The marriage contract

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

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

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

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

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

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

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

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

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

¹ Matt. xix 11.

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

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

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

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

¹ 1 Cor. vii 3.

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

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

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

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

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

Matrimony is chiefly divided:

I. Into valid or true, and invalid. Invalid matrimony is called putative if it has been celebrated in good faith by at least one party, until each party becomes certain of its nullity (canon 1015, § 4).¹

II. Into legitimate, ratified, and ratified and consummated.

1. Legitimate is called: valid matrimony between non-baptized persons (canon 1015, § 3).

2. Ratified is: valid matrimony between baptized persons, not yet completed by consummation (canon 1015, § 1).² Under the name of ratified matrimony also seems to come matrimony validly contracted between non-baptized persons and persisting after the baptism of both spouses. But in canon law there does not seem to come under the name of ratified matrimony a matrimony validly contracted either between a baptized party and a non-baptized party, or between non-baptized parties of whom only one is baptized. Whether the said marriages are or are not a sacrament does not seem to matter, because it is a question of a canonical notion rather than of a theological fact.

3. Ratified and consummated is called valid matrimony between baptized persons if between the spouses there has taken place the conjugal act to which the matrimonial contract by its nature is ordered, and by which spouses become one flesh (canon 1015, § 1). But that the notion of consummation may be more fully developed, I note these things:

a) Only valid matrimony can be consummated, or consummation presupposes valid matrimony.

b) Matrimony is certainly consummated by intercourse, that is, by penetration, whether perfect or partial, of the female vessel together with effusion of seed in it.

c) It is disputed whether matrimony is consummated if male seed is deposited at the vulva and is received within the female vessel. Some affirm, especially if offspring arises, because in this way the spouses are made one flesh. But it seems that it must be denied altogether, because consummation is made by the conjugal act to which the conjugal contract is by its nature ordered; but an act of this kind is lacking in the posited hypothesis, since an act from which generation does not follow except accidentally, of which sort is the depositing of seed at the vulva, cannot be called the conjugal act to which the conjugal contract is by its nature ordered; in a word, there is lacking an act of itself apt for generation (St. Thomas, In IV, dist. 41, q. un., a. 1, sol. 4, ad 2).

d) A fortiori matrimony is not consummated if seed is introduced into the vagina merely by chance, for example on the occasion of pollution, or by means of artificial fecundation, as it is called.

e) Once matrimony has been celebrated, if the spouses have cohabited together, consummation is presumed until the contrary is proved (canon 1015, § 2).

III. Into public and secret, or of conscience. Public is that which is celebrated "in the face of the Church," as it is said, or with the usual publicity. Secret or of conscience is that which is celebrated with announcements omitted and secretly, according to the norm of canons 1105-1107 (canon 1104), about which it will be said later. Note also clandestine matrimony, as it was formerly called, that is, matrimony which was contracted without the legitimate form being employed, or without pastor and witnesses. Nowadays matrimony of this kind cannot be contracted validly except among non-Catholics (canon 1099, § 2).

IV. Into ecclesiastical and civil. Ecclesiastical is that which is entered according to ecclesiastical laws; civil, that which is contracted according to civil laws. The latter is called merely civil if ecclesiastical matrimony is entirely neglected.

Finally, and this it helps to note for completeness, morganatic matrimony is called that which a noble man contracts with a person of inferior condition, by this pact: that the wife and offspring to be received from her receive only a certain part from the goods of the man, and are excluded from the other goods and from the titles and dignities of the man. Matrimony of this kind especially had place among the Germans; it was called, as it seems, ad morganaticam, on account of the portion of goods which was granted to the wife on the second day of the marriage, and which in German is called Morgengabe.³

¹ The Code does not speak of matrimony which was formerly called presumed; hence it is judged already to have vanished.

² Ratified is said, that is, ratified or confirmed by the sacrament (chapter 7 De divortiis; St. Thomas, Supplement, q. 59, a. 5, ad 1).

³ Cf. Staatslexikon, s.v. Ebenburtigkeit.

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

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

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

745. Division. - Matrimony can be considered both as regards the union of man and woman and as regards the bond which arises from it; hence it is called:

1. In fieri or in facto esse. Matrimony in fieri is called the actual contract itself which is perfected by the mutual consent of the man and woman. Matrimony in facto esse is called the marriage persevering in the bond which proceeds from the matrimonial contract.

2. Legitimate, ratified, and consummated. A legitimate matrimony is said to be that which is contracted according to the norm of natural and civil law but does not have the ratification of the Church or the nature of a Sacrament, such as was formerly entered under the law of nature and the Mosaic law and is now also entered among Jews and gentiles. A ratified matrimony is one contracted between Christians bound by no impediment, between whom, however, conjugal intercourse has not yet occurred after the contract. It is called ratified because not only nature and civil law but also the Church approves and ratifies it. A consummated matrimony is said to be that which has been completed by the intercourse of the spouses; this must be understood not only of a ratified but also of a merely legitimate matrimony ¹.

¹ This distinction of matrimony into legitimate, ratified, and consummated must be carefully retained as being of the greatest importance, as will appear below.

Meanwhile, observe that two things are required in order that a matrimony can be called consummated: 1. that the carnal union be perfect and sufficient for generation, so that (as is contained in chapter Verum 2, On the Conversion of Married Persons) the spouses have together been made one flesh. Therefore, that union would not suffice by which, although the integrity of bodily virginity had been taken from the woman, nevertheless generation could not follow because a suitable emission of male seed was lacking; 2. that a legitimate consent or ratified matrimony preceded a union of this kind. Therefore, intercourse had before the matrimonial contract does not cause the matrimony afterward contracted to be considered consummated, and consequently will produce neither indissolubility nor the other effects of a consummated matrimony. Whence you conclude that one who, bound by a vow of religion, has violated a woman can marry her and afterward (unless another cause prevents it) enter the religion vowed, if after he married her he did not know her again. - See Schmalzgrueber, book 4, title 1, nos. 227-228.

Of no small importance for the use of Theologians is another distinction of matrimony into true, presumed, and putative.

That is called true which was in fact and validly contracted and is proved as such by any of those arguments by which other matters are customarily proved, such as the testimony of the Pastor or others, the register of marriages, the confession of the spouses, the prolonged cohabitation of an honorable woman, etc. Concerning these, see Schmalzgrueber (book 4, title 1, no. 233), with whom observe that lighter proofs suffice when there is question of sustaining a matrimony than when the matter concerns dissolving it.

That is called presumed which is presumed by law; this legal presumption has place especially in three cases. First, when, in places where the Tridentine decree concerning the form of matrimony does not have force, after betrothals entered absolutely between two capable persons, carnal intercourse followed between them; for then consent concerning the future is presumed to have passed into consent concerning the present, and the intercourse is presumed to have been admitted with a conjugal affection. Concerning this most grave question, see Schmalzgrueber (book 4, title 1, from no. 115), Pirhing (same title, no. 27), and especially Barbosa (on chapter Is qui, same title, no. 3 and following). Second, when, after betrothals entered under a condition and before the occurrence of the condition, carnal intercourse intervened between the betrothed persons; for the Church (we speak while abstracting from the aforesaid Tridentine Decree concerning form, etc.) then presumes that the betrothed persons withdrew from the condition and therefore wished to contract matrimony purely and absolutely. This is evident from chapter Per tuas 6, On Conditions Apposed. Third, when, after a betrothal concerning the present invalidly contracted by minors before puberty (in whom malice does not supply for age), signs of ratified consent intervene between the same persons when they have attained puberty; signs of this kind are not only carnal intercourse but also kisses, embraces, cohabitation, etc. This is evident from the sole chapter, section Idem quoque, On the Betrothal of Minors, in the Sixth Book. This case, however, also can have place only where the aforesaid Tridentine Decree does not have force. - See Schmalzgrueber, book 4, title 1, no. 234.

Finally, a matrimony is called putative which is considered legitimately contracted although, in reality, it is null because of some latent impediment. The Doctors therefore inquire concerning it in order that it may be established when it has the force of legitimating offspring conceived therefrom and the other effects of law. Two things are required for this: first, that it was contracted in good faith by at least one of the spouses, who was ignorant of the impediment. Thus in chapter Ex tenore 14, title Who Are Legitimate Children. Neither an error of law nor a doubt concerning the validity of the matrimony excludes this good faith, as Covarruvias proves (On Betrothals, part 2, chapter 8, section 1, no. 9); but in doubt this good faith is presumed. Second, that the matrimony was contracted publicly and in the face of the Church, that is, before the Pastor and witnesses, with the denunciations having been premised or at least dispensed from. See the final chapter, On Clandestine Betrothals, section 1.

Another distinction of matrimony into canonical, political or civil, and of conscience must also be remembered.

They call that canonical in which all things concur which are prescribed for matrimony by the sacred Canons.

They call that political or civil in which those things also concur which are required by civil law, namely, certain solemnities, dotal agreements, etc.; without these, a matrimony is indeed canonically valid but is regarded as illegitimate civilly and therefore lacks civil effects.

Finally, a matrimony of conscience, or morganatic matrimony, is called a legitimate union of a man with a woman of inferior condition entered with this agreement: that the wife and children born therefrom are content with the nuptial gift or another fixed portion appointed at the time of the betrothals and abstain from the other ancestral and paternal goods, together with titles, dignities, and insignia. Concerning this, Jurists must be consulted. - See Schmalzgrueber, book 4, title 1, from no. 236.

746. Principles. - I. Matrimony of Christians celebrated by the legitimate rite is a true and properly so-called Sacrament of the New Law. This is proved: first, from the Epistle of St. Paul to the Ephesians, chapter 5, verse 32, where he says: This is a great Sacrament, but I speak in Christ and in the Church. Second, from the Council of Trent, session 24, canon 1: If anyone shall say that matrimony is not truly and properly one of the seven Sacraments of the evangelical law instituted by Christ the Lord, but was invented by men in the Church, and that it does not confer grace, let him be anathema. From St. Augustine (On the Good of Marriage, chapter 18): In the nuptials of Christians, the sanctity of the Sacrament has more force than the fecundity of the womb.

II. True consent on the part of each contracting party is required for the validity of matrimony, because matrimony, as a contract, is an agreement between a man and a woman; but consent constitutes the essence of an agreement.

747. • III. Consent, however, must be:

1. Mutual, for it consists in a contract which is essentially the consent of two persons, or mutual consent. Hence, if it is lacking on one side, the matrimony will be null.

2. Concerning the present, because by a promise concerning the future only betrothals, not matrimony, are made. This is also deduced from chapter Si inter 31, On Betrothals and Matrimony.

3. Deliberate and voluntary, because it is a contract concerning a grave matter and therefore induces a grave obligation; but no one is considered to impose a grave obligation upon himself unless he consents freely and fully. This is established from Canon law, which invalidates marriages contracted from grave fear, as will be said below concerning impediments.

4. Manifested by external signs, because every agreement among men must be made known by some external sign; for an agreement necessarily supposes mutual acceptance among the contracting parties.

748. Questions. - QUESTION 1. Must consent be expressed in words?

Reply 1. No, as regards validity, because by natural law it suffices in a contract that consent be expressed by some certain sign. - St. Ligorius, no. 887.

Reply 2. Yes, as regards liceity, because otherwise the rubric and the custom of the Church would be acted against. Nevertheless, it does not appear to exceed a venial sin if words are not employed; indeed, modesty or another reasonable cause would excuse from all fault ². - St. Ligorius, no. 888.

² Certainly, if there is question of mute or deaf persons, it is manifest that signs other than words must be used.

749. • QUESTION 2. Does consent through a procurator suffice?

Reply 1. As regards validity, yes, provided the required conditions are present, because matrimony has the whole nature of a natural contract. But any contract can be made through a procurator.

The conditions for contracting matrimony in that manner are: first, that the procurator execute the mandate personally; second, that the mandator has not revoked the mandate; third, that the procurator appear with the other party before the Pastor and two witnesses ³.

³ Compare what we said above (note on no. 722) concerning betrothals contracted through a procurator.

Reply 2. As regards liceity, no, unless a very grave cause urges. The reason is that this manner of contracting is contrary to the ordinary practice of the Church, and marriages are scarcely made in this way among any others than Princes and Magnates. Hence the Pastor must not bless marriages of this kind by his own authority, as is established from the practice of the Church and the Rituals. - St. Ligorius, no. 888.

750. • QUESTION 3. Is a matrimony entered UNDER A CONDITION valid?

Reply 1. It is certain that it is valid if the condition concerns the past or the present and is verified. The reason is that this conditioned consent immediately passes into absolute consent, and therefore nothing is lacking to the validity of the Sacrament ⁴. - See St. Ligorius, no. 890.

⁴ This has force even if the contracting parties are ignorant that the condition is fulfilled. The reason is that they bound their consent not to knowledge of the condition but to its existence; nevertheless, they cannot use the matrimony before receiving notice that the condition exists, since otherwise they would place themselves in danger of fornication. Concerning this, see the history narrated by Fagnanus (on the final chapter, On Conditions Apposed, no. 13) and Schmalzgrueber (book 4, title 5, no. 40).

Reply 2. If an honorable and possible condition concerning the future is added, I say, first: the matrimony is not perfected until the condition is fulfilled, because the contract must transfer a mutual right over the bodies concerning the present, as was said above. I say, second: when the condition has been fulfilled, the matrimony is valid; for a conditioned contract, when the condition has been fulfilled, passes into an absolute contract and by that very fact is valid by reason of the Sacrament, because among Christians the contract of matrimony cannot be separated from the Sacrament ⁵.

⁵ That a conditional matrimony immediately becomes perfect without new consent when the condition is fulfilled is the most received opinion of the Canonists. Thus Fagnanus (on chapter Super eo, On Conditions Apposed, no. 3), who adds that this opinion of the Canonists is observed in the Curia even after the Council of Trent and therefore must in no way be departed from in counseling and judging.

751. • QUESTION 4. Is it licit to contract with conditioned consent?

Reply. No. Such a manner of contracting is illicit, especially if the condition concerns the future, unless perhaps, as St. Ligorius has it, no. 892, a most urgent cause is present. The reason is that many and grave inconveniences can easily follow from such a manner of contracting, namely, scandal, quarrels, perplexities, difficulties, etc. - Thus the Theologians commonly.

752. • QUESTION 5. Is a matrimony entered under a base condition valid?

Reply 1. No, if this condition is repugnant to the substance or essence of matrimony, namely, to its threefold good, that is: first, the good of the Sacrament; second, the good of Fidelity; third, the good of offspring. This would happen if the betrothed persons, in contracting matrimony, excluded the generation of offspring ⁶, fidelity in the marriage, or perpetuity in matrimony. But for this it is required that a condition of this kind be expressly apposed and that the betrothed persons intend in mind to obligate themselves in no other way. The matrimony will be valid, however, if this condition is concomitant and therefore is not the motive why the matrimony is contracted, and there is otherwise some general will of contracting validly ⁷.

⁶ The question has been raised whether a condition which indeed excludes the good of offspring but is not base, rather honorable, is an obstacle to the validity of matrimony; for example, when someone adds to the contract the condition: if you live with me in chastity or perpetual continence.

And there were some who denied that matrimony is thus valid. See Gonzalez on chapter Si conditiones 7, On Conditions Apposed, no. 8 and following. They were led especially by this reason: that the contract of matrimony essentially denotes consent to the handing over of the body for conjugal use; but since this handing over imports the obligation of rendering the debt, that is, of furnishing the use of one's own body to the other, with whom by force of the contract the power over that same body remains, surely either there will be no contract, or certainly the one contracting must consent to conjugal use.

But a purpose of continence plainly excludes consent of this kind; and a fortiori this must be said of one who contracts with a firm will of keeping a vow of chastity which perhaps he made, since he does not have that consent otherwise essential to the matrimonial contract, nor can he have it without sin if he wishes to use the period of two months granted for deliberating. Finally, a fortiori, there will be no contract of matrimony if this very thing is reduced to an agreement or condition. And from this arises a difficulty also concerning the matrimony of the Virgin Mother of God with St. Joseph, and of others concerning whom ecclesiastical history speaks; for example, St. Pulcheria, who chose Marcian Augustus as her spouse with the virginity which she had vowed to God preserved.

But it is shown without difficulty that the apposition of that condition is no obstacle to matrimony being validly contracted, and therefore to a right over one's own body being truly handed over to the other and at the same time the obligation proper to matrimony concerning the rendering of the debt being undertaken.

And indeed it is certain that the purpose of not consummating matrimony is no obstacle to the validity of matrimony as regards one who has the intention either of passing over to Religion and professing in it or at least of suspending the execution of the conjugal obligation if he wishes to use the period of two months granted for deliberating concerning that matter. And now it does not pertain to the matter to dispute when this is licit or illicit; meanwhile, it must be held certain that a matrimony of this kind is valid and therefore that the handing over and power over one's own body which constitute the substance of matrimony are given to the other.

You will perhaps say that in this case the substance of matrimony is preserved, and the right granted is therefore by no means injured, because the nature of the contract itself bears this, which implicitly has this condition inserted; but no one is considered to obligate himself beyond what the nature of the contract bears, and consequently no further right is acquired by the other party.

But I say that this is not the sole reason for which, with the right of the other preserved, the obligation of rendering the debt can be suspended. I now omit that the bond of matrimony, with that obligation remaining suspended, endures not only through the two months granted for deliberating but throughout the whole period of religious novitiate. But to touch the matter more closely, can that which the laws of the Church grant not equally be furnished by the voluntary concession of him to whom the right over the body of the other belongs? What prevents the contracting parties themselves from agreeing by common consent upon not only two months but years in which they may deliberate? Why could they not suspend by agreement the execution of their own right also for another cause, for example, until the husband has obtained an office sufficient for supporting offspring? Why could they not agree upon a matrimony not to be consummated except after the fortieth or fiftieth year? And if this, why not also throughout the whole of life?

In a matrimony which is made with an agreement of continence, namely, a twofold contract manifestly intervenes: the one proper to matrimony, by which power over one's own body is mutually handed over to the other; the other, by which the spouses mutually yield the use or exercise of this right. Nor does it matter that they agree concerning the exercise or use of their own right before rather than after the matrimony has been entered. For there is no reason why that cannot first be promised which I can afterward licitly furnish. But, as we all acknowledge, after matrimony has been entered the spouses can licitly yield the use of matrimony; therefore they can also promise this beforehand.

I said promise, because in reality before the contract of matrimony they do not renounce the right over the body of the other; for renunciation or abdication of use has place only after the power of using has been acquired. Therefore, they promise only that they will renounce it, or, if you prefer, they promise that they will so contract matrimony that at the same time they abdicate its use. But these things do not conflict with each other, since, if an abdication of this kind can be made after the contract, it can also be made in the contract itself. Thus one who buys a house can indeed in the very act of contracting yield the use of that house to the seller.

Nor can it be said that a contract of this kind so lacks every effect that it is in some way deprived of the nature and force of a contract. For: first, one who contracts in this way remains incapable, by force of the matrimonial bond, of contracting with another person; second, if the spouses themselves afterward change their purpose and wish to be united, they will not be fornicators; third, likewise, if the husband who, for example, by agreement permitted his wife the condition of chastity, inflicts force upon her, he will indeed sin against justice because he violates the agreement, or at least will violate the virtue of fidelity because he broke his promise, but he cannot be called a fornicator; fourth, if each spouse not only grants continence to the other but both also vow it to God and afterward do not keep the vow, they will sin against the virtue of religion but not against the virtue of chastity; fifth, if either makes his or her body available to an outsider, that spouse is guilty of violated matrimonial fidelity and consequently is held to be an adulterer; sixth, finally (which it is strange is little observed by those who treat this question), when someone consents in contracting to a condition of chastity, does that person not use the matrimonial right especially? Just as one who buys a house exercises his right over it no less if he uses it by inhabiting it himself than if, unwilling to use it himself, he grants its use to another either for a time or in perpetuity; so surely, when someone voluntarily yields the use of his right over the body of the other, by this very fact he must be considered to have the right and power and to exercise it. For no one legitimately yields anything except that which he has in his power, and by yielding its use he evidently exercises that power. Therefore, it is false that through a condition of preserving chastity apposed to and accepted in matrimony, a contract is entered which has no force and no effect and therefore casts off the nature of a contract.

You have both older and more recent Doctors cited for this doctrine in Rebellus (part 2, book 2, question 10, section 3, no. 19), Clericatus (On Matrimony, decision 3, no. 21, and decision 20, no. 21), Schmalzgrueber (book 4, title 5, no. 119), and Benedict XIV (On the Diocesan Synod, book 13, chapter 22, no. 11), who nevertheless adds that it is altogether necessary for the patrons of this doctrine to inquire diligently concerning the strength and subsistence of this opinion, as though a Herculean labor were required to defend it, or as though no one had yet brought forward anything solid for it! He himself merely opposes the citation of Schmalzgrueber, who otherwise concedes that the same opinion is probable. Moreover, the whole armory which Schmalzgrueber himself opposes (l.c., no. 121) consists in this: that through the apposition of such a condition, the contracting parties exclude the right of the other over their own bodies and the implicit consent to rendering conjugal acts, since by force of it they are obligated neither to demand nor render intercourse. The whole force of this argument, as is evident, is situated in the fallacy by which a right is confused with the exercise of the right, and therefore the renunciation of use with the nonexistence of the right. Are not spouses equally obligated neither to demand nor render the debt if both bind themselves to a religious Order by solemn vow? And if this obligation excluded the right over the body of the other, why is either of them who has intercourse with an outside person an adulterer and why does that person sin against justice? Again, if the obligation neither to demand nor render intercourse excludes the right over the body of the other, how will a matrimony be valid when two persons bound by a simple vow of chastity contract? Let us conclude: a contracting party indeed cannot agree concerning those things which by the order of nature cannot be absent from the contract and by force of the contract are inalienable, such as the right over the body of the other; but in those things whose use is indeed licit but neither commanded nor inalienable, it is false that the contracting parties cannot agree upon abdication.

⁷ That saying of Horace has surely happened to the Author in this place: While I labor to be brief, I become obscure. Therefore, a distinction must be made between an express condition apposed to the contract and a merely internal intention.

When an intention or condition contrary to the substance of matrimony is expressly apposed or reduced to an agreement, it is certain from the final chapter, On Conditions Apposed, that the matrimony is invalid in both forums; and the Apostolic See has declared this several times, as will appear below. Nor is that which the Author adds then required, namely, that the betrothed persons intend to obligate themselves in no other manner. For, as Lugo observes (On the Sacraments, disputation 8, no. 128), a matrimony cannot be valid unless someone sufficiently expresses internal consent externally by words or other signs. But in the aforesaid case (namely, an express condition contrary to the essential goods of matrimony), consent in no way appears to be expressed externally when rather the opposite is signified. Therefore, a valid matrimony cannot be had. Except, however, from the common opinion, the case in which that condition is added by only one of the betrothed persons while the other contradicts it, because if the former proceeds to the contract notwithstanding the contradiction of the latter, the former is presumed, in favor of matrimony, to have withdrawn from that condition. Indeed, there are some who think the same must be said when the other is silent at the apposition of a condition of this kind. For in this case also the silent party is presumed, in favor of matrimony, to contradict. - Schmalzgrueber, book 4, title 5, no. 116.

But if there is question of a merely internal bad intention, this can be understood in two ways: either the contracting party is so disposed in mind that he is altogether unwilling to undertake one of those obligations which pertain to the substance of matrimony; or he indeed has the intention of truly contracting matrimony and therefore of undertaking all the obligations proper to matrimony, although he is not prepared to fulfill them, for example, by breaking off an impure friendship with another woman.

If it is accepted in this latter sense, the matrimony is valid according to the opinion of all, and that for both forums. Although one will easily observe that the obligation which concerns the good of the Sacrament, that is, the indissolubility of matrimony, is scarcely, or scarcely at all, capable of the aforesaid distinction, so that it can be undertaken together with an intention of not observing it, unless perhaps we think that the case pertains here of one who intends to leave his wife after some time and secretly to marry another elsewhere while conscious and certain that the prior bond remains.

But if the matter is understood in the former sense, then even if the bad intention is not reduced to an agreement, nevertheless it per se invalidates the contract as regards the forum of conscience. The reason is evident, because the contract of matrimony from its essence requires consent to those obligations. Therefore, whoever has an intention excluding any one of those obligations by that very fact excludes the essence of matrimony, and consequently the matrimony is null. See Sanchez (On Matrimony, book 2, disputation 29, no. 12), who after St. Thomas clearly explains this doctrine, afterward received by all.

I said per se, for another distinction also has place here which the Author also indicates somewhat obscurely: whether this intention is concomitant with or antecedent to the contract. This distinction must be considered diligently because of consequences of the gravest importance as regards practice. And indeed, since, for example, the indissolubility of the bond pertains to the essence of matrimony, what must be said of those who contract with the intention of establishing a divorce not only as regards bed but also as regards the bond, or of giving the wife a bill of repudiation, as the Jews are accustomed to do according to the Mosaic law? A case of this kind is certainly so far from being imaginary that there is a most frequent occasion of this question, because the opinion of the dissolubility of matrimony also flourishes among the schismatic Greeks because of adultery, and the same custom has prevailed among several Protestant heretics; and finally, the same faculty is given to spouses in many places by civil law, to say nothing now of infidels, whether Jews, Mohammedans, or idolaters. Therefore, it ought not to be surprising if those who contract matrimony in these circumstances at the same time have the intention of dissolving the matrimony because of the aforesaid causes and circumstances.

