Solemn Vows and Sacred Orders

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

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

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

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

a. That the ordination be valid.

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

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

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

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

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

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

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

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

² Cn. 214, 1.

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

⁴ Cf. Matharan, n. 251.

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

⁶ Cn. 2388, 1.

⁷ Cn. 188, 5.

⁸ Cn. 2388, 1.

⁹ Cn. 985, 3.

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

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

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

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

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

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

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

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

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

² S. Office, February 20, 1888.

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

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

⁵ Cn. 542, 1.

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

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

¹ Sess. xxiv, C. 9; can. 1072, 1073.

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

¹ S.0., February 20, 1888.

I. Major or sacred Orders, that is, the Episcopate, Presbyterate, Diaconate, and Subdiaconate, diriment marriage (canon 1072, compared with canons 949 and 950).¹ There is dispute concerning those who received sacred Order without sufficient knowledge of the obligation of celibacy, or compelled by grave fear. For the rest, canon 214, § 1 states: "A cleric who, compelled by grave fear, received a sacred Order and afterwards, once the fear was removed, did not ratify the same ordination at least tacitly through exercise of the Order, while nevertheless wishing by such an act to subject himself to clerical obligations, is to be reduced to the lay state by sentence of a judge, once the coercion and defect of ratification have been legitimately proved, without any obligations of celibacy and of the canonical hours."

Minor clerics can indeed enter nuptials, but, unless the marriage was null by reason of force or fear inflicted upon them, they fall by the law itself from the clerical state (canon 132, § 2).

II. Sacred Order as such does not diriment marriage by divine law, whether natural² or positive, but merely by ecclesiastical law. Not by divine natural law, that is, by force of the nature of sacred Order. For this is not absolutely incompatible with obligations essential to sacred Order, as is evident from approved practice in the Eastern Church and from dispensations granted by the Church; and those dispensations furnish a new argument, because the Church cannot dispense in divine natural law. Nor by divine positive law, that is, law founded in a special disposition of Christ. This is likewise deduced from approved practice and dispensations, of which there has just been discussion. It remains therefore, as we shall say, that sacred Order as such diriments marriage by ecclesiastical law alone. I said as such; for there is dispute whether the solemn vow of chastity, which according to many is attached to sacred Order, diriments marriage by divine law. Concerning this, see below (n. 784), where we adhere to the opinion which derives the invalidating force of a solemn vow from ecclesiastical law alone.

III. The Church established the diriment impediment by reason of the Order itself; in other words, she annexed the impediment to the Order itself. Whether she also annexed it to the vow is disputed. By reason of the Order itself, as is evident from the fact that canon 1072 constitutes those placed in sacred Order absolutely incapable, so that even those who excluded the vow would be held by the impediment. It is disputed whether the Church also annexed the impediment to the vow, if it is emitted. Now it seems that this must be affirmed, if one considers both the things which Boniface VIII established in the single chapter de voto et voti redemptione, III, 15, in the Sext; and the authority of other Pontiffs in the single chapter, title 6, de voto, in the Extravagants of John XXII; and the Constitution Inter praeteritos of Benedict XIV, § 41, December 5, 1749, with proposition 72³ proscribed in the Syllabus of Pius IX also being compared. I said "if it is emitted" (St. Alphonsus VI, 808, 809). For:

It is disputed, first, whether there has existed a law of emitting a vow in the reception of sacred Order. Now Wernz-Vidal, in order to prove its existence, speaks thus: "Certainly from the ancient tradition of the Western Church, from Gregory the Great onward, men were not admitted to major Orders unless they previously professed chastity. This profession according to the obvious meaning contains a true vow of perfect chastity. But by no solid argument can that fact, already in itself rather unbelievable, be demonstrated: that the Latin Church, having abandoned her ancient and more perfect practice of exacting celibacy also from a vow of perfect chastity, adopted the less perfect discipline of the Greeks, who impose upon a celibate cleric approaching major Orders the obligation of chastity by ecclesiastical law alone. Nor can adversaries assign by some probable reason the time when at last that wondrous change of ancient discipline was made. Therefore the singular prerogative and dignity of the secular clergy of the Latin Church, by which it follows the evangelical counsel of chastity in the more perfect form and mode of a vow, is to be retained with all force and constancy."⁴

It is disputed, secondly, whether the law of emitting a vow in the reception of sacred Order continued to be in force after the new Code. This may seem doubtful to someone, because the stated law is with difficulty drawn out of the Code, and therefore, with canon 6, 6° considered, seems to have been abolished.

Nevertheless the law seems to persist: both because canon 6, 6° does not seem applicable to the stated law, as introduced by custom;⁵ and because the word sacrilege occurring in canon 132, § 1 can regard also the vow annexed and to be annexed to the Order; and once this is admitted, the law is contained at least implicitly in the Code; and because at least because of doubt one must not depart from the old law (canon 6, 4°).

IV. The penalties established against major clerics attempting marriage are:

1. Excommunication latae sententiae, simply reserved to the Apostolic See; clerics moreover, if after having been warned during the time determined beforehand by the Ordinary according to the diversity of circumstances, they have not repented, are to be degraded (canon 2388, § 1).

2. Irregularity (canon 985, 3°).

3. Loss of office (canon 188, 5°).

Note. The penalties set forth have been established also against those who contract merely civilly, although an act of this sort lacks even the appearance of marriage (cited canon).

V. The Church never dispenses in the impediment of Order with Bishops, scarcely ever with presbyters, and not easily with deacons and subdeacons.

But whenever a dispensation is granted, it is enjoined upon the cleric that, reduced to the lay state, he in no way exercise the Orders received. By this injunction the fundamental principle of the Latin Church is preserved, namely, that clerics "cannot attend at the same time to pleasures and carnal desires and to ecclesiastical services." So chapter 3, de conversione coniugatorum (III, 32). But the obligation of reciting the Divine Office is commuted into other works of piety.⁶

¹ Council of Trent, session 24, canon 9.

² That is, by reason of the character of the Order itself.

³ "Boniface VIII was the first to assert that a vow of chastity emitted in ordination renders nuptials null."

⁴ Op. cit., n. 284.

⁵ Cf. Sacred Congregation of the Council, January 10, 1920.

⁶ Vlaming, I, n. 301.

I. Religious who have professed solemn vows,¹ or simple vows to which, by special prescription of the Apostolic See, the force of invalidating nuptials has been added, invalidly attempt marriage (canon 1073). Force of this sort has been added to simple vows emitted by scholastics in the Society of Jesus, as is evident from the Constitutions of Gregory XIII Quanto fructuosius² and Ascendente Domino.³ Insofar as in the reception of the Subdiaconate a solemn vow of chastity is emitted which diriments marriage, see n. 782.

It is disputed whether a solemn vow diriments marriage by divine law, whether natural, that is, by its own force, or positive, or by ecclesiastical law. Now it seems to diriment marriage by ecclesiastical law alone: both because the former opinion is proved by no argument, although such force of a solemn vow is not to be asserted without an argument; and because Leo XIII,⁴ by reckoning the impediment of religion among ecclesiastical impediments, in the obvious sense excludes divine law; and because a solemn and a simple vow do not seem to differ in nature or substance (vol. I, n. 1218). Once this is posited, it is admitted with difficulty that invalidating force regarding marriage belongs to the former, since the same cannot be affirmed of the latter.

II. The penalties established against religious attempting marriage are:

1. Excommunication. "Regulars or nuns after a solemn vow of chastity, and likewise all presuming to contract marriage, even only civilly, with one of the aforesaid persons, incur excommunication latae sententiae simply reserved to the Apostolic See... But if they are professed of perpetual simple vows, whether in Orders or in religious Congregations, all, as above, are held by excommunication latae sententiae reserved to the Ordinary" (canon 2388).

2. Irregularity for those who are bound by religious vows, even simple and temporary vows (canon 985, 3°).

3. Dismissal from religion. Religious are to be held by that very fact as legitimately dismissed if they attempt or contract marriage or even a civil bond, as they say (canon 646, § 1, 3°).

4. If religious have been constituted in sacred Orders, they are moreover held by loss of office (canon 188, 5°), and if, after they have been warned during the time determined beforehand by the Ordinary according to the diversity of circumstances, they have not repented, they are to be degraded (canon 2388, § 1).

Note. The penalties set forth have been established also against those who contract merely civilly (cited canon).

