among those which cannot prudently be removed.

But the prohibition of the Church, that is, of the Holy See or of the local Ordinary, concerning which c. 1039 speaks, is not an impediment properly such, because it is not stably constituted, nor does it demand dispensation, but, when the cause ceases, it ceases of itself. Therefore, for all actually staying in their own territory and for their own subjects even outside the boundaries of their territory, local Ordinaries can forbid marriages in a particular case, but only for a time, for a just cause and while that cause endures.

The cause usually will be a suspicion about an impediment which has arisen. Yet it could also be manifest damage, especially of public reason, arising from the marriage, as if the bishop adds his prohibition to the most just opposition of the parents; or if, because of the neglected civil form, damages to the Church herself are to be feared.

But only the Holy See can add an invalidating clause to the prohibition.

779. Preliminary note. The impedient impediments of matrimony are not enumerated in the same manner by diverse authors. Some think there are two or four; others, five or six; and still others, eleven. Such diversity proceeds from the diverse manner of taking impediments. If by the name of an impedient impediment all grave prohibitions of matrimony are understood, then twelve could easily be enumerated; for then from the new law three impedient impediments would be added, namely, those conditions which are required for licit assistance at matrimony.¹⁰ Indeed, the state of mortal sin would be an impedient impediment of matrimony,¹¹ since in that state the celebration of matrimony is gravely prohibited. Therefore the number of such impediments is not to be disputed. In the chapter on impedient impediments, cann. 1058-1066, the Code of Canon Law expressly enumerates three such impediments: 1. five vows; 2. legal relationship in those regions where civil law renders the nuptials illicit; 3. mixed religion. Each is to be treated.

¹⁰ Cf. above, n. 766 ff.

¹¹ Berardi (Comm. in ius eccl. III, diss. 4, c. 7, q. 1 [Venice ed., p. 142 ff.]) sharply censures the customary enumeration of impediments, but he seems to beat the air.

1984. Besides mortal sin and excommunication, which render matrimony illicit, FOUR prohibiting impediments are numbered, comprehended in these little verses:

Prohibition of the Church, time, betrothals, vow,
Impede it from being made, permit what is made to stand.

To these impediments TWO others were formerly numbered, namely: - 1. The impediment of Catechism, which was contracted by him who answered for an infant, when the ceremonies were supplied after Baptism conferred in necessity; or, according to others, by him who recited the profession of faith in the name of the one to be baptized before Baptism. This impediment was removed by the Council of Trent (sess. 24, de reform. Matrim., cap. 2). - 2. The impediment of Crime, under which name were comprehended certain delicts, e.g. incest with one's own mother or daughter, abduction of another's bride, wife-murder, priest-murder, public penance as long as it endured, etc.; but this impediment has become obsolete by desuetude.¹⁴ - By others also the dissent of parents is reckoned among prohibiting impediments. See what was said n. 1951 and 1973, qu. 6.

1985. By PROHIBITION OF THE CHURCH, in the strict sense, is understood an interdict from man, and it is defined: A prohibition by which an ecclesiastical Superior forbids, for a just cause, matrimony to be contracted between certain persons, until that cause or reason has been removed. But under the name of ecclesiastical Superior here comes not only the Pontiff for the universal Church, and the Bishop for his diocese, or the vicar general; but also the pastor, who, although he does not judicially see to matrimonial causes as to other causes, nevertheless can place an INTERDICT as pastor, until namely the cause is discussed and decided by the ordinary judge.

The CAUSES of the prohibition can be: either betrothals entered with another, or suspicion of a latent impediment, or fear of disturbances, ignorance of the elements of faith, or another thing of this sort.¹⁵ If the prohibition was made on account of a grave cause, the contracting parties sin gravely in contracting matrimony; but lightly, if the prohibition is on account of a light cause, e.g. on account of the veneration of some feast.¹⁶

In a broader sense, PROHIBITION OF THE CHURCH comprehends moreover certain general prohibitions noted in law, such as: that matrimony not be celebrated when proclamations have been omitted; that it not be entered into clandestinely, which prohibition everywhere constitutes an impedient impediment, but where Trent has been promulgated, is a diriment impediment. Concerning these it will more conveniently be said below, where proclamations and clandestinity are treated (n. 2056 and 2040).

Among these prohibitions noted by law, the first place must be assigned to that by which MIXED MARRIAGES are forbidden, concerning which one must speak more fully.

1986. MIXED matrimony, or matrimony of mixed religion, is called that which is contracted between baptized persons, of whom one is Catholic, but the other non-Catholic.

Principles. I. "MIXED marriages are detestable unions, which Holy Mother Church has perpetually CONDEMNED and interdicted." - Thus Benedict XIV, in the Decree concerning marriages of heretics in Holland.¹⁷

But why they are to be detested Our Most Holy Lord Pope LEO XIII explains in a few words in the Encyclical Arcanum, saying: "This also must be guarded against, namely that marriages not easily be desired with those alien to the Catholic name: for it can scarcely be hoped that souls dissenting about the discipline of religion will be otherwise concordant in other things. Indeed, it is chiefly from this that one perceives that marriages of this sort must be abhorred, because they furnish occasion for forbidden association and communication in sacred things, create danger to the religion of the Catholic spouse, are an impediment to the good instruction of children, and very often impel souls to become accustomed to having equal regard for all religions, the distinction between true and false having been removed."

1987. II. Mixed marriages sometimes CAN BECOME LICIT, namely from pontifical dispensation conceded on account of a grave cause, with due cautions moreover being employed and certain conditions being observed. Thus it has been declared many times by the Supreme Pontiffs, and by name by Pius IX in the Instruction promulgated on 15 Nov. 1858.¹⁸

1. PONTIFICAL DISPENSATION is required, since it pertains to the Apostolic See alone to dispense in the general law of the Church.¹⁹ - This dispensation, if at times it concedes it through the Congregation of the Holy Office, it concedes only unwillingly, and solely for grave causes, e.g. on account of hope of gaining the non-Catholic family for the faith, or for avoiding scandals.