Cardinal De Lugo proposes the resolution of the question according to the twofold case of the distinction from the common doctrine thus (On the Sacraments, disputation 8, nos. 131-132): If the spouses know that repudiation is permitted in their republic, but at the time of the contract have not added this limitation, that they obligate themselves only under this respect, then, if that knowledge which they had concerning the use of repudiation was antecedent, that is, if they therefore contracted because they knew repudiation to be permitted and otherwise would not have contracted, they now appear to have been unwilling to obligate themselves simply to perpetuity. And therefore judgment must incline to the nullity of the matrimony.... But if the contracting parties were altogether ignorant whether the bond would be perpetual, or if they believed it even to be dissoluble but did not limit their intention at the time of the contract to that estimation, but had a general will of contracting a valid matrimony so that that ignorance or estimation was concomitant, since they would equally contract even without it, then the matrimony appears valid and is to be observed. And the things which the same Author discusses at length (l.c., from no. 120 to no. 130) are plainly worthy of being read, so that he may explain how a twofold contrary will can concur and which, as the more efficacious, must be said to prevail. There he also explains what that will is which is more general than the other (which the Author also indicates) and which is therefore more efficacious. You have the counterparts of these things also in Schmalzgrueber (book 4, title 1, nos. 302-304), where he asks whether the matrimony of a baptized person who wishes to celebrate it under the nature of a contract but not under the nature of a Sacrament, and therefore contracts with an intention excluding the Sacrament, must be called valid; and much more extensively (book 4, title 19, nos. 164-176), where he inquires into the case of Lugo itself.

These things, however, as was premised, have force for the forum of conscience; for in the external forum it is always presumed that that more general will of contracting legitimate matrimony was present, and therefore that any error adverse to the substance of matrimony was merely concomitant, until the contrary is proved. Benedict XIV reports from the consensus of the Doctors the general doctrine upon which this practice of the external forum rests thus (On the Diocesan Synod, book 13, chapter 22, no. 7): If that express condition concerning matrimony to be dissolved because of adultery was by no means apposed, however much the contracting parties were in this error, that the bond of matrimony could be dissolved through adultery, nevertheless there is place for the presumption that, when they wished to enter matrimony as it was instituted by Christ, they wished to contract it altogether perpetual and indissoluble even upon the intervention of adultery; namely, the general will which we have stated, concerning entering matrimony according to the institution of Christ, prevails and in some way absorbs that private error. Hence it happens that the matrimony so contracted remains valid and firm. But where the contracting parties in the matrimonial contract itself apposed an express condition concerning dissolving the matrimony as regards the bond in the case of adultery, it can no longer happen that the particular error remains absorbed by the general will of contracting matrimony as it was instituted by Christ the Lord; but rather a general will of this kind is extinguished and suffocated by the particular error which manifestly prevails and dominates. And hence arises the nullity of the matrimony in contracting which there was apposed

a condition contrary to its very substance. He soon confirms this doctrine in each sense by cited Declarations of the Sacred Congregations.

We find it proposed no less clearly in the Letters which Pius VI gave to the Archbishop of Prague on July 11, 1789: If a legal condition (he says) of dissolving the conjugal bond for the cited causes is apposed to matrimony through an express agreement, the matrimony must be called null and invalid from the beginning, nor could a conjugal bond have arisen therefrom; but an altogether illicit union was agreed upon, which each party, especially the Catholic party, is altogether bound to abandon by the law of Christ. But if no express condition of this kind repugnant to the substance of matrimony was apposed, although the contracting parties generally intend to contract according to the decrees of a sect or law granting the dissolution of the conjugal bond, nevertheless the matrimony must be considered validly contracted, and therefore a perpetual conjugal bond arose which can be dissolved by no civil law and no authority of non-Catholic consistories; and consequently the faculty of passing to other nuptials can be granted neither to the parties and much less to the Catholic party.

Pius VI gives the reason for the resolution, no differently from Benedict XIV, thus: Nor is there lacking an intrinsic reason why the intention of contracting according to the decrees of a sect asserting, or of a law permitting, the dissolution of matrimony does not impede its validity, provided it is not reduced to an agreement. For from this very fact that non-Catholics, deceived by a vain error, judge that the dissolution of matrimony for those causes is by no means repugnant to the law of Christ, it comes about that in their mind, because of that false estimation, the intention of contracting according to laws of this kind or the decrees of a sect by no means excludes the primary intention of contracting according to the divine law confirmed by Christ. Therefore this will remains in the act of contracting, and from it flows and is determined the nature of the consent which is actually furnished. Moreover, consent furnished according to the law of Christ is apt and sufficient for the validity of matrimony unless another canonical impediment stands in the way.

These things, however (as Benedict XIV has it in the text cited above), must always be referred to the presumption by which the practice of the external forum is governed. For by these things the Pontiff did not intend to define that true consent cannot be lacking even when that condition is not reduced to an agreement, just as, namely, the case of feigned consent is not excluded when the indissolubility of a marriage contracted between Catholics is determined generally. Therefore, as regards the forum of conscience, it always remains to be examined whether that bad intention is antecedent to the contract or only concomitant. For if the contracting parties so enter matrimony that they bind their intention to the error concerning the dissolubility of marriage alone and are altogether unwilling to contract except under the condition of dissolubility, the matrimony is null even if the condition is not reduced to an agreement, because they are unwilling to contract otherwise than dissolubly. Schmalzgrueber (book 4, title 19, no. 70) shows that this doctrine is common to the Theologians and Canonists. Indeed, if it were established from the confession of both spouses that they did not have the intention of contracting in another manner, this would suffice for the matrimony to be declared null even in the external forum, unless there were a presumption of collusion. And if this intention was present in only one of the spouses, it will suffice for that spouse in the external forum; indeed, it will also suffice for the other party if reasons of such a kind concur which prudently persuade that the former is not lying. See Sanchez (book 2, disputation 45, nos. 4-12, and book 5, disputation 12, no. 5) and Lugo (On the Sacraments, disputation 8, no. 130).

But in doubt whether someone had that general and efficacious will of making the matrimony altogether valid, judgment must be made in favor of the contract, that it be valid.

The reason is that everyone is presumed to wish to execute a valid contract unless the contrary is proved, according to the common doctrine of the Jurists; and this will have place a fortiori in the case of matrimony, which is more favorable. Thus Lugo (On the Sacraments, disputation 8, no. 136).

Reply 2. But if the base condition is not repugnant to the substance of matrimony, distinguish: first, it is considered valid in the external forum because there the condition is held as not added; second, it is disputed as regards the forum of conscience, as in other contracts. Ordinarily, however, it is not considered a condition sine qua non, but a mere purpose or promise independent of the matrimonial contract, and therefore the consent is not judged suspended under a base condition unless this is altogether established, as was said in the first reply. - St. Ligorius, no. 891 ⁸.

⁸ The base condition of which the Author now speaks, like an impossible condition, is in reality held as not added only when it is doubtful whether the contracting parties added it seriously or in jest. For since in doubt judgment must be made, according to the norm of law, in favor of the validity of the matrimony, deservedly in this doubt also the Church presumes in favor of matrimony that the condition was not seriously added; deservedly, I say, lest perhaps those who are legitimately united be separated and be joined to others through illegitimate marriages. Nevertheless, since this presumption is only one of law, and not also de iure, it can therefore be overcome by reasons brought forward to the contrary. - Schmalzgrueber, book 4, title 5, no. 64.

It is not held as not added, however: first, if the contracting parties regard it as honorable; second, if it is otherwise established that the condition was seriously added by the contracting parties, and therefore that consent was not furnished except under its occurrence; for the presumption then yields to the truth, and therefore, if the condition does not occur, there will be no matrimony because of the defect of consent, which the Church certainly cannot supply; third, if both contracting parties, or at least one of them, were ignorant of the Constitution which holds conditions of this kind as not added; for it cannot then be said that, because they knew this condition to be rejected by the Church, they therefore contracted absolutely, since they wished to receive the Sacraments according to the intention of the Church. This has force only when the contracting parties know both that the condition is base and that it is not admitted by the Church.

But insofar as the Author adds that, as regards the forum of conscience, it is disputed whether the matrimony, once the base condition is fulfilled, must be held valid, just as in other contracts concerning base matter, see what we said at no. 760 of volume I, where we showed that the opinion denying the validity of these contracts is supported only by the coloring of false citations.

753. • QUESTION 6. What must be done if someone says that he consented fictitiously?

Reply 1. As regards the external forum, credence is not given to him unless it is evident from the circumstances that he was either deceived by fraud or induced to contract by grave fear; for it cannot be supposed that one who freely entered matrimony consented fictitiously.

Reply 2. As regards the internal forum, one who asserts that he consented fictitiously must be obliged: first, to abstain from demanding and rendering the debt until he has truly consented; second, ordinarily also to furnish true consent, so that he may thus repair the injury inflicted upon the other party. I say ordinarily, because if the other party consents to separation, or if he himself was compelled to contract, he is not bound to supply consent ⁹. - Decretals, book 4, title On Conditions, final chapter.

⁹ The deceiver is not bound to marry the deceived woman also in the following cases. First, if the deceiver has already entered matrimony with another; for although he cannot prove to the judge the fiction as regards the other matrimony, and therefore the judge compels him, even under threatened excommunication, to cohabit with the woman believed to be his spouse, he must rather endure this censure, which would not bind the soul, than mingle carnally with the first betrothed woman, as is evident from chapter Inquisitioni tuae 44, On the Sentence of Excommunication. Second, if fraud intervened also on the other side, for example, if she falsely boasted that she was a virgin; for the deception is then compensated by deception. Yet La Croix (book 6, part 3, no. 258), and after him St. Alphonsus (book 6, no. 887), without reason refers the declaration of the Sacred Congregation of the Council to this case. See Thesaurus Resolutionum S. Congregationis Concilii, volume 3, pages 161-165. Third, if no harm came to the deceived party; or if the deceived party, once the deception is known, admits another compensation; or even if the harm inflicted can be compensated in another manner. Fourth, if the contracting party gave manifest indications of fictitious consent; for then the other party ought to attribute the deception rather to himself than to the other. The Doctors refer here the case in which the deceiver is of a much higher condition and state; for from this an indication of deception can become evident to the other party, although this is admitted with difficulty where the contract is celebrated before the Pastor. But an immense disparity can also excuse the deceiver for another reason, namely, because of the unhappy outcome, scandals, and other inconveniences which are rightly feared from such a marriage.

Moreover, the most grave obligation of entering matrimony with true consent easily manifests itself, not only because otherwise there is grave sin against the reverence due to the Sacrament, but because through the injury most grave harm is inflicted upon the other party. For since the fiction can be proved only with the greatest difficulty in the external forum, other nuptials are not permitted to the deceived party, and therefore this alone remains to her: either to enter Religion or to remain unmarried in the world.

Moreover, the spouse who furnished true assent is not bound to believe the other asserting that he consented fictitiously, unless he confirmed it by oath; and therefore the spouse could licitly demand the debt until the defect of consent were evidently proved. - Sacred Congregation of the Council, February 24, 1720.

754. • QUESTION 7. Is the consent of parents required for the validity or liceity of the matrimonial contract?

Reply 1. As regards validity, altogether no, because the consent of parents is required neither by natural nor by positive law. First, not by natural law, because the contracting parties have power over their own bodies, while parents do not have power over the bodies of their children in relation to matrimony; otherwise they could invalidate their marriages, whether justly or unjustly, which is altogether repugnant and opposed to the common sense of men. Second, neither by positive law; for the Council of Trent, session 24, chapter 1, struck with anathema those who falsely affirm that marriages contracted by children of a family without the consent of their parents are invalid and that parents can make them ratified or invalid. But if civil law requires the consent of parents for the validity of matrimony, its force extends only to merely civil effects. - Thus commonly all Catholic Theologians.

Reply 2. As regards liceity, yes, speaking generally. This is established: first, from natural law, because children owe honor, reverence, and obedience to their parents, especially in those things which concern the whole family, such as matrimony, upon which the honor and peace of families very often depend, etc.; second, from the Council of Trent (ibid.), where it is said: The holy Church of God has always detested and prohibited those marriages (entered without parental consent) ¹⁰.

¹⁰ These words of the Council of Trent refer rather to clandestine marriages, in which there is never lacking a reason why they should be prohibited.

755. • QUESTION 8. Can children ever contract matrimony against the will of their parents?

Reply. Yes, if the parents unjustly refuse consent. But since in this matter children of a family easily deceive themselves, before celebrating the nuptials they ought to consult prudent men and especially Confessors, lest in so grave a matter, full of such great dangers, they act imprudently while trusting their own judgment.

756. • QUESTION 9. What must a Confessor or Pastor do when children of a family wish to enter matrimony against the will of their parents?

Reply 1. As regards the Confessor, speaking generally, he ought to defend the part of the parents to the best of his ability; for generally the presumption is considered to favor them. Nevertheless, if the children, moved by a grave reason and with the legal conditions observed, persist in entering matrimony, they do not appear to be disturbed. - Thus commonly with Gousset.

“If conditions contrary to the substance of Matrimony are inserted—for example, if one says to the other: I contract with you if you avoid the generation of offspring, or until I find another richer in honor or possessions, or if you hand yourself over to adultery for gain—the contract of Matrimony, however favorable it may be, lacks effect. But other conditions appended to Matrimony, if they are base or impossible, ought, in favor of Matrimony, to be regarded as not appended.” Gregory IX, chapter Si conditiones, 7, On Conditions, etc.

The Holy Office, in response to the doubt of the Bishop of Bosnia, “Whether a Matrimony contracted between a Catholic woman and a schismatic with the intention of violating or dissolving the Matrimony is valid,” on 2 December 1680, responded: “If those things have been reduced to a pact, or the Marriages have been contracted with that condition, they are null; if otherwise, they are valid.” The same Congregation, by a solemn decision on 1 August 1748, declared two Marriages contracted in Transylvania between Calvinists under the condition, “as long as you remain in conjugal honor,” or, “if you preserve the fidelity of the marriage bed,” to be entirely null. Thus likewise several times elsewhere. Cf. A. S. S., vol. 23, p. 711 ff.; C. 128.

“Marriages entered into merely with the error of the contracting parties that the bond of a consummated Marriage can be dissolved in the case of adultery or for other causes are valid. But if they were entered into under this express condition, they are to be regarded as invalid.” Holy Office, 11 March 1868; 18 December 1872.

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

688. 1° Internal, that is: (a) truly elicited by the will, (b) with a true intention, at least implicit, of handing over a right over one's own body and of receiving a right over the body of the other in order to the generation of offspring. This indeed is clear from the very nature of marriage; for this consists essentially in the right to acts of themselves apt for generating offspring; and moreover such a right cannot be handed over without the true consent of each party. Hence a union between man and woman entered into on account of other ends, for example, only for mutual help and solace, without the intention of granting the aforesaid right, is not truly marriage. Yet implicit consent suffices, such as, for example, is given by those who intend to do what others about to marry do, provided that they exclude nothing of those things which are required for the essence of marriage. What error vitiates consent will be declared below, nn. 934-936.

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

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

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

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

690. (C) He who consents only fictitiously, or simulates consent, sins mortally, unless he is excused by a most grave reason.

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

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

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

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

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

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

692. 2° Free, that is, with advertence on the part of the intellect and consent on the part of the will, such as is required for mortal sin. For the matrimonial contract induces grave obligations, and indeed for the whole course of life; moreover no one is judged to undertake obligations of this kind unless he fully consents. Hence consent given in hypnotic sleep would not be valid.

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

693. 3° Mutual, or given and accepted by each party; for here there is question of a bilateral contract, by which mutual rights are handed over and accepted, and mutual obligations are undertaken; but these two suppose the consent of each party, since no one can hand over rights and undertake obligations unless he wills.

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

¹ Lugo, Sanchez, D'Annibale, Gasparri.

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

694. 4° Externally manifested: for this is required by the nature of a contract, which among men is not valid unless it is expressed externally; and also by the nature of a sacrament, which consists in a sensible sign.

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

² Codex, c. 1088, § 2.

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

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

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

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

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

¹ Codex, c. 1091.

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

² Codex, c. 1089.

³ Codex, c. 1091.

— 1. Sponsals for the future are a voluntary, deliberate, and mutual promise, expressed by a sensible sign, of future marriage, between persons able by law. Before the Code, the individual words of the definition had to be weighed accurately, because sponsals, but not a diverse promise of marriage, induced the ecclesiastical impediment of public honesty, prohibiting marriage with any other person whatever, and diriming marriage with blood-relatives in the first degree of the bridegroom or bride. Both canonical impediments have now been removed. Wherefore, for marriages celebrated after the Code in force, this is no longer to be attended to, so that sponsals themselves have been reduced to the common genus of promises obliging from fidelity or justice. Therefore the Code reserves no chapter for sponsals, but c. 1017 joins various forms of promise, subjecting them all to a common condition of validity and effect.

2. For the promise can be unilateral, or of one person without a counter-promise, or bilateral, or of both; and, especially when it is unilateral, it can oblige from mere fidelity, or confer a right on the other, so that its violation is strictly injurious.

But the common condition of validity, for each forum, is that it be made by writing signed by the parties, that is, by the one promising and the one accepting or counter-promising, and either by the pastor or local Ordinary, or by at least two witnesses. If either or both parties do not know how to write or physically cannot, this must be noted for validity in the writing itself, and another witness (one) is to be added, who with the above-mentioned witnesses signs the writing.

The canonical effect, however, even of a valid promise obliging from justice, is only this: that damages from the violated promise are to be repaired. For this an action is given, but no longer for seeking the celebration of marriage (c. 1017). Thus, having imitated civil Codes, the canonical Code consults more for the liberty of marriages.

An invalid promise will not even give an action for repairing damages, unless because of unjust means employed, such as force and fear, and deceit.

It is clear besides that the general conditions of validity and dissolution of every contract or promise are to be observed. For the rest, cf. T. IV, nn. 23-29, the moral part.

— Notion of matrimony. Matrimony can be considered either in becoming or in fact being.

1. In becoming, the efficacious cause of the union is taken: it is the matrimonial contract, which among the baptized itself has been raised to the dignity of a sacrament, so that among the baptized a valid contract cannot subsist without being by that very fact a sacrament (c. 1012). It can be described as: the contract, and among the baptized the sacrament, by which man and woman legitimately hand over to each other their bodies, primarily for the end of procreating and educating offspring, secondarily for mutual help and a remedy of concupiscence (c. 1013, §1). The remote matter of the sacrament is the bodies of the contracting parties to be mutually handed over, or the mutual right over the body of the other. The proximate matter, and that from which, is the mutual handing over of bodies, which is contained in consent expressed by external signs.

The form is the same consent, insofar as it has the character of acceptance.

The minister is not the priest: it is the contracting parties themselves, because they posit the matter and form.

The competent priest is an "authorized" witness, or one endowed with authority, commanded by law.

Matrimony between a baptized party and a non-baptized party, although not a few still contend that it is a sacrament in the baptized party, should rather, with the more common opinion, be held as a mere contract, because that sacrament does not seem able to consist imperfectly in one; because the non-baptized party does not seem able to administer that sacrament to another; and because matrimony contracted in infidelity, even if it is consummated after the baptism of one party, allows place for the Pauline privilege. (Cf. these reasons in Wernz, Ius Decr., IV, 11 and note 95.)

2. Matrimony in fact being designates formally the union itself, or the very bond induced by the contract. It is matrimony more properly so called, whose "properties are unity and indissolubility, which in Christian matrimony obtain peculiar firmness by reason of the sacrament" (c. 1013, §2).

The res et sacramentum is, according to Cardinal Billot (De sacramentis, th. VI), the sacred bond of the mutual obligation of man and woman; Fr. de la Taille also places it in the conjugal bond, which, as he adds, is the symbol of the conjunction between Christ and the Church, redeemed from the corruption of the flesh of sin through the death of Christ (Mysterium Fidei, p. 581, note).

— Division. 1. "A valid marriage of the baptized is called ratified, if it has not yet been completed by consummation; ratified and consummated, if between the spouses there has taken place the conjugal act, to which by its nature the matrimonial contract is ordered, and by which the spouses become one flesh. If the spouses have cohabited, consummation is presumed, until the contrary is proved" (c. 1015).

Sanchez thought that by every reception of the virile seed into the uterus of the wife matrimony was consummated; nor does Sanchez doubt concerning that conclusion; today they rather judge that insemination in perfect copula is required (or with penetration into the female vessel. Cf. De Smet, De sponsalibus, etc., n. 157 and our De castitate, nn. 77-87).

It is called ratified insofar as it is confirmed or ratified by the sacramental character. Yet there are those who call ratified the matrimony of a baptized person with a non-baptized party if the license of the Church has acceded (cf. De Smet, n. 157). These suppose that in one person there can be a sacrament. The Code, abstaining from the doctrinal question, deliberately uses a manner not very perspicuous in the aforesaid c. 1015.

2. "Matrimony validly celebrated between non-baptized persons is called legitimate" (c. 1015, §3), or legitimate only. Sometimes every valid matrimony is said to be legitimate (cf. v. g. c. 1075).

3. Matrimony can be either true or valid, or invalid. "An invalid marriage is called putative, if it has been celebrated in good faith by at least one party, until each party becomes certain of its nullity" (c. 1015, §4).

Therefore a doubt which supervenes on good faith does not take away the character of putative matrimony.

4. Matrimony is called canonical and political or civil, according as it satisfies only the conditions required by canonical law, or also the conditions prescribed by civil law for obtaining civil effects. Of itself, civil law ought to join civil effects to canonical matrimony, although the civil power is competent concerning civil effects.

Sometimes civil, or merely civil, is called a matrimony which, although to the contracting Catholic party it is fictitious, satisfies only the conditions of civil law.

5. Matrimony is also distinguished as public, which is publicly celebrated in the face of the Church, and occult or of conscience, which, denunciations being omitted, is contracted secretly before only the pastor and two discreet witnesses (cf. c. 1104). From marriage of conscience differs morganatic marriage, which is made between persons of unequal condition with the agreement that the wife and children, content with a certain donation⁽¹⁾, remain without share in the dignity and patrimony of the man; and clandestine marriage, which, without a pastor as qualified witness, or without the other two witnesses besides the pastor canonically required, is celebrated even openly, for example before a civil magistrate.

When accidental solemnities are added, matrimony merits the special name of solemn nuptials.

⁽¹⁾ The name is taken from Morgengabe, a morning gift, because the effects in the family matter are reduced to a certain donation.

— "Matrimony enjoys the favor of law; wherefore, in doubt, one must stand for the value of matrimony, until the contrary is proved, saving the prescription of c. 1127" (c. 1014). That is, this presumption yields to the privilege of the faith, which from c. 1127, even in a doubtful matter, enjoys the favor of law, so that for the utility of the faith one can stand for the nullity of a doubtful matrimony.

627. Nominal definition. The ancient authors derive the name of matrimony from mater and munio, as though matrimonium were the same as matris munium, the duty of a mother, because a woman enters matrimony in order that she may become a mother. Now matrimony took its name from the mother, but not from the father, because the principal end of matrimony is offspring, whose generation imposes so many duties upon the mother; whence it is beautifully said: "To the mother an infant is burdensome before birth, painful in birth, and laborious after birth."³⁵ St. Thomas gives still other explanations of this name.³⁶ Besides the name of matrimony, other words are also employed to signify the same reality, namely:

a) Conjugium, because two spouses are bound, as it were, under one yoke.³⁷

b) Consortium, because two spouses have a common lot and condition.³⁸

c) Nuptiae or connubium, because according to the ancient rite (which among certain peoples is observed to this day), brides entering marriage covered themselves with a veil for the sake of modesty and subjection.³⁹ Yet nuptiae sometimes specially signified the solemnities and festivities joined to the matrimonial contract, or even conjugal intercourse itself.⁴⁰ Concina beautifully explains these diverse names.⁴¹

³⁵ c. 2, X 3, 33. Cf. Roman Catechism, p. 2, c. 8, q. 2.

³⁶ Suppl., q. 44, a. 2.

³⁷ Cf. Roman Catechism, loc. cit.

³⁸ l. 1, D. De ritu nuptiarum 22, 2.

³⁹ Cf. Roman Catechism, loc. cit.

⁴⁰ c. 4, X 4, 11.

⁴¹ De matrimonio, c. 1.