III. Today the Church dispenses in solemn religious profession not only for a cause which concerns the public good, but also for a very grave cause regarding private good. Nevertheless a solemn vow of chastity is commonly not totally removed by the Holy See, but in such a way that the dispensed person, outside the licit use of marriage, also sins against the vow, and the faculty of marrying is restricted to one marriage.

IV. Things to be noted. 1. One who, having obtained an indult of secularization, leaves religion remains freed from vows, while the burdens annexed to major Order stand firm if he was in sacred Orders (canon 640, § 1, 2°); therefore the aforesaid indult does not remove the diriment impediment of sacred Order.

2. The solemnity of vows is extinguished by that very fact in one who legitimately pronounces simple vows in another religious Congregation, unless something else is expressly provided in the apostolic indult (canon 636); and by the fact that the solemnity of vows is extinguished, the force of invalidating marriage also ceases.

¹ A vow is solemn if it has been recognized as such by the Church; otherwise it is simple (canon 1308, § 2). But the Church recognizes as solemn the perpetual vows emitted in some religious Order, whether by regulars or by nuns. Nevertheless, although the vows of nuns are solemn by institute, for some places by prescription of the Apostolic See they are simple (canon 488, 2° and 7°).

² February 1, 1583.

³ May 25, 1584.

⁴ Letters of the Holy Office, February 20, 1888 (Collectanea, n. 1685).

797. • I. A vow diriment of matrimony is only a solemn vow of chastity ¹, emitted through profession in an approved Religion. For a simple vow of chastity, even perfect and perpetual, does not invalidate matrimony ², but only impedes it, according to what was said above, no. 779.

¹ It is called a vow of chastity, not a religious vow, because religious profession invalidates matrimony precisely and only insofar as it includes a solemn vow of chastity. Therefore the vows, even solemn ones, of certain Equestrian Orders which profess only conjugal chastity do not invalidate matrimony. See Schmalzgrueber, book 4, title 6, no. 45.

² The simple vows which, by a special privilege of Gregory XIII, are emitted in the Society of Jesus after two years of novitiate must be excepted, as we said elsewhere in the note to no. 759 above.

II. The Order diriment of matrimony, however, is sacred Order, namely, the Presbyterate, Diaconate, and Subdiaconate.

The First and Second Lateran Councils speak concerning each of these impediments, and the Council of Trent, session 24, canon 9, says: If anyone shall say that Clerics constituted in sacred Orders, or Regulars who have solemnly professed chastity, can contract matrimony, and that the matrimony contracted is valid notwithstanding ecclesiastical law or the vow, let him be anathema ³.

³ ** In the sole Clementine Constitution On Consanguinity and Affinity, a latae sententiae excommunication is imposed both against those who knowingly do not fear to contract matrimony with a nun and against nuns, Religious, and Clerics constituted in sacred Orders who contract matrimony. Moreover, this excommunication was not absolutely reserved, although the guilty could not be absolved before separation; but after separation they could be absolved by any confessor, unless perhaps the excommunicated persons had been denounced, for then the Bishop alone could absolve them. But under the new law this excommunication is altogether reserved to Bishops or Ordinaries. For in the Constitution Apostolicae Sedis issued by Our Most Holy Lord Pope Pius IX in the year 1869, among the latae sententiae excommunications reserved to Bishops or Ordinaries, this is read in the first place: Against Clerics constituted in sacred Orders, or Regulars and nuns after a solemn vow of chastity, presuming to contract matrimony, and also all those presuming to contract matrimony with any of the aforesaid persons.

798. Questions. - QUESTION 1. By what law do the aforesaid impediments invalidate matrimony?

Reply 1. According to the common opinion, the impediment of Order invalidates only by ecclesiastical law ⁴. The reason is that, on the one hand, Order of itself is not repugnant to the conjugal state; nor, on the other hand, is there any divine prohibition found in Scripture or tradition. - St. Ligorius, no. 1059.

⁴ See the note above to no. 41.

Reply 2. Since the solemnity of a vow belongs to ecclesiastical law, by that very fact the Pope can dispense, provided that a sufficient cause is present, that is, one proportioned to the gravity of the matter ⁵.

⁵ That the Pontiff can dispense from this impediment is the most received opinion of Theologians and Canonists, a long series of whom Sanchez cites (On Matrimony, book 8, disputation 8, no. 7); and indeed examples of this dispensation having been granted are everywhere available, as can be seen in Schmalzgrueber, book 3, title 35, no. 48.

QUESTION 2. What conditions are required for a solemn vow and Order to invalidate matrimony?

Reply 1. As regards a vow, it must have been emitted: first, voluntarily and deliberately; second, with the true intention of binding oneself; otherwise the vow would not be valid.

Reply 2. As regards Order, it is required: first, that it was received validly; second, that it was received voluntarily. - Thus all.

811. Notion. The impediment of sacred order is an incapacity established by ecclesiastical law (in the Latin Church), by which clerics initiated into sacred order (namely, at least the subdiaconate) cannot validly contract matrimony, nor licitly use a matrimony perhaps contracted previously. But for the existence of this impediment it is required that the cleric have received the subdiaconate a) after attaining puberty, b) without coercion and grave fear, c) with knowledge of the celibacy annexed to it.

Explanation. It is said, 1. an incapacity established by ecclesiastical law. For the origin of this impediment is to be derived from ecclesiastical law and not from divine law, as some have wished. Hence St. Thomas briefly and succinctly teaches: "The debt of continence is not essentially annexed to sacred order, but by the statute of the Church."⁹⁴ This is confirmed both from the practice of the Eastern Church, in which the use of a matrimony entered before the subdiaconate is permitted even to priests; from ecclesiastical history, in which examples are adduced, even from the Latin Church, of priests formerly living legitimately in matrimony; and finally from Sacred Scripture, where St. Paul writes: "It behooves a bishop, therefore, to be blameless, the husband of one wife, ... having his children subject with all chastity."⁹⁵ But it is altogether absurd to say that in apostolic times something contrary to natural or divine law was permitted to clerics. - Besides, in this matter three questions are to be distinguished, which are not rarely confused and thus cause obscurities, not to say falsehoods. These three questions are: 1. Whence arose the power of diriming matrimony annexed to sacred order? 2. Whence arose the obligation of celibacy joined with the reception of sacred order? 3. Whence arose the obligation of perfect chastity joined with the reception of sacred order?

⁹⁴ S. theol. 2, 2, q. 88, a. 11.

⁹⁵ 1 Tim. 3:2-4. Several authors, however, explain this text otherwise.

812. To the first question it is answered: The power of diriming matrimony was attributed to sacred order by ecclesiastical law; hence all teach that sacred order received freely with sufficient knowledge of the annexed obligations dirimes a subsequent matrimony, even if the ordained cleric expressly did not wish to make a vow of continence. In this case a vow of chastity would certainly be lacking, and nevertheless the diriment impediment would remain; this impediment therefore does not arise (at least uniquely) from the vow. If, however, the cleric, as commonly happens, also emits a vow of continence (at least tacit or implicit) in the reception of the subdiaconate, then that vow thus solemnized has the power of diriming matrimony, as is manifestly evident from the words of Boniface VIII cited below, n. 816. - It is not established at precisely what time sacred order became a diriment impediment of matrimony. From the particular laws of several regions, for example, Spain and Italy, sacred order was already held as a diriment impediment of matrimony in the fifth century. But by general law this impediment seems to have been established at the Second Lateran Council (1139). In the time of Gregory IX, and still more of Boniface VIII, there was already no reasonable doubt in the Latin Church concerning the diriment impediment arising from sacred order received. This impediment was confirmed again in the Code of Canon Law, can. 1072.

To the second question it is answered: The obligation of celibacy is annexed to the reception of sacred order likewise by ecclesiastical law alone. This is evident from the same arguments which were adduced above for the origin of the diriment impediment arising from sacred order. The celibacy of clerics in major orders already existed from the most ancient times and was held as at least an impedient impediment of matrimony, although it cannot be clearly proved that it already flourished thus from the times of the apostles.⁹⁶

⁹⁶ Bickell (in Innsbrucker Theol. Zeitschr. II, 26 ff., and III, 792 ff.) defended the opinion that celibacy flourished in apostolic times as a true precept. Funk wrote against him (in Tübinger Theol. Quartalschr., 1879, p. 208 ff., and 1880, p. 202 ff.).