2. DUE CAUTIONS must be employed, "namely that a) not only can the Catholic spouse not be perverted by the non-Catholic;²⁰ indeed b) the Catholic spouse himself knows that he is bound, according to his powers, to draw the non-Catholic back from error; but also c) that all offspring of either sex to be procreated from these mixed marriages must altogether be educated in the holiness of the Catholic religion. These cautions indeed can never be remitted or dispensed, since they are founded in the natural and divine law itself, which the Church and the Holy See strive with every zeal to guard whole and intact."²¹ The required cautions formerly had to be confirmed in writing or even by oath; but today it suffices that there be "such a promise, reduced to an agreement, as furnishes a moral foundation concerning the truth of the execution, so that such execution can prudently be expected;" from the decision of the Holy Office, 30 June 1842.²² - But if, in some places, diocesan Statutes prescribe writing or oath, or even other cautions besides those enumerated, they must be obeyed.

3. CERTAIN CONDITIONS must be observed, which regard the celebration of matrimony, namely "that these mixed unions be celebrated outside the church, and without the blessing of the pastor, and without any other ecclesiastical rite." - Hence, only passive presence of the pastor is permitted; which ought to be such that he does not assist at the matrimony in a sacred place, nor with vestments which display a sacred rite. Moreover, he ought not recite liturgical prayers over the contracting parties, nor bless them in any way. - Yet it is right for him to question them concerning the will of entering matrimony. But it is not licit to make proclamations of such marriages, as is clear from the Letter of Pius VI to Cardinal de Frankenberg, 13 July 1782.²³

But the Church does not urge the observance of these conditions with the highest rigor; for, "if in some places the sacred Prelates know that the same CONDITIONS cannot be fulfilled without graver damages and evils arising from it: in this case only His Holiness commits it to the prudent judgment of the same sacred Prelates, for avoiding greater damages and evils of this sort, that they themselves, with the cautions always saved and firm and most diligently observed..., judge when the commemorated conditions concerning these mixed nuptials to be contracted outside the church and without the blessing of the pastor can in no way be fulfilled; and when, in entering these promiscuous marriages, the custom of employing the rite legitimately prescribed in the diocesan Ritual for marriages to be contracted can be tolerated; yet with the celebration of Mass always excluded, and all the circumstances of things, places, and persons most diligently weighed, and with the conscience of the Prelates themselves burdened concerning the truth and gravity of all the circumstances."²⁴

If ACTIVE assistance of the pastor is judged to be permitted, it can also be tolerated, when circumstances advise it, that the customary PROCLAMATIONS be made, with mention of the religion of the parties to be married being omitted, and that TESTIMONIAL LETTERS be conceded concerning the facts, which state only that nothing, besides the prohibition of the Church, stands in the way of arranging the matrimony, all words being omitted from which suspicion of consent or of any approval could arise.²⁵

And let these things have been said concerning MIXED marriages which have become licit. But since pastors are accustomed to be especially anxious concerning illicit mixed marriages, it comes aptly here to be inquired what must be done in such circumstances.

1988. Questions. Q. 1. Whether the pastor CAN ASSIST at a mixed matrimony which, on account of defect of dispensation, remains illicit?

Resp. Negatively, speaking regularly: because such assistance is material cooperation toward an illicit act, and therefore prohibited of itself.²⁶ "Nevertheless, if it is recognized that it can yield to the utility of the Church and the common good of souls that nuptials of this sort, however illicit and forbidden, be celebrated before a Catholic pastor rather than before a heretical minister, to whom the parties could easily flee: then the Catholic pastor himself, or another priest acting in his place, will be able to be present at the same nuptials only by material presence, every ecclesiastical rite being excluded, just as if he performed only the parts of a merely qualified witness, as it is commonly called, or one able to authorize."

That is, so that, after hearing the consent of each spouse, afterward according to his office he may record the act validly performed in the book of marriages.¹ Likewise, proclamations can be made and testimonial letters conceded, in the manner in which it was said above.² But the pastor, in this matter, should do nothing without consulting the Bishop.³

Q. 2. What if the spouses also wish to contract before a HERETICAL MINISTER?

Resp. 1. "When civil law commands it, it is not disapproved that the Catholic party together with the heretical party present themselves, before or after matrimony contracted according to the form of Trent, also before a minister addicted to heresy, only to fulfill the civil act, namely that they may be held civilly as honorable spouses, and that the offspring may be judged legitimate."⁴

2. "But truly, whenever the heretical minister is regarded as one devoted to sacred things and as performing the office of a pastor, it is NOT LICIT for the Catholic party together with the heretical party to furnish matrimonial consent before such a little minister; because he would be employed to complete a certain religious ceremony, and the Catholic party would associate himself with a heretical rite: whence there would arise a certain implicit adherence to heresy, and consequently an altogether illicit communication in divine things with heretics."⁵ Wherefore the PASTOR, if the spouses nevertheless wish to express consent before a heretical minister, should abstain from every intervention. - But in these most miserable circumstances, if every scandal can be removed, and a most grave cause accedes, e.g. the danger of concubinage, in those places where the impediment of clandestinity prevails, it seems that passive assistance of the pastor can be permitted.⁶

3. "Pastors should know moreover that, if they are questioned by the contracting parties, or if they know certainly that these are going to a heretical minister devoted to sacred things, to furnish matrimonial consent, they cannot be silent; but they are bound to admonish the same spouses concerning the most grave sin which they commit, and concerning the censures which they incur"⁷ (see n. 1314, 3). - "Nevertheless, for preventing grave evils, if, in some particular case, the pastor has not been questioned by the spouses whether it is licit now to go to the heretical minister; and no explicit declaration is made by the same spouses concerning going to the heretical minister; yet he foresees that they perhaps are going there to renew matrimonial consent, and moreover from the circumstances occurring in the case he foresees that admonition certainly will not be profitable, indeed that it will be harmful, and from this that a material sin is to be turned into formal fault: then LET HIM BE SILENT, scandal however being removed, and provided the other conditions and cautions required by the Church have been duly placed, especially concerning the free exercise of religion to be conceded to the Catholic party, and also concerning all offspring to be educated in the Catholic religion."⁸ Matrimony in such a case becomes licit, and the spouses, on account of good faith, sin only materially by going to the heretical minister.

4. "But if finally consent wishes TO BE RENEWED before the pastor after it has already been furnished before a heretical minister, and this is publicly known, or is notified to the pastor by the spouses themselves: the pastor will not be present at this matrimony unless, other things to be observed having been observed as is supposed, the Catholic party, repentant of the deed, after salutary penances have been premised, has first duly obtained absolution from the censures contracted."⁹ But cautions must be furnished by the spouses also in the external forum, and for this end recourse to the Bishop is required.¹⁰

5. Finally, when the spouses refuse to stand by the prescriptions of the Church, it must be said as concerning the case in which they pertinaciously intend to contract before a heretical minister (see above n. 2).