628. Real definition. Several authors, distinguishing two elements in marriage, namely, contract and sacrament, first give a definition of the contract and afterward add a definition of the sacrament of marriage. But because in the New Law Christ elevated the matrimonial contract itself of Christians to the dignity of a sacrament without changing the original nature of marriage, Leo XIII therefore defines that "in Christian marriage the contract is not separable from the sacrament, and consequently a true and legitimate contract cannot exist without being by that very fact a sacrament."⁴² Lugo already taught the same:⁴³ "Christ did not will to alter the conditions of that contract, but to elevate it as it was, so that whenever it was valid under the aspect of a contract, among the baptized it would also possess the character of a sacrament." Therefore it appears superfluous in Moral Theology to give one definition of the contract and another of the sacrament of marriage. Thus marriage can be described by one true classical definition:⁴⁴ the marital union of a man and a woman between legitimate persons, retaining an undivided manner of life. Among the baptized, a union of this kind, by the institution of Christ, is a true sacrament signifying and causing supernatural grace ex opere operato; among the non-baptized, however, such a union is indeed not a sacrament, but nevertheless, "since it has God as its author and was even from the beginning a certain foreshadowing of the Incarnation of the Word of God, there is therefore in it something sacred and religious, not adventitious but innate, not received from men but implanted by nature, ... and it is sacred by its own force, its own nature, and of its own accord."⁴⁵

⁴² Encyclical Arcanum, February 10, 1880. Similar things follow from the propositions condemned in the Syllabus of Pius IX, prop. 66: "The sacrament of marriage is nothing but something accessory to the contract and separable from it"; prop. 73: "By force of a merely civil contract there can exist among Christians a marriage in the true sense, and it is false either that the contract of marriage between Christians is always a sacrament, or that the contract is null if the sacrament is excluded" (Denz., nn. 1766, 1773). The Code of Canon Law, c. 1012, asserts the same.

⁴³ De iure et iustitia, disp. 32, n. 392.

⁴⁴ This definition is deservedly called classical, for it is taken almost word for word from Roman law (Inst., l. 1, c. 9); from St. Augustine in Gratian (c. 3, C. 27, q. 2); from Gregory IX (c. 2, X 3, 33); from several Scholastics of the thirteenth century, among whom St. Thomas is eminent (Suppl., q. 44, a. 3); from the Roman Catechism, p. 2, c. 8, q. 3.

⁴⁵ Encyclical Arcanum.

629. The definition is explained. It is called 1. a union, which word, if taken actively, that is, for the transient act itself of internal and external consent by which a man and a woman promise conjugal fidelity to each other, is marriage in fieri; but if it is taken as though passively, that is, for the effect produced or for the state of life arisen from the aforesaid manifested consent, it signifies marriage in facto esse, namely, the bond of marriage. Christian marriage in fieri has the character of a sacrament, but not marriage in facto esse.⁴⁶

It is called 2. marital, in order that the proper end of that union be signified. For a man and a woman are joined to lead a legitimate marital life, but not for the sake of lust, friendship, secular business, etc. The secondary ends of those marrying will be discussed below.

It is called 3. of a man and a woman, but not of men and women, in order that monogamy be signified and both polygamy and polyandry be excluded.

It is called 4. between legitimate persons, in order to express that certain persons impeded by law (natural or positive) cannot enter a valid or licit marriage, or that impediments of marriage exist.

It is called 5. retaining an undivided manner of life, in order that the indissolubility of marriage be indicated. Certain ancient Glossators (for example, Roland, Bernard of Pavia, and Tancred)⁴⁷ understood under this undivided manner or society of life, less correctly, carnal intercourse itself, although it can truly be said that this society includes a mutual right, and one that is exclusive and of itself perpetual, to the body of the other spouse in order to the generation of offspring.

By this undivided manner or society of life there are further demanded (but only as integral parts) the following three things:

a) community of domestic life, that is, of dwelling, bed, and table;

b) union of souls through charity and a common purpose in acting;

c) at least some community of temporal goods.

These will be treated more fully below.

⁴⁶ Cf. Billuart, De matrimonio, diss. 1, a. 1.

⁴⁷ Cf. Freisen, Geschichte des kanonischen Eherechtes, § 3.

630. Since every good definition ought adequately to describe the essence of the thing defined, after the definition of matrimony has been explained, the question is proposed by authors: what properly is the formal constitutive of matrimony, or what primarily and fundamentally constitutes the essence of matrimony. Two theories have been devised to resolve this question, namely, the copular theory and the consensual theory. The former teaches that the essence of matrimony consists in the union of bodies, that is, in carnal intercourse itself, so that matrimony is not a true and perfect matrimony before carnal intercourse has been performed. Thus teach Julian, the disciple of Pelagius, Hincmar of Reims, Gratian, John Wycliffe, several Protestants, John of Faenza, and perhaps certain other ancient Catholics cited by Freisen,⁴⁸ who himself also defended this theory, but afterward (in 1892) retracted it, at least in some manner. The second theory asserts that the essence of matrimony consists in the union of wills, that is, in the consent of the contracting parties, and consequently that a true and perfect matrimony exists even if carnal intercourse is not had between the spouses. Almost all Catholics now teach thus. To elucidate this matter we posit three propositions:

⁴⁸ Ibid., p. 151 ff. Already in the time of Alexander III (1159-1181), matrimony was held to be "true and indissoluble" before carnal intercourse had been performed, "although," says the Pope, "others think otherwise, and it also was at times judged otherwise by certain of Our predecessors" (c. 3, X 4, 4). The school of Bologna especially appears to have stood for the copular theory.

631. Proposition 1. Carnal intercourse itself is not required for the essence of matrimony.

Proof a) From two biblical examples. There was a true matrimony both between Adam and Eve while still living in paradise, and between the Blessed Virgin Mary and St. Joseph. But in neither case did carnal intercourse intervene. Therefore carnal intercourse does not pertain to the essence of a true and perfect matrimony. Most commonly all theologians teach that matrimony was instituted in paradise. Now it is certain that matrimony was not consummated in paradise, because offspring generated in paradise before sin would not have had original sin. But such offspring without original sin never existed. Almost all authors, both ancient and modern, teach that a true matrimony existed between the Blessed Virgin and St. Joseph.⁴⁹ Freisen himself admits this. For in the Gospel it is said by the angel to Joseph: "Do not fear to take Mary your wife."⁵⁰ But it is certain by faith that Mary was a virgin both before and after childbirth.⁵¹ Therefore carnal intercourse is not required for the essence of matrimony.

Proof b) From the Holy Fathers. St. Ambrose⁵² says: "It is not the defloration of virginity that makes marriage, but the conjugal compact"; and St. John Chrysostom⁵³ teaches: "Intercourse does not make marriage, but the will." St. Thomas⁵⁴ responds to the question whether the consent which makes marriage is consent to carnal intercourse: "Those spoke well who said that to consent to marriage is consent to carnal intercourse implicitly, not explicitly." This, Sylvius says,⁵⁵ is consequently not to be understood as though there were at least a virtual purpose of carnal intercourse, but because it is consent to that power in which such intercourse is contained implicitly, as act in potency. Blessed Albert the Great especially attacks the copular theory vehemently and teaches simply: "It must be said that matrimony is perfected by consent."⁵⁶

Proof c) From the Roman Catechism, p. II, c. 8, where § 8 is entitled: "Intercourse is not required for a true matrimony."

Proof d) From the Code of Canon Law, which says absolutely in c. 1081: "The consent of the parties, legitimately manifested between persons capable by law, makes matrimony." Nothing, therefore, is said concerning the necessity of marital intercourse.

You will object 1. Christian matrimony signifies the real union of Christ with the Church. But this union is not signified except through the carnal union of the spouses. Therefore carnal union pertains to the essence of matrimony.

I respond by distinguishing the major: Christian matrimony signifies the real union of Christ with the Church through love and the influx of graces, which signify a moral union, I concede; it signifies the physical union of Christ with the Church, I deny; and I deny the consequence.

You will object 2. St. Paul, speaking of spouses, says: "They shall be two in one flesh; this is a great sacrament. But I speak in Christ and in the Church."⁵⁷ Therefore carnal union pertains to the essence of matrimony.

I respond: These words, "They shall be two in one flesh," do not necessarily signify carnal union, but the indissoluble bond existing between the spouses; for St. Paul here evidently alludes to the words: "And Adam said: This now is bone of my bones, and flesh of my flesh; she shall be called woman, because she was taken out of man. Wherefore a man shall leave his father and mother and shall cleave to his wife, and they shall be two in one flesh."⁵⁸ But from these words nothing can be concluded concerning carnal intercourse. See other objections and their solutions in Billuart.⁵⁹

⁴⁹ Cf. S. theol. 3, q. 29, a. 2.

⁵⁰ Matt. 1:20.

⁵¹ Epistle of Pope Siricius on the perpetual virginity of Mary (Denz., n. 91; cf. ibid., nn. 256, 993).

⁵² It is contained in c. 5, C. 27, q. 2. Similar things are contained in c. 9, C. 27, q. 2, from St. Augustine, De bono coniugali, l. 1, c. 2.

⁵³ c. 1, C. 27, q. 2.

⁵⁴ Suppl., q. 48, a. 1.

⁵⁵ Commentary on this place, namely, Suppl., q. 48, a. 1; cf. also Suppl., q. 44, a. 1.

⁵⁶ In 4, dist. 26, a. 15.

⁵⁷ Eph. 5:31 ff.

⁵⁸ Gen. 2:23 ff.

⁵⁹ De matrimonio, diss. 3, a. 5.

632. Proposition 2. The essence of matrimony in fieri (and consequently also of the sacrament of matrimony) consists in mutual consent externally manifested, or in the matrimonial contract.

That even Christian matrimony is a true and proper bilateral contract, although singular and sui generis, is today, after the Encyclical Arcanum cited above, so certain that the contrary assertion of a few authors is rash.⁶⁰ The reason is that in matrimony all things are found which are necessary for a true contract. A contract is customarily defined: "The agreement and consent of two or more in the same thing."⁶¹ Now in matrimony there is the free consent of two, namely, of those about to marry, in the same thing, namely, in conjugal life. But the qualities of this matrimonial consent will be treated below.

⁶⁰ Cf. Gasparri, De matrimonio, n. 202 ff.

⁶¹ l. 1, § 2, D. De pactis II, 14.

633. The material object of this contract is the persons themselves who contract.

The formal object is the manner of life. Philosophers call the material object the thing about which action is taken; the formal object is that one among the diverse formalities existing in the thing which is principally intended. Thus in one and the same material thing there can be a manifold formal object; for example, one and the same house, considered as the material object, when it is sold, is subject to the formal object of a contract of sale; when it is leased, it is subject to the formal object of a contract of lease. For in the former case ownership is principally intended, but in the latter only the use of the house. In contracting matrimony each spouse must principally⁶² intend (or at least not exclude) a mutual, exclusive, and perpetual right to the body of the other with an order to generation. Therefore such a right is the formal object of the matrimonial contract; and if such a right were excluded, the matrimony would be null and invalid from the beginning. But once matrimony has been contracted and such a right has been truly granted, nothing prevents that right from never being reduced to practice, or even from being perpetually suspended with regard to actual exercise, for example, when the spouses by common consent emit a vow of perpetual continence, or when, after adultery committed by one spouse, the innocent party refuses to render the conjugal debt (concerning which more fully below).

⁶² Nothing prevents the spouses from having other accidental intentions, for example, of preserving the honor or fortune of the family, of having a remedy for concupiscence, etc.

634. Matrimony is a plainly singular and sui generis contract, for:

a) every true and legitimate matrimony is a sacred contract.

Hence even the legitimate matrimony of pagans is called by Leo XIII in the Encyclical Arcanum: "sacred by its own force, its own nature, and of its own accord." The reason is both because the immediate author of matrimony is God, and because matrimony even from the beginning was a certain foreshadowing of the Incarnation. The history of peoples also openly demonstrates that nuptials were always held as something sacred, and therefore were celebrated with religious ceremonies, unless the peoples had fallen into the abyss of immorality. Thus Leo XIII in the often-cited Encyclical Arcanum deservedly says: "Both the monuments of antiquity and the customs and institutions of peoples testify, ... in the minds of all of whom it is evident that it had been formed and anticipated that, when they thought of matrimony, there occurred the form of a thing joined with religion and sanctity. For this reason nuptials among them were often accustomed to be performed not without religious ceremonies, the authority of pontiffs, and the ministry of priests."⁶³ From the sanctity of matrimony it follows that the matrimonial contract cannot, like other human contracts, be clothed with arbitrary conditions or dissolved at the will of the contracting parties; for those things which are ordained by God Himself and by the natural law cannot be arbitrarily changed by men.

Note. The sanctity of the matrimonial contract must be greatly inculcated, especially in our days, when, from civil marriage introduced almost everywhere on earth and from frequent divorces, the danger has arisen that the people may consider matrimony as any other human contract. The sorrowful experience of all peoples and all ages proves more than sufficiently that divorces, and even adulteries, increase day by day because matrimony is no longer sufficiently considered as something sacred and immediately instituted by God. Hence every priest should strive with all his strength to inculcate the sanctity of matrimony in the hearts of men.

⁶³ There is no leisure to treat the history of matrimony here. The history of matrimony is the history of morality. The more sacred marriages are held by a people, the better are its morals; and the more frequently matrimony is disfigured by adulteries and divorces, the more its morals are ruined. Leitner treated the history of matrimony (Eherecht; Geschichte der nichtsakramentalen Ehe). Westermarck (History of Human Marriage) wrote in a Darwinistic sense.

635. b) The matrimonial contract is by divine law a bilateral and indivisible contract, which cannot limp.

The Angelic Doctor writes on the matter:⁶⁴ "Since matrimony is a certain relation, and a relation cannot arise in one of the extremes without its arising in the other, therefore whatever impedes matrimony in one impedes it in the other, because it cannot be that someone is a husband who is not the husband of a wife, or that someone is a wife not having a husband, just as neither can there be a mother not having a son; and therefore it is commonly said that matrimony does not limp." This principle, "Matrimony cannot limp," understood in this negative sense, must be carefully attended to in practice, and it was employed both by the celebrated Decree Ne temere XI, § 2, and by the Code of Canon Law, c. 1036, § 3, in this sense explained above by St. Thomas. For the Code establishes (loc. cit.): "Although an impediment is present on the part of only one party, nevertheless it renders the matrimony either illicit or invalid." Formerly it was much disputed whether this principle could also be taken in a positive sense, so that if one of the contracting parties were capable, that party could communicate this capability to the other party. This question indeed was of great moment in the impediment of clandestinity, in which this principle could truly be applied in a positive sense;⁶⁵ today, however, after the Decree Ne temere, it has lost practical utility. For the negative response is certain,⁶⁶ at least for marriages contracted after that Decree. Therefore the following practical conclusion is easily deduced:

An infidel, although not bound by matrimonial impediments of purely ecclesiastical law,⁶⁷ nevertheless, even after obtaining a dispensation from the impediment of disparity of cult, cannot validly contract matrimony with a Catholic unless he observes the statutes of the Code of Canon Law. The reason is that the Catholic is bound by these statutes, and consequently the infidel also indirectly.

⁶⁴ Suppl., q. 47, a. 1.

⁶⁵ Cf. Sacred Roman Rota, in the Mohilev case, April 18, 1916 (Acta Apost. Sed. VIII, 422).

⁶⁶ Cf. Boeckenhoff, Dissertatio de individuitate matrimonii, Berlin 1901.

⁶⁷ Cf. below, n. 651.

636. Proposition 3. The essence of matrimony in facto esse consists in a bond permanent of itself, which arises from a legitimate matrimonial contract.⁶⁸

Billuart writes excellently on this matter:⁶⁹ "Matrimony in facto esse does not consist essentially in mutual or external consent, nor in the mutual handing over of bodies, because these pass away while the matrimony remains; nor in a mutual right to intercourse, both because that right to intercourse is something consequent upon matrimony already constituted, for the spouses have a right to intercourse because they are joined in matrimony; and because matrimony subsists without that right, as in those who by mutual consent bind themselves to preserve continence, unless perhaps you understand the radical right, which is nothing other than the formal and passive bond or union.... I said: in the formal bond, because the bond is not taken causally for the thing which binds; for thus it is the contract, but for the formal mode and bond, or the passive union resulting from the causal bond, which St. Thomas, q. 44, a. 1, places in the relation of the persons joined."

⁶⁸ Cf. Roman Catechism, p. 1, c. 8, q. 4.

⁶⁹ De matrimonio, diss. 1, a. 1.

637. Scholion. There is no reason for us to speak of the necessity and moral goodness of matrimony. For from what has been said it manifestly follows that matrimony is necessary for the human race and is something morally good in itself. For God commanded men in paradise: "Increase and multiply."⁷⁰ Moreover, the suitable propagation of the human race is impossible without legitimate matrimony. For not only the physical generation of offspring is required, which indeed can be had without matrimony, but also the bodily and spiritual education of the offspring born. This education indeed is morally impossible unless the father and mother are joined in legitimate matrimony and with united strength provide for the welfare of the offspring. Furthermore, true family life and the mutual love of men perish without marriages. Hence the error of certain Socialists and Mormons is most wicked, who wish to abolish all marriages and proclaim so-called free or promiscuous love. But although matrimony is something morally good and necessary for the whole human race, it does not therefore follow that every capable man must contract matrimony. For the propagation of the human race is already had so sufficiently that from the celibacy of a certain few men, not only does no harm arise, but rather the greatest utility. By accident, however, an obligation to enter matrimony can also be incumbent upon some determinate man, for example, to repair damage inflicted, to fulfill a promise made, etc. There is no leisure here to speak of the utility and excellence of virginity.⁷¹

⁷⁰ Gen. 1:28.

⁷¹ Cf. S. theol. 2, 2, q. 152, aa. 2 and 4, and above, II, n. 659.

We shall treat: 1. of the notion of matrimony; 2. of the matter, form, and minister; 3. of the properties of matrimony.

1962. DEFINITION. Matrimony (instituted by God the Creator) is the marital conjunction of man and woman, between legitimate persons, retaining an undivided companionship of life.¹

It is said 1. marital conjunction: by which words the very essence of matrimony is expressed, namely the mutual bond binding man and woman, from the fact that, through consent expressed concerning the present, they hand over to one another dominion of their bodies, in order to generation. - 2. Between legitimate persons: by which words are indicated the conditions of the subject, which ought to be such that the contracting parties are impeded by no law from contracting matrimony; - 3. retaining an undivided companionship of life, which words intimate the properties of matrimony, namely unity and indissolubility.

MATRIMONY, considered formally as a Sacrament, can be defined: the legitimate and indissoluble contract of baptized persons between a man and a woman, by which mutual power over bodies is handed over and accepted, in order to acts of themselves apt for the generation of offspring, elevated by Christ to the dignity of a Sacrament, and conferring grace ex opere operato. This definition will be made clear from what is to be said.

DIVISION. Matrimony is distinguished in many ways, namely:

1. Into legitimate, ratified, and consummated. - 1) Legitimate is that which is contracted by the non-baptized according to the norm of the natural law, and which lacks the power of a Sacrament; such is the matrimony of Jews and Infidels. - 2) Ratified, however, is that which has been contracted between baptized persons entangled by no natural or canonical impediment, between whom, however, after the contract, conjugal intercourse has not yet intervened. It is called ratified, insofar as the Church holds it valid. - 3) Finally matrimony is called consummated when to legitimate or ratified matrimony there has been added carnal conjunction of itself sufficient for the generation of offspring.²

2. Into true, presumed, and putative. True is that whose conditions all objectively stand. - Presumed is called that which, in certain circumstances, is presumed by law, without proofs being brought. - Putative is that which is judged to have been validly contracted, when nevertheless on the side of reality, on account of some latent impediment, it is null.

3. Into canonical, political or civil, and of conscience. Canonical is called that in which all things concur which are required by the canons of the Church. Political or civil is that (which, unless canonical matrimony is added, is called matrimony by injury) in which those things also intervene which civil law requires, such as dotal pacts, consent of parents, and other solemnities, without which it is deprived of civil effect. Matrimony of conscience is that which is contracted in the usual form, the denunciations being omitted, under this law, that it should always be hidden (cf. n. 2080 Note).

Near to this is morganatic matrimony, when a noble man, after the death of a wife who left him children, marries another less noble woman under this law, that she herself and her children are excluded from the dignity of the husband and father and are content with some gift (Morgengabe) for their honorable support; and further that they abstain from the other goods, titles, and paternal insignia, and this especially in favor of the children begotten from the former wife.

1963. Principles. I. The essence of matrimony considered in fieri consists in mutual consent duly expressed; considered in facto esse, in the permanent bond which arises from the aforesaid consent and has annexed to itself dominion or mutual right over the body of the other, without, however, the use of this right belonging to the essence of matrimony. The first part is clear from the decree to the Armenians, saying: "The efficient cause of matrimony is mutual consent regularly expressed by words concerning the present." From this the second part also is clear, both because from compact and consent there arise a mutual obligation and bond between the contracting parties;³ and because every legitimate handing over confers a right in the thing handed over, which thing in the matrimonial contract is the use of bodies in order to generation. Hence the Apostle (1 Cor. 7:4): "The woman does not have power over her own body, but the man. Likewise also the man does not have power over his own body, but the woman." But the third part is manifest from this, that the first parents before sin, at which time no intercourse of the flesh had intervened between them, as the Fathers testify, were plainly joined in true matrimony.⁴ It is confirmed also by the example of the Blessed Virgin Mary and St. Joseph, between whom it is altogether certain that true matrimony existed, yet no use intervened. Wherefore, in both laws the rule has been received: "Consent, not intercourse, makes nuptials."

1964. II. Matrimony of Christians, celebrated by legitimate rite, is a true Sacrament of the New Law. - It is of faith, from Trent (sess. 24, can. 1), defining: "If anyone shall have said that Matrimony is not truly and properly one of the seven Sacraments of the evangelical law, instituted by Christ the Lord, but invented by men in the Church, and that it does not confer grace: let him be anathema." Nor does Paul the Apostle obscurely intimate the truth of the proposition, saying (Eph. 5:25): "Men, love your wives, as Christ loved the Church and handed himself over for her," and soon adding (v. 32): "This is a great sacrament; but I speak in Christ and in the Church."⁵ And 1. indeed, it is a sign of a sacred thing, namely of that most holy bond by which Christ the Lord is joined with the Church, or the divine Word with human nature. - But 2. that grace also is signified and bestowed by this Sacrament, in which especially the nature of a Sacrament exists, these words of the Holy Synod declare: "But the grace which would perfect that natural love, and confirm the indissoluble unity, and sanctify the spouses, Christ himself, the institutor and perfecter of the venerable Sacraments, merited for us by his Passion." Nor 3. can it be doubted that, from the institution of Christ, matrimony, which before was only a natural and religious contract, was elevated to that dignity that it is a sign of a sacred thing, productive of grace, although it is not established concerning the time at which this was done. Therefore it is clear that nothing is lacking to matrimony from those things which belong to the nature of a Sacrament.⁶

It was said: matrimony of Christians; for matrimony of infidels, although perfect in the nature of a contract, cannot be a Sacrament, since Baptism is the gate of all the Sacraments.

But concerning the matrimony of INFIDELS who afterward were converted to the Christian faith, as also concerning the matrimony of a faithful person with an infidel, which has been contracted with previous pontifical dispensation: there are various opinions of Authors, since nothing has been defined by the Church, which may be seen discussed among the Dogmaticians. - Those things which are more approved by us are the following: 1. Matrimony contracted in infidelity, according to the opinion by far more probable, is raised to the nature of a Sacrament by the conversion of both spouses, but not by the conversion of only one spouse. When both turn themselves to the Faith, an express renewal of matrimonial consent is not required; sufficient for the nature of a Sacrament is that virtual consent by which the spouses, approaching Baptism, determine to persist in the matrimony previously entered upon, but in a Christian manner. 2. Matrimony which a faithful person contracts with an infidel, after previous dispensation of the Pontiff has been obtained, has, according to the truer opinion, the nature of a Sacrament on the part of the faithful person.⁷

1965. III. In Christian matrimony, the contract is NOT DISSOCIABLE from the Sacrament; and therefore a true and legitimate contract cannot stand without being by that very fact a Sacrament. - This is clear from the Encyclical Arcanum divinae sapientiae of Our Most Holy Lord Pope Leo XIII, in which the Pontiff speaks thus:⁸ "For Christ the Lord increased matrimony by the dignity of a Sacrament; but matrimony is the contract itself, if only it has been made by right. To this is added that matrimony is a Sacrament on this account, because it is a sacred sign and effective of grace, and bearing the image of the mystical nuptials with the Church. But the form and figure of these is expressed by that very bond of the highest conjunction by which man and woman are bound together among themselves, and which is nothing other than matrimony itself. And so it appears that every just union between Christians is in itself and through itself a Sacrament: and nothing is more abhorrent from truth than that the Sacrament is some adornment annexed, or a property having slipped on from without, which could be disjoined and separated from the contract by the will of men."⁹

From what has been said you will gather: 1. Matrimony is a contract sui generis, differing much from other contracts; and indeed: - 1) Matrimony has its origin and institution from natural and divine law; but other contracts from the law of nations, or from the special law of each nation. - 2) The object of matrimony has been determined by God in such a way that it cannot be modified by the stipulations of the contracting parties, while in other contracts many things are left to the judgment of the contracting parties. - 3) Matrimony, as regards validity, depends on divine, natural, and ecclesiastical law; but not, as civil contracts do, on civil law and the will of princes, who can do nothing in those things which pertain to the Sacraments (cf. n. 1994-1997).

2. Marriages entered into between HERETICS or SCHISMATICS, if no diriment impediment stands in the way, just as they are valid in the nature of a contract, so also truly have the nature of a Sacrament. But

IT IS ASKED. What is to be said of matrimony between BAPTIZED persons duly celebrated, with a positive will NOT TO RECEIVE the Sacrament?