813. To the third question it is answered: The obligation of clerics constituted in major orders to perfect chastity, so that any sin whatsoever (even internal) committed against chastity has the character of sacrilege, does not arise from ecclesiastical law alone, but from the vow annexed to the subdiaconate (which consequently also obliges to celibacy and which, because of its solemnity, furthermore constitutes a diriment impediment of any subsequent matrimony). Thus St. Thomas,⁹⁷ St. Bonaventure,⁹⁸ Peter Ledesma,⁹⁹ and commonly the Thomists, Suarez,¹⁰⁰ Reiffenstuel,¹⁰¹ Benedict XIV,¹⁰² St. Alphonsus,¹⁰³ and among moderns, with many others, Feije,¹⁰⁴ Freisen,¹⁰⁵ Wernz-Vidal,¹⁰⁶ and Lehmkuhl.¹⁰⁷ Many authors, both ancient and modern, for example, Scotus,¹⁰⁸ John of Torquemada,¹⁰⁹ Hinschius,¹¹⁰ Scherer,¹¹¹ Leitner,¹¹² Sägmüller,¹¹³ Hollweck,¹¹⁴ Scharnagl,¹¹⁵ and De Smet,¹¹⁶ teach the contrary opinion, namely, that the obligation both of celibacy and of complete chastity, so that every voluntary violation of chastity is sacrilege, arises from ecclesiastical law alone. - The former opinion seems to be preferred, both because Boniface VIII in the text cited below speaks expressly of a vow solemnized through the reception of sacred order, and because otherwise it seems unintelligible how a cleric in major orders committing a merely internal sin against chastity truly perpetrates sacrilege, as the most common opinion and the Code of Canon Law, can. 132, § 1, teach. For the Church probably cannot command merely internal acts. Therefore, if someone posits an internal act against a merely ecclesiastical precept, he does not commit sacrilege. The authors of the second opinion indeed have recourse to some personal consecration, I know not what, which according to them the cleric receives in sacred order; but this particular consecration is fictitious, and it is not found in the sacred orders of the Eastern Church, nor is any trace of it found anywhere. Furthermore, even if this ecclesiastical consecration were admitted (not granted), it is not apparent how it could be violated by true sacrilege through a merely internal act. Finally, moralists quite commonly teach that a sin of lust committed by a cleric in major orders and the same sin committed by a solemnly professed religious do not differ essentially, so that a regular priest committing such a sin is not bound in confession to declare his religious state, provided that he confesses his priestly state. Moreover, it seems certain that the violation of a truly solemn vow really differs from the violation of some merely ecclesiastical consecration. Nor should anyone say: if the Church cannot command an internal act, neither can she command a vow, which essentially consists in an internal act of the will; for although the Church cannot absolutely command some vow, she can nevertheless annex a vow to some state to be undertaken, so that no one can licitly undertake that state unless he also emits the prescribed vow. Thus no one can undertake the religious state unless he emits the three customary vows. In like manner, no one can licitly undertake the state of sacred order unless he emits the vow of perfect chastity.

It is said, 2. in the Latin Church; for in certain Eastern Churches this impediment of sacred order does not exist, so that clerics can enter matrimony before receiving the subdiaconate and afterward use this matrimony even after receiving the orders of the diaconate and priesthood. But if the wife of an Eastern cleric in major orders has died, second nuptials are prohibited and invalidated.¹¹⁷ Besides, the practice is not the same in all the Eastern Churches, both with respect to the celibacy of clerics and with respect to clerics in major orders who attempt second nuptials.¹¹⁸ Eastern bishops must observe celibacy altogether.¹¹⁹

It is said, 3. clerics initiated into sacred order cannot licitly use a matrimony perhaps contracted previously. A husband can receive sacred orders, provided that his wife freely consents and emits a vow of perpetual chastity (either in a monastery, or, if suspicion of a violation of chastity is absent, in the world).¹²⁰ Besides, according to the discipline now in force, a husband is impeded from receiving orders.¹²¹ Therefore, in practice the Holy See must be consulted, which determines what is to be done. Matrimony indeed is not dissolved as regards the bond by the reception of sacred order, but divorce as regards bed and even habitation is commanded.¹²²

⁹⁷ S. theol. 2, 2, q. 88, a. 11. Elsewhere (Suppl., q. 53, a. 3) the Holy Doctor says: "Sacred order ... has from the constitution of the Church that it impedes matrimony; nevertheless, differently among the Latins than among the Greeks; because among the Greeks it impedes matrimony to be contracted solely by the force of order, but among the Latins it impedes by the force of order and, further, by the vow of continence which is annexed to sacred orders; although someone does not emit this verbally, nevertheless, from the very fact that he receives the order according to the rite of the Western Church, he is understood to have emitted it."

⁹⁸ Bk. 4, dist. 38, tit. 2, q. 1.

⁹⁹ De magno sacr. matrim., q. 53, a. 3.

¹⁰⁰ De virt. relig., tr. 7, bk. 9, c. 17, n. 11.

¹⁰¹ Ius can., bk. 4, tit. 6, n. 15.

¹⁰² De syn. dioec., bk. 12, c. 4, n. 2.

¹⁰³ Theol. mor., bk. 6, n. 808. The Holy Doctor calls this opinion more probable and more common.

¹⁰⁴ De imped. et dispens. matrim., 384.

¹⁰⁵ Gesch. des kan. Eherechtes, 767 ff.

¹⁰⁶ Loc. cit. V, n. 284. Wernz treats this question excellently (with Ballerini).

¹⁰⁷ Theol. mor. II, n. 782.

¹⁰⁸ Bk. 4, dist. 37, sole q.

¹⁰⁹ Comm. in Decr. Grat., c. 3, D. 84.

¹¹⁰ System d. kath. Kirchenr. I, 159.

¹¹¹ Kirchenr. II, 367.

¹¹² Lehrb. d. kirchl. Eherechtes, 189.

¹¹³ Kirchenr. I, 264.

¹¹⁴ Kirchenr., 257.

¹¹⁵ Das feierl. Gelübde als Ehehindernis, 207 ff.

¹¹⁶ Loc. cit., n. 574.

¹¹⁷ Benedict XIV, Constitution Anno vertente, June 19, 1750; cf. also Papp-Szilagyi, Enchir. iur. eccl. orient. cath., 3rd ed., §§ 16 f. and 101.

¹¹⁸ Cf. Papp-Szilagyi, loc. cit., and especially Wojuki, Die Wiederverehelichung der Priester in der morgenl. Kirche, in Arch. f. kath. Kirchenr. (1908), p. 405 ff.

¹¹⁹ Benedict XIV, Constitution Etsi pastoralis, May 26, 1742.

¹²⁰ c. 6, X, 3, 32.

¹²¹ Code of Canon Law, can. 987, n. 2.

¹²² Leitner, Lehrb. des kirchl. Eherechtes, 193.

814. Exceptions. The impediment of sacred order is not incurred:

a) if the subdiaconate was received before puberty, that is, before the fourteenth year of age, unless after the sixteenth year the obligation of celibacy was freely accepted.¹²³ The ordination of those below puberty no longer occurs today.

b) if someone received the subdiaconate because of grave fear unjustly inflicted or because of coercion, unless afterward he freely accepts the obligation of celibacy. This free acceptance can be made either through express words or tacitly through conclusive acts, for example, if through the free exercise of sacred order someone freely accepts all the obligations of such an order. It is very equitable that a cleric initiated into sacred order because of grave fear (unjustly) inflicted is not held to celibacy, because it would be too harsh to subject an unwilling man, coerced by grave fear (unjustly), to the perpetual yoke of continence. Thus also the Code of Canon Law, can. 214, expressly establishes.¹²⁴

c) if someone invincibly did not know that the obligation of celibacy was annexed to the reception of the subdiaconate.¹²⁵ Today this case is almost impossible, since before the ordination of subdeacons the bishop expressly announces the obligation of celibacy to those to be ordained.

¹²³ Cf. St. Alphonsus, Theol. mor., bk. 6, n. 810.

¹²⁴ In this canon it is said: "A cleric who, coerced by grave fear, received sacred order and afterward, when the fear had been removed, did not ratify that ordination at least tacitly through the exercise of the order, yet willing through such an act to subject himself to the clerical obligations, is to be reduced to the lay state by sentence of the judge, when the coercion and the absence of ratification have been legitimately proved, without any obligations of celibacy and the Canonical Hours."

¹²⁵ Cf. St. Alphonsus, loc. cit., n. 809.