Note. In certain regions, Bishops obtain the faculty of dispensing their subjects over the said impediment of mixed religion, except Italians, concerning whom it is not established that they have altogether abandoned an Italian domicile.¹¹

1989. FORBIDDEN or closed TIME, as they say, is an impediment by which "from the first Sunday of Advent up to the day of Epiphany, and from Ash Wednesday up to the Octave of Easter inclusive, the solemnities of nuptials are prohibited."¹² The reason of the prohibition is that these solemnities vehemently draw souls away from spiritual things, to which the Christian faithful ought to attend especially in this sacred time: whence it obliges under grave sin of itself (cf. n. 1217, 5).¹³

But under the name of solemnities are understood: - 1) The blessing of nuptials, which is had in the Mass For the groom and bride: this solemn blessing is prohibited under grave sin. - 2) The solemn leading of the bride into the house of the groom, which namely is done with great pomp and great preparation: in this matter one can also sin gravely, if the solemnities are too immoderate: which is to be judged according to the customs of places, from common sense. - 3) More solemn banquets; but "these are not prohibited under grave sin, unless the excess is great: indeed, if they are done moderately, there will be no fault."¹⁴

Therefore by universal law there are NOT PROHIBITED either betrothals, or proclamations, or the celebration of matrimony, with only that blessing employed which is had in the Ritual; nor the leading of the bride itself without solemnities.¹⁵ Nevertheless, in some places, the celebration of matrimony, although not solemn, is prohibited by customary law or diocesan law, by which one must stand under grave sin, unless a dispensation of the Bishop intervenes.¹⁶ But it is not licit for him, without a special faculty, to permit the solemnities of nuptials, because he cannot dispense, by his own authority, in the universal law of the Church.¹⁷

1990. BETROTHALS validly entered and not legitimately dissolved induce a true and mutual obligation, so that it is no longer licit for either party, against the faith given, to enter another matrimony; although once celebrated, this would be valid. - Recall what was said n. 1952 and 1953.

1991. Under the name of VOW, which constitutes a prohibiting impediment of matrimony, comes a simple vow, whether of not marrying, or of preserving chastity, or of entering Religion, or of receiving sacred Orders.

Principles. I. A simple vow is an impediment prohibiting the celebration of matrimony UNDER GRAVE SIN. - The reason is that one contracting with such a vow either directly transgresses it, namely if it is a vow of not marrying, or exposes himself to the proximate danger of transgressing, as is evident: and therefore, since it is a question of a grave obligation, without doubt he sins gravely against the vow. Besides, he sins against justice, because the counterpart not admonished is gravely deceived. To these there is also added the positive declaration of law.¹⁸

1992. II. The OBLIGATION of the vow, after matrimony has been illicitly celebrated, IS NOT REMOVED, except insofar as its fulfillment has been made morally impossible. - The reason: because on the one hand no one ought to report advantage from his own malice, but on the other no one can be held to the impossible.

Hence: 1. He who enters matrimony, disregarding a vow of NOT MARRYING, or consummates matrimony, disregarding a vow of virginity alone, indeed sins gravely; but now he is held to nothing further, since the vow has been made simply impossible.

2. He who, after spurning a vow of CHASTITY, contracts matrimony, is held to all those things which can be observed in the conjugal state, namely: - 1) He cannot ask the debt, unless charity toward the counterpart placed in danger of incontinence advises it; but generally he can render it, because the right of the spouse asking prevails. But - 2) He cannot render when the counterpart does not have the right of asking, namely in the first two-month period, unless the matrimony has already been consummated: for once it has been consummated, he is bound to render, provided the spouse has not lost the right of asking for another cause, e.g. on account of adultery or incest. - 3) When the counterpart has died, he cannot hasten to new nuptials. But if, during matrimony, he commits adultery, by this very fact he also becomes guilty of violation of the vow.¹⁹

3. He who after emitting a vow of ENTERING RELIGION contracts matrimony, is held to the following: - 1) Within the first two-month period conceded for deliberating, he cannot consummate the matrimony, either by asking or by rendering the debt, but is bound to enter Religion. - 2) After the two-month period has elapsed, the obligation of the vow still endures, if the counterpart, whose will must be seriously explored, is willing to consent to its execution; but if the counterpart does not consent, he can not only render the debt, but also ask it. - 3) If the counterpart loses the right of asking perpetually, or consents to the observance of the vow, or has died, the obligation of the vow revives, unless perhaps the circumstances have been so changed that the vow now ceases intrinsically, e.g. if the one vowing has now grown old. If the vow had been of entrance into an Institute where simple vows are emitted, the obligation would comprehend only those things which we have just said under 3).

4. He who enters matrimony after emitting a vow of RECEIVING SACRED ORDERS can use matrimony, both by asking and by rendering the debt; but he is bound to fulfill the vow, if the counterpart consents, or if she has died, or if she has lost the right of asking perpetually.

Note. The things said concerning the fulfillment of a vow after contracted matrimony indeed hold of themselves, and in the rigor of law; but IN PRACTICE, for the most part, it will be more advisable that recourse be had to DISPENSATION.

1993. IT IS ASKED. Who can DISPENSE from the aforesaid vows?

Resp. 1. If the vow is not reserved to the Pope, e.g. a vow of not marrying or of receiving sacred Orders, the Bishop, by ordinary right, can dispense for a just cause.

Resp. 2. If the vow is reserved to the Pope, as is a vow of perfect chastity and a vow of entering Religion strictly so called, provided all the conditions for reservation are verified, one must distinguish: - 1) Before matrimony, the Bishop cannot dispense by ordinary right, unless there is danger in delay, and easy recourse to the Pontiff is not open (cf. n. 645, q. 2). - 2) After matrimony has been contracted, he can dispense from a vow of chastity, in order to asking the debt, since this faculty is conferred on Bishops by force of custom, which furnishes jurisdiction, from cap. Cum contingat, de foro competenti.²⁰ - Nevertheless, in a vow of chastity which spouses have emitted by mutual consent, the Pope alone can dispense, as Authors commonly teach.²¹

What Regular Confessors can do from privilege, see n. 2191, 2.