Resp. Dist. 1. If the predominant intention was to exclude absolutely the nature of the Sacrament, and rather to omit matrimony than to receive the Sacrament, the matrimony is invalid in the nature of a Sacrament, and consequently also in the nature of a contract. - 2. If the predominant intention was to celebrate matrimony in the nature of a contract, and therefore to posit all things which are required for its validity, the matrimony is valid, both by reason of the contract and by reason of the Sacrament, although this has been received unworthily. - In doubt as to which was the predominant intention, judgment must be made in favor of matrimony; for everyone is presumed to will to exercise a valid contract, unless the opposite is proved.¹⁰

1966. IV. The ENDS which can be considered in matrimony are of three kinds, namely: intrinsic essential ends, intrinsic accidental ends, and accidental extrinsic ends.

1. The INTRINSIC ESSENTIAL ends are two: 1) the mutual handing over of bodies with the obligation of rendering the debt; 2) the indissoluble bond. - Hence it is certain that, if someone should contract while positively excluding these ends, namely with the mind of not undertaking the obligation of rendering the debt, or of contracting for a time, he would not only sin, but would enter into no matrimony.

2. The INTRINSIC ACCIDENTAL ends likewise are two: 1. The procreation of offspring: for just as matrimony, as a natural conjunction, was instituted from the beginning for propagating the human race, so afterward, that a people might be procreated and educated for the worship and religion of the true God and of Christ our Savior, the dignity of a Sacrament was bestowed on it. 2. The remedy of concupiscence, namely that he who is conscious to himself of his weakness, and does not wish to endure the battle of the flesh, may use the remedy of matrimony for avoiding sins of lust. Concerning which the Apostle (1 Cor. 7:2) writes: "On account of fornication let each man have his own wife, and let each woman have her own husband." And again (v. 9): "But if they do not contain themselves, let them marry; for it is better to marry than to burn." Wherefore neither does he sin in any way who marries principally on account of the remedy of concupiscence, provided he does not exclude the end of procreating offspring. For there is no disorder if, from two licit ends, the secondary is chosen before the primary, when the latter is not smothered by the former. - But if someone should exclude these two intrinsic accidental ends, he could contract not only validly but also sometimes licitly: for example, if he were an old man and married without hope of procreating offspring, nor intended the remedy of concupiscence; for it suffices that the substantial ends be saved.¹¹

3. The ACCIDENTAL EXTRINSIC ends can be very many, such as peace to be reconciled, nobility to be acquired, etc. Ends of this sort, if in themselves honorable, are not to be condemned, since they are not repugnant to the holiness of matrimony; indeed they can even be intended primarily, because it is not a disorder, as we already said, to choose one of the secondary honorable ends before the primary end, provided this is not excluded.¹²

IT IS ASKED. Whether matrimony is commanded by SOME LAW?

Resp. Although matrimony is ordered to the conservation of society, and it is necessary that some embrace this state, nevertheless concerning this no precept has been given to individuals. "But what was said by the Lord: Increase and multiply, looks to this, that the cause for which matrimony had been instituted be declared: not that it impose necessity on individual men. For now, the human race having already been increased, not only does no law compel anyone to take a wife, but rather virginity is commended exceedingly, and it is advised to each one in Sacred Scripture, as being more excellent than the state of matrimony, and containing in itself greater perfection and holiness"¹³ (cf. n. 764).

1967. V. "There are three GOODS of matrimony: offspring, fidelity, and Sacrament; by compensation of which those inconveniences are lessened which the Apostle indicates by these words (1 Cor. 7:28): 'such persons will have tribulation of the flesh'; and it is effected that conjunctions of bodies, which outside matrimony would deservedly have to be condemned, are joined with honorableness.

"The first good therefore is OFFSPRING, that is, children, who are received from a just and legitimate wife. For the Apostle esteemed this so greatly that he said (1 Tim. 2:15): The woman will be saved through the generation of children. Nor indeed must this be understood only of procreation, but also of the education and discipline by which children are instructed unto piety."¹⁴

"FIDELITY follows, which is the second good of matrimony, namely a certain faithfulness by which mutually the man binds himself to the woman and the woman to the man in such a way that one hands over to the other power over his or her body, and promises that he or she will never violate that holy covenant of marriage... But this fidelity of matrimony demands that husband and wife be joined by a certain singular, holy, and pure love; nor that they love each other as adulterers, but as Christ loved the Church."¹⁵

The third good is called SACRAMENT, and is found in the nature of a Sacrament.

1968. Among all Catholic authors it is certain that the MATTER of this Sacrament is the matrimonial contract; as regards the FORM and MINISTER, various opinions have been handed down. - Certain Theologians, led by Melchior Cano, taught that the minister is the priest, but that the form is had in these words: "I join you in matrimony." But the opinion which has always been more common, and has now become common, teaches that the ministers are the contracting parties themselves, and that the form consists in their mutual acceptance. - With these things briefly set forth beforehand, let the following be held.

1969. Principles. I. The REMOTE matter of this Sacrament is the bodies of the contracting parties, to be handed over mutually, or the mutual right over the body of the other. The PROXIMATE matter is the handing over itself of the right in the bodies, made through words or signs expressing consent. Thus commonly.

For this Sacrament has the nature of a contract; therefore just as in other contracts the things are the remote matter, and the handing over of the thing the proximate matter, so consequently it is in matrimony, where the right in the bodies is handed over.¹

1970. II. The FORM consists in the mutual acceptance of the contracting parties, expressed by words or signs. Thus commonly, and it will be clear from what is soon to be said concerning the minister.²

1971. III. The MINISTERS of the Sacrament of Matrimony are THE FAITHFUL THEMSELVES contracting. - This is the common opinion, and altogether certain. The evident reason is that in places where the impediment of clandestinity does not exist, matrimony is contracted validly without the presence of a priest. Therefore if a true Sacrament is effected even when the priest is absent, it must certainly be concluded that the contracting parties themselves, and not the priest, are the ministers.³ Nevertheless the priest is the minister of the solemnity of matrimony, as will be explained below (n. 2073).

Hence, for the contracting parties there apply those things which were said in their places both concerning the administration and concerning the reception of the Sacraments (cf. n. 1416, 1433, 1434, 1436). But,

YOU WILL ASK: Whether it is licit to enter matrimony with a PUBLIC SINNER, and consequently to minister the Sacrament to him? - RESP. This is prohibited at least under venial sin, as many probably say; indeed according to St. Alphonsus, more probably under grave sin, on account of reverence due to the Sacrament. A just cause EXCUSES from every sin, e.g. if someone cannot withdraw from matrimony without grave inconvenience. Except, however, if the other is an excommunicate to be avoided, with whom to communicate in a sacred matter is altogether illicit.⁴

1972. IV. The CONSENT by which matrimony is perfected and the Sacrament is administered must be personal, internal, deliberate, mutual, concerning the present, and externally manifested.

1. It must be PERSONAL; for "in matrimony consent cannot be supplied by any human power."⁵

2. TRUE and INTERNAL; for it is an act of one's own will, which freely imposes on itself a new obligation. - Hence, if both, or either one of the contracting parties, should consent not from the soul but FICTITIOUSLY, there is no matrimony. In the first case the matter is clear of itself; in the other, because, since the matrimonial contract cannot limp, the consent of the other being lacking, the contract is null. The one contracting fictitiously commits both the sin of sacrilege, because he renders the Sacrament null; and the sin of injustice, if the counterpart contracts in good faith, because he deceives that person and inflicts on him or her a grave injury, which he is bound to repair by removing the fiction and truly contracting (cf. n. 2083). If this cannot be done, or if the deceived party does not will it, he is bound at least to repair the other damages. Except, if the other party also deceived, or if the deception was done in order that the deceiver might decline fear unjustly inflicted. Nevertheless Authors commonly say that it is not illicit to simulate the celebration of nuptials, on account of a just cause, e.g. on account of a diriment impediment, when namely the celebration cannot be omitted without grave damage, as was said n. 1430, at the end.⁶

3. DELIBERATE, i.e. furnished with sufficient knowledge and due liberty. Force and error stand in the way of deliberation; but concerning these there will be discussion where impediments are treated.

4. MUTUAL; because a contract burdensome on both sides and transferring a mutual right in the bodies, as the matrimonial contract is, is not effected except through the reciprocal consent of the contracting parties. Wherefore it must also be noted: union and at least moral simultaneity are required between the consent of one and of the other, such as namely is required in civil contracts (cf. n. 1044, 3).

5. CONCERNING THE PRESENT, namely by which the contracting parties mutually accept each other here and now as true spouses; for in this matrimony differs from betrothals (cf. n. 1950, It is said 5).

6. EXTERNALLY MANIFESTED; otherwise mutual acceptance would not be possible. - It is not indeed required for the VALIDITY of matrimony that consent be expressed by words; it suffices that it be expressed by signs, which Innocent III declared,⁷ saying: "The deaf and mute can contract matrimony through consent without words." A sufficiently adequate sign would be if the woman, after the man's consent has already been expressed, should extend her hand to him; but not if she should not withdraw her hand when it has been seized by him. Nor would the giving of a ring suffice, or the leading of the bride into the house of the man, unless by the custom of the place signs of this sort expressed consent. But as regards LICEITY, unless modesty or another reasonable cause excused, it would be a venial sin to express consent by signs alone; because it would be against the rubric of the Ritual and against the custom of the Church.⁸

But sometimes explicit consent is not required. For, in places where the impediment of clandestinity does not prevail, BETROTHALS THEMSELVES, to which free and consummated intercourse is added, pass into true matrimony; provided the intercourse was had with marital affection: and this affection indeed is always presumed in the external forum; but in the internal forum, presumption yields to truth.⁹

1973. Questions. Q. 1. Whether matrimony can be contracted VALIDLY and LICITLY THROUGH A PROCURATOR?

Resp. 1. It can be contracted VALIDLY, as is clear from law. The reason is that Christ, in elevating matrimony to the being of a Sacrament, did not change the nature of the contract, which is such that it can be entered into among absent persons through a procurator. - But for this many things are REQUIRED, namely: 1) A special mandate, which can be given orally; for writing is not demanded. - 2) That the mandate be concerning contracting with a determinate person. - 3) That the procurator contract by himself; for he himself cannot delegate another, unless he has express and special permission from the mandator. - 4) That the mandate has not been revoked by the mandator, even mentally, before the matrimony is celebrated. And this runs even if the revocation is made tacitly, namely if someone gave a mandate of contracting with one woman, and afterward celebrates betrothals with another. - 5) That, in places where the impediment of clandestinity prevails, the procurator show the mandate to the pastor and witnesses, and before them contract matrimony according to the form of Trent. - 6) That he not exceed the limits of the mandate. But in this it must be adverted that, if the condition is required by the mandator, namely that contraction be made with such a dowry, at such a time, etc., if the condition is not observed, the matrimony will be null. But if the condition is required by law, namely that contraction be made after denunciations have been premised, after permission of the Bishop has been obtained, etc., then the matrimony entered without them will be valid.¹⁰

Resp. 2. It can also be contracted LICITLY, but only when a grave cause suffices, as, e.g., among Princes; for one must not easily recede from the ordinary practice of the Church. And hence it is why the pastor ought not, without consulting the Bishop, to assist at such a matrimony.¹¹

Q. 2. Whether matrimony can be contracted through a LETTER?

Resp. Affirmatively, on account of the same reason as above. But it is contracted in the following manner: "The groom writes to the bride that he himself hands himself over to her as husband, and from that moment accepts her as wife. The bride writes the same in return to the man; this response is read before the pastor and witnesses. Moreover, it is also enough that the man write to the woman in the way related, and that the bride, without writing back to the groom, open the letters before the pastor and witnesses, and furnish her consent."¹² - But that this be done LICITLY, a grave cause is required. Hence it is plainly to be advised that the pastor do nothing in this matter without the permission of the Bishop. Except, unless perhaps it is a question of revalidating matrimony, in which case one party would refuse to present himself before the pastor.¹³

Q. 3. Whether matrimony can be contracted UNDER CONDITION?

Resp. Affirmatively, because neither the sacred canons nor the very nature of matrimony altogether impede certain conditions from being added to matrimonial consent. - But according to the variety of conditions, various things must be DISTINGUISHED:

1. If the condition, even a base one, is concerning the past or concerning the present, the matrimony is valid if the condition stands; on the contrary, if it is lacking, it is not valid, because consent is lacking.

2. If the condition is concerning a necessary future thing, e.g. if the sun rises tomorrow, the matrimony is valid at once, unless the contracting parties intend to suspend consent until the time of the fulfilled condition. Thus commonly.

3. If the condition is against the substance of matrimonial obligation, e.g. if one says to the other: "I contract with you, if you avoid the generation of offspring; or until I find another more worthy in honor or wealth; or if you hand yourself over to be adulterated for gain:" thus it must be DISTINGUISHED: 1) if the condition is added with the intention of not undertaking the obligations which are essential to matrimony, which can easily happen in regions where divorce is permitted by laws and is in use, the matrimony is invalid; 2) if it is added with the intention indeed of undertaking them, but of not fulfilling them, it is valid, and the depraved will must be corrected.¹⁴ - But here it is customary to ask whether the condition of not consummating matrimony is against the good of offspring? - The more common and more probable opinion denies it; wherefore matrimony entered into under this condition is valid, provided the contracting parties intend to hand over to each other the mutual right in the body and to bind only the use of it (cf. n. 1963).

4. If the condition is concerning an impossible or base thing, which nevertheless is not repugnant to the substance of matrimony, again it must be DISTINGUISHED: 1) if there is evidence of a serious will not to contract unless the added condition has been fulfilled, matrimony entered into under an impossible condition is null; but one entered into under a base condition is not null by that very fact, but before the condition has been fulfilled, it obliges to nothing; when it has been fulfilled, however, it becomes absolute matrimony. - 2) But if there is no evidence of that serious will, the base or impossible condition is held as not added, and the matrimony is immediately valid.

5. Finally, if the condition is concerning a future contingent and honorable thing, the matrimony remains suspended until the condition is fulfilled; but when this has been fulfilled, it becomes absolute. While the condition is pending, it is not licit for one, against the will of the other, to revoke consent.¹⁵

But note as regards LICEITY, that the pastor cannot, without a most urgent cause, admit conditional marriages of this sort; namely on account of the many inconveniences and difficulties which afterward can occur and be moved against their validity.¹⁶

Q. 4. Whether, when the condition has been fulfilled, NEW CONSENT is required for matrimony?

Resp. Some indeed affirm, because matrimony is not only a contract, but also a Sacrament, whose validity cannot be pending.

But others, more truly and commonly, deny it, because the condition having been fulfilled, the contract becomes absolute, and consequently by that very fact also is constituted in the nature of a Sacrament.¹

Q. 5. What if a demonstration, cause, or mode is added to consent?

Resp. DEMONSTRATION, e.g. I marry you, who are noble; CAUSE, e.g. I marry you, because you are a virgin; MODE, e.g. I marry you, that you may serve me, differ altogether from condition in this, that they do not suspend consent; wherefore matrimony becomes immediately absolute, unless perhaps the demonstration, cause, or mode have, in the mind of the contracting parties, the nature of a condition, or unless substantial error lies hidden in them.²

Q. 6. Whether the CONSENT OF PARENTS is required for the matrimony of children-of-the-family?

Resp. 1. Negatively, as regards validity: and this is of faith against the Lutherans and Calvinists. For Trent (sess. 24, cap. 1) "condemns with anathema those who falsely affirm that marriages contracted by children-of-the-family without the consent of parents are invalid, and that parents can make them ratified or invalid." Reason is added: for the contracting parties have power over their own body, nor do parents have power over the body of their children in order to matrimony. - But if CIVIL LAW requires the consent of parents for the validity of matrimony, its force extends only to merely civil effects.

Resp. 2. It is required, at least speaking regularly, for liceity; so that children-of-the-family sin gravely if parents justly contradict, or if they are judged to be reasonably unwilling. We said speaking regularly; for when a just cause intervenes, it is certain that children can, while parents are ignorant of it or even unwilling, enter matrimony³ (see n. 1951, query 1).

But when parents contradict justly, and when unjustly, cannot easily be defined: wherefore a prudent confessor will indeed persuade children that, in a matter of so great moment, they should not stand against the will of parents; but very rarely will he impose on them an obligation of withdrawing from entering matrimony, especially because greater evils, for the most part, are to be feared from this.

1974. Matrimony, "that it might respond more aptly to the most wise counsels of God, either from the beginning bore before itself chiefly two properties, and these especially noble, as though deeply impressed and engraved, namely unity and perpetuity."⁴ Concerning these two properties one must now treat.

The UNITY of matrimony, which is also called monogamy, is situated in the conjunction of one man with one woman. To unity is opposed polygamy, which is twofold: 1. simultaneous, when one man joins several wives to himself in matrimony at the same time, and this is called simply polygamy; or when one woman marries several men at the same time, and it is commonly called polyandry or polyviry; 2. successive, when after the death of the spouse, the surviving party hastens to new nuptials.

1975. Principles. I. SIMULTANEOUS POLYANDRY is prohibited, by the consent of all, by the NATURAL law itself. - For it is directly opposed to the generation and education of offspring: to generation indeed, since a woman knowing several men at the same time generally remains barren; but to education, since the father of such offspring, if perhaps it is born, is uncertain. And hence it is that prostitution, to which polyandry is reduced, has at every time been held as infamous and flagitious.⁵

1976. II. SIMULTANEOUS POLYGAMY is prohibited in the New Law by DIVINE right. - For Christ expressly taught: "Whoever shall have put away his wife and married another, commits adultery against her" (Mark 10:11). But now, if he is an adulterer who, having put away his wife, marries another, much more will he be an adulterer who does this while retaining the former. Hence Trent (sess. 24, can. 2): "If anyone shall have said that it is licit for Christians to have several wives at the same time, and that this is prohibited by no divine law: let him be anathema." - Wherefore, if some infidel, having several wives, is admitted to Baptism, he must retain only one, namely her whom he validly joined to himself in the first place, or any one of the others who is willing to embrace the Christian faith; unless the Pope has otherwise determined or permitted, according to what is to be said n. 1980.⁶

As regards the natural law, Theologians, led by St. Thomas,⁷ hold that polygamy is not contrary to the primary end of matrimony; and therefore that it is not intrinsically evil, nor absolutely prohibited by the precepts of nature; yet that it is opposed to the secondary ends of marriage, of which sort are peace, tranquility, mutual services, etc.; and therefore that it is contrary to the secondary law of nature, in which God alone can dispense. And indeed, after the flood, for just causes, moderate polygamy was granted to the Patriarchs and to the Israelite people. Indeed the more common opinion teaches that the same dispensation was extended to the Gentiles. But from the beginning it was not so (Matt. 19:8); and Christ the Lord restored the law of matrimony, whether for Christians or for Gentiles, to its primeval integrity.

1977. III. SUCCESSIVE polygamy has never been prohibited; and therefore second and later nuptials are LICIT, both for the man and for the woman, even under the evangelical law. - This is clear from the authority and practice of the Church, and also from the words of Paul the Apostle (1 Cor. 7:39): "The woman is bound by the law as long as her husband lives; but if her husband sleeps, she is freed; let her marry whom she will, only in the Lord." Recalling these words, Eugene IV in the decree for the Jacobites declared: "not only second, but third and fourth and further nuptials, if some impediment does not stand in the way, can be contracted licitly."

Nevertheless, the Church of God has always followed widowhood with special honor, nor has she ever held second nuptials as honorable as first nuptials, since the union of Christ with the one Church is represented less perfectly through them (cf. n. 1937).

Note. From the modern Codes, a WIDOW cannot enter matrimony unless ten months have elapsed from the death of the prior husband, or she has given birth: nevertheless this prohibition does not have the force of invalidating civil matrimony.⁸

1978. The INDISSOLUBILITY of matrimony is one thing as regards the bond, another as regards bed and cohabitation. The former belongs to the essence of matrimony, the latter to the offices of spouses. Here only the former must be treated.

Principles. I. Matrimony duly entered into is so indissoluble that it can NEVER be DISSOLVED through divorce as regards the bond. It is of faith from Trent (sess. 24, can. 5 and 7). For "the perpetual and indissoluble bond of matrimony the first parent of the human race, by the instinct of the divine Spirit, pronounced, when he said: This now is bone of my bones and flesh of my flesh: wherefore a man shall leave his father and mother, and shall adhere to his wife, and they shall be two in one flesh."⁹ But the "firmness" of this bond, "pronounced by Adam so long before, Christ the Lord confirmed by these words: What therefore God has joined, let not man separate."¹⁰

To the Hebrews indeed, by divine dispensation, the faculty of a bill of repudiation was made, by which the bond of matrimony, in certain circumstances, could be dissolved (Deut. c. 24); but "Jesus Christ restored it to its primeval state, namely to indissolubility, not by establishing a new law, but only by removing the old indulgence, or dispensation conceded over the aforesaid indissolubility."¹¹

But this indissolubility arises from NATURAL LAW itself, at least secondary, because it is necessary for the education of offspring that parents perpetually devote themselves to its good. Thus most commonly the Authors, led by St. Thomas.¹² It is also clear from condemned proposition 67 of the Syllabus: "By the law of nature the bond of matrimony is not indissoluble, and in various cases divorce properly so called can be sanctioned by civil authority." - Hence, "what a mass of evil DIVORCES contain in themselves, it scarcely needs to be said. For by reason of them marital covenants are made changeable, mutual benevolence is weakened, pernicious incentives are supplied to infidelity; harm is done to the protection and instruction of children; occasion is furnished for tearing apart domestic societies; seeds of discords among families are scattered; the dignity of women is diminished and depressed, who come into danger lest, after they have served the lust of men, they be held as abandoned."¹³

But, although matrimony of itself is indissoluble, nevertheless in certain cases it admits dissolution of the bond; wherefore diverse degrees of indissolubility can be distinguished, as will be clear from what is soon to be said.

1979. II. Matrimony of the faithful RATIFIED and CONSUMMATED can never by any reason be dissolved as regards the bond, except THROUGH THE DEATH of either spouse. - Concerning this especially that word of the Apostle avails: "The woman is bound by the law as long as her husband lives." And Our Most Holy Lord Pope LEO XIII defined: "To dissolve the bond of marriage between Christians ratified and consummated is in the power of no one."¹⁴ The practice of the Church is added, which has never dispensed in matrimony of this sort.

1980. III. Legitimate matrimony of INFIDELS, even if it has been consummated, CAN BE DISSOLVED as regards the bond, in the case which they call that of the Apostle: namely if, with one spouse converted to the faith, the other refuses to be converted, or at least does not wish to cohabit without contumely of the Creator. - It is a privilege conceded by Christ the Lord in favor of the faith, as is clear from the testimony of Paul saying: "But if the infidel departs, let him depart; for the brother or sister is not subject to servitude in such cases" (1 Cor. 7:15).

Various things on this point occur to be OBSERVED:

1. From a threefold cause the convert can pass to other nuptials: 1) if the infidel refuses to dwell with him; 2) if he wishes to dwell, but not except with injury of the Creator, e.g. by retaining concubines;¹⁵ 3) if he wishes to draw him into mortal sin.¹⁶ But the convert can enjoy this privilege, even if the infidel spouse consented to cohabit peacefully for some time, indeed for many years, and afterward, with will changed, no longer wishes to do this. Thus from the Decree of the Holy Office, 5 Aug. 1759.¹⁷

2. The convert to the faith cannot use the aforesaid privilege unless there precedes an interpellation of the infidel spouse, whether he wishes to be converted to the faith, or at least to cohabit without contumely of the Creator.¹⁸ - This twofold interpellation, which must be made after Baptism, is required not only that new nuptials can be entered into licitly, but also validly: thus from the declaration of the S. C. de Propaganda Fide, 5 March 1816.¹⁹ But if interpellation is impossible or of the greatest difficulty, the Supreme Pontiff customarily grants an Indult, so that, it having been omitted, the convert can contract a new matrimony.²⁰ But indults of this sort, conceded either for various infidel regions or to Apostolic Vicars for a certain number of cases, cannot be extended to other regions or to other cases, unless recourse has been made to the Holy See.²¹ The Church then dispenses from the rigor of the interpellation, so that the convert is bound only to interpellate the infidel spouse whether he wishes to be converted to the faith; the other being omitted, namely whether at least he wishes to cohabit peacefully.²² This dispensation is more easily conceded in those places where a law prevails forbidding the faithful to cohabit with infidels, since then there is given a presumption of law concerning the danger of perversion to be undergone (cf. n. 448).

3. The bond of marriage is dissolved only then when the convert contracts a new matrimony. This is clear from the Decree of the Holy Office, 5 Aug. 1759.²³ Hence 1) if the infidel, after hearing the interpellation and giving a negative response, afterward embraces the faith before the other converted spouse has contracted new nuptials, the matrimony can no longer be dissolved by force of the Pauline privilege, but becomes altogether ratified. 2) If the first convert meanwhile has received sacred Orders, he cannot return to the spouse now converted, because the use of matrimony is no longer licit to him; for, after the negative response was received, he used his right by choosing a new state. But neither can the second convert enter a new marriage, because the first matrimony endures: unless the spouse has emitted solemn vows, as will be said below (n. 1981).

IT IS ASKED. Whether the Supreme Pontiff CAN DISPENSE over matrimony entered in infidelity, when ONE PARTY or BOTH are converted to the faith?

Resp. Dist. 1. If the matrimony after the Baptism of both has been consummated, it has become altogether indissoluble, and therefore a dispensation cannot be given.