815. Cessation of this impediment. Although the impediment of sacred order was instituted by ecclesiastical law alone, nevertheless a dispensation is conceded with the greatest difficulty so that a cleric in major orders can contract matrimony. The reason is that otherwise wide doors would be opened to many abuses, with grave detriment to religion and great scandal of the people. Nevertheless, the faculty of dispensing subdeacons and deacons (but not priests) from the impediment of order is conceded if they or their accomplices are in grave danger of death and wish to celebrate matrimony in order to provide for their conscience.¹²⁶ Matrimony is never permitted by the Holy See to bishops, but almost never to priests.¹²⁷

The penalties established against violators of the impediment of sacred order are two:

1. Excommunication simply reserved to the Holy See. It is the same as that which is imposed against the solemnly professed (alleged in the following paragraph).

2. Irregularity from delict, as the Code of Canon Law, can. 985, n. 3, establishes.

3. Clerics constituted in sacred orders who attempt matrimony by that very fact lose their ecclesiastical offices, and if, after being warned by the Ordinary, they have not repented, they are to be degraded.¹²⁸

¹²⁶ Cf. below, n. 857 ff.

¹²⁷ The examples frequently adduced of a dispensation conceded to bishops, for example, Talleyrand, John Butler, and Synesius, are spurious. Cf. Leitner, loc. cit., § 89, p. 192. - Pius VII conceded a dispensation to priests who entered matrimony during the first French Revolution.

¹²⁸ Code of Canon Law, can. 188, n. 5; cann. 2359 and 2388.

It was already said above, n. 665, concerning solemn religious profession insofar as it dirimes a preceding ratified matrimony. Likewise, it was already said, n. 780 ff., concerning vows which do not dirime but prohibit matrimony from being contracted. It remains that we speak of the vows which dirime a matrimony to be contracted.

816. Extent of the impediment. According to the discipline now in force, the following vows dirime a matrimony to be contracted:

1. a solemn vow emitted in religious orders strictly so called;¹²⁹

2. a simple vow emitted in the Society of Jesus.

3. That a solemn vow emitted in religious orders dirimes a matrimony to be contracted is evident both from the Decretals,¹³⁰ from the Council of Trent,¹³¹ and from the Code of Canon Law, can. 1073. But in which religious institutes solemn vows are found is a question of fact and cannot be determined by a general rule. In certain regions, as, for example, in France, Belgium, Bavaria, and North America,¹³² women rarely or not at all emit solemn profession. - It is evident of itself that religious profession does not produce this effect if it was invalid, for example, because of grave fear, because of defect of the essential formalities, etc.¹³³

4. Simple vows pronounced by scholastics of the Society of Jesus after the two years of novitiate dirime a subsequent attempted matrimony.¹³⁴

Several authors, among whom are Benedict XIV¹³⁵ (not indeed as Pope, but as a private author), Sanchez,¹³⁶ Tanquerey,¹³⁷ and Gasparri,¹³⁸ teach that even the simple vow of chastity emitted by a spouse remaining in the world, while the other spouse, with the free consent of the former, enters religion or receives sacred orders after the consummation of the matrimony, is equivalent to a solemn vow and therefore dirimes a subsequent matrimony; but this opinion is deservedly rejected by almost all moderns, because neither a solid argument nor any text of law can be adduced for it.¹³⁹ Therefore, if such a spouse who emitted a simple vow of chastity contracted matrimony after the death of the other spouse, he would act validly but illicitly. For he ought first to obtain a dispensation from the simple vow of chastity. - Besides, present discipline has been changed in this matter, since no one joined in matrimony can enter religion or receive sacred orders without the previous permission of the Holy See.

¹²⁹ This power of a solemn vow is already indicated not obscurely in c. 27, C. 27, q. 2: "It is not lawful for parents to give an espoused girl to another man; it is lawful, however, for her to choose a monastery for herself." Certainly several authors, for example, Berardi, Wernz, etc., think that this text did not emanate from Pope Eusebius (about the year 300), since monasteries did not yet exist at that time; but whatever may be true concerning this opinion, the text is certainly most ancient. Mention of it is already made in the Penitential of Theodore of Canterbury, bk. 2, c. 12, n. 33 (in Schmitz, Die Bußbücher, etc., 547); in the Decree of Ivo of Chartres, pt. 7, c. 40; in the Sentences of Peter Lombard IV, dist. 27; and in other authors. All these things demonstrate that this most ancient text was held in great esteem. But although the text says "an espoused girl," nevertheless there is no discussion there of mere betrothals, but of the so-called betrothals de praesenti, which are nothing other than a ratified matrimony. - Furthermore, already in the most ancient times consecrated virgins or monks attempting matrimony were not only gravely punished but were also compelled to separate from their spouses (cf. Council of Tours, 567, can. 15). This is an evident sign that already in the first centuries a solemn vow or religious profession was held to be a diriment impediment of matrimony. Cf. Wernz-Vidal, Ius can. V, n. 298; and especially Weckesser in Arch. f. kath. Kirchenr. LXXVI, 83. Finally, after the Second Lateran Council (in Gratian, c. 40, C. 27, q. 1), the matter was plainly defined by Boniface VIII (c. unic., III, 15 in VI°), by the Council of Trent (sess. 24, can. 9, on the sacrament of matrimony; Denz., n. 979), and by the Code of Canon Law, can. 1073.

¹³⁰ Boniface VIII, having been asked by the Bishop of Bourges what vow ought to be called efficacious for diriming matrimony, responded: "We have judged that it must be declared by the oracle of a sanction that only that vow ought to be called solemn with respect to diriming a matrimony contracted afterward, which was solemnized through the reception of sacred order or through an express or tacit profession made in one of the religious institutes approved by the Apostolic See. But the other vows, although they sometimes impede a matrimony to be contracted, ... nevertheless cannot rescind it after it has been contracted" (c. unic., III, 15, in VI°). From these words it seems clearer than light that no vows other than these two, namely, the solemn vow of religion and the vow emitted in the reception of sacred order, dirime a subsequent matrimony.

¹³¹ "If anyone says that clerics constituted in sacred orders or regulars who have solemnly professed chastity can contract matrimony and that the matrimony contracted is valid, notwithstanding ecclesiastical law or the vow, and that the contrary is nothing other than to condemn matrimony, ... let him be anathema" (sess. 24, can. 9, on the sacrament of matrimony; Denz., n. 979).

¹³² According to Leitner (Lehrb. d. kirchl. Eherechtes, § 28, p. 175), solemn profession is emitted in four Visitation convents in Georgetown, Baltimore, Mobile, and St. Louis.

¹³³ Cf. our Man. iur. can., q. 213.

¹³⁴ Gregory XIII, Constitution Ascendente Domino, May 25, 1584.

¹³⁵ De syn. dioec., bk. 13, c. 12, n. 16.

¹³⁶ De matrim. VII, disp. 40, nn. 1-3.

¹³⁷ De matrim., n. 950.

¹³⁸ De matrim. I, n. 575.

¹³⁹ Cf. Scharnagl, Das feierliche Gelübde als Ehehindernis, 195.

817. Cessation of this impediment. Although, according to the opinion of several very grave authors¹⁴⁰ (which St. Alphonsus calls more probable¹⁴¹), a solemn vow dirimes matrimony by divine law, nevertheless the Supreme Pontiff, as the vicar of Christ, can, when a grave cause exists, concede permission that someone solemnly professed may validly and licitly enter matrimony, just as for the gravest reason he can also permit a consecrated chalice to be employed for profane uses. - By an indult of secularization, a dispensation from vows is conceded by that very fact, unless, however, the secularized person is constituted in sacred orders.¹⁴² How a dispensation from this impediment can be conceded in danger of death and in other more urgent cases will be said below, n. 866 ff.

The impediment of the simple vow emitted by scholastics of the Society of Jesus ceases by the very fact that one professed in this manner has been legitimately dismissed by the superior general of the Society.¹⁴³

¹⁴⁰ In favor of this opinion stand St. Thomas (bk. 4, dist. 38, q. 1, a. 3, sol. 3), St. Bonaventure (on bk. 4, dist. 38, a. 2, q. 1), Valentia (on 2, 2, disp. 6, q. 6, punct. 5), Victoria (Relect. IV, De potestate Papae, prop. 1, ad 1 arg.), and several others, especially Thomists; and among moderns Rosset (De sacr. matrim., n. 1676), who says: "A solemn vow of religious profession, both by its own force or natural law and by divine law, has the power of diriming a matrimony to be contracted, apart from any ecclesiastical law whatsoever." But modern authors more commonly teach that this impediment dissolves matrimony by ecclesiastical law alone; yet their argument, derived from the words of Boniface VIII and Gregory XIII, does not seem probative.