Note. There is a sufficient CAUSE for obtaining dispensation or commutation in a vow of chastity, or in a vow of entering religion, "if someone on account of grave temptation is in probable danger even of one fall, because through one fall chastity is already lost."²² - Likewise, if someone has violated a girl by force, or seduced a woman by promise of matrimony; if a girl, bereft of her father, has been left with a very poor mother, and can lead life only from her own labor and with difficulty; if the same, bereft of her mother, has a father who vehemently presses, grows angry, and impels her to nuptials, so that to live with him, unless she obeys, becomes most hard; if the one vowing labors under a disease which, by the counsel of physicians, cannot be met by other medicines, and it is more certain to use the remedy of matrimony, etc.²³

1565. - Today four impediments impeding Matrimony are numbered, namely 1° prohibition of the Church made for various causes; 2° likewise prohibition of the Church lest at a certain determined time the solemnities of Matrimony be celebrated; 3° a betrothal contract already entered with another person and not legitimately dissolved; 4° a vow which, from its nature, cannot be observed in the contract or society of marriage. These four are comprehended in the following verse:

The Church's prohibition, time, betrothals, vow.

It will be enough to append a few things concerning each.

1566. - It is a prohibition, whether particular or general, made by the Church or by some ecclesiastical Superior, lest some Matrimony be celebrated.

1° Particular prohibition is had when, from a just and special cause, Matrimony is interdicted to someone, whether by the Pastor or by the Bishop;¹ e.g. because probable suspicion of a diriment impediment has arisen. But suspicion here will be probable if there is present either rumor, such as moves grave and prudent men, or one witness, sworn nevertheless and not from hearing only; this nevertheless suffices if there is question of the impediment of consanguinity and there is another witness from certain knowledge, even if not sworn.²

2° General prohibition is had especially in a threefold case, namely 1° lest Matrimony be contracted between a heretic and a Catholic woman, and conversely; 2° lest it be contracted without the proclamation of banns; 3° lest it be contracted without the duly required consent of parents. Concerning banns we have already spoken above, n. 1533; likewise concerning the consent of parents, n. 1548. q. 8°. 9°. But concerning the impediment of mixed Communion we speak below.

1567. - It is some determined time in the course of the year, which is called ferial or closed, and in which the Church forbids the solemnities of nuptials. Trent.¹ Such now is the time which flows from the First Vespers of the First Sunday of Advent up to Epiphany inclusively, and from Ash Wednesday up to the Octave of Easter likewise inclusively.

For the rest, Trent prohibits only the solemnities of nuptials in the aforesaid time, namely to bless them solemnly, to lead the bride home with noise, and to arrange more solemn nuptial banquets. But it does not forbid the Pastor privately to join the spouses, although in various places, because of custom or through Episcopal constitutions, outside the case of urgent necessity or dispensation of the Ordinary, this also is prohibited.

See n. 1529. II.

A fourfold vow impeding Matrimony is distinguished, namely 1° vow of chastity; 2° vow of not marrying; 3° vow of entering Religion; 4° vow of receiving Sacred Orders.

1568. - I. Vow of chastity.

1° He who has emitted such a vow sins gravely by entering Matrimony with the intention of consummating it, because he violates the vow.

2° He also sins gravely, even excluding this intention, because he exposes himself to the danger of violating the vow, and deceives the other party.

3° Once Matrimony has been contracted, he can neither ask nor render the debt while the first two months are running, because from divine privilege spouses at this time are exempt from the obligation of the conjugal debt, according to the things said above n. 1551. 2°. But after this time has elapsed, he can (indeed, is held to) render and satisfy the right of the other, yet not ask without dispensation from the vow or without irritation of the vow made by the other spouse.

4° He ought altogether to abstain if the other consents, or loses the right of asking, e.g. on account of adultery or incest. But if he can abstain with difficulty, he ought as soon as possible to seek dispensation or to seek the aforesaid irritation from the other spouse.

5° If the other spouse dies, he cannot proceed to new nuptials unless he has obtained dispensation from his vow also for this effect. - Lacroix.¹

1569. - II. Vow of not marrying, or vow of virginity.

1° He who, after emitting this vow, contracts Matrimony, sins gravely, as is manifest.

2° Once Matrimony has been contracted, he can render and also ask the debt, because the observance of the vow has now been made impossible. - But if he strictly vowed virginity, he cannot ask the first time.

3° For the same reason (namely because the observance of the vow has been made impossible), the spouse having died, he can at least probably contract a new Matrimony. - Heiss² excepts, with the Instruction of Eichstaett, if the vow was of not marrying; we assent to him, because the reason of impossibility does not militate for it.

In practice it is sometimes doubtful whether someone vowed virginity or celibacy, or rather chastity. The penitent will have to be interrogated whether he was led by the intention of freeing himself from the burdens of Matrimony and of serving God more holily, or only by love and affection of purity; in the first case he is to be judged to have vowed celibacy and virginity, but in the second truly chastity. - Lacroix.³

1570. - III. Vow of entering Religion.

1° He who has emitted such a vow sins gravely by entering Matrimony, both because he deceives the other party and because he exposes himself to the danger of violating the vow.

2° Before the consummation of Matrimony he is held to enter Religion; and therefore he sins mortally when for the first time, whether by asking or rendering the debt, he consummates the Matrimony; because he ought to fulfill the vow when he can. But he can fulfill it by not consummating Matrimony in the first two months, since then from divine privilege anyone can enter Religion, and the other party, the spouse solemnly professing, is freed from the bond of Matrimony, according to the things said above n. 1551. 2°.

3° After Matrimony has been consummated he can ask and render the debt, because the execution of the vow has been made impossible, and the asking of the conjugal act is not against that vow, since he did not vow chastity, but Religion.

4° Even after Matrimony has been consummated, of itself he is held to enter Religion as often as he can do this without injury to the right of the other party, e.g. if the other consents, or loses the right of asking the debt in perpetuity, or if the Matrimony is dissolved by death; because the obligation of the vow always subsists. But in practice, in these cases it is more expedient that recourse be had to dispensation, unless nevertheless the circumstances, by reason of age, offspring perhaps received from Matrimony, the state of fortune, and capability also for religious offices, are so changed that the matter of the vow has certainly been made impossible.

1571. - IV. Vow of receiving Orders.

1° He who emitted that vow sins gravely by entering Matrimony, as is well known.

2° He is held to receive Orders if he can, e.g. if he obtains the consent of the other. According to several he is held to enter Religion before the consummation of Matrimony, even against the will of the other, so that he can fulfill the vow. But others more probably deny this.¹

3° Matrimony having been entered, he can consummate it if he can no longer fulfill the vow.