2. If the matrimony has never been consummated, the Pope can dispense, as in ratified matrimony of Christians, concerning which we shall speak soon. - 3. If the matrimony was consummated only in infidelity, it is disputed. Some, among whom is St. Alphonsus,¹ whom we follow, affirm it, and they seek the reason from the Constitution Romani Pontificis issued by St. Pius V,² and from the Constitution Quoniam saepe contingit of Gregory XIII;³ through which Constitutions the aforesaid Pontiffs are said to have dispensed over such a matrimony.⁴ Others, however, deny it, from the fact that they judge the said Constitutions must be understood of dispensation from interpellation to be made, but not from the bond of marriage.⁵

Note. Only the baptized can enjoy the Pauline privilege, but not catechumens.⁶ Nor can that faithful person enjoy it who, after obtaining pontifical dispensation over the impediment of disparity of cult, contracted matrimony with an infidel, even if this one does not wish to cohabit peacefully. S. C. Off., 4 July 1855.⁷ But whether the privilege is to be extended to those who, by receiving Baptism validly, pass to some Christian sect, but not to the Catholic Church, is freely disputed.

1981. IV. Matrimony RATIFIED, but NOT CONSUMMATED, is dissolved by the very fact THROUGH SOLEMN PROFESSION of Religion by either spouse. - It is of faith from Trent (sess. 24, can. 6), affirming that this privilege was conceded by Christ the Lord in favor of the Religious State. Nevertheless Profession would be illicit "if matrimony were necessary for legitimating offspring, or for repairing scandal or the honor of the bride; for then the man could not become a Religious by leaving the bride, who on account of infamy would no longer be able to enter nuptials."⁸

But that the spouses may be able to use the aforesaid privilege, there is conceded to them a two-month period from the celebration of matrimony, within which time they are not bound to render the conjugal debt. And indeed each spouse can enjoy this concession, although he does not have the mind of entering Religion: for he uses his own right. But if, after the two-month period has already passed and the matrimony has not been consummated, one, with the other contradicting, embraces the religious state and emits vows: his profession is indeed illicit, but not invalid; wherefore in this case also the bond of matrimony is dissolved. - Nevertheless he would sin who, the counterpart not having been forewarned, should enter matrimony wishing to enter Religion; for besides other inconveniences which can most easily arise from such a manner of acting, the abandoned spouse would be bound to wait for his solemn profession until she should again enjoy the liberty of marrying.⁹

For the rest, this case is very rare, especially because civil laws, in many places, impede spouses from having recourse to the use of the privilege.

1982. V. Matrimony RATIFIED, but NOT CONSUMMATED, can, on account of a most grave cause, be dissolved through Pontifical DISPENSATION. - Thus commonly today Theologians and Canonists. This is clear especially from the continued practice of several centuries, at least after Martin V;¹⁰ nor in our times are examples of a dispensation of this sort rare.¹¹

The Supreme Pontiff remits the cause for dispensing to the S. Congregation of the Council to be weighed; and for the most part a cause is judged to be present, if the matrimony is likely invalid, without however its nullity being able to be sufficiently proved, and if otherwise it is plainly established that it was not consummated.¹²

1545. - Definition. Matrimony can be considered in two ways, namely as contract, and as Sacrament.

1° Matrimony as contract is a convention by which a man and a woman legitimately hand over to one another dominion over their bodies in order to acts of themselves apt for the generation of offspring, and oblige themselves to an undivided society of life.

2° Matrimony as Sacrament is defined: A Sacrament of the new law conferring grace for sanctifying the legitimate conjunction of man and woman, and for piously receiving offspring and educating it holily.

But Matrimony is of precept as regards the community in general, but not as regards the individual members of the same, except accidentally on account of some other debt of justice or charity, for instance for legitimating offspring, for repairing the damage of defloration, or if someone were unwilling to employ other means for preserving continence. L. IV. 209.

1546. - Division. Matrimony can be considered both as regards the conjunction of man and woman, and as regards the bond which arises from it; hence it is called:

1° In fieri or in facto esse. Matrimony in fieri is called the actual contract itself, which is perfected by the mutual consent of man and woman. But the continuing wedlock in the bond which proceeds from the matrimonial contract is called in facto esse.

2° Legitimate, ratified, and consummated. Matrimony is called legitimate when it is contracted according to the norm of natural and civil law, yet does not have the ratification of the Church or the character of a Sacrament, such as was once entered in the law of nature and the Mosaic law, and even now is entered among Jews and Gentiles. - Matrimony is ratified when it is contracted between Christians entangled by no impediment, between whom, however, after the contract, conjugal intercourse has not yet intervened. It is called ratified because not only nature and civil law, but also the Church approves it and holds it ratified. - Matrimony is called consummated when it has been completed by the copula of the spouses had after Matrimony has been contracted, and that, for the internal forum, probably perfected on each side; such copula is always presumed in the external forum, and in doubt is to be presumed also for the internal forum.¹

3° True, presumed, and putative.

It is called true when it has really and validly been contracted, and as such is proved by some one of those arguments by which other affairs also are wont to be proved, of which kind is the testimony of the Pastor or others, the book of Marriages, the confession of the spouses, etc.

It is called presumed when it is presumed by law; and this presumption of law has place especially in a threefold case, but only in places where the decree of Trent concerning the form of Matrimony is not in force, namely: 1° when, after betrothals absolutely entered between two capable persons, copula has followed, even if imperfect;² for then the consent concerning the future is presumed to have passed into consent concerning the present, and the copula is presumed to have been admitted with conjugal affection.³ 2° When, after betrothals entered under a condition, before the event of that condition, carnal intercourse has intervened between the betrothed persons; for then the Church presumes that the betrothed persons have receded from the condition, and therefore have wished purely and absolutely to contract Matrimony.¹ 3° When, after betrothals concerning the present invalidly contracted by the impubes (in whom malice does not supply age), signs of ratified consent intervene between the same persons when they have attained puberty; of which kind are not only carnal copula, but also kisses, embraces, cohabitation, etc.²

Finally, Matrimony is called putative when it is thought to have been legitimately contracted, while nevertheless on the side of the thing, on account of some latent impediment, it is null. The Doctors therefore inquire concerning this, that it may be clear when it has the force of legitimating offspring thence received, and the other effects of law. Moreover two things are necessary for this: 1° that it was contracted in good faith at least by one of the spouses, who was unaware of the impediment.³ Indeed neither error of law, nor doubt concerning the value of the Matrimony, excludes this good faith, as Covarruvias⁴ proves; but in doubt this good faith is presumed. 2° That the Matrimony was contracted publicly and in the face of the Church, i.e. before the Pastor and witnesses, and with the denunciations premitted, or at least dispensed.⁵

4° Canonical, political or civil, of conscience, and morganatic.

They call that canonical in which all things concur which are prescribed by the Sacred Canons for Matrimony.

They call that political or civil in which those things also concur which are required by civil law, namely certain solemnities, dotal agreements, etc.; without these Matrimony indeed is canonically valid, yet civilly is reputed illegitimate, and accordingly lacks civil effects.

Matrimony of conscience is celebrated secretly before the Pastor or another priest deputed by the Bishop, with two faithful witnesses, the banns omitted. Besides a most urgent cause (e.g. Matrimony to be contracted by concubinaries who are held as legitimate spouses), there is also required the license of the Bishop, to whom there must be sent a written document of the Matrimony so celebrated; this is to be kept by him and inscribed in the book of secret Matrimonies, with those things observed which Benedict XIV prescribes on this matter in the constitution Satis vobis, November 17, 1741, §§ 10, 11.¹

Morganatic Matrimony is that which a noble man enters before the Pastor and witnesses, with dispensation from the banns obtained, with a woman of a lower order, with this condition added: that both the woman and the children to be born from that Matrimony can acquire nothing of the right which coheres with the nobility of the man, and that they be content with those things which are necessary for living, or with a nuptial gift, or with a certain portion of goods determined by antenuptial agreement.²

1547. Principles. - I. The Matrimony of Christians, celebrated by the legitimate rite, is a true and properly so called Sacrament of the new law. See the arguments among the Dogmaticians.

II. For the validity of Matrimony there is required true consent on the part of each contracting party; because Matrimony, as contract, is a convention between a man and a woman: but consent constitutes the essence of convention.

III. But the consent must be:

1° Mutual; for it consists in a contract, which is essentially the consent of two, or mutual consent. Hence, if it is lacking on one side, the Matrimony will be null.

2° Concerning the present; because by a promise concerning the future there are made only betrothals, not Matrimony.³

3° Deliberate and voluntary; because it is a contract concerning a grave matter, and therefore inducing a grave obligation; but no one is judged to impose a grave obligation on himself unless he freely and fully consents. This is clear from Canon Law, which invalidates Marriages contracted from grave fear, as will be said below concerning impediments.

4° Manifested by external signs; because every convention among men ought to be known by some external sign; for convention necessarily supposes mutual acceptance among the contracting parties.

1548. Questions. - Quaer. 1° What manner is to be observed with those faithful who, in those places of our Provinces where the Tridentine decree concerning the form of Matrimony is not in force, after absolute and valid betrothals and copula had with one party, either wish to enter, or have entered, nuptials with another either civilly or in the face of the Church?

Resp. The copula was had either with marital affection, or with fornicatorial affection. - If with marital affection, they are to be prohibited from any other Matrimony. The reason is clear from what was said n. 1546. 3°. Yet in the external forum they would be compelled to remain with her with whom they had contracted nuptials in the face of the Church, if they could not prove the copula had with the first; but they could exercise no carnal intercourse with the second. - If with fornicatorial affection, distinguish between the external forum and the internal. - If the copula has been brought into the external forum, they could be held by the ecclesiastical judge as in the likeness of legitimate spouses, and therefore be prohibited from any other Matrimony, and, if they had already contracted nuptials with another, be compelled to return to the first, with whom, nevertheless, they will be able to exercise no carnal intercourse. The reason is because in the external forum a delict is not presumed, and therefore the copula is presumed to have been had with marital affection. - But that carnal intercourse cannot be exercised with the first is from this, that the copula, although presumed to have been had with marital affection, in reality was had with fornicatorial affection. - If there is question of the internal forum, the Matrimony with the other will be valid, and also licit, if a legitimate occasion for dissolving the preceding betrothals has offered itself. - See the Instruction of the Congregation de Propaganda Fide, p. LXV sq., which was communicated also to the Bishop of Alton, for the information of one recurring. Likewise Heiss.¹

Note. - 1° In the question it is said: after VALID betrothals; for while, e.g., Titius, after having contracted betrothals with Anna, contracted betrothals with Maria against Anna's will, and then knew each woman, that copula had with Maria could not be a sign of Matrimony contracted with her, because the betrothals with her were null; but that copula had with Anna could be a sign of Matrimony contracted with her; for although he had the will of receding from her betrothals by contracting betrothals with Maria, yet in fact he did not recede, and having copula with her, he must be judged to have approved the aforesaid contract and to have amended the attempted recession.²

2° For the internal forum the persuasion of the penitent that he can enter a valid Matrimony with another, in doubt, will be an argument that the copula was had with fornicatorial affection.

Quaer. 2° Must consent be expressed in words?

Resp. 1° Negatively, as regards validity, because by natural law in a contract it suffices that consent be certainly expressed by some sign,¹ e.g. by marital cohabitation or by writing.

Resp. 2° Affirmatively, as regards liceity, because otherwise one would act against the Rubric and the custom of the Church. Nevertheless it does not seem to exceed a venial sin if words are not employed; indeed shame or another reasonable cause would excuse from every fault.²

Quaer. 3° Does consent through a procurator suffice?

Resp. 1° As regards validity, affirmatively, provided the required conditions are present, because Matrimony has the whole character of a natural contract. But any contract can be made through a procurator.

But the conditions for contracting Matrimony in that mode are the same as those which are required for valid betrothals to be contracted in that mode (see n. 1528. q. 6°); to which, for places where the decree of Trent concerning the form of Matrimony is in force, there is to be added this sixth: that the procurator appear with the other party before the Pastor and two witnesses.

Resp. 2° As regards liceity, negatively, unless a very grave cause urges. The reason is because this mode of contracting is contrary to the ordinary practice of the Church, and scarcely are Marriages so made among others than Princes and Magnates. Hence the Pastor ought not by his own authority to bless Matrimonies of this kind, as is clear from the practice of the Church and the Ritual.³

Quaer. 4° Is Matrimony entered UNDER A CONDITION valid?

Resp. 1° It is certain that it is valid if the condition is concerning the past or concerning the present, and it is verified. The reason is because that conditioned consent immediately passes into absolute consent, and therefore nothing is lacking to the value of the Sacrament.⁴

Resp. 2° If an honest and possible condition concerning the future is added, I say: 1° The Matrimony is not perfected until the condition is fulfilled; because the contract ought to transfer a mutual right over the bodies concerning the present, as I said n. 1547, and hence, if one before the verification of the condition retracts consent, the Matrimony is null, since at the time in which the contract is perfected, mutual consent is lacking. I say: 2° But when the condition has been fulfilled, the Matrimony is valid; because a conditioned contract, when the condition has been accomplished, passes into an absolute contract, and by that very fact is valid by reason of the Sacrament, because among Christians the contract of Matrimony cannot be disjoined from the Sacrament. Hence more probably there is then no need of new consent; nevertheless more advisedly it is renewed.¹ (35) p. 423.

Quaer. 5° Is it licit to contract with conditioned consent?

Resp. Negatively. Such a mode of contracting is illicit, especially if the condition is concerning the future, unless perhaps, as St. Alphonsus² has it, there is present a most urgent cause which does not suffer delay, as if there is question of Matrimony with a dying person for legitimating offspring, in a case in which the death of the prior spouse is doubtful. The reason is because many and grave inconveniences can easily follow from such a mode of contracting, namely scandal, quarrels, complications, difficulties, etc. - Thus the more common opinion.

Quaer. 6° Is Matrimony entered under a base condition valid?

Things to be noted beforehand. - As regards the ends of Matrimony they distinguish: 1° intrinsic essential ends, namely a) the mutual handing over of bodies with the obligation of rendering the debt, if the other asks by right, and b) the indissoluble bond; - 2° intrinsic accidental ends, and indeed, as primary, the procreation of offspring; as secondary, the remedy of concupiscence; - 3° extrinsic accidental ends, as are, e.g., the peace of families, the obtaining of riches, etc.

Moreover the positive exclusion of essential ends in the celebration of nuptials renders Matrimony void; but not of itself the exclusion of accidental ends; indeed principally (with the relation of works to God saved) to seek nuptials either as a remedy of concupiscence (without, however, the end of procreating offspring being excluded), or on account of an extrinsic end, provided it is in itself honest, is no sin.³

With these things noted beforehand:

Resp. 1° Negatively, if the condition is repugnant to the substance or essence of Matrimony, namely to its threefold good, i.e. 1° to the good of Sacrament; 2° to the good of fidelity; 3° to the good of offspring; as it would be if the spouses, in contracting Matrimony, excluded the generation of offspring in the very use of Matrimony (but not if, out of love of continence, they excluded the use itself), or fidelity in marriage, or perpetuity in Matrimony. But for this it is required that a condition of this kind (namely for the external forum) be expressly posited, as is done in the formula of certain sects, by which perpetuity is excluded,¹ and that the spouses intend in mind to oblige themselves in no other way. But the Matrimony will be valid if this condition has itself concomitantly, and therefore is not the motive why the Matrimony is contracted, and otherwise there is present some general will of validly contracting. - Hence:

a) "The error of non-Catholics, by which very many think marriages can be dissolved by reason of adultery, or on some other account, by the authority of the State, does not obstruct the value of the contract; for the intention of contracting according to the law of nature and of Christ is stronger."

b) Matrimony is valid, although one of the spouses afterwards says that he had been ignorant of the Matrimonial debt, and, this having been known, affirms that he would not have entered Matrimony.²

c) The marriages of former "slaves, if the condition were added, 'so long as you shall have conducted yourself well,' are void."³

d) There was related to me the case of those contracting Matrimony before a magistrate or little heretical minister for this reason, that they believed the bond would thus be dissoluble, persuaded that it would be indissoluble if they contracted before a priest, whose ministry for that precise reason they did not use. I do not at all doubt that this Matrimony is null in the internal forum; for in this case error has itself antecedently to the contract, or they did not wish to enter any Matrimony other than a dissoluble one. But for the external forum, it would have to be clear concerning that matter from the confession or declaration of each spouse, against which the presumption of collusion does not militate. But if, as can easily happen among us, the confession of one party cannot be had, either because it is unknown where the party is, or because he refuses to appear, the sworn declaration of the other seems to suffice.⁴

Resp. 2° But if the base or impossible condition is not repugnant to the substance of Matrimony, distinguish. 1° It is judged valid in the external forum, unless the condition is proved to have been seriously posited; the reason is because in that case the condition is held as not added. 2° As regards the internal forum, distinguish. If it has been indubitably and seriously posited, it will be invalid: otherwise not. But in doubt a condition of this kind is presumed either not to have been posited, or not seriously, since in doubt judgment must always be made in favor of the value of Matrimony. Cf. n. 870. 2°. (36) p. 424.

Quaer. 7° What must be done if someone says that he consented fictitiously?

Resp. 1° As regards the external forum, faith is not given to him, unless either from the circumstances it is clear that he was deceived by fraud or induced by grave fear to contract, or by conjectures (which nevertheless is most difficult) fictitious consent is sufficiently proved. The reason is because it cannot be supposed that he who freely entered Matrimony consented fictitiously.

Resp. 2° As regards the internal forum, he who asserts that he consented fictitiously is to be obliged 1° to abstain from asking and rendering the debt until he truly consents; 2° ordinarily also to posit true consent, that thus he may repair the injury brought upon the other party. I say: ordinarily, because if the other party consents to separation, or fiction intervened also on the part of this party, or no damage is going to come to the party, or he who consented fictitiously was forced to contract, he is not held to supply consent.²

Besides, the spouse who posited true assent is not obliged to believe the other asserting that he consented fictitiously, even though he confirmed it by oath; and therefore would licitly ask the debt until the defect of consent was sufficiently proved.³

Quaer. 8° Is the consent of parents required for the validity or liceity of the matrimonial contract?

Resp. 1° As regards validity, negatively altogether; because the consent of parents is required neither by natural nor positive law. And 1° not by natural law; because the contracting parties have power over their own body, nor do parents have power over the body of their children in order to Matrimony; otherwise they could void the Marriages of these, whether justly or unjustly, which is altogether repugnant and adverse to the common sense of men. 2° Nor by positive law; for Trent¹ struck with anathema those who "falsely affirm that Marriages contracted by children of a family without the consent of parents are void, and that parents can make them ratified or void." But if civil law required the consent of parents for the value of Matrimony, its force would extend only to merely civil effects.² - Thus commonly all Catholic Theologians. Cf. n. 425.

Resp. 2° As regards liceity, affirmatively, generally speaking. This is clear from natural law, because children owe parents honor, reverence, and obedience, especially in those things which look to the whole family, of which kind is Matrimony, upon which very often depend the honor and peace of families, etc.

Quaer. 9° Can children sometimes contract Matrimony against the will of parents?

Resp. Affirmatively, if the parents unjustly refuse consent. But, since in this matter children of a family easily deceive themselves, before they celebrate nuptials they ought to consult prudent men and especially confessors, lest in a matter so grave and full of such great dangers they act imprudently, trusting their own judgment.

Quaer. 10° What must be done by the confessor or Pastor when children of a family wish to enter Matrimony against the will of parents?

Resp. 1° As regards the confessor, if he judges the reclamation of the parents just, he will persuade the children to accommodate themselves to the will of the parents. But if they are unwilling, and the conditions required by law in some State do not obstruct, he ought not to disturb them; for it would be imprudent, in a matter so difficult, to constitute himself judge between the father or mother and their children. Thus Gousset³ practically resolves the matter. But if the children, while the parents are unjustly opposing Matrimony, "betake themselves outside the limits of the State ... for contracting nuptials, or seek by another compact to evade the penalties of the laws, with truth uninjured, they do not seem to be blamed; otherwise if they accomplish the matter by false oath or false witnesses." Thus Kenrick.⁴

Resp. 2° As regards the Pastor, he ought not to assist at Matrimony unless the conditions prescribed by civil law have been fulfilled, on account of the inconveniences otherwise going to arise. See n. 426. q. 4°. R. II. a).

1549. - The unity of Matrimony is placed in this, that Matrimony is the conjunction of one man with one woman.

1° It is certain that polyandry conflicts with the natural law, because it is adverse to the principal ends of Matrimony, namely the generation of offspring and its good education. - Thus all.

2° It is certain that simultaneous polygamy is prohibited and void in every case, at least by the positive divine law of the new law, as is clear from Luke¹: Everyone who dismisses his wife and marries another commits adultery. It is likewise clear from Trent.²

3° It is certain that second nuptials and further ones are licit both for the man and for the woman, even under the Evangelical law. This is clear from the authority and practice of the Church, and also from Sacred Scripture³: A woman is bound to the law for so long a time as her husband lives; but if her husband shall have fallen asleep, she is freed: let her marry whom she wishes, only in the Lord.

A twofold firmness of Matrimony is distinguished: for one regards the bond, the other the bed.

1550. - Matrimony is indissoluble, i.e. once Matrimony has been contracted, divorce as regards the bond cannot be made, at least by positive divine law. It is of faith. It is proved: 1° from the words of Christ⁴: Therefore now they are not two, but one flesh. What therefore God has joined, let not man separate. 2° From the words of the divine Paul⁵: But to those who are joined in Matrimony I command, not I, but the Lord, that the wife not depart from the husband; but if she departs, that she remain unmarried, or be reconciled to her husband. And let not the man dismiss his wife. 3° From Trent.¹ Cf. n. 456. 9°, and n. 1053. q. 2°.

1551. - Nevertheless a threefold case is to be excepted; for:

1° Ratified and non-consummated Matrimony of Christians can be dissolved, for a most grave cause, by dispensation of the Pope, from power divinely conceded to him. This is clear from this, that the Supreme Pontiffs have already very many times used this power, as can be seen in the illustrious Feije.² Nevertheless dispensation is not granted unless full proof is exhibited to the Holy See that the Matrimony has not been consummated, and sufficient causes are alleged. - The Acta³ hand down what particular causes today are held sufficient. But the consent of the other party is not needed. - Non-consummation is to be proved judicially, yet only summarily. On this matter the Collectanea juris missionis⁴ will usefully be consulted.

2° Ratified and non-consummated Matrimony of the faithful can be dissolved by solemn religious profession⁵ of one spouse entering Religion within the first two months, and this from a special privilege conceded by Christ and declared by the Church.⁶ Cf. also the things to be said in this number under 3°. 9.

I said: within the first two months. Namely, that the spouses may deliberate concerning the use of this privilege, the two months after the nuptials are conceded to them by the Law itself⁷ (it can be prolonged by the judge, the cause being known), during which time they are not obliged to render the debt, provided nevertheless that Matrimony perhaps is not necessary for repairing scandal or the honor of the bride.⁸ - Fornication had between the betrothed persons before the celebration of Matrimony does not impede this privilege, if nothing else obstructs. - Nevertheless he sins in kind who contracts Matrimony with the intention of entering Religion, without warning the other party.⁹

See several other things pertaining here, if you like, in the illustrious Feije.

3° Even consummated Matrimony of infidels¹ can be dissolved from divine concession when one of the spouses is converted to the Christian Faith² through the reception of Baptism, and the other, having been interrogated, refuses peacefully to cohabit with that one, or does not cohabit except with injury of the Creator and contempt of the Christian Religion, or applies an attempt to pervert the faithful party. This is deduced from the Declaration of Innocent III.³ But this divine concession is drawn from the words of the Apostle⁴: If any brother has an unbelieving wife, and she consents to dwell with him, let him not dismiss her; ... but if the unbeliever departs, let him depart; for a brother or sister is not subject to servitude in such things: but God has called us in peace.

Many decrees and decisions⁵ of the Supreme Pontiffs and of the Sacred Congregations exist on this matter. From these with the theologians we conclude:

1. (a) When, after true Matrimony entered in the infidelity of each party, one party or each is converted and baptized, the Matrimony remains valid, and there is no need of new consent. - (b) If there was not a true Matrimony between them, the converted person can enter Matrimony either with that same person, but first baptized and (as regards liceity) Catholic, or with any other baptized and Catholic person, with mutual consent first offered and with those things observed which elsewhere we shall set forth concerning clandestinity.

2. If an infidel has several women, or respectively men, then either after conversion he does not remember which one he first took, and he can, mutual consent first having been offered in due form, retain one of those with whom he truly wished to be joined in Matrimony; or he remembers which one he first took, in which case apply to this one what was said under 1. (a). Yet in this hypothesis there can be place for the case of the Apostle. - But if an infidel, having several women, entered true Matrimony with none, after conversion he can contract with any baptized and Catholic woman, with mutual consent having been offered in due form.

3. When one party has been converted and baptized, the unbelieving one is to be interrogated whether that one wishes either also to be converted to the Faith, or at least to cohabit without contumely of the Creator. If the unbelieving one refuses to do either, or after cohabitation changes mind, or departs without fault of the faithful one (such as, e.g., adultery of this person after Baptism would be [see under 6]), this faithful one will be able to enter a new Matrimony. - But that the unbelieving person can truly be said to wish to cohabit without contumely of the Creator, it is necessary that he not draw the converted party to mortal sin; that he desist from concubinage in which, e.g., he was already living before the conversion of the other party; that he not bring troubles upon the Religion of the converted person or the Catholic education of offspring, etc.¹

But Matrimony entered in infidelity is not dissolved except at the very moment in which another valid Matrimony is contracted.