¹⁴¹ Theol. mor., bk. 6, n. 1025.

¹⁴² Code of Canon Law, can. 640.

¹⁴³ Gregory XIII, Constitution Ascendente Domino, May 25, 1584.

818. Penalties against the solemnly professed who attempt matrimony.

1. Excommunication simply reserved to the Holy See. Regulars (whether men or women) who, after a solemn religious profession validly emitted, presume to contract even a civil matrimony, and also all who presume to contract matrimony with any of the aforesaid persons, by the fact itself incur excommunication simply reserved to the Holy See.¹⁴⁴

Therefore, for this excommunication truly to be incurred, it is required:

a) that these persons presume to contract a true matrimony (although it is civil and even if other diriment impediments obstruct it).¹⁴⁵ But if they intend nothing other than concubinage, the excommunication does not reach them;

b) that there be presumption, that is, knowledge of the censure and freedom in contracting the matrimony; therefore, if the contracting parties are ignorant of the censure (but not through affected ignorance), or if they enter matrimony under coercion or because of grave fear, they do not incur the excommunication.¹⁴⁶ Ignorance of the censure is sometimes found in lay persons who contract matrimony with the solemnly professed.

Scholastics of the Society of Jesus, simply professed, who attempt matrimony do not incur this censure, because their profession is not solemn.

2. Irregularity from delict, which in the Code of Canon Law, can. 985, n. 3, is extended also to those who are bound by simple vows. For religious profession is held to be a matrimony between the soul and Christ, and therefore through a new matrimony such a person becomes as though a bigamist. But nuns (who are incapable of irregularity) are excluded from those offices to which only virgin nuns can be admitted by particular law.

3. Dismissal from the order. For by the fact itself those religious are to be held as legitimately dismissed who attempt or contract matrimony, or even a so-called civil bond.¹⁴⁷

4. By the particular law of diverse orders, grave penalties are still wont to be established against transgressors of the vow of this kind, who, if they are clerics constituted in sacred orders, furthermore incur the penalties against concubinarians.¹⁴⁸

¹⁴⁴ Code of Canon Law, can. 2388. Formerly this excommunication was reserved to the Ordinary.

¹⁴⁵ Holy Office, January 13, 1892.

¹⁴⁶ For every diminution of imputability, whether on the part of the intellect or on the part of the will, exempts from penalties imposed against those who presume. Code of Canon Law, can. 2229, § 2.

¹⁴⁷ Code of Canon Law, can. 646, § 1, n. 3.

¹⁴⁸ Ibid., can. 2359.

S. Th., Suppl., q. 53, a. 2-4.

889. Notions. - This double impediment has a certain likeness, because each is connected with the obligation of chastity: it is an incapacity for contracting matrimony arising from the reception of sacred order or from the emission of a solemn vow in religious profession.

1° From sacred order (ordre sacre; heilige wijding). From the beginnings of the Church, both in the East and in the West, after sacred order had been received, it was forbidden to enter matrimony, conformably to the saying of the Apostle, I Tim. III, 2; which impediment, at least impeding from the beginning, gradually became diriment. In the Latin Church it was always observed, although not always by all, that those who, joined in matrimony, received sacred orders should thereafter be separated from their wives; and from ancient times (from the sixth century) the obligation of celibacy was attached to the subdiaconate, to which afterward there was added the impediment diriment of matrimony to be contracted, at least from the twelfth century. But among the Orientals the obligation of celibacy was not generally imposed, nor is the subdiaconate a sacred order; they preserved the custom that, bishops excepted, presbyters and deacons should retain wives taken before ordination; nevertheless, when the wife has died, they cannot enter a new matrimony. This they sanctioned in the year 692 in the Trullan Council.

2° From solemn vow (voeu solennel; plechtige gelofte). The vow of perfect and perpetual chastity, which is emitted in solemn religious profession, such as occurs only in religious Orders, is not only, like a simple vow, an impeding impediment of matrimony, but also diriment, which renders matrimony invalid, as was authentically declared at least from the twelfth century.

890. Principle I. Clerics constituted in sacred orders invalidly attempt matrimony. - Thus can. 1072, conformably to the Council of Trent, sess. 24, can. 9.

Three conditions are required in order that the impediment be incurred:

1° That the ordination be valid;

2° That it be received freely, without coercion or grave fear;

3° That it be received with at least confused knowledge of the obligation connected with the order: for the Church does not will to impose this obligation on the cleric unless he himself wills it.

Hence: a) "A cleric who, compelled by grave fear, received sacred order and afterward, the fear having been removed, did not ratify the same ordination at least tacitly by the exercise of the order, yet willing through such an act to subject himself to clerical obligations, is to be reduced to the lay state, the coercion and the defect of ratihabition having been legitimately proved, by sentence of the judge, without any obligations of celibacy and of canonical hours," can. 214, § 2.

b) Similarly in a case of ignorance of the obligation, although this ignorance can scarcely be present except in infants who would be ordained, or in the prepubescent.

c) In each case, proof must be instituted for the sentence of the judge according to the norm of can. 1993-1998.

The impediment, insofar as it is diriment of matrimony to be contracted, is of ecclesiastical law; nevertheless, for the order of the episcopate, dispensation has never been given from it, so that one could suspect that there is present there a disposition of divine law. But insofar as order is a prohibitive impediment of matrimony to be contracted, it seems to rest upon fittingnesses of divine law; yet the obligation of celibacy which in the Latin Church is attached to the subdiaconate is most certainly of ecclesiastical law. Moreover, it can be disputed whether the impediment rests immediately upon the vow which is attached to the order of subdiaconate, or rather upon ecclesiastical law, although it matters nothing for practice; now the obligation of continence rests immediately upon the vow, yet in such a way that he who did not wish to elicit the vow would be held by ecclesiastical law, but the incapacity itself for matrimony nevertheless seems to arise immediately from ecclesiastical law.

Hence St. Thomas: "Sacred order of its own nature has, from a certain congruity, that it ought to impede matrimony; because those constituted in sacred orders handle sacred vessels and sacraments, and therefore it is becoming that they preserve bodily cleanness through continence. But that it impedes matrimony it has from the constitution of the Church. Yet otherwise among the Latins than among the Greeks. For among the Greeks it impedes matrimony to be contracted only from the force of the order. But among the Latins it impedes from the force of the order, and further from the vow of continence, which is attached to the orders: which even if someone does not emit it in words, from this very fact that he receives order according to the rite of the Western Church, he is understood to have emitted. And therefore among the Greeks and other Orientals sacred order impedes matrimony to be contracted, but not the use of matrimony previously contracted: for they can use matrimony previously contracted, although they cannot contract anew. But in the Western Church it impedes matrimony and the use of matrimony: unless perhaps, with the wife ignorant or contradicting, the husband received sacred order; because from this no prejudice can be generated to her... For order everywhere impedes matrimony to be contracted, although not everywhere does it have a vow attached" q. 53, a. 3 and ad 2.

891. Observations. - 1. Dispensation from this impediment is never conceded to bishops, very rarely to priests and rather on account of a public cause, less rarely to deacons and subdeacons, even on account of a private cause.

2. Although order irritates matrimony to be contracted, nevertheless matrimony contracted of itself does not impede order. Yet, according to the present-day discipline of the Latin Church, men having a wife are simply impeded from orders (can. 987). Hence a married man who without apostolic dispensation received major orders, although in good faith, is prohibited from the exercise of those same orders (can. 132, § 3); but if he is legitimately promoted to them, the wife living and consenting, he is held to the same continence as if he had been ordained before matrimony and is bound to abstain from the use of matrimony (can. 132, § 1), so that the offspring would be sacrilegious and illegitimate (can. 1114).

3. One deposed, degraded, or reduced to the lay state is not thereby liberated from the obligation of celibacy (can. 213, § 2), unless at the same time he has obtained dispensation from it.

892. Principle II. Religious who have professed solemn vows invalidly attempt matrimony, or simple vows to which, from a special prescription of the Apostolic See, the force of irritating nuptials has been added. - Thus can. 1073, conformably to the Council of Trent, sess. 24, can. 9.

Three conditions are required for the impediment:

1° That someone be a professed religious, which is to be understood of religious of either sex (can. 490);

2° That he have professed validly, from spontaneous and full liberty and according to the other conditions indicated by can. 572;

3° That he have professed perfect chastity through solemn vows, which are recognized by the Church as such (can. 1308, § 2), and which are made only in religious Orders, although in them simple vows are sometimes emitted.