1572. Questions. - Quaer. 1° Who can dispense in impedient impediments?

Resp. 1° No one can dispense [except the Pope. Feije, n. 601 (2)] from the impediment arising from valid betrothals, since in this matter there is question of a strict debt of justice. The same must be said of the necessity of the consent of parents, which is to be taken from natural law; nevertheless this naturally ceases if the parents dissent unjustly.

Resp. 2° Bishops, or ordinary Pastors of souls enjoying full jurisdiction in the external forum, can dispense 1° in the obligation of banns; 2° as regards the contract (but not as regards the solemn blessing) of Matrimony during the ferial time, where custom or particular constitution also interdicts this; 3° in a vow of temporary chastity, and of virginity and of not marrying.

But they cannot dispense 1° as regards the vow of perpetual chastity; 2° as regards the vow of entering Religion; 3° as regards the impediment of mixed Communion. For this threefold impediment is reserved to the Pope. - But our Bishops can dispense in 1° and 2° (p. LXX. n. 4), and, if there is question of Marriages to be contracted to which no other diriment impediment obstructs, also in 3° (p. LXXIV. n. 4. 5).

Resp. 3° What Regulars can do, see n. 1203. I. 2°. 3°.

Quaer. 2° Can the Bishop, when necessity is urgent, namely when there is danger in delay, dispense in a vow of perpetual chastity for contracting Matrimony?

Resp. Affirmatively, provided that that danger is truly present, and access to the Pontiff is not easily open. For the rest, the question as regards our Bishops is useless, as is clear from the things said in the preceding question.

81. • Only three merely impeding impediments remain in the law of the Code, namely: mixed religion, vow, and, in places in which civil law has adoption as producing a prohibiting impediment, legal kinship.

S. Th., Suppl., q. 53, a. 1; q. 57; q. 59, a. 1, ad 5.

864. There are three impeding impediments: simple vow, legal kinship, and mixed religion.

Formerly several others were reckoned, such as the prohibition of the Church, the closed time, espousals. But the prohibition of the Church is not a juridic impediment established by law, but can impede matrimony only by way of a particular precept (n. 860); time does not impede matrimony but its solemnity; espousals are not a canonical impediment, because they can be urged by no action, but are left to the judgment of conscience, nor do they impede matrimony in every case.

Likewise apostasy from the Catholic faith, enrollment in a society condemned by the Church, and unworthiness from public sin or notorious censure are not true impediments, because matrimony with such persons is not prohibited simply.

Canon LII. Nuptials or birthdays ought not be celebrated in Lent.

If you consider that even the use of marriage was illicit for penitents in the state of penance, since perpetual penance is prescribed to these monks, it is easily clear that ecclesiastical rights so prohibit unions of this sort that they do not ever permit, according to the mind of Siricius, the use of these sacrilegious nuptials. This could seem to be equivalent to the invalidation of nuptials of this sort, although we confess that this sentence is not expressly handed down here. Cf. the following decree of Innocent I to Victricius concerning this matter, and Canons VI and XVIII of St. Basil above.

Canon CIV. If any widows, however much still placed in lesser years and left by a husband at mature age, have devoted themselves to the Lord and, having cast off lay clothing, have appeared in religious habit under the testimony of the bishop and the Church, but afterwards have passed over to secular nuptials, according to the Apostle they will have condemnation, because they have dared to make void the faith of chastity which they vowed to the Lord. Therefore let such persons remain without the communion of Christians, and let them not even communicate in banquets with Christians. For if adulterous wives are bound by guilt to their husbands, how much more will widows who have changed religious life be marked with the crime of adultery if by lustful pleasure they have corrupted the devotion which, of their own accord and not compelled, they offered to God, and have made a passage to second nuptials? And if they have been seized beforehand by someone with violence rushing in and afterwards by delight of the flesh and of lust have consented to remain in marriage with the abductor or violent man, they will be held liable to the condemnation comprehended above.

Canon IV. If any virgin, by her own will, having cast aside lay dress and being clothed according to the manner of devoted women, has promised to preserve chastity, or if any persons of either sex, by seeking the blessing of penance, have received it from a priest, and have of their own accord passed to earthly marriages, or women violently taken away have been unwilling to separate themselves from the violator of chastity, let both, expelled from the thresholds of the churches, be separated from the communion of Catholic persons in such a way that no consolation whatever even of conversation be left to them.

Canon IV. From the day of Septuagesima up to the octave of Pentecost (other reading: to the octave of Easter), or from the day of the Lord's Advent up to the octave of Epiphany, marriages shall by no means be contracted.

I. A twofold kind of impedient impediments. One proceeds without a delict, another from a delict. Of the former kind are five, contained in these verses:

The Church's prohibition, and also a festal season, And catechism, betrothals — join a vow: These hinder marriages from being made, but permit them made to stand.

Of the latter kind are seven, contained in these other verses:

Incest, abduction, betrothal, the death of a wife, The raising of one's own offspring, the death of a presbyter, Or if a solemn penitent should take one that is his own: These forbid this marriage to be made.

II. The Church's prohibition signifies the prohibition of a superior, namely a parish priest or bishop, that matrimony be not celebrated at such a time. A festal season is from the first Sunday of Advent inclusively up to the Epiphany inclusively, and from the day of Ashes up to the octave of Easter inclusively. Catechism, or instruction of faith, brings in that impediment which he contracts who answers for an infant while the solemn ceremonies are supplied in the Church, when Baptism, necessity urging, has been administered privately. Godparents of Baptism contract a diriment impediment, godparents of catechism an impedient one. That this impediment was taken away by Trent very many contend. Betrothals lawfully contracted with any person whatsoever hinder matrimony with another. A simple vow of chastity, of not marrying, of receiving sacred Orders, of entering Religion, is an impediment hindering matrimony. A woman cannot lawfully contract with a man bound by one of these vows. Incest is copulation of a husband with the blood-relations of his wife, or conversely of a wife with the blood-relations of her husband. Of abduction it has already been said.