4. The faithful party cannot, without dispensation, validly enter a new Matrimony except with a party already baptized; otherwise there would be present the diriment impediment of disparity of cult, from which Bishops, by force of faculties Form D. n. 3 (T. I. p. LXXIV.), cannot dispense, and the Holy See does not dispense except for most grave causes.² Besides, that a new Matrimony be licitly entered, it must be contracted with a Catholic woman. By dispensation, indeed, it could licitly be contracted with a non-Catholic, but concerning this dispensation also what was said around disparity of cult is valid.

But when a faithful person by dispensation has contracted Matrimony with an infidel, and that one thereafter refuses to cohabit peacefully and without contumely of the Creator, Kenrick³ thinks that there is place for the case of the Apostle; but the contrary is certain from the Holy Office, June 14, 1708; August 1, 1759, to 4; year 1854, Dub. II, to 2; August 21, 1878.

5. The interrogation of the infidel:

a) Is altogether necessary (even if in reality it could not be made or would be useless), and that one's response, with a competent term fixed for the same, must be had, so that one can proceed to new nuptials, unless dispensation has been made by the Holy See, or among us, in the case set out p. LXX. 11, by the Bishop. Yet Bishops will be permitted to use this faculty only according to the norm of the Brief Populis of Gregory XIII. In this case it suffices to interrogate concerning the will of conversion.¹

b) It is to be made: in the presence of two witnesses; by the converted person himself or by another in his name, with the Ordinary intervening; the purpose of the converted person being notified (in the case in which the unbelieving person is going to refuse both conversion and cohabitation without injury of the Creator) either of passing to other nuptials, or, if this is the person's intention, of entering Religion, receiving Sacred Orders, or living in celibacy.²

c) Dispensation from the interrogation can be obtained from the Holy See as often as the unbelieving person, after being interrogated, has not responded within the time prefixed, or cannot be interrogated; for instance because it is unknown where that one is living, whether still alive, or because it is judged morally impossible that due interrogation should reach that one, or because from the interrogation most grave inconveniences are feared. But concerning these things it must be clear by summary process, the omission of which nevertheless renders the nuptials only illicit, if it is clear to the delegate for dispensing concerning the circumstances rendering interrogation impossible or difficult or useless.³

d) If a new Matrimony with a faithful person, the interrogation having been omitted or the response not having been received, had been celebrated without permission of the Holy See, this See alone could define whether one may remain in it.⁴

e) The interrogation is to be made (or dispensation from it sought) after Baptism,⁵ and it cannot be made before Baptism except for a grave cause and with previous permission of the Holy See.⁶

6. The privilege of the Faith remains to the converted party, even if because of adultery or another criminal cause posited by that party before conversion, the unbelieving one denies cohabitation; for crimes committed before Baptism can never be objected.

But adultery committed in infidelity by the party who, having been interrogated, wishes indeed to cohabit without injury of the Creator, but not to be converted, does not furnish to the converted person the faculty of a new marriage; nevertheless, in that case this converted person is not held to cohabit with the unbeliever, although asking pardon, as will be clear from things to be said n. 1552. III. under 3°.¹

7. After a new Matrimony has been entered by the faithful person, the unbelieving party, if thereafter also converted, can contract Matrimony with another Catholic. - But whether, if the person remains an unbeliever, he can enter a new Matrimony with another, even an unbeliever, is disputed.² "Today," says Feije, "the common doctrine is that in this case the unbeliever enters Matrimony with another unbeliever both validly and licitly."

8. But if the faithful person has not entered a new Matrimony, the unbelieving one invalidly marries another, nor can Baptism be conferred upon that one if afterwards converted, unless, with adulterous bonds cast off, the person has separated from the new party. Holy Office, January 23, 1805. And this is true even if this new party also is converted, and the prior spouse consents.

9. The converted person who has not entered a new Matrimony cannot after the conversion of the other party enter Matrimony with another; indeed from charity³ he is held to return to the other party if otherwise this person's conversion would be endangered. Is he also held from justice? It is disputed.⁴

But what if the other party is converted after the party first converted has either professed Religion, or received Sacred Orders, or even only vowed perpetual chastity?

Resp. Without pontifical dispensation, or, if among us there were question of only the simple vow of chastity, without dispensation of the Bishop, he cannot return to the other party.

Note. - If among us one of the three cases occurs in which, according to the things said in this number, Matrimony can be dissolved, prudence will require that, before the free party pass to other nuptials, civil divorce be obtained. (6), p. 394.

1552. Principles. - I. By reason of the Matrimonial bond spouses are held to cohabit together and to lead a social life. The reason is drawn from the very definition of Matrimony.¹

II. Nevertheless divorce, or separation from bed or habitation, can be made for grave causes, while the conjugal bond remains nonetheless, so that neither party can enter another Matrimony before the death of the other. This is declared by Trent.²

III. Causes giving honor to a divorce of this kind are: mutual consent, grave danger of soul or body, and adultery or heresy of either party (concerning which see n. 1521. 10°); you will understand these causes thus for practice.

1° Mutual consent: namely, each spouse together can renounce his or her proper right as regards the bed, whether for a time or perpetually, provided that, mature deliberation and long experience having been premitted, it is clear that the danger of incontinence is absent, and they are separated from bed. Likewise they can be separated even as regards habitation, whether for a time on account of business, or perpetually on account of a desire for a more perfect life; this desire can be fulfilled in two ways, namely either by the reception of Sacred Orders (concerning which mode see n. 1521. 10°), or by entrance into Religion. Concerning this note that it is necessary that the other party also enter a monastery and there emit regular profession, unless perhaps already of advanced age and immune from every suspicion of incontinence; for then it suffices if the person bind himself or herself by perpetual simple vow of chastity (before an ecclesiastical Superior and witnesses). Except if pontifical dispensation frees from this vow.³

Can spouses by mutual consent enter a Congregation in which only simple vows, yet of themselves perpetual, are emitted? - I think that, prudence being observed in individual cases, nothing obstructs; for even while remaining in the world both can vow continence.

2° Grave danger of soul, if danger of perversion in one from the cause of the other is present; or of body, if danger of life or mutilation is imminent, or if cohabitation on the part of one toward the other is made so troublesome that it is rendered morally impossible. This would happen if a spouse were compelled to suffer relatively grave or frequent cruelties, or if the wife were expelled without cause.⁴

3° Adultery of either party, namely such that it is: 1° morally¹ certain; 2° voluntary, and not perpetrated from violence inflicted;² 3° not condoned either expressly or implicitly, e.g. by the conjugal act, or by other signs, exhibited by the innocent party knowing and remembering the adultery (for the internal forum, with the mind of condoning);³ 4° not mutual, because then compensation would exist;⁴ 5° as St. Alphonsus thinks more probably, consummated;⁵ 6° committed without the consent of the other party.⁶ - This is clear from the words of Christ⁷: He who shall dismiss his wife, except for the cause of fornication, makes her commit adultery, etc. But what is licit for the man ought by the same reason to be licit also for the woman.

Observe from the more common and at least extrinsically more probable opinion of the Doctors that under the name of adultery here comes any division of the flesh, even if it does not have the character of adultery properly so called, of which kind is sodomy and bestiality.⁸

1553. Questions. - Quaer. 1° Is a man, when the adultery of his wife is known, held to dismiss her?

Resp. 1° It is certain that he is not held by reason of adultery, because divorce was conceded in favor of the innocent party, not for his punishment. - Thus commonly.⁹

Resp. 2° Sometimes the man can be held to dismiss an adulterous wife by reason of fraternal correction or avoiding scandal, and say the same of the wife, if founded hope of amendment is present and the husband can be dismissed without grave inconvenience; but this former case is rare, both because other means can be employed for correcting the wife or avoiding scandal, and because grave scandal or another grave inconvenience to be feared from separation can excuse. Besides, the wife cast out would be exposed to greater danger, at least for the most part. But the latter case will be most rare.¹⁰

Quaer. 2° Once divorce has been made, can the innocent party compel the other to return to himself or herself?

Resp. 1° Affirmatively, if there is question of non-juridical separation, because this is not strengthened by sentence of the judge.

Resp. 2° Affirmatively, more probably, even in the very case of juridical separation. The reason is because the sentence of juridical separation is borne in favor of the innocent party, and therefore does not take away the right of recalling the other; nor for this is a new sentence of the judge needed. Nevertheless an adulterous woman is not to be compelled to return as often as she can reasonably fear that she will be treated harshly, bitterly, or even cruelly.¹

Nevertheless one must observe:

1) Although after divorce juridically made, according to the common doctrine, the innocent party can, even against the will of the adulterous party, enter Religion or receive Sacred Orders, nevertheless this is not conceded to the adulterer dismissed; who therefore can neither enter Religion nor be initiated in Sacred Orders unless the innocent party either expressly consents, or has already assumed an irrevocable state; and if the adulterer were to enter Religion, he could be recalled by the innocent party even after profession.² Nevertheless St. Alphonsus³ admonishes that tacit consent also suffices for this, namely if the innocent party knows this and does not contradict when he or she can; nevertheless in the case he or she is not held either to enter Religion or to bind himself or herself by a vow of chastity. St. Alphonsus concedes this very thing to the guilty party when the innocent party, having been asked, was unwilling to admit reconciliation, or even if the innocent party has not recalled the guilty party after two years have already elapsed.⁴

2) "If divorce has been made by civil authority" as regards the bond, "the spouses renewing domestic intercourse, without new nuptials, will be liable to the penalties of adultery. But this can be asked: whether, for escaping the penalties of the law and recovering rights, it is licit to give consent again to Matrimony. It seems licit before the priest to refer to consent once given, so that he can testify concerning the Matrimony; but the consent itself must not be renewed, since it is the form of the Sacrament; for the rest, words can be used in a broad sense for satisfying the law. While care is employed that civil testimony be had concerning the Matrimony, caution must be taken that no sacred rites be performed again, or that anything be done by which favor is given to the error of a bond dissolved." Thus Kenrick.⁵

Quaer. 3° Once juridical separation has been made on account of adultery, is the innocent spouse held to return to the other party recalling him or her, if he or she afterwards has also fallen?

Resp. Negatively, more probably. The reason is because the first adulterer, by the sentence of the judge, was already entirely stripped of every right toward the innocent party.¹

Quaer. 4° Can divorce be made by private authority?

Resp. 1° Affirmatively as regards the bed, if a grave cause underlies, as was said above; and specifically by reason of adultery, even occult adultery, because the rights of Matrimony can be denied perpetually to the unfaithful spouse.

Resp. 2° As regards habitation: 1° affirmatively, by reason of adultery, even if the crime is occult (at least more probably, if the adultery is on the part of the woman), because Christ, by permitting divorce for this cause, did not distinguish between public and private adultery. But for this it is required that the crime be certain, and that scandal not intervene from the separation which cannot be otherwise repaired.² - Yet several say that divorce is not licit on account of occult adultery; because it is not licit to injure the fame of the adulterer by making manifest, even tacitly, a secret crime. 2° Affirmatively also, by reason of danger either of soul or of body, provided the danger is in delay, or the innocent party cannot litigate, or approach the judge, or easily prove the cause.³ But in practice it is expedient that the counsel of a prudent man, especially of the confessor, be sought. But the confessor ought to proceed very cautiously in this matter. Let him beware lest too easily he believe the complaints of wives against husbands; and let him strive to restrain them, and avert them, insofar as it can be done, from divorce. - Besides, diocesan statutes, if there are any, are to be observed. - "Nor do I think those spouses should be disturbed," says Müller, Th. Mor. III. § 227. n. 4, "who have been separated by civil authority only, if they are in good faith; for scarcely any fruit of admonition is to be hoped for."

1. • I. Definition.

a) The same name "matrimony" designates two things, connected indeed, since one is the cause of the other, but truly diverse. For it is necessary to distinguish matrimony in fieri and matrimony in facto esse, which differ from one another as a transitory action differs from the permanent effect which that action produces.

b) Matrimony in fieri is an entirely singular contract, and at least in some manner sacred,¹ by which a man and a woman legitimately hand over to each other the exclusive and perpetual right over the body, in order to acts of themselves apt for generation.

¹ Leo XIII, Arcanum, 10 February 1880.

Matrimony in facto esse is the perpetual bond produced from the matrimonial contract, which joins the man and the woman into one society of life for fulfilling conjugal offices.

c) Those definitions are valid for every matrimony. But our Savior has raised the matrimony of the baptized to the dignity of a sacrament of the New Law, so that it is unlawful to distinguish in Christian matrimony the contract and the sacrament as two things; rather, the contract itself is the sacrament.

2. • II. Essence of matrimony.

a) Although the mutual right to carnal union is the formal object of matrimonial consent, nevertheless the union itself as exercised does not in any way pertain to the essence of matrimony. For there was a true matrimony between Adam and Eve while they were still dwelling in Paradise; likewise there was a true matrimony of the Blessed Virgin Mary with St. Joseph; and nevertheless in neither case did carnal union intervene.

Moreover this is the perpetual and certain doctrine of the Fathers and Theologians.

b) The essence of matrimony in fieri consists in mutual consent outwardly manifested, by which a man and a woman mutually hand over and accept the mutual, exclusive, and perpetual right over the body, in order to acts of themselves apt for generation.

If such a right is not conferred, there is no matrimony, since that right is the formal object in the matrimonial contract.

c) The essence of matrimony in facto esse, or the matrimonial state, consists in the perpetual obligation of the spouses to render mutually to each other the offices which are owed from the legitimate matrimonial contract.

3. • III. Division of matrimony.

Matrimony can be distinguished in many ways:

a) Into legitimate, ratified, ratified and consummated.

That is called legitimate which is "matrimony validly celebrated between non-baptized persons" (can. 1015, § 3).

That is called ratified which is "a valid matrimony of baptized persons... if it has not yet been completed by consummation" (can. 1015, § 1).

"Ratified and consummated, if between the spouses there has taken place the conjugal act, to which by its nature the matrimonial contract is ordered and by which the spouses become one flesh" (ibid.).

b) Into public, secret, and clandestine.

It is public when it is celebrated in the face of the Church and in the form established by the Church, whether for the ordinary case or for extraordinary cases.

Secret matrimony, or matrimony of conscience, is indeed celebrated in the form prescribed by the Church, but is kept hidden, with the proclamations and registration in the parish books omitted.

Clandestine matrimony is one which is celebrated outside the form prescribed by the Church, namely, without the intervention of the parish priest or Ordinary or delegated priest and two witnesses in ordinary cases, or at least of two witnesses in extraordinary cases.

As will be explained more fully below, clandestine matrimony is always invalid, unless it is a question of matrimony of unbelievers, or of those baptized or educated outside the Catholic Church and never converted to it, when they contract among themselves, or also unless there has been a legitimate dispensation from the form of celebrating matrimony.

c) Into valid, invalid, putative.

It is valid when all the conditions required for validity are fulfilled.

It is invalid when some condition necessary for validity is lacking.

It is called putative when it is "an invalid matrimony..., if it was celebrated in good faith by at least one party, until each party becomes certain of its nullity" (can. 1015, § 4).

4. • IV. Goods of matrimony.

Three goods of matrimony are assigned, which honor the conjugal state and make it supernaturally meritorious, and which are customarily expressed in these words: offspring, fidelity, sacrament.

a) Offspring, i.e., "to be received and educated for the worship of God."

b) Fidelity, "which one spouse ought to preserve for the other."

c) Sacrament, i.e., "the indivisibility of matrimony, because of this, that it signifies the indivisible union of Christ and the Church" (Council of Florence, Decree for the Armenians. Denz. n. 702).

As we shall see below, a matrimony is invalid in which there has been attached a condition excluding one of these essential goods of matrimony.

5. • V. Ends of matrimony.

"The primary end of matrimony is the procreation and education of offspring; the secondary end is mutual aid and a remedy for concupiscence" (can. 1013, § 1).

It is licit to contract matrimony while intending the secondary end, even if the primary end cannot be obtained.

6. • VI. Matrimonial legislation.

a) Divine law, whether natural or positive, governs all matrimony, even of unbelievers, unless nevertheless there is question of matrimony as sacrament.

The reason is evident: all men are subjects of God.

b) The matrimony of the baptized is governed besides by ecclesiastical law.

Nor are heretics and schismatics exempt from that law, because baptism makes them subjects of the Church, unless insofar as the Church intends and declares them to be exempt.

S. Th., Suppl., q. 41 and q. 44, a. 1; II-II, q. 154, a. 2; c. Gent. III, 122.

752. State of the question. - Concerning the origin and essence of matrimony many have erred, denying that it has been instituted by nature and by God. This is denied by Materialists, Positivists, Evolutionists, who say that it is of merely human institution; whence they hold its laws as relative and mutable, and as not founded in nature.

1. The Evolutionists say that it is a relatively recent institution, which is the fruit of a longer evolution, which runs through three stages: a) in the first there was promiscuity of the sexes, so that sexual conjunction took place apart from every law: primitive man is an animal ruled by sexual instinct and seeking satisfaction in any case whatever; when moral consciousness had been aroused, rules began to be established: thus the union already became less transient, and it was prohibited among those near of kin, but it is not yet stable matrimony; - b) in the second stage succeeds matrimony by abduction, or from violence; - c) in the third, matrimony by purchase, not yet by consent. It also existed under a threefold form: a) first there existed matriarchy, in which the offspring exclusively bears the name of the mother and enjoys only the maternal inheritance; which is explained only by the uncertainty of offspring on account of promiscuity; - b) then there was polygamous patriarchy; - c) finally matrimony in monogamy.

These assertions are mere hypotheses proved in no way, or illegitimate generalizations.¹ But the facts which are objected by the Evolutionists do not necessarily suppose promiscuity.²

¹ This is clear from Westermarck himself, History of Human Marriage (Origine du Mariage dans l'espece humaine), who nevertheless is an Evolutionist; likewise from Howard, A History of Matrimonial Institutions, and from Leroy, La Religion des primitifs. Also from Durkheim, who nevertheless does not derive the origin of family life from matrimony as it is now conceived, but from the totem, in which the family group and matrimony were gradually formed. But ethnologists have shown that the theory of totemism contradicts the facts. - Cf. Dehove, Les theories de la religion chez Durkheim, in Rev. Ap., 1930.

² Thus, for example, sacred prostitution in temples, and also the right of the first night, or the practice of handing over one's own wife to guests, and other things of this kind, are abuses which arise from innate lust and a false concept of hospitality; but they cannot be called vestiges of pristine promiscuity. Thus the right of the first night, by which a prince, indeed, they say, in certain places a priest, could abuse a newly married wife during the first night, if it existed anywhere, would have to be reduced to a merely local and transient abuse, but it was never admitted as legally approved, neither among pagans nor among Christians. But what comes under this name can be understood in other true ways. 1. Among pagans, the virgin's chastity was considered consecrated to the divinity, and therefore the right of violating chastity, even by conjugal intercourse, had to be obtained from the divinity, from God's legate, namely, from the prince or from a priest, for example, by paying a price which was called the right of the first night. Sometimes the wife herself received some gift as the price of lost virginity, which again was called the right of the first night. 2. Among Christians, the right of the first night was understood in a threefold sense: a) the right of consummating matrimony in a certain determined place; b) a mere symbol of subjection toward the prince on the occasion of matrimony contracted by vassals; c) a license arising from dispensation to consummate matrimony from the first night, without observing the triduum which in the middle ages had to be passed in continence after the example of Tobias. Cf. Schmidt, Ius primae noctis; Eine geschichtliche Untersuchung.

2. Among the moderns, the more moderate admit that monogamy is more perfect than the other forms, and therefore is to be retained, but that divorce nevertheless is to be admitted more easily, so that, the spouses having been separated, access to new nuptials may lie open to them.

3. Naturalists, on the contrary, and Communists and many Socialists favor free union. They hold human nature as naturally good; whence man must follow natural inclinations in order that he may exist happily. Matrimony has mutual pleasure as its end, for which mutual love is required and suffices: if it cannot procure this, or if it ceases, it is to be dissolved by divorce; offspring also, if it obstructs pleasure or happiness, can be suppressed, but once born, with civil society taking care, it is to be nourished and educated without the intervention of parents.

Against all these, with Catholic doctrine, it must be affirmed that the stable union of matrimony has its origin in human nature itself, and that monogamy and indissolubility have been established by God.

753. Thesis I. Matrimony is not only of positive divine institution, but it is also natural to man and therefore of natural right. - It is certain from the encyclical of Pius XI Casti connubii, asserting: "Matrimony was not instituted or restored by man, but divinely; not by men, but by God himself, the author of nature"; whence, afterward speaking of the evil errors of today, he says: "their chief root is in this, that they vociferate that matrimony was not instituted by the author of nature... but invented by men."

It is said: a) matrimony, by which name is understood a union of the moral order, obligatorily stable and of itself perpetual, between man and woman.

b) is of positive divine institution. Genesis being witness, God instituted matrimony when after the creation of Adam he formed Eve for the consortium and help of the man: "It is not good," he says, II, 18, "for man to be alone; let us make him a help like unto himself"; and he instituted the diversity of sexes so that he might provide for the multiplication of the species, for as is said I, 27: "Male and female he created them, and God blessed them, and said: Increase and multiply and fill the earth." - Moreover the truly stable bond of matrimony in the unity and perpetuity of the conjugal bond is proposed in the words of Adam: "This now is bone of my bones and flesh of my flesh; wherefore a man shall leave his father and mother, and shall cleave to his wife, and they shall be two in one flesh." - But that the union is to be constituted through a contract or convention of wills is clear from this, that that cleaving is not understood except as voluntary and free.

Wherefore the Council of Trent, sess. 24, teaches: the first parent of the human race, by the instinct of the divine Spirit, pronounced the perpetual and indissoluble bond of matrimony when he said: "This now is bone..." Therefore since Adam could say this only with God inspiring, Christ attributes those words to God himself and from them infers, Mt. XIX, 6: "Therefore now they are not two but one flesh; what therefore God has joined together, let not man separate."

c) it is also natural to man, not as if it were caused from the principles of nature by necessity, but because nature inclines to it, although it is to be completed by free will; whence human reason understands its necessity, and therefore it is of natural right. Hence Aristotle, Eth. VIII, c. 12: "man is more naturally a conjugal animal than a political one."

It is proved: God, by creating men endowed with reason, to his image and likeness, and at the same time diverse in sex and apt for generation, by that very fact, through human nature, showed that he wills that the human race be propagated by generation: not, however, by any generation whatever, but only by that which would have place in circumstances of themselves necessary for the good of offspring, and therefore in the matrimonial conjunction of man and woman. For 1. the good of human offspring of itself requires that parents be bound by a moral and stable bond which cannot be dissolved at pleasure: for offspring of itself needs parents in order that it may be well educated and led to the perfect state; 2. the same is required for the good of the spouses from mutual service in domestic life, since one of them does not suffice for himself in all things which regard life, but certain works are suitable to the man, certain to the woman.

Appositely St. Thomas, q. 41, a. 1: "Matrimony is natural, because natural reason inclines to it in two ways:

1. as to its principal end, which is the good of offspring. For nature intends not only the generation of offspring, but also the handing on and promotion of it up to the perfect state of man, insofar as he is man, which is the state of virtue. Whence, according to the Philosopher, we have three things from parents, namely, being, nourishment, and discipline. But a son could not be educated and instructed by a parent unless he had determined and certain parents; which would not be unless there were some obligation of the man to a determined woman, which makes matrimony.

2. as to the secondary end of matrimony, which is the mutual service rendered to each other by the spouses in domestic matters. For just as natural reason dictates that men dwell together, because one does not suffice for himself in all things which pertain to life itself, by reason of which man is said to be naturally political; so also, of those things which are needed for human life, certain works are suitable to men, certain to women. Whence nature moves that there be a certain association of man to woman, in which there is matrimony."

It is confirmed from the Summa contra Gentiles, III, 122:

"a) For it must be considered that in animals in which the female alone suffices for the education of offspring, the male and female do not remain together after intercourse for any time, as is clear in dogs. But whatever animals there are in which the female does not suffice for the education of offspring, the male and female remain together after intercourse so long as is necessary for the education and instruction of the offspring, as is clear in certain birds... But it is manifest that in the human species, the female would by no means suffice alone for the education of offspring, since the necessity of human life requires many things which cannot be procured by one alone. Therefore it is fitting, according to human nature, that a man remain with the woman after intercourse and not immediately depart, approaching indifferently any woman whatsoever, as happens among fornicators. - Nor does it stand against this reason that some woman, powerful by her riches, is able alone to nourish the fetus; because natural rectitude in human acts is not according to those things which happen accidentally in one individual, but according to those things which follow the whole species.

"b) Again, it must be considered that in the human species offspring needs not only nourishment as to the body, as in other animals, but also instruction as to the soul; ... nor are those newly born capable of instruction of this kind, but only after a long time, and especially after they have arrived at the years of discretion. For this instruction also a long time is required; and then also, on account of the impulses of the passions..., they need not only instruction but also repression. But for this the woman alone does not suffice, but rather in this the work of the male is required, in whom there is both a more perfect reason for instructing and a more powerful virtue for chastising. Therefore in the human species it is necessary to attend to the promotion of offspring not for a little time, as in birds, but for a great span of life.