Sometimes to a simple vow there is added the force of irritating matrimony, as to simple profession emitted in the Society of Jesus; but thus it is done from a special precept of the Supreme Pontiff rather than from a canonical impediment properly so called.

From what law the impediment of solemn vow arises was long disputed. More recent authors generally hold as certain that it arises from ecclesiastical law alone, both because a solemn vow does not differ by its nature from a simple vow, but the whole solemnity is from the will of the Church and from the juridic effects attached by her, and because the Church has sometimes dispensed from this impediment, even on account of a private good. Others, especially in ancient times, posit an essential difference between solemn and simple vow: the latter consists in the simple promise of a thing to be handed over to God, the former besides in the actual handing over, of itself irrevocable, into the dominion of God and in the spiritual consecration of the one vowing, which the Church accepts in the name of God; which, so long as it endures, irritates matrimony, and therefore from natural and divine law. Hence the Church cannot take away the impediment, unless first in the name of God she remits the special obligation of solemn vow.

This seems more conformable to St. Thomas, who writes thus:

"1° He who makes a solemn vow contracts spiritual matrimony with God, which is much worthier than material matrimony. But material matrimony previously contracted diriments matrimony contracted afterward. Therefore a solemn vow does so.

2° All say that, just as solemn vow impedes matrimony to be contracted, so it diriments it already contracted. But certain men... say that this is on account of the statute of the Church. But this does not suffice; because according to this the Church could also establish the contrary. Which does not seem true.

And therefore it must be said, with others, that solemn vow from its own nature has that it diriments contracted matrimony: insofar, namely, as through it a man has lost power over his own body, handing it over to God for perpetual continence. And therefore he cannot hand it over into the power of a wife by contracting matrimony. And because the matrimony which follows such a vow is null, therefore the aforesaid vow is said to diriment contracted matrimony... Therefore solemn vow has an actual exhibition of one's own body, which simple vow does not have" q. 53, a. 2 and ad 3.

893. Penalties against transgressors. - 1. "Clerics constituted in sacred orders, or regulars or nuns after a solemn vow of chastity, and likewise all who presume to contract matrimony, even only civilly, with any of the aforesaid persons, incur excommunication latae sententiae simply reserved to the Apostolic See," can. 2388, § 1.

2. Clerics besides, if, after being admonished, within a time prefixed by the Ordinary according to the diversity of circumstances, they have not come to their senses, are to be degraded (can. 2388, § 1).

3. The same by the fact itself and without any declaration lose all ecclesiastical offices (can. 188, 5°).

4. Clerics in sacred orders and regulars are irregular from delict (can. 985, 3°).

5. Religious incur by the fact itself the penalty of dismissal from religion (can. 646, 3°).

124. • I. Notion of the impediment.

"Clerics constituted in sacred orders invalidly attempt matrimony." (Can. 1072.)

125. • II. Whom this impediment holds.

a) Every cleric of the Latin Church who has received at least the order of subdiaconate can neither validly contract matrimony nor use matrimony contracted before the order was received.

b) There is excepted: 1. he whose ordination is invalid.

2. He who, compelled by force or grave fear, received sacred order, unless afterward, fear having been removed, he ratified the ordination expressly or tacitly.

3. He who received order before puberty, unless after the years of puberty he freely ratified the ordination.

4. He who was not sufficiently instructed concerning the obligation of observing chastity.

126. • III. Quality of this impediment.

Without any doubt it is of merely ecclesiastical law.

127. • IV. What is the obligation of observing chastity for clerics in major orders.

Although several think otherwise, nevertheless that obligation seems to arise not from ecclesiastical law alone, but from a vow annexed to the subdiaconate by the will of the Church. And therefore a cleric in major orders, sinning internally against chastity, commits true sacrilege. But in the opposite opinion it is not explained how an internal violation of chastity is sacrilegious.

128. • V. Dispensation.

The Holy See, by its undoubted power of dispensing from this impediment, never uses it with Bishops, very rarely with presbyters, more rarely with deacons, and rarely with a subdeacon, although for these two last orders modern praxis is easier.

129. • VI. Penalties against transgressors.

a) Excommunication latae sententiae and simply reserved to the Apostolic See, both for the cleric himself and for the person with whom he attempts to contract matrimony, even civilly only. (Can. 2388, § 1.)

b) If, after being warned, within a time determined beforehand by the Ordinary according to the diversity of circumstances, they have not come to their senses, let them be degraded (ibid.).

c) Loss by the fact itself and without any declaration of all ecclesiastical offices. (Can. 188, 5°.)

d) Irregularity from delict. (Can. 985, 3°.)

130. • VII. Discipline of the Eastern Church.

a) One constituted in major orders cannot contract matrimony. Among certain Churches, however, the custom is to permit matrimony to subdeacons.

b) A married man can receive the subdiaconate, diaconate, and presbyterate, and use matrimony as before the order was received.

c) A married man cannot be assumed into the episcopate except by dispensation, and with the obligation of observing perfect chastity.

d) Whether matrimony attempted by a cleric in major orders of the Eastern Church is not only illicit, but also invalid as in the Latin Church, up to this time has not been defined by the Apostolic See by a decree binding all the Oriental Churches.

It is invalid: 1) for Italo-Greeks and Romanians as to the subdeacon.

2. for Maronites as to the deacon.

3. for Ruthenians as to the presbyter.

For the other Orientals, authors commonly and more probably hold, even for schismatics, with few exceptions, that matrimony is invalid.

e) Not from a vow, but from ecclesiastical law alone, sacred order impedes one from contracting matrimony.¹

¹ Cf. Capello, op. cit., n. 436.

131. • I. Notion of that impediment.

"Religious who have professed solemn vows, or simple vows to which by special prescription of the Apostolic See the force of invalidating nuptials has been added, invalidly attempt matrimony." (Can. 1073.)

Already the Council of Trent had defined the existence of this impediment:¹ "If anyone shall have said... that regulars solemnly professed in chastity can contract matrimony, and that the contract is valid notwithstanding... the vow; and that the opposite is nothing other than to condemn matrimony, and that all can contract matrimony who do not feel that they have the gift of chastity, even if they have vowed it: let him be anathema."

¹ Sess. XXIV, De sac. Matr., can. 9. Denz-Bannwart, n. 979.

132. • II. Extension of the impediment.

To this impediment are subject:

a) those who have validly professed solemn vows. Solemn vows are only those which are recognized by the Church as such. Otherwise they are simple. Vows of this kind do not exist except in Orders strictly so called.

b) Scholastics of the Society of Jesus who have emitted simple vows after the two-year novitiate. Thus by special statute of the Holy See.

133. • III. Nature of the impediment.

a) For the simple vows of the Society of Jesus, the impediment most certainly has force from ecclesiastical law alone.

b) For solemn vows, formerly it was sharply disputed among theologians and canonists whether they dirimently impede matrimony by divine or ecclesiastical law. But today most think that the diriment impediment of solemn vow is of merely ecclesiastical law, although the matter still remains doubtful, with theologians of the best note opining otherwise.

134. • IV. Dispensation.

Virgins of this sort are said to have violated nuptials because they came to them not intact but corrupted; and to have violated nuptials alone because they had not vowed virginity.

Canon LXV. If the wife of any cleric has committed adultery, and her husband knows that she commits adultery and has not immediately cast her out, let him not receive communion even at the end.

Cf. Canon VIII of Neocaesarea below. The wife of a cleric who perseveres in the crime of adultery is to be cast out; for it is especially unbecoming for a cleric to live in the same house with an adulterous woman. The last words, "let him not receive communion even at the end," if regard is had to the grammatical construction, seem to refer to the cleric.

This canon is milder than Canon XIII of Elvira, nor is there speech concerning perpetual abstinence from copula. Dr. Hefele says that here the matter concerns violation of profession by legitimate marriage, but there violation by fornication or lust alone. Yet this, as we noted, is not sufficiently established. Nevertheless it is certain that already from the first centuries this sense reveals itself in the Church: that it is repugnant for professed virgins, dedicated to God, to be joined in marriage.

Canon VIII. Virgins who have vowed themselves to God are not to be veiled, except at the approved age of 40 years, which the priest shall have approved.

Question XI. If someone has called a cleric to join in marriage, but he hears that it is an illicit marriage, as, for instance, either a union with an aunt, or that she who is to be joined in marriage is the sister of a deceased wife, ought the cleric to follow or to make the oblation?

Response. Say in one word: if the cleric has heard that the marriage is illicit and contrary to the laws, the cleric ought not to communicate in the sins of others.