III. Wife-murder perpetrated not with a mind of contracting but out of anger, vengeance, or another cause, hinders matrimony with any other person whatsoever, even if the wife had been an adulteress. The raising of sons begets an impediment by reason of spiritual kinship, which then comes about if a spouse baptize the son either of the other spouse or of each, or raise him from the sacred font, or present him to be confirmed, with the mind of denying the conjugal debt. If nevertheless from necessity the son of the other spouse be baptized, no impediment is contracted. The killing of a presbyter brings in an impediment, when someone kills a presbyter. That anyone may incur this impediment nevertheless, he must be convicted of the killing in the external forum. Solemn penance begets an impediment so long as it lasts, since it does not befit those who give their labour to mourning and weeping to celebrate nuptials, which bring gladness. Marriage with a nun is the last impediment, which is then contracted if anyone knowingly does not fear to take in marriage a virgin espoused to God. He is in perpetuity deprived of the right of matrimony on account of the injury inflicted upon the divine spouse Christ.

IV. He who, bound by one of the recounted impediments, contracts matrimony, is not deprived of the right of asking the debt, save in the vow of chastity and in incest; he is nevertheless bound to render it even when bound by these. In the rest he can both ask and render. Authors advert that, the forbidden season, the vow, and betrothals being excepted, the other impediments have grown obsolete. Wherefore the impedient impediments which now are in force are expressed in this verse:

The Church's prohibition, a season, betrothals, a vow.

As regards this nevertheless one must cleave to custom.

Applied correction from Woywod's opening insert: CASE X, page 51. Ques. 1.—Since 19 April, 1908, all marriages outside the Catholic Church between two parties baptized in the Catholic Church, or between a non-Catholic and one baptized in the Catholic Church are invalid. Exception from this rule was made only for mixed marriages in Germany, and a few other countries in Europe.

Sylvia, a Catholic, makes the acquaintance of a young Protestant, who wishes to marry her. He insists, however, upon marriage by a Protestant minister. Sylvia, though warned by her confessor of the sinfulness of such a marriage, finally assents to his proposition. The following Easter she comes to Confession, seemingly repentant of the wrong done, and promises to use all her influence upon her husband; but so far she has been unable to make him promise a Catholic bringing up for the children, or to get his consent to a repetition of the marriage ceremony before a Catholic priest and witnesses.

The questions are:

1. Is the marriage valid?

2. If not, must Sylvia leave her husband, or may she fulfil her conjugal duties in view of his "bona fides," or can and must the marriage be validated "in radice"?

3. May the confessor give Sylvia absolution and admit her to Holy Communion, and on what conditions?

Solution and argument.

1. The answer to the first question depends upon whether at the place of the marriage ceremony or at the place of abode of both participants the decree of Trent on clandestinity has been promulgated and made binding for Protestants—i. e., promulgated before the Protestants formed independent religious communities. If this is the case, and if no general dispensation has been granted by the Holy See in regard to mixed marriages, such as has been done for some territories, or an extension of the declaration of Benedict XIV, pronouncing Protestant mixed marriages valid, as in Holland, then Sylvia's marriage is invalid. But if the decrees of the Council of Trent have never been promulgated, or not until AFTER the Protestants had formed independent religious communities, whether at the domicile of either of the contracting parties, or (in case the ceremony took place elsewhere) at the place of marriage, then Sylvia's marriage is valid, notwithstanding the Protestant ceremony, because the intention of entering into true matrimony can not be doubted.

2. If the marriage is valid, Sylvia may of course fulfil her duties in spite of the sinfulness of such marriage. Whether she must do so is not so unconditioned and can not be decided in a general way. In deciding this point it would have to be taken into consideration whether the refusal of the wife would be likely to induce her husband to the, for him, difficult consent to a Catholic education of the children. An obstinate non-compliance on the part of the wife would, however, very seldom have the desired effect, would on the contrary be productive of virulence, so that for these reasons such non-compliance can rarely be an obligation, and for the case in view it will be sufficient to regard it as permissible.

If the marriage is invalid, neither the bona fides of Sylvia nor the bona fides of her husband can justify their conjugal relations in such a manner that the confessor can positively permit them. They may only be permitted as long as the validity or invalidity of the marriage remains in doubt even after careful investigation, but not if the marriage is undoubtedly invalid. Even then, however, it is a question of prudence whether the confessor, so long as Sylvia believes firmly in the validity of her marriage, should not be silent on the subject, until the affair could with promise of success be settled definitely.

This raises the further question, how the matter can be finally settled, whether Sylvia must leave her husband, or whether the marriage could or should be made valid. If there is no prospect of the sanatio of the marriage, then there remains nothing for Sylvia but to leave her husband. Upon learning of the invalidity of her marriage she is obliged to do so even at the risk of coming into conflict with civil laws. Even in case where a sanatio of the marriage is not entirely out of the range of possibility, it would be better for the wife to leave her husband if the marriage is still without issue and if, on the other hand, the man persistently refuses to consent to a Catholic education of possible offspring. For her better protection Sylvia might, especially if her marriage was also a civil one, try and find a ground for separation under the civil law.

The most important point is whether there is any prospect for a sanction of the marriage. If the husband refuses assistance from the priest who has the case in hand, and if he absolutely refuses a renewal of the marriage vow before him, then any other validation but a sanatio in radice is impossible, and therefore excluded. But will a sanatio in radice be granted? Formerly such a sanatio has been almost impossible in view of the persistent refusal of the Protestant part to consent to the Catholic education of the children. Recently, however, in view of the difficulty of dissolving a civil marriage, Rome has granted it in acute cases, if the Catholic party used his or her utmost efforts to have the children brought up in the Catholic faith. An interesting case of this kind is found in Acta S. Sedis Vol. xxx. pp. 382, etc. It treats of an invalid union between a Catholic woman and a non-baptized man by civil marriage. The latter refused to be baptized or to guarantee a Catholic education of the children, but gave his wife a free hand as regards the actual bringing up of the children. To separate this wife from her husband offered too many difficulties. Rome gave a dispensation for the impediment of disparitas cultus and then validated the marriage in radice on the condition that the wife should be impressed with her most rigorous duty to use her utmost efforts for the conversion of her husband, and to look out for the Catholic education of all their offspring. This case has a great similarity with the one now under consideration. If in Sylvia's case a dissolution of the marriage offers too many difficulties, there remains nothing but to inquire whether Rome will consider the circumstances sufficiently important to grant a sanatio in radice.