"Whence, since it is necessary that the male remain with the female in all animals so long as the work of the father is necessary to the offspring, it is natural to man that the man have, not for a short time, but a lasting society with a determined woman. But this society we call matrimony. Therefore matrimony is natural to man."³

³ Similarly in II-II, q. 154, a. 2: "We see that in all animals in which the care of the male and female is required for the education of offspring, in them there is not wandering concubitus, but that of a male with a certain female, one or more, as is clear in many birds; but it is otherwise in animals in which the female alone suffices for the education of the fetus, in which there is wandering concubitus, as is clear in dogs... But it is manifest that for the education of man there is required not only the care of the mother, by whom he is nourished, but much more the care of the father, by whom he is to be instructed and defended, and promoted in goods both interior and exterior. And therefore it is contrary to the nature of man that he use wandering concubitus; but it is necessary that there be a male with a determined female with whom he remains not for a little time, but for a long time or for the whole of life... But this determination of a certain female is called matrimony; and therefore it is said to be of natural right."

Briefly, "nature intends not only being in offspring, but also perfect being, for which matrimony is required," q. 41, a. 1, ad 4.

754. It is objected: 1. Therefore celibacy is against nature, as against natural inclination; and therefore it is a sin. - Resp. I deny the consequent: not everything which is against natural inclination is a sin, but that which is against natural inclination obliging from the dictate of reason. But reason dictates that matrimony is not necessary and obligatory for each one, especially on account of a greater good.

"Nor does it follow thence," says Haine, Th. M. IV, de Matr., q. 36, "that virginity and celibacy, as being against the inclination of nature, are therefore sins. For not everything which is against natural inclination is always a sin; but only that which is against natural inclination obliging from the dictate of reason. But now, the human race having been sufficiently multiplied, reason dictates that matrimony is not necessary in each one for this, and consequently natural inclination does not oblige to it. Moreover it is sometimes lawful to act against natural inclination for the sake of a greater good of the soul, as is clear in him who for the sake of mortification abstains from useful food and in some way necessary to the body, to which nevertheless there is a natural inclination."

2. Natural inclination is common to all; but an inclination to matrimony does not appear in all. - Resp. It is in all, but it does not put itself forth sensibly in all, because conservation of specific nature is sufficiently provided for by many.

Thus also the natural inclination to defend the common good and the republic.

3. Natural inclination is only to generation and is common to all animals; but this is not to a stable and indissoluble union or matrimony. - Resp. The inclination of nature on the part of the specific difference, insofar as it is rational, is only to generation, I deny; on the part of the genus insofar as it is common to animals, I distinguish: it is common in such a way that it is in all in a diverse way, I concede; so that it is in all in the same way, I deny.

"The nature of man inclines to something in two ways: in one way, because it is fitting to the nature of the genus, and this is common to all animals; in another way because it is fitting to the nature of the difference, by which the human species abounds from the genus insofar as it is rational... And just as the nature of the genus, although it is one in all animals, nevertheless is not in all in the same way, so also it does not incline in the same way in all, but according as it befits each. Therefore the nature of man inclines to matrimony on the part of the difference, as to the second reason assigned (namely, mutual service), whence the Philosopher assigns this reason in men above other animals; but as to the first reason (the good of offspring), it inclines on the part of the genus, whence he says that the procreation of children is common to all animals. Yet nature does not incline to this in the same way in all animals: because there are certain animals whose children, once born, can immediately seek food for themselves sufficiently, or for whose support the mother suffices; and in these there is no determination of male to female; but in those whose children need the support of both, but for a little time, some determination is found as to that time, as is clear in certain birds. But in man, because the son needs the care of parents up to a great time, there is the greatest determination of male to female, to which also the nature of the genus inclines," q. 41, ad 1.

755. Corollaries. - 1. Therefore those systems are false which assert that matrimony is of human institution.

2. Therefore the fundamental laws of matrimony are not relative and mutable, but absolute and immutable: they are from nature and from God. "Matrimony... by God himself, the author of nature... has been fortified with laws..., which laws therefore can be subject to no decrees of men, to no contrary agreement even of the spouses themselves"; "so that if anyone has once contracted matrimony, he is subject to its divine laws and essential properties." Thus Pius XI in the encyclical Casti connubii.

3. Therefore "it is essential to the union of male and female that it be ordered and tend, as to a primary end, to the propagation of the species, and not to private good and happiness, as the modern reformers of matrimony will." Thus De Smet, De Sponsalibus et Matrimonii, n. 77.

4. Therefore every use of the generative faculty, insofar as it does not preserve the due order of generation and education, is illicit by natural right, and indeed in such a way that St. Thomas did not hesitate to say: "after the sin of homicide, by which human nature already existing in act is destroyed, this kind of sin seems to hold the second place, by which the generation (ordered generation) of this nature is impeded," c. Gent. III, 122.

5. Nevertheless not every act of itself apt for generation is thereby licit and honorable, but only that which has place in matrimony, and therefore not only pollution and onanism, but also fornication is repugnant to natural right. Namely, the use of the generative faculty is reserved to matrimony. Cf. II-II, q. 154, a. 2.

6. To each capable person there belongs a natural right to matrimony, and indeed prior to every human society. Whence no human authority can prohibit it absolutely, i.e., with every person in perpetuity, to someone against his antecedent will, for this prohibition would be against natural right. "No human law," says Pius XI, "can take away from man the natural and primordial right of marriage, or in any way circumscribe the principal cause of nuptials, constituted in the beginning by the authority of God. Increase and multiply." And therefore he concludes that those are against the right of nature who either prohibit matrimony to those who labor under an infirmity likely to be transmitted to children, or render them sterile by surgical operation. And the Holy Office, to the question: Whether direct sterilization, whether perpetual or temporary, whether of man or of woman, is licit?, on Feb. 24, 1940, responded: In the negative, and it is prohibited by the natural law.

7. As to the opposed systems, let it be noted that the theory of evolution is a mere hypothesis, not scientifically proved. And indeed: a) primitive promiscuity is not demonstrated, since among the most primitive it is not found; b) for it is false that the peoples called primitive, or the wild tribes of Australia or central Africa, are in the same state as prehistoric man: from their own traditions it is clear that they are not truly primitive but degenerate; c) promiscuity is repugnant psychologically, on account of jealousy, which is the natural effect of love; d) among nations more ancient in culture, matrimony exists without any trace of evolution, as among the Chaldeans, Egyptians, Indians, Chinese, Greeks, Romans; e) specifically, matriarchy can be explained otherwise: from the more intimate bond of offspring with the mother, or from polygamy; f) matrimony by abduction is not proved to have been a legal stage in the evolution of marriage, since it is by no means everywhere, and is found only rarely; g) matrimony by purchase is so called because a price was given for the purchase of the house or of dominion, or as compensation or even as a gratuitous donation; but by no means from the purchase of the spouse from the parents against his or her consent.⁴

⁴ Besides the authors alleged, p. 737, n. 1, on this matter there can be consulted De Smet, o. c., n. 80-82; Tanquerey, o. c., n. 674 sq.; Dict. de Theol., art. Mariage; v. Scherer, Handbuch des Kirchenrechts; Leitner, Lehrbuch des Kath. Eherechtes; Schmidt, Der Ursprung der Gottesidee; Lemonnyer, Le Mariage et l'Evolution.

S. Th., Suppl., q. 41, a. 1; q. 42, a. 1, ad 5, and a. 4; q. 44, a. 1; q. 45, a. 1 and 2; q. 48, a. 1; III, q. 29.

772. State of the question. - Matrimony can be regarded in becoming, i.e., in the act by which it is entered or the convention by which it is constituted; and in fact, or in the constituted state.

A. Concerning matrimony in becoming, 1. formerly several thought that carnal intercourse was required for its essence, saying that matrimony is begun in espousal or consent, but that it does not yet exist as perfect except by real handing over exercised in intercourse. Whence the name: copula-theory.

Thus Julian the Pelagian, Hincmar of Rheims, Ivo of Chartres, Algerus of Liege, Gratian, and many canonists, especially of the school of Bologna, among whom was Master Roland;¹ against St. Peter Damian, and the theologians, especially of the Parisian school with Peter Lombard, who taught that matrimony is constituted by mutual consent alone. But Roland, created Pontiff under the name of Alexander III, as to substance sanctioned the doctrine of the Parisian school; but according to the opinion of Bologna he established that ratified and non-consummated matrimony is not perfectly indissoluble.

¹ The opinion afterward is attributed to Wyclif and certain Protestants; Freisen again began to defend it, Geschichte d. Kan. Eherechts, § 3, but afterward retracted it.

2. Others have been unwilling for it to be called a contract, or have been found hesitant to affirm this, both among the ancients, at the time when the definitive juridical and scholastic doctrine of matrimony had not yet been formed, and also among more recent authors; indeed, "not a few more recent writers... shrink from the word contract, as if such a name either were unbecoming to matrimony, or inserted a less right concept of matrimony."²

² Gasparri, De Matrimonio, n. 3.

The immediate end, they say, of the act of entering matrimony is not an obligation, but a consortium of life whose obligations are determined not by the will of those contracting but by the law itself. For from the fact that they called it a contract, not a few falsely deduced that matrimony is dissoluble by the will of those contracting and is ruled by the civil power, after the manner of other contracts. Whence it is not a contract, neither real nor merely consensual, but a state, an institution, a society.

Setting aside for a little while the character of sacrament, the notion of marriage in itself comes back to this: that it is the union of man and woman, situated in a mutual moral power over the body of the other for carnal copulation and for the individual society of life.

I. Marriage (matrimonium: γάμος, σύζευξις, γαμικὴ ὁμιλία, חֲתֻנָּה) has received its name from the mother; because “the mother pertains more to the account of marriage than the father: for concerning offspring, which is the end of marriage, the mother is more dutiful than the father” (St. Thomas, Suppl., q. XLIV, a. 2, ad 1); or, as the Roman Catechism says (On Matrimony, n. 2), “because to conceive, bear, and educate offspring is the office of the mother.” Augustine, Against Faustus, book XIX, chapter 25, explains the etymology of the name somewhat otherwise, saying: “it is called matrimony from this, that a woman ought not marry for any other reason except that she may become a mother.” It is also called coniugium, because it joins two into one. Likewise it is called connubium from nubendo, because brides among the ancients, when they were handed over to a man, were accustomed nubere, that is, to veil their heads: therefore connubium is the conjunction of the veiled woman with her man. From the same origin they are also called nuptiae, which are also customarily said of the ceremonies and of those solemnities, festive processions, and banquets which are customarily applied to a wife who has been taken; indeed this latter is the primitive and proper signification of nuptiae.

Since we are about to give and explain the definition of marriage, we cannot prove it except from the common sense of men, in the way, namely, in which definitions are customarily proved: that is, by accurately inspecting that thing to which, by all men generally, whether ecclesiastical or profane, the name of marriage is attributed; which thing existing, marriage is said to be; and which thing ceasing, marriage is judged to cease (cf. our Philosophical Institutions, Logic, chapter IV, article 4). Therefore the process of finding the definition will return to this. We receive from the whole human race that which is called marriage by it; we consider in that very thing what either the consensus of those same men, or manifest reason drawn from the common concept, teaches to be essential; and among the essentials we consider what is first and, as it were, the root of the others, namely so that, when this alone is posited, marriage exists, and, when it is taken away, even if the others remain, marriage does not exist. And seizing upon this, we say that this is that thing, that essence, which men have hitherto generally called marriage. Nor will it be necessary to be anxious over the dissent of certain vicious men: for those very men who oppose the rights of marriage, when they attempt to abolish marriage, are witnesses that under that account, although it does not please them, marriage has commonly been understood and is understood.

Marriage is commonly defined in two ways: namely, both insofar as it is a permanent thing and insofar as it is a transitory act giving origin to a permanent thing. Under the former respect it is commonly defined: the marital conjunction of man and woman between lawful persons, retaining an individual custom of life. Thus the Master in IV, dist. 17; St. Thomas there. Sanchez, On Marriage, book II, disputation 1, from the Roman definition, says: Marriage is the conjunction of man and woman, containing an individual custom of life. Thus Institutes, book I, title 9, §1; and with this coheres that definition of Modestinus, law 1, On the Rite of Nuptials, ff.: Nuptials are the conjunction of male and female, a partnership of all life, a communication of divine and human right. Thus also Alexander III, chapter III, Illud quoque, On Presumptions: marriage is the conjunction of male and female, retaining an individual custom of life. Here observe in passing that no explicit mention is made of the procreation of offspring; nevertheless it is made implicitly, for among the acts of individual life is also, indeed chiefly in itself, carnal intercourse. And such is the definition of marriage which generally occurs among the ancients, and which indeed will be more fully declared below. Under the other respect it is defined, with Hugh of St. Victor (On the Sacraments, book II, part II, chapter 4): marriage is the legitimate consent of two suitable persons concerning conjunction; or with Toletus (Summa, book VII, chapter 10): the lawful contract of man and woman, by which mutual power over bodies is handed over, conferring spiritual grace; here the account of sacrament is added, which for the present we wish to set aside for a little while.

II. These things certainly are not to be rejected, but are to be explained. Therefore, in order first to declare and prove the definition of marriage, insofar as it is a permanent thing, by the method which we have stated, it must be observed that there are several elements from which that which is called marriage by all coheres integrally. For in marriage, 1. there is a certain contract containing and manifesting the present interior consent of both, that is, of man and woman, into marital conjunction; 2. there is mutual power over the body of the other, which follows upon the contract, or there is the mutual obligation of one to the other with respect to carnal copulation, which obligation arises immediately from the contract and corresponds to the mutual power; 3. there is the bond by which both are formally conjoined and are formally constituted, in first act, as one complete principle of mutual copulation and, through it, of generation; this bond indeed does not differ in reality from the above-mentioned power; but this bond is that which is called marital conjunction; 4. there is the obligation to receive, if God should give it to those coming together, offspring and to educate it; 5. there is power and obligation to an individual life; 6. there is the right, arising from that bond, of exercising conjugal acts and of carrying on life together; 7. there is an unimpeded power for the generation of offspring through carnal copulation; 8. there is use, that is, copulation, the procreation and education of offspring, domestic society, and mutual help; 9. besides this, Christian marriage is a Sacrament: however, we set this consideration aside for a little while now.

III. Now, of those eight, the last, that is, use, does not belong to the essence of marriage, although it pertains to its integrity; because act supposes the essence of the acting thing already constituted, and all concede this. Likewise an unimpeded power for the generation of offspring through carnal copulation is not essential to marriage, if, as all confess, marriage can exist also between sterile persons and the aged, who are fit indeed for coming together, but unfit for generating; indeed also between a man and a woman who lacks ovaries (response of the Holy Office, February 3, 1887), and indeed who lacks ovaries and uterus (response of the same Holy Office, 1890). Again, the proximate right of using does not belong to the essence; for that right can be lost, while marriage remains, by the consent of all civil and sacred laws; it is, namely, something consequent upon the essence. Moreover, the contract and interior consent, which is manifested through it, are indeed essential in order that marriage exist, and can be called marriage itself in fieri; but they are not the very essence of marriage; for marriage is something persevering, since marriage is said simply and properly to exist as long as husband and wife continue to live. But consent expressed by words concerning the present is called by Eugene IV (Instruction for the Armenians) the efficient cause of marriage, not marriage itself. Indeed consent is not only a transitory act, but it can even habitually cease, as if formal dissent and aversion should succeed in both toward the other; nevertheless marriage, no otherwise than before, remains and endures. Therefore, in these four of the things enumerated, which are the first, sixth, seventh, and eighth, the essence of marriage does not consist. Let us see the remaining things.

Moreover, the obligation to receive offspring, if God has given it, and not to impede its generation, and to educate it, is necessarily connected with the mutual power for carnal copulation, so that this cannot be admitted without that. For this is the end which nature has appointed for marital copulation, that through it the human race be propagated. Although it is not necessary that copulation be had, nor does offspring always follow copulation, and it is lawful to have copulation without hope of offspring, because there are other honorable ends of the use of marriage besides offspring; nevertheless, because offspring is the end which nature intends in marital copulation, and because this copulation, unless it is impeded accidentally by some physical defect, is naturally ordered to it, it is unlawful for spouses to do anything directly in the use of marriage against the reception of offspring. That is: by the very fact that they have the right of mingling with each other, they also have the obligation of using copulation rightly for the generation of offspring and, if God gives offspring to those using marriage, of receiving it. The same end appointed by nature further demands that the offspring received be rightly educated; but concerning the ends of marriage, see the following thesis. Therefore this obligation is essential to marriage; but because it supposes marriage, and indeed its use, it cannot constitute its essence.

The obligation and power, or right, to an individual life is conceived in two ways: either as obligation and power to carnal intercourse, so that on that account the man is of the woman and the woman is of the man, and in this way that obligation and power is the bond itself, of which we shall speak presently; or as obligation and right to cohabit and to carry on common life together, and then that obligation and that right do not constitute marriage, but suppose it; for it is an obligation and right belonging to spouses. There remains the bond and the mutual power over the body of the other. Now, first, we affirm that this bond is really contained in that mutual power over the body of the other in order to carnal copulation, and in the mutual obligation of one to the other, to an individual life. For some mutual power to carnal copulation is necessary, by the consent of all, to the essence of marriage; once that is removed, there will be any other society rather than conjugal society. But since a manifold bond can arise from mutual power, we say that the conjugal bond is constituted by this very mutual power in order to carnal copulation, and by the mutual obligation of one to the other, which obligation is also necessarily undertaken together with that same power.

For the bond is that which arises necessarily and immediately from the contract; for both consent into conjunction, the man indeed into the conjunction of himself to the woman, and the woman into the conjunction of herself to the man (St. Thomas, q. XLV, a. 1, ad 3); but from the contract there arises immediately and necessarily a mutual obligation, and therefore a mutual power to that which is handed over by the contract (ibid., a. 5, ad 2): therefore. And indeed, with that mutual power and obligation existing, the man is of the woman and the woman of the man; and therefore both are united. And from this union there is constituted one complete principle, not indeed in second act, which is situated in the mingling of bodies, but in first act or power, of carnal copulation and, through it, according to the primary ordination of nature, a principle of generation, which is found incompletely in each separately. Therefore there are two who are united, but there is one thing to which they are united, that is, the principle of generation. Hence the relation of conjunction is manifold and one: manifold on the part of the subject, because there are two subjects, man and woman; one on the part of the cause, namely the final cause, because it is ordered to the same carnal copulation and generation in number. And insofar as this union is manifold on the part of the subject, it is signified by these names, wife and husband; but insofar as it is one on the part of the cause, it is signified by this name, marriage (ibid., a. 1, ad 3).

IV. Moreover, secondly, we say that the essence of marriage is placed in such a bond. For not only is the bond itself permanent, but, when it alone exists, marriage is truly said to exist; and each, namely bond and marriage, mutually posits itself and mutually destroys itself. Thus marriage is received by both Roman and canon law, civil and ecclesiastical society therefore consenting, and the definition brought forward above from law looks to this. Although all these things, says the Roman Catechism (loc. cit., n. 3), are present in perfect marriage, namely interior consent, the external agreement expressed in words, the obligation and bond which is effected from that agreement, and the copulation of the spouses by which marriage is consummated, nevertheless none of these properly has the force and account of marriage except that obligation and nexus which is signified by the word conjunction. Thus St. Thomas, q. XLIV, a. 1, in corp. and ad 1, where he says: “marriage is the bond by which spouses are formally bound, not effectively; and therefore it need not be something other than conjunction”; and in the following question, article 1, ad 2: “Marriage,” he says, “is not consent itself, but a certain union of those ordered to one thing, which consent makes”; and q. XLII, a. 3, ad 2: “External acts and words expressing consent directly make a certain nexus, which is the Sacrament of marriage.”

Hence, in the definitions brought forward above, marriage is defined as conjunction: not any conjunction whatever, but of male and female, that is, of each principle, separately indeed inadequate, of generation; and this conjunction therefore supposes the possibility of having copulation and arises from this very mutual power.

These things having been declared, it is easy to gather the definition of Marriage insofar as it is a permanent thing. It is, namely, the union of man and woman, situated in the moral obligation and power of the one over the other for carnal copulation and a certain individual society of life.

We say “a certain individual society,” according to those things which above we distinguished in the obligation to an individual life. For domestic society, although it is required by marriage, nevertheless does not constitute its essence. We do not indeed deny that these things are indicated in the definitions of Roman law; nevertheless we observe that they pertain to the true definition if only the exigency of them is considered, which necessarily coheres with the bond; but if domestic society is considered in act, it is therefore placed in the definition because it is that to which the conjunction of male and female is ordered, especially if individual life is taken fully, so that it also comprehends carnal intercourse.

V. We have said that mutual consent expressed outwardly, or the contract, is the efficient cause of marriage. But when we say this, we do not wish to affirm that that consent is the adequate cause of the perennial bond of the spouses, a question which we shall settle in another place; nor that marriage is simply some contract, for in many ways it differs from a contract, as again we shall see later. But because, besides the action of God uniting the spouses, there is certainly required some reason on the part of the man and woman determining the union of both, and this reason is the consent of each into the union, which is posited after the manner of a contract; in this sense we say that the contract is the efficient or determining cause of marriage. For marriage is a certain mutual obligation between man and woman, which does not exist naturally, nor is it immediately effected by God or by another authority, but is freely undertaken by man; but the efficient cause of an obligation freely undertaken is those very persons who undertake it, insofar as by their consent they will and admit it. Therefore the consent of those contracting marriage is that by which that obligation, or marriage, is determined. But if you seek the principle which, it is the contracting persons themselves. But because marriage is a certain union, and this union is made by mutual consent, and this mutual consent already is a certain actual union by which the permanent union begins, hence the consent itself is called marriage, but marriage in fieri. Therefore, if you consider marriage in fieri and in facto esse, consent is intrinsic to it, for it is marriage itself in fieri; but if you consider marriage only in facto esse, namely the permanent nexus of man and woman, consent is extrinsic to it; for it belongs to the account of an efficient cause to be extrinsic to its effect, that is, distinct from it.

Therefore, when with Eugene IV we say that the efficient cause of marriage is the consent of those contracting, we do not oppose the words of Christ teaching that God is the one who joins man and woman (Matt. XIX); for God joins insofar as he both established the law according to whose norm man and woman ought to be joined for the generation of offspring, and established the indissolubility of the nexus which has once been freely undertaken, and therefore wills, and by his own will effects, that that nexus exist and be perpetual. Besides, God is said to join spouses insofar as by his grace he sanctifies them and unites them in Christ. Therefore the consent of each is a certain proximate cause why the obligation of each toward the other exists; but that it be such an obligation depends both on the law of nature and on the positive law of God, as will be declared later.

VI. Now that nexus, or conjunction, or bond, which consent makes, is called and is the bond of souls: “There are two things in marriage,” says Innocent III, chapter Debitum, On Bigamists, “the consent of souls and the mingling of bodies.” Since the latter looks to act, the former displays the essence, which is placed in the bond; whence consent there is the same as the bond. Therefore the bond is a bond of souls. “One society of body and soul is contracted, so that affections may be mingled with affections and flesh in a certain way be joined to flesh,” says St. Asterius, bishop of Amasea, homily on Matt. XIX, 3. And indeed before the consummation of marriage there is no actual mingling of bodies, yet marriage exists; “for consent, not lying together, makes nuptials,” c. 30, ff., de R. I. Therefore man and woman are united before and apart from mingling, because of the power mutually handed over and the obligation mutually accepted; but the subject of power and obligation is the soul, or man through the soul: therefore according to the soul two are bound, and therefore there is a bond of souls. For this reason it is not called consent of souls because the term into which consent is borne is something spiritual only; for it is borne into the mutual power over bodies handed over, which in itself is ordered to mutual mingling; but because that power itself is in itself something spiritual and inheres subjectively in the soul. Wherefore the essence of marriage consists in a moral bond. Marriage is therefore a bond of souls, because it is effected by consent, because it is contained by obligation, which binds souls. This bond, however, remains even if, by the fault of one or both, mutual affection ceases. Yet in this matter a certain sensible affection must be distinguished from marital affection, which is that serious will by which the one wills to have the other as his or her own, and conversely, and to be obligated to that other, and to render fidelity.

VII. The definition of Hugh and Toletus brought forward above (n. 1) directly signifies the cause of marriage, and indirectly its essence; and this definition is employed especially when Marriage the Sacrament is to be defined. For although Christian marriage always remains a sacrament, as will be explained below, nevertheless the sacramental rite, by which the sacrament is made and grace is conferred, is had when marriage is made, or when its cause is posited; this will be declared in what follows.

VIII. From what has been said, you have, first, that the consummation of marriage does not belong to its essence.

Second, you have that the consent which makes marriage is not explicit consent into carnal copulation, but explicit consent into the power of the same, or into the bond, and implicit consent into copulation. Yet this implicit consent, which in itself follows upon consent into the power, can, by mutual consent to preserve chastity, while that power nevertheless remains, be suspended or impeded, as we shall demonstrate in Thesis III.

Third, you have that marriage differs altogether both from the conjunction of the other animals, for no moral bond exists between them, and from fornicatory and wandering concubinages, in which there is no obligation of the man to a determinate woman, which obligation makes marriage (q. XLI, a. 1).