Question XXII. Certain men, when they have been received into the clergy, after their wives have died, marry others, some indeed virgins, others widows, and still others even those cast off. Ought they to be received to the liturgy, or not?

Canon IV. Concerning Panuphlus, who has been constituted deacon in Lycus, it is necessary to inquire: and if indeed he has been found, when he was a catechumen, to have taken the daughter of his brother as wife, after baptism having been promoted into the clergy, let him remain in the clergy, if she has died and after baptism he has not had intercourse with her. But if, when he was a believer, he married that same daughter of his brother as wife, let him be alien from the clergy.

Balsamon says that the ten-year time is the time during which both lived in marriage, whence the suspicion to Theophilus whether they had truly been joined for so long in good faith, or rather were deceiving by affirming it. Now Theophilus permits the penance to be imposed to the judgment of the Bishop; but he does not permit them to remain in marriage.

Decree IV. But concerning conjugal violation you asked whether another can receive in marriage a girl betrothed to someone else. We inhibit by all means that this be done, because that blessing which the priest imposes on the woman about to be married is, among the faithful, in the likeness of a certain sacrilege if it is violated by any transgression.

Innocent I again inculcates this decree in the letter to Exuperius. Here Siricius affirms an indissoluble law concerning ecclesiastical celibacy; he does not himself recently establish it, but urges one already existing and prescribes its observance in Spain by the apostolic authority of his See. But since the Pontiff does not permit, not even to those sinning from ignorance, the use of the women whom they had received as spouses (marriage, I say, they intended; for they would not have wished to defend fornication by the authority of the Old Testament), it is evident from the opinion of Siricius that marriage is more than illicit for Priests.

Decree XI. Whatever cleric (not yet advanced to the diaconate) has married either a widow or certainly a second spouse, let him soon be stripped of every privilege of ecclesiastical dignity, only lay communion being conceded to him.

Decree IV. That a cleric not marry a widow as wife.

Decree V. That he who, as a layman, has married a widow not be admitted to the clergy.

Decree IX. What is worthy and modest and honorable we persuade: that priests and Levites not have intercourse with their wives, because, placed in the ministry, they are occupied with daily necessities.

Decree II. A girl who has not yet been veiled, but had proposed to remain thus, although she has not been veiled in Christ, nevertheless because she has proposed it and has not been veiled in marriage (or: has been veiled?), the nuptials are called furtive (see the difference from the former case: there it is adultery, here only furtive nuptials), from the fact that she has not observed the precept of heavenly marriage, love hurrying on to the blindness of lust. And for these a time of doing penance must be established.

Canon XII. It pleased the council that the sons or daughters of bishops or of any clerics whatever are not joined in marriage to Gentiles or heretics or schismatics.

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 I. It pleased the council that deacons, if they are either whole or chaste, and of a continent life, even if they have wives, be constituted in the ministry; yet in such a way that if any, even before the interdict which was established by the Lusitanian bishops, have lived incontinently with their wives, they are not to be increased with the honor of the presbyterate. But if any one from the presbyters received sons before the interdict, he is not to be permitted (another reading: admitted) from the presbyterate to the episcopate.

Canon IV. A subdeacon, after his wife has died, if he has married another, is to be removed from the office in which he had been ordained and held among the doorkeepers or among the readers, in such a way, however, that he not read the Gospel and the Apostle ... (the reading of these at that time belonged to readers). But he who has received a third, which must neither be said nor heard, being kept away for two years, afterwards among the laymen, reconciled by penance, let him communicate.

Canon VII. It pleased the council that if the wives of any clerics whatever have sinned, lest perhaps they have more license for sinning, their husbands receive this power, apart from killing (that is, with killing excepted), of guarding and binding them in their own house, compelling them to salutary fasts, not deadly ones ... But with those wives themselves who have sinned, let them not take food, unless perhaps, after penance has been done, they return to the fear of God.

Canon XVIII. If any widow of a bishop or presbyter or deacon has received a husband, let no cleric, no religious woman, take a meal with her; let her never communicate; let the sacrament come to her aid only when she is dying.

Here first appears the prohibition of marriage made for the surviving wife of a bishop, presbyter, or deacon, after their death, that is; the Church later signified more clearly that this marriage is null. Cf. Canons I and II of the Roman Council under Gregory II, A.D. 721.

Canon XIX. If the daughter of a bishop or presbyter or deacon has been devoted to God, and has sinned and married a husband, if her father or mother have received her into affection, let them be held alien from communion ... But the woman is not to be admitted to communion unless, when the husband has died, she has done penance. But if, while he is living, she has withdrawn and has done penance or has sought communion, failing at the last moment of life, let her receive communion.

Two things are prescribed: 1. A woman devoted to God contracting nuptials is not admitted to communion unless either, when the husband has died, she has done penance, or, while he is living, she has separated and again has done penance; cf. the preceding Canon XVI. 2. If this devoted woman is the daughter of a bishop or presbyter or deacon, and they receive her, married, into affection, they are excommunicated, as those who seem to approve so great a crime and to participate in her infamy.

Decree VI. Lest he who has married a second wife become a cleric; because it is written: "the husband of one wife" ... And lest it be judged by some that, if perhaps someone accepted a wife before baptism and, she departing from this world, married another, this has been dismissed in baptism, he errs enough from the rule; because in baptism sins are dismissed, not the number of wives accepted abolished ...

Decree XI. What is worthy and modest and honorable, the Church altogether ought to hold: that priests and Levites not have intercourse with their wives, because they are occupied with the needs of the daily ministry.

Cf. Canon II of the Council of Carthage, A.D. 390. The Pontiff speaks only of the use of a marriage contracted before. He proposes the law in a gentle mode, but it is sufficiently established that a union of this sort is dishonorable if a Priest or Levite uses a marriage previously entered. Therefore this is altogether illicit; and for that reason it is said that the Church ought to hold this. Cf. Canon IX of Siricius from his letter to the Africans above.

Decree XII. Those who have spiritually married Christ and have merited to be veiled by a priest, if afterwards they have either publicly married or have corrupted themselves secretly, are not to be admitted to doing penance unless the one to whom they had joined themselves has departed from this world. For if this reckoning is kept concerning all, that any woman who, while her husband is living, has married another, is held an adulteress, and the license of doing penance is not conceded to her unless one of them shall have died, how much more must that woman be held to this, who had before joined herself to an immortal spouse and afterwards migrated to human nuptials?

Decree XIII. But those who, not yet covered with the sacred veil, nevertheless had promised always to remain in the virginal purpose, although they have not been veiled, if perhaps they have married, penance must be done by them for some time, because their pledge was held by God. For if among men a contract of good faith is accustomed to be dissolved by no reason, how much more ought that promise which the virgin has covenanted with God not be dissolved without vengeance?

Decree IV. And this also was desired to be known: why men communicating with adulterous wives are not suited, when, on the contrary, wives seem to remain in the company of adulterous husbands. Concerning this, the Christian religion condemns adultery in each sex by equal reckoning. But women do not easily accuse their husbands of adultery, and hidden sins do not have punishment; but men have been accustomed more freely to report adulterous wives before priests. And therefore, their crime having been betrayed, communion is denied to women; but, the offense of men lying hidden, hardly anyone is kept away by suspicions. He indeed will be removed if his disgrace is uncovered.

Canon XVIII. A virgin who has vowed to God to remain chaste and afterwards has married a carnal spouse, let her be of excommunication until she is converted; if she has been converted and has dismissed the adulterer, let her do penance, and afterwards let them not dwell in one house nor in one town.

Canon II. Someone constituted in the bond of marriage cannot be taken up to the priesthood unless conversion has first been sent before (that is, of the wife, who has professed monastic life, or at least chastity. Cf. the Council of Agde, Canon XVI, cited below).

According to this it is lawful to explain Canon VI of the Apostles, to which some appeal in order to teach that among the Greeks the obligation of celibacy did not exist in antiquity. But if this were proved, it would also be proved that that obligation did not formerly exist for the Latins; for that Apostolic canon does not look more to the Greek Church than to the Latin, although it was written in Greek. Canon VI in Dionysius has it thus: "Let a bishop or presbyter by no means cast away his own wife under the pretext of religion; but if he has rejected her, let him be excommunicated; and if he has persevered, let him be deposed." When you hear that a Bishop also is named, you understand that the speech is about that casting away of a wife which was illicit also for Bishops. Or were Bishops prohibited from denying the debt to a wife asking it, or was the use of marriage ever permitted to them even in the Greek Church? "Certainly you confess that he cannot be a Bishop who begets children in the Episcopate," says Jerome, against Jovinian, book I, n. 34. Therefore the casting away which the Apostolic canon prohibits is that of which Leo speaks, who certainly knew both the old discipline and apostolic traditions. Cf. the cited work of Fr. Ant. Zaccaria, On Ecclesiastical Celibacy.