3. The third question is, whether Sylvia can be admitted to the sacraments. Here we must make distinction between Communion and absolution. As the case must be considered a public one, Sylvia can not be admitted to Holy Communion until the scandal given by her offense has been publicly expiated and reconciliation with the Church has taken place. This is not done until the question of her invalid marriage has been settled either by separation or by validation. Even if Sylvia should be ignorant, and meanwhile be left in ignorance, of the invalidity of her marriage, still she is aware of the grievous sinfulness which lies in a Protestant marriage ceremony for Catholics; she knows that that alone excludes her from the sacraments until everything has been satisfactorily settled. The same must of course be said of the priestly absolution, because marriage before a Protestant minister brings with it for the Catholic excommunication, in utroque foro; however, ignorance of excommunication may have excused the action before the conscience, and on the other hand the necessary reparation and public repentance, or renunciation before witnesses if necessary, may take place before the request to Rome and the subsequent granting of a dispensation is accomplished. For these reasons it would not be necessary to postpone a reconciliation with God through priestly absolution. Care is to be taken, that Sylvia has the sincere intention to conform to the requirements of the Church. The confessor must therefore insist upon these conditions: 1. Sylvia must faithfully promise to conform to the requirements of Rome, where her case is to be decided. 2. She must faithfully promise to do her utmost to bring about the conversion of her husband and the Catholic education of her children. 3. If she is aware of the invalidity of the marriage she must in the meanwhile refrain from the conjugal relation, and as this would be difficult if she lives with her husband, she must find a pretext to go away from him for awhile. 4. She must, if so required by the rules of the diocese, publicly renounce before the pastor and witnesses her scandalous violation of the precepts of the Church as regards mixed marriages.

If possible to obtain these points from Sylvia, then there would be nothing in the way of sacramental absolution, at least if the priest has the power to absolve in foro interno of fautor haeresis, otherwise a request for release from the excommunication would have to be made to the proper authorities—unless indeed ignorance has excused from excommunication. If the permission of the authorities would take too long to obtain, and if Sylvia would find it too hard to carry longer her heavy burden of sin, then the confessor may, without special authorization, give absolution from excommunication and sin, with the obligation, however, that this absolution will also have to be settled with Rome within a month's time. Sylvia would have to declare her determination to perform any penance decided upon for her by Rome, and she must give her consent that recourse be taken to Rome; she must be made to understand that otherwise she would fall anew under the ban of excommunication. The authority to give absolution from papal cases "in the meantime," merely for the reason that it would be too hard for the penitent to wait longer, has been explicitly given to confessors by decree of the Holy Office of June 16, 1897, with approbation of the Holy Father. The most difficult point in our case would probably be the demand stipulated under No. 3, if Sylvia be aware of the invalidity of her marriage. If a temporary absence from home can not be arranged, and if Sylvia does not show a determination to employ the means necessary to make the proximate danger of committing sin a remote one, then there can under no circumstances be any absolution until everything has been properly put in order.

Mr. B., a wealthy Protestant merchant, married a Catholic woman, promising that the children should be reared as Catholics. After a happy married life the wife dies, leaving three children under age. B.'s mother was still living, but he did not care to place his children in her care, having promised their Catholic education. Under these circumstances he sought again the hand of a Catholic woman. The latter asked advice of her confessor, and he advised her to accept the offer.

Quaeritur i. Is it never advisable to advise the entering of a mixed marriage? 2. Did the confessor act against the Church in casu? 3. What should the priest advise Mr. B. if he should ask for advice in the matterf

Ad 1. The dreadful havoc wrought by mixed marriages, for the individual and for the Church, is sufficiently known. The loss of souls, the inroads made by indifferentism, show as plain as daylight how well-founded the plaints of bishops and clergy from all parts of the Church are, and call to mind the touching words of Pius VIII, with which he accompanied the delegating of dispensation to the bishops of Prussia: Post haec Sanctitas Sua ad crucifixi pedes provoluta protestatur, se ad tolerantiam praedictam ea dumtaxat de causa adduci seu verius pertrahi, ne graviora religioni catholicae incommoda obveniant. For this reason it is the priests' sacred duty to refer in their sermons frequently to the evil consequences of mixed marriages, and to raise a warning protest already in the catechetical instructions at school. Yet, notwithstanding, now and again permission will be granted for a mixed marriage, the Church giving dispensation for weighty reasons, the necessary conditions being observed. The practice of the Church proves this, and Benedict XIV forbids to consider as sinful such a marriage, contracted after valid dispensation. That, however, which is permissible under certain conditions, may under special circumstances be even good and commendable and therefore advisable. This would answer the first question.

Ad 2. Against the Church would act the one who works against the spirit of the Church, who does not observe her laws, and offers occasion for violation of the same. A confessor who would advise a mixed marriage for any ordinary reason would certainly act against the Church. In our case, however, the salvation of three young children is at stake, which may be cared for without peril to the own soul. We are dealing with a man who is so in earnest about their Catholic education, that he for this reason alone seeks again a Catholic for wife. Such an one assuredly will never put any obstacles in the way of his wife's religious practices; this has been proven during his first marriage. On the contrary, there is a well-founded hope that he, too, may ultimately follow the lead of grace. Who would, therefore, censure the advice of this confessor, as against the Church, who recommends to a zealous Catholic such a spiritual work of mercy? A very similar case is recalled to the writer of these lines. A Protestant, upon the death of his Catholic wife, wanted to win a Catholic girl for his bride, so that he might be able to carry out his promise of bringing up his children as Catholics. The confessor advised the girl that she would be doing a good work by accepting the offer. But she declined to marry a Protestant; and no Catholic can blame her for it. What happened, however? The man eventually married a Protestant girl, who thought it queer that she and her Protestant husband should bring the children up as Catholics. The husband at first would listen to no arguments, he desired to keep his promise. But then the Protestant minister came along, and so harangued the two that finally the children were sent to a Protestant church and school.

The advice of our confessor was certainly not against the interests of the Church.

Ad 3. The foregoing answers the third question. Should Mr. B. come to the Catholic priest and show himself the man we judge him to be from the facts in the case, the priest should help him to find such a Catholic wife, who is likely to undertake the task imposed by this marriage.

The following Casus was proposed and solved in Rome, in the Apollinaris:

Bertha, a Roman maiden, was on a pleasure trip through England with her father, a widower. After a month spent in visiting various parts of the country, she chanced to meet with Titius, a wealthy Protestant, resident of the place of their meeting. The latter, conceiving a strong affection for Bertha, asked her hand in marriage of her father, who was willing to grant the request, placing only one condition, to which Titius willingly assented, viz.: that he (Titius) would take up his abode in Rome, in order that the devoted father might not be separated from his only daughter.