Fourth, you have that in the definition itself the properties of marriage are signified: namely unity, when it is said “of man and woman,” and the perpetuity of the bond, when power and obligation are said to be to a certain individual life. To explain and defend these properties, however, is the more important part of this treatment, and this we shall carry out below.

IX. Note: Marriage is divided into legitimate, ratified, and consummated. Legitimate is that which is contracted by legitimate and therefore valid consent; of this sort there is marriage even among unbelievers. Ratified is that which, being legitimate, is sanctified by the sacrament of baptism; of this sort is the marriage of the faithful. And when this appellation is made simply, it is accustomed to have an exclusive signification, that is, not consummated. Consummated marriage exists both among the faithful and among unbelievers, and is marriage perfected by carnal copulation.

A pact added to the matrimonial contract for preserving perpetual continence does not conflict with the essence of that contract; and it can be that in this way the most blessed Mother of God and St. Joseph entered marriage.

I. In chapter Si Conditiones, On Conditions Added, it is said: "If conditions are inserted against the substance of marriage, for example, if one says to the other, I contract with you if you avoid the generation of offspring, or until I find another richer in honor or possessions, or if for gain you hand yourself over to be adulterated, the matrimonial contract, however favorable it may be, lacks effect; although other conditions added in marriage, if they are base or impossible, ought, because of its favor, to be held as not added." As regards the last part of this chapter, cf. Sanchez, book V, disp. 3; for it does not pertain to our question. What is established in the first part seems to oppose those things which we taught in the preceding thesis and here again defend more fully. For those who would enter a matrimonial contract with an express pact of preserving virginity, or of abstaining from carnal mingling, would finally add this condition to the contract: I contract with you if you avoid the generation of offspring, which effects no contract. And indeed, since offspring is the end of marriage, so that marriage is to be contracted for its sake alone, if we believe Augustine (cf. preceding Thesis, n. II), and yet that offspring is obtained by means of copulation, does not the condition of abstaining from copulation oppose the end of the contract? But is not an expressed will of not attaining the end, by this very fact, also the will of not employing the means which has been instituted for that end alone? Indeed, the matrimonial contract and the pact of preserving virginity appear mutually contradictory and therefore to destroy each other. For by the former there is made a mutual obligation and power toward carnal copulation; by the latter there is made an obligation of abstaining from it and a lack of power for it, moral indeed, just as the power in marriage also is moral. For this reason this contract seems ridiculous: I give you power for this, provided that you obligate yourself not to use it, that is, provided that you do not obtain this power. Therefore, although the pact of preserving virginity concerns a holy thing, indeed a holier thing, nevertheless, because it cannot be composed with matrimonial consent, it must be said that marriage is made void by that pact. Thus indeed not a few say. Benedict XIV, On the Diocesan Synod, XIII, 22 (cf. also On the Feasts of the Blessed Mary, on the Espousals), doubtful, as is his custom, hesitates because of the opposed opinions of Doctors; but in order to defend a true marriage, such as he judges really to have existed between the Blessed Virgin and St. Joseph, he enters upon that path which excludes an express pact of preserving virginity added to the contract itself. Although this way of explaining that marriage is not disapproved by us, nevertheless we judge that that marriage could have been true even if a pact of preserving virginity had preceded it, that is, generally that this pact mutually undertaken does not vitiate the matrimonial contract.

II. That there was true marriage, not mere betrothal, between the Blessed Virgin and St. Joseph, Suarez, in III, q. XXIX, a. 2, section 1, holds as so certain that he asserts it to be a truth of faith, which Sanchez, book II, disp. XXVIII, does not approve. If by a truth of faith you understand one which not only has been revealed by God but also has been defined by the Church, Sanchez rightly disapproves the opinion of Suarez; but if you call a truth of faith one which has been revealed and can be defined by the Church, we judge that Suarez spoke truly, because of the theological arguments which persuade us of this. On this matter one should read the learned Dissertation of the distinguished Father Patrizi, On the First Embassy of the Angel to St. Joseph, published separately. We shall complete the matter briefly in this way.

1. In describing the genealogy of Christ, this is Matthew's purpose (1:1 ff.), namely to show that Christ draws his origin from Abraham and David. But since Christ, by the testimony of Matthew himself (ibid. 18 ff.), arose from the Virgin alone without the help of a man, it was necessary that Christ draw origin from David through the Blessed Virgin herself; and therefore it was necessary that the Blessed Virgin herself be from David, and the Evangelist had to demonstrate this if he wished to show Christ's origin from David. Now Matthew deduces the series of generations from David down to Joseph, and then adds that he is the man of Mary, from whom Jesus was born. But this way of describing the genealogy would conclude nothing unless Matthew supposed that this was known to those to whom he was writing, namely that Mary was an agnate of Joseph, that is, from the same family. This, I say, Matthew supposes as known; for this is in reality the minor premise of his reasoning, which nevertheless he left unspoken. Namely he argues thus, nor can his conclusion have force otherwise: those whom I have enumerated are the progenitors of Joseph; but Mary is an agnate of Joseph; therefore the same men, either all or almost all, perhaps with the last excepted, are also the progenitors of Mary, and therefore of Christ. Why, then, did Matthew leave unspoken this premise necessary for his conclusion? There was no other reason except that he supposed it to be known to those to whom he was writing. Moreover, this shows that it was also known to the same persons that Mary was the true wife of Joseph. For how could it be generally established that Mary was an agnate of Joseph? Some public fact was required. Such a fact could be no other than this: that Mary, a daughter lacking brothers, had been compelled to marry by force of the law concerning heiress daughters (Num. XXXVI, 1 ff.), which law indeed ordered heiress daughters to marry an agnate. Cf. Patrizi, On the Gospels, dissertation VI and dissertation IX, chapter 2, part 1. Therefore this was commonly established: that Mary had satisfied this law. But the law ordered the heiress daughter to enter, not some mere betrothal, but true marriage with an agnate. Therefore, finally, Matthew himself, calling Joseph the man of Mary, takes "man" strictly, namely as one who was joined by the bond of true marriage to Mary his wife, who by force of that law had married him.

2. Mary is said to be betrothed to Joseph (Matt. 1:18; Luke 1:27). Now either the betrothal of the Virgin of which the Evangelists speak is taken so that the nuptials had been completed, or so that the celebration of the nuptials still remained (cf. the Parergon at the end of this chapter). If the first is said, you have a perfect marriage. If the second is said: first, either betrothal alone effected true marriage among the Hebrews; but the taking or leading of the bride into the house of the man, that is, the celebration of nuptials, provided this, at least in the later age, that the spouses might lawfully and honorably use the power already handed over and accepted (cf. the cited Dissertation of Patrizi). Therefore, if marriage consists in the handing over of power, the Blessed Virgin was already the true wife of Joseph. But second, it cannot be doubted that if something still remained to be done, that is, the celebration of the nuptials, it was done in its own time. For otherwise Joseph would have had to dismiss the bride according to Mosaic law by giving a bill of repudiation, which Joseph certainly did not do. Therefore.

3. Besides, how could it have happened that Jesus was commonly believed to be the son of Joseph the carpenter (Luke III, 23; John VI, 42, compared with Mark VI, 3), unless it had been established for all that there was true marriage between him and the Mother of the Lord? Therefore whatever was required for entering true marriage had been performed by both, and indeed publicly; and therefore true marriage was contracted.

4. But what of the Fathers? The Fathers generally investigate and give reasons why the Blessed Virgin was joined to a man: namely that she might have support and consolation, that she might not be reckoned an adulteress, and that her birth-giving might be concealed from the devil (cf. Jerome on Matthew, chapter 1). Now these reasons, especially the two latter, require such a union of the Blessed Virgin with St. Joseph to be conceived that by force of that union Joseph should be judged to have had a right over the Blessed Virgin to conjugal acts; but this is the bond proper to marriage. But when they deny that Joseph was or is to be called the husband of the Virgin (cf. Jerome, ibid., chapter II), they understand by husband one who is not only a man, but who further uses conjugal copulation. This is a way of thinking frequent in Jerome, who therefore opposes husbands, as also wives, to virgins in this manner: that he numbers among virgins also those who, joined by the bond of marriage, abstain from intercourse (cf. what he disputes against Helvidius, and what we shall bring from him in Chapter II, Thesis VII). And rightly indeed; for it is not the conjugal bond, but the use of copulation, that is opposed to virginity and most perfect chastity. Therefore it must be held that the Blessed Virgin was joined to St. Joseph by the bond of true marriage.

III. But this also must be held: that the Blessed Virgin, before she was addressed by the Angel, had obligated herself to God by a vow of virginity. For her words to the Angel compel us to believe this: "How shall this be, since I know not man?" For this present, "I know not," in this place signifies not some transitory act, but the will or power of the act, as the present form of a verb frequently does; otherwise the response would be foolish and ridiculous. Therefore the sense is: since I do not wish, or I cannot, know a man, that is, be mingled with him. Shall we think, with the Protestant interpreter Wilhelm Meyer in this place, that Mary from error so understood the preceding words of the Angel that she thought that she immediately then had to mingle, not with her own man, who perhaps was absent, but with another, and therefore signified her will of preserving conjugal chastity? This interpretation, full of irreverence, besides the fact that it is unknown to the Fathers and abhorrent from them, is excluded by the words of the Virgin Mary themselves; for she did not answer that she did not know another man, but simply that she did not know man. If these words are considered in themselves, their sense can only be one of these two: either that she knows no man, or that she does not know her own man. But because it is absurd to suppose that the Blessed Virgin suspected the Angel of proposing to her an illicit mingling forbidden by natural law, those words in this place can give only the other sense; and therefore they come back to this: since I do not know my man. Besides, what was there in the words of the Angel, who used only future forms, "you shall conceive," "you shall bear," from which Mary could suspect that he was speaking of a conception to be had immediately? But what that learned doctor says, that our interpretation is excluded by the very condition of Mary, since she was joined in marriage to Joseph, is altogether inept; as though it were not lawful for spouses, at least after nuptials had been entered, to vow virginity by consent. We do not divine that this happened; we are taught it from the words of Mary. Cf. Petavius, On the Incarnation, book XIV, chapter 4.

IV. But the question can be raised whether the Blessed Mary made the vow of virginity only after the nuptials had been entered, or before them; and if this latter, whether absolutely or only conditionally, namely unless God should perhaps signify to her that something else was pleasing to him.

For resolving the former question, certain testimonies of Scripture do not suffice. Nevertheless the sense of the Church, concordant among ancient and recent writers, shows itself clearly enough in favor of the sentence affirming that the vow, or purpose, of virginity was elicited before the nuptials. This is attested by the most ancient author of the apocryphal book The Gospel of the Nativity. Epiphanius seems to have judged the same in heresy LVIII, n. 7, saying that "the Blessed Mary was indeed handed over to Joseph," whom he nevertheless thinks to have been old, "but by no means was she granted to him for copulation." Thus Augustine judged, who in the book On Virginity, chapter 4, says: "She was betrothed to a just man, not one who would violently take away, but rather one who would guard against the violent, what she had already vowed." Thus Sophronius of Jerusalem, in his Oration on the Annunciation of the Mother of God (Ballerini, Sylloge, part 2, p. 95), after he had commended, insofar as it could be done, the purity and virginity of the Blessed Mary offered in the temple and thereafter, introduces the Angel speaking thus to the Blessed Virgin: "I know that Joseph has obtained the mere name of spouse without the thing; for he was not joined to you as the begetter of offspring, but as the faithful and God-beloved minister of your Son." John Geometra, not later than the middle of the eleventh century (Sylloge of Ballerini; cf. his preface, part 2), said in an Oration on the Annunciation of the Mother of God (ibid., p. 106): "the tradition derived from the Fathers to us: that the Virgin knew not only no use of nuptials, but not even a desire of them. I know no desire of a man, she says, no will of the flesh is mine. This indeed was singular to her, even from the whole female sex, since before all others and from a deliberate purpose of the will there was in her a chastity inaccessible to these defilements." Hence in the twelfth century Hugh of St. Victor wondered that anyone had existed who dared to call into doubt the vow of virginity made by the Blessed Virgin before the nuptials, moved by this reason, that it cannot be composed with the consent necessary for marriage. This indeed he excellently and subtly refutes in the little work On the Perpetual Virginity of the Blessed Mary. Finally after him Thomas taught, in IV, dist. XXX, that the vow of virginity preceded the nuptials, and generally the Scholastics with him.

V. But the remaining question is whether this vow before the nuptials was absolute or only conditioned. A conditioned vow is understood in this way: that the Blessed Virgin firmly proposed and promised to God her perpetual virginity, with the will of preserving it insofar as it was situated in her own choice, but with some condition nevertheless added to this promise; not only this implicit condition, "if it please God," which accompanies all vows, says St. Bonaventure (in IV, dist. XXVIII, a. 1, q. 6), but an explicit and more determinate condition, arising from a doubt by which the Virgin could still be troubled: namely, unless from some debt of keeping the divine law by which I am bound, I should understand that there is another will of God. For one must think that the Blessed Virgin, who was an heiress daughter, knew the Mosaic law which ordered daughters of this kind to marry agnates, so that goods might remain in the family; and therefore that one of her agnates had a right to take her as wife. Moreover, unless the man consents to continence, it is the obligation of the wife to render the debt. Could the Virgin, placed in these circumstances, make an absolute vow of virginity? A twofold hypothesis must be distinguished.

If we suppose that the Blessed Virgin had already long before been made certain by divine revelation that, whatever would happen, although she would have to marry, nevertheless her virginity would be subject to no danger, she could before marriage promise virginity to God absolutely. But if we do not suppose this knowledge of the Virgin from divine revelation, she could conceive only a conditioned vow; otherwise she would have shown herself less conformable to the law, which certainly had to be avoided all the more. Therefore, if no revelation preceded, it must be said either that marriage was entered by the Blessed Virgin with that vow only conditioned, "if Joseph should consent"; but, with the consent of Joseph acceding after the matrimonial contract, the vow became absolute before she was saluted by the Angel; or that before the matrimonial contract itself, there intervened a mutual pact with Joseph of preserving virginity in marriage, and that, with the future husband's consent, the Virgin then already vowed absolutely, if indeed this pact does not obstruct matrimonial consent. But if that revelation which we have mentioned preceded, the Blessed Virgin, even before she thought of marriage, before the consent of a future husband was received, could absolutely vow virginity to God, since she knew with certainty that it would not be violated against her will by any external cause. But what is more probable to have happened? If you weigh the sense of the Church expressed by the testimonies cited, you will hardly persuade yourself that there is speech only of a conditioned vow before the nuptials. For they speak either simply of a vow, or even of an absolute vow. This is what Hugh of St. Victor defends, what Thomas affirms, who therefore, to explain it, posits a revelation previously made to the Virgin, by which she was made certain that her virginity would never come into danger. This sentence, that an absolute vow of virginity preceded marriage, coheres more with the eminent concept of the most pure Virgin. Thus the question remains whether it was lawful for each to add to matrimonial consent a pact concerning preserving virginity, and whether it is lawful for us to conceive the nuptials entered by the Blessed Virgin with St. Joseph in this way. This certainly is easier to think to have been done if no revelation preceded for the Virgin; but even on this hypothesis it could also happen, unless the essence of the matrimonial contract rejects a pact of this kind. It is clear that the general question can be proposed, namely whether a pact of this kind renders the matrimonial contract null.

VI. Although not a few Doctors, whom Benedict XIV seems rather to approve in On the Feast of the Espousals of Blessed Mary, judge this to be so and seem to rely on the authority of St. Thomas, nevertheless the denying sentence is certain to us, and Hugh of St. Victor in the cited little work, and others whom Ballerini follows (Theological-Moral Work, vol. V, On Marriage, n. 419 ff.), defend it. For, first, the arguments brought forward for the opposite sentence do not settle the matter.

Indeed, a) appeal is badly made to the canon of the Decretals (n. I). For that condition which is said to be against the substance of marriage, "If you avoid the generation of offspring," is without any reason confused with this one: "If you are willing to preserve continence," although from this there follows a lack of offspring. For the condition which is against the substance of marriage is that which is opposed, not only negatively but positively, to some good of marriage; certainly of this kind are the two following conditions enumerated by the Pontiff. But the condition of avoiding offspring, which positively opposes marriage, is the will of impeding the generation of offspring in the use of marriage. The sense of the condition, namely, is this: I contract with you if, in carnal mingling, you are willing to impede offspring from existing. Indeed, the examples of this condition brought by the canonists look to this, namely either by suffocating the offspring or by drinking a potion of sterility, as is taught in chapter Aliquando, 32, q. 5, says Gonzalez on the Decretals, book IV, here, which examples suppose carnal copulation and indicate the will of impeding offspring from arising from marital copulation. This certainly is directly against the end of the same. Now this is altogether different from establishing abstinence from copulation; therefore that decretal is not rightly invoked in this question. Indeed, the condition added of impeding offspring is against the substance of marriage, because that very impediment of offspring in carnal mingling is against the end of conjugal copulation; but who would say that mere abstinence from copulation is against the end of marriage? Therefore these two things are wrongly confused.

But, they say, b) in reality it is opposed to the end of marriage, whose end is offspring. Therefore we respond according to those things which we taught from Augustine in the preceding thesis: offspring is the primary end of matrimonial copulation, although not the only end - conceded; it is the end of the matrimonial bond itself - distinguish: immediate, denied; mediate, distinguish further: it is the only end, or an end essential to the essence of marriage, denied; it is some end, indeed even primary, conceded. Now, to enter some contract with a pact not indeed of acting against some one of its ends, but only of not doing that from which some one of its ends, even the primary end, follows, while other ends and goods remain, is certainly lawful. For provided that this end is not positively excluded, an action intending a good from a good end is honorable (cf. the moral theologians); but the end is not positively excluded when only the use of the thing is omitted. Indeed I ask: is there a true matrimonial contract when it is made between those for whom copulation is possible, but offspring is not possible? Who sane has ever denied this? In those contracting, can there be a serious intention of offspring? I do not think so. Therefore the matrimonial contract is valid even without any positive intention of any good or end of the same, without, I say, any intention of offspring.

Therefore, from the fact that, because of the pact of continence added to the contract, the intention of offspring is lacking, that pact cannot be condemned on account of the lack of intention of this end.

But they press more sharply, c). With that pact added, not only is the intention of the end lacking, but also the intention of copulation; indeed there is introduced an obligation of abstaining from it. But this is repugnant to matrimonial consent itself, by which power is conferred for copulation; for a moral power toward copulation and a moral obligation of abstaining from it are contraries which cannot exist together. This is the principal argument of the adversaries (Sanchez, book V, disp. 10). Nevertheless we have something to reply; namely, we affirm three things. First, an intention of not using copulation, hidden in the soul, does not harm the value of the contract; once that contract has followed, if the other asks, it will be necessary to render the debt and to bid farewell to that intention. Second, this intention when manifested, since, if it is seriously made, it signifies the will of obligating the other to continence, vitiates the contract if the other does not consent to the same thing. Third, the mutual obligation of continence undertaken in the contract itself is opposed not to the matrimonial contract itself, but to a certain free use of the same, and therefore does not make the contract void.

The first is clear, because in itself the will of not using some thing does not exclude the will of having it. Indeed, if someone received the order of priesthood without the intention of ever exercising its acts, would this will exclude the intention of receiving the order? By no means; but he would truly be a priest, who nevertheless could be obligated by the Bishop to acts of the order, notwithstanding that intention. So in marriage. For, with St. Thomas (in IV, dist. XXX, q. 2, a. 2, ql. 3), as Sanchez observes (book II, disp. XXVIII, n. 4), a twofold account of implicit consent must be distinguished. One is implicit consent on the part of the object or contract; in this way it is true that in consent into marriage there is contained implicit consent into copulation, to which marriage is intrinsically ordered. The other is implicit consent on the part of the subject or the one contracting; in this way implicit consent into copulation is not necessary, and indeed, although the one contracting has the intention of not consenting into copulation, there is true marriage. This, says Sanchez, St. Thomas seems clearly to signify in the cited place by these words: "The Virgin implicitly consented into copulation... copulation was never in the proposal; for she had been certified by God that the act ought never to follow." Behold how, on the part of the contract, he posits implicit consent into copulation, but not on the part of the one contracting; rather, he posits the opposite disposition. Thus Sanchez.

Question 3. Is Marriage entered under a condition valid?

Resp. It is certain that it is valid if the condition is concerning the past or concerning the present and is verified. The reason is that that conditioned consent immediately passes into absolute consent, and therefore nothing is lacking to the value of the sacrament. But if an honorable and possible condition concerning the future is added, then certainly the Marriage is not perfected until the condition is fulfilled; because the contract must transfer the mutual right over bodies concerning the present. But once the condition has been fulfilled, the Marriage is valid; since a conditioned contract, once the condition has been fulfilled, passes into absolute, and by that very fact is valid by reason of the sacrament, because among Christians the contract of Marriage cannot be separated from the sacrament. - Although Marriage is firm even if the condition is fulfilled while the contracting parties are ignorant, nevertheless they themselves cannot use marriage before receiving knowledge of this fulfillment; otherwise at least in will and intention they would commit fornication. - Cf. S. Alphonsus, n. 890; Baller. note (a) and (b), p. 719.

Question 4. Is marriage entered under a condition concerning a necessary or impossible or immoral future thing, but not against the substance of marriage, valid?

Resp. The marriage is valid, because such a condition is held as not added. - Cf. Can. 1092.

A condition once placed and not revoked:

1°. If it is concerning the future and is necessary or impossible or immoral, but not against the substance of marriage, let it be held as not added (Can. 1092).

Consent concerning a necessary future thing is held in law as equivalent to consent concerning the present; and hence, by the addition of a condition concerning a necessary future thing, marriage is neither suspended nor vitiated, but immediately begins to be valid as if it had been contracted purely and without any condition; for example, I contract with you if tomorrow the sun rises.

In the same way the contract is not suspended if it is concerning an impossible thing; for unless certain indications to the contrary are present, in so grave an affair the contracting parties are deemed truly and seriously to wish to do something and not playfully. And thus in the chapter which is called notable and much allegable, Gregory IX says: "If conditions against the substance of wedlock are inserted, if one says to the other: I contract with you if you avoid the generation of offspring, or until I find another more worthy in honor or resources; or if for gain you hand yourself over to adultery; the matrimonial contract, however favorable it may be, lacks effect. Although other conditions placed in marriage, if they were immoral or impossible, ought on account of its favor to be held as not added." C. 7, X, IV, 5.

Question 5. Is marriage entered under an immoral condition against the substance of marriage valid?

Resp. Negatively; thus the new Code decrees the matter: A condition once placed and not revoked, if it is concerning the future against the substance of marriage, renders it invalid (Can. 1092, 2°).

Because then consent in the substance of the contract, which is altogether required, is not had. Consent into a perpetual and exclusive right is not had; therefore neither consent into marriage. Therefore, when contracting is done truly with a condition against the essence of wedlock, certainly the marriage is null; as when by heretics a formula is employed under that explicit condition that this marriage can be dissolved in the case of adultery, then it can no longer happen that error concerning marriage has been absorbed by the general will of contracting according to the intention of Christ. For marriages between co-parties, say heretical ones, can be valid with a concomitant error concerning its indissolubility, when, as very often happens, the will of contracting marriage according to the intention of Christ prevails, and that error is absorbed in this intention. But if it is certainly established that a condition has been added to the substance of marriage, and especially to indissolubility or perpetuity, such nuptials are invalid. Cf. S. Off., 18 Dec. 1872; 9 Dec. 1874; 2 Oct. 1860; 29 Nov. 1882.

It will have to be investigated whether a condition contrary to the perpetuity and indissolubility of the conjugal bond, in some manner, directly or indirectly, explicitly or implicitly, was brought into the pact by the contracting parties, or whether the marriage was contracted with a depraved will of not consenting to a perpetual bond.

I. QUESTION I. Whether, that matrimony be valid, the consent of each spouse be required? ANSWER. All affirm it. That consent must needs be internal, sincere and not feigned, free and not forced, immune from error, public, and manifested by an exterior sign. For in no way does internal consent suffice, unless it be manifested by an exterior sign. Because that consent is the matter of the sacrament, which must necessarily be sensible. But that consent ought to be expressed outwardly either by words, or by nods clearly indicating the internal consent. Those nevertheless sin, as a rule, who being able to speak, words being omitted, employ nods or other signs. Except girls of excessive modesty, who today occur exceedingly rarely.

II. Consent feigned and simulated internally, although outwardly expressed by words, does not suffice for matrimony. He sins mortally who contracts feignedly and simulatedly, and is bound to consent truly and sincerely. Nor is credence given in any tribunal to one asserting that he contracted feignedly and simulatedly, nor is it to be given; but rather he deserves to be struck with penalties. And simulators of this kind are by no means to be absolved, until they have given true and sincere consent.

III. If a man contracted feignedly with the first, and afterwards the simulator contract with a sincere and true mind with a second, the ecclesiastical judge commands that he remain with the first: because judgment and right bring forth sentence according to those things which appear and are presumed. For the rest, if with the first the consent was in truth before God feigned, and sincere with the second, then let him rather (says St. Thomas, Suppl., q. 45, art. 4, reply 3) sustain excommunication than approach the first wife, or he