Decree IV. Not every woman joined to a man is the wife of the man, because neither is every son heir of the father. Now the covenants of nuptials are legitimate among freeborn women and among equals, the Lord Himself establishing this very thing much earlier than the beginning of Roman right existed. Therefore a wife is one thing, a concubine another, just as a maidservant is one thing, a free woman another. For this reason also the Apostle, for manifesting the distinction of these persons, places testimony from Genesis, where it is said to Abraham: "Cast out the maidservant," etc. Hence, since the society of nuptials was so constituted from the beginning that, besides the conjunction of the sexes, it had in itself the sacrament of Christ and the Church, there is no doubt that that woman does not pertain to marriage in whom it is taught that there was no nuptial mystery. Therefore if a cleric of any place has given his daughter in marriage to one having a concubine, it is not to be received as if he had given her to a married man, unless perhaps that woman is seen both to have been made freeborn, and legitimately endowed, and honored with public nuptials.

Decree XXI. For concerning widows, who are not to be veiled under any blessing, we have said enough and at length above (Decree XIII). Those (unveiled widows) who by their own will have trampled with a changeable mind upon the chastity of the former marriage which they professed, it will pertain to their peril with what satisfaction they ought to placate God, because according to the Apostle they have made the first faith void. For just as, if perhaps they were not able to contain themselves, according to the Apostle, they were by no means forbidden to marry, so, after deliberation has been held with themselves, they ought to keep the faith of modesty promised to God. But we ought not to cast any snare upon such women, but only to propose the exhortations of eternal reward and the penalties of divine judgment, so that both our conscience may be absolved and their intention may render an account for itself to God.

Consider that Gelasius speaks here about those who are not veiled, and therefore decrees otherwise about them than about the veiled, just as Innocent also does in the cited decree. Namely, nuptials are prohibited to these women, but, once contracted, are not dissolved.

Canon IX. It also pleased the council that if married deacons or presbyters wish to return to the bed of their wives, the ordinance of Pope Innocent and the authority of Bishop Siricius be preserved.

Canon XXV. Those secular men who, by graver fault, dismiss or even have dismissed conjugal society, and, proposing no probable causes of dissension, therefore dismiss their marriages so that they may presume illicit or other men's unions, if before they have stated the causes of dissension before the bishops of the province, and before their wives are condemned by judgment, they have cast them off, let them be excluded from the communion of the Church and from the holy assembly of the people, because they stain faith and marriages.

I say 1°. The solemn vow of chastity and sacred Order dirimently invalidate Marriage by ecclesiastical law. This is established from the First and Second Lateran Councils, and also from the Council of Trent, sess. 24, can. 9, where it is said: "If anyone shall say that Clerics constituted in sacred Orders, or Regulars who have solemnly professed chastity, can contract Marriage, and that the one contracted is valid notwithstanding ecclesiastical law or vow, let him be anathema."

Likewise religious who have professed solemn vows invalidly attempt marriage, or simple vows to which, by special prescription of the Apostolic See, the force of invalidating nuptials has been added (Can. 1073).

I say 2°. Clerics constituted in sacred orders invalidly attempt marriage (Can. 1072).

We declare Marriage contracted even after the recited Orders (subdiaconate, diaconate, presbyterate) null and invalid: thus Benedict XIV, Etsi Pastoralis, Par. VII, n. 27; Council of Trent, sess. 24, de matr., can. 7. - I said by ecclesiastical law, for nothing is had from the Scriptures or tradition, or even from the law of nature, by which it is indicated that sacred Order is repugnant to the conjugal state; and elsewhere the common opinion of theologians holds that Order dirimently invalidates Marriage by force of the vow which is annexed to it from the sole will of the Church. - But the vow of chastity therefore dirimently invalidates Marriage because it is solemn; but solemnity is of ecclesiastical law; therefore, etc. Cf. Sanchez, lib. 8, n. 7. - S. Alphonsus, n. 1059. - Heiss, §§ 34 and 35.

By a special privilege conceded by Gregory XIII, in the Constitution Ascendente Domino, the vow of chastity which members of the Society of Jesus emit after two years of novitiate, although simple, likewise dirimently invalidates Marriage. This is established from the very words of the Supreme Pontiff, who speaks thus: "Indeed, all those [members of the Society of Jesus] are incapable of contracting [Marriage], and contracts of this kind are null and invalid, just as we make them invalid and annul them." - But concerning these things the following are to be observed:

1°. This special concession is not to be understood as if the emission of the simple vows of members of the Society of Jesus were equivalent to religious profession, so that it would annul a ratified Marriage perhaps contracted by them beforehand; for although this had been asserted by some canonists, nevertheless the Society of Jesus itself, as Ballerini says, never either learned of it or thought of it.

2°. Since by the law laid down by Pius IX even in other Religious Orders strictly so called profession is no longer made immediately after the novitiate, but then only simple vows are emitted, and one must remain in these for at least a triennium, now it can and must be said that those religious are compared to the Scholastics of the Society of Jesus. Nevertheless the special privilege of the vow of chastity in relation to Marriage cannot be extended to them. - Cf. Ballerini, note (a), p. 733; and note (b), p. 777. - Lehmkuhl, nn. 749 and following.¹

¹ Cf. Addenda, p. 1117, n. 70.

I say. Abduction, namely the violent carrying away of a woman from a safe place to another, where she is detained under the power of the abductor for the sake of entering Marriage, dirimently invalidates by ecclesiastical law Marriage between the abducted woman and the abductor, whether he carries away the woman by himself or through others. This is established from the Council of Trent, sess. 24, cap. 6, and from Canon 1074:

VI. QUESTION III. What is the impediment of a vow and of sacred Order? ANSWER. A simple vow makes matrimony unlawful, not invalid. A solemn vow emitted in an approved Religion renders null a matrimony to be contracted; and likewise a simple vow emitted in the Society of Jesus after a biennium of noviceship.

Caius, a missionary priest, when he noticed that Julius, a head of a family, attended church with his wife but never approached the sacraments, cautiously inquired into the cause. At length Julius acknowledged that he was a priest ordained in Australia, but that in the ordination itself he had explicitly excluded within himself the vow of chastity, so that he considered beyond doubt that the marriage he had entered after some years of priesthood was valid. Caius, however, asks whether there is any foundation for Julius’s opinion, and whether perhaps he can admit him to the sacraments of the Church. Hence it is asked:

1. What is the impediment of sacred order, and by what law is it constituted?

2. Is the same impediment dispensable?

3. Is the force of the impediment in the order itself received, or in the vow annexed to it?

4. What is to be said of the case?

1. What is the impediment of sacred Orders, and by what law is it established?

The solemn vow of chastity taken implicitly when sacred Orders are received is a diriment impediment of marriage by ecclesiastical law.¹

1 Manual of Moral Theology, vol. ii, 307.

1 Manual of Moral Theology, vol. ii, 308.

2. May a dispensation be had from this impediment?

Inasmuch as the impediment has been established by the authority of the Church, it may be dispensed by the same authority, but the Church rarely dispenses deacons and still more rarely priests from this impediment.

3. Is the impediment in the sacred Orders, or in the vow of chastity annexed to sacred Orders.

It is in both, in this sense, that in the Western Church a solemn vow of chastity which annuls subsequent marriage is implicitly taken by all who receive sacred Orders, but apart from this vow and independently of it, sacred Orders are a diriment impediment of marriage by ecclesiastical law.¹

4. The case. Julius acknowledges that he was ordained a priest in Australia, but he also asserts that when he was ordained he mentally but expressly excluded the vow of chastity, so that he holds for certain that the marriage which he subsequently contracted is valid. Julius' opinion can not be maintained. He can not prove his mental withholding of his consent in the matter of the vow, and he would not be listened to in an ecclesiastical court. Besides, sacred Orders in themselves, apart from the vow, are a diriment impediment of marriage, so that the marriage is null and void whether he took the vow of chastity or not. Julius is therefore living in concubinage, and may not be admitted to the sacraments while living in that state.²

2 Wernz, Jus Decretalium, lib. iv, n. 393.