Bertha, however, remembered that there stood in the way of the union the impedimentum mixtae religionis; nor did she lack the courage to speak of it. On the contrary, she promptly went with her father and Titius to submit the case to the bishop of the locality, who had faculties for dispensing from such an impediment.

The bishop, being informed that Titius was willing to make the promises required by the Church, granted the dispensation and gave the necessary authorization to Caius, a priest, a friend of Bertha, to marry the couple. Caius, in order to please the latter, performs the ceremony in the chapel of a convent of which he is the chaplain; and immediately afterward says the Mass of the day—not the Votive Mass, pro sponso et sponsa.

After this Titius wishes to appear before a minister of his own denomination and repeat the ceremony. Caius, being consulted by Bertha, says that this may be done, extra templum, and provided, furthermore, that the minister uses no religious vestments or ceremonies, quia tunc deest ratio prohibitionis, nempe communicatio cum haereticis in divinis.

Bertha, following the decision of Caius, yields to the desire of Titius.

1. Who can dispense jure proprio from the impediment mixtae religionis?

2. What about the action and decision of Caius in the case?

Ad Primum.—The impedimentum mixtae religionis, which has long existed in the Church, is a general law. Hence the Pope alone can dispense from it jure proprio. Bishops can not, since the following general principle here obtains: "The inferior has no power over the law of a superior." This is confirmed by an instruction given by the Papal Secretary of State, November 15, 1858, in which it is expressly said “to which alone—that is, to the Apostolic See—belongs the power of dispensing from an impediment of mixed religion of this kind.”

While the bishop ex jure communi has the faculty—quasi-ordinaria—of dispensing in the case of some other non-diriment impediments, he does not enjoy that faculty in the case of the impediment here in question. Pius VII, in a Brief dated February 17, 1809, and addressed to the bishops of France, says that up to that time the Holy See had always refused to grant this faculty to bishops, especially in Europe, though it had been asked for with the greatest importunity. Now, however, by special indult, but still with some reluctance, this faculty is granted, especially for those places where there are many heretical sects, and particularly for sparsely settled districts, either for a definite time, or for a determined number of cases, by the Congregation of the Holy Office or of the Propagation of the Faith.

With regard to Caius, the priest who performed the ceremony in the chapel of the convent of which he was chaplain, it can be said that his action was allowable, since it was not in a country where, as for instance, in Belgium, a more rigid discipline is enforced. From the context it also appears that he used for the ceremony the rite prescribed in the diocesan ritual. Neither can he be blamed for so doing, if we suppose that the bishop had approved for the diocese, or at least tolerated, that form of ceremony for mixed marriages generally. (According to the above-mentioned instruction of 1858.) But the celebration of Mass, even though it was not the votive pro sponso et sponsa, but the one of the day, can in no way be justified if, as seems probable, it could really in the circumstances be considered as forming a part of the nuptial ceremony. If, however, it could not, and was celebrated after the ceremony merely to satisfy the devotion of the bride, it was allowable, especially as it took place in a private chapel. This would be the case if, for instance, the Mass at which the married couple assisted was the ordinary Mass celebrated at that hour every day in the convent, and the chaplain had simply made arrangements so that on this occasion it was preceded by the marriage ceremony. In such a case the Mass could not be said to have been celebrated for the married couple—rather they were obliged to arrange matters so as to assist thereat, possibly with no slight inconvenience to themselves. Finally Caius, asked by Bertha if she might, in deference to the wishes of her husband, go with him to have the ceremony performed by a Protestant minister, replied that she might do so, provided it be not in a church and that no religious rites or vestments be used, "for," he added, "in that case the motive of the prohibition will be wanting, viz., communicatio in divinis cum haereticis."

As to this point, it must be granted that some serious theologians and canonists take the same view as Caius, and for the same reason.

Gasparri (de Matr. Vol. I. n. 467) gives that solution to the case exposed above. Supposing, for instance, that the minister in lay clothing, and not in a church, were to wish happiness, etc., to the married couple, recalling the rights and duties of the state of life upon which they had entered, without pretending to add thereby anything sacred to the marriage already performed, and supposing, of course, that the Catholic party does not look upon this as in anyway a completion of the same, but simply as an act of complaisance toward the non-Catholic, whether the latter looked upon it as a sacred ceremony or not (Vechiotti III. Sec. 98).

It is true, that it is not here question of a mere civil assistance, for the contracting parties go before a heterodox minister ad sacra deputatus, but, on the other hand, it is also true that no heretical religious ceremony is performed, and consequently no real communicatio in divinis. However, care should be taken to avoid scandal, and this could be secured if the faithful were instructed as to the real motive and significance of the action of the couple in the circumstances.

Other theologians (v. g. Genicot II. n. 520) think that such an act could hardly be free from the appearance of at least an external adhesion to a heretical sect, and could not be allowed, since there would be an implied recognition of some religious authority in anon-Catholic minister.

To me it seems that perchance the solution might depend upon the circumstances prevalent in various countries and places, in particular upon the manner in which, according to received custom, such a procedure would be considered.

The following case came up unexpectedly before Father Arcadius. A Monialis, whose temporary vows would have lasted about three months longer, and who, in order to marry, had secretly left the convent, applied to him for dispensation. Arcadius resolves that this is an impedimentum occultum; and makes application to the Penitentiary Apostolic, enclosing sixty dollars, and asking for a dispensation. No answer came. Then he telegraphs, prepaying the answer; still no reply.

^* By H. Rett, O.F.M.

What is to be done in such a case? The answer is briefly as follows:

1. Arcadius is in error. An impedimentum can be publicum notorium, either notorietate facti (when the fact is known publicly) or notorietate juris—i. e. through a judicial decree, or of course also through an act amounting to the same, an act which may be called before the forum of the (spiritual) tribunal. The public act of a profession of vows (though simple) on entering an Order, is certainly an act of this kind. Arcadius has no privilege to interfere in a notorious impediment, either as confessor or as private adviser, because it belongs before the ecclesiastical court; indeed, if not prevented by the seal of Confession, he was bound to report the case to the ecclesiastical authorities.

2. Arcadius, in his proceeding in this case, made a second mistake: He wrote to the Penitentiary Apostolic. This congregation grants marriage dispensations pro foro interno, and also pro foro externo, where the poor are concerned. And even in their case, when it is a question of a public impediment, the applicant's full name must be given. Arcadius did not do so; which was the third mistake therefore. At any rate this kind of a dispensation (from religious vows) would seem a matter for the forum of the S. Congr. Ep. et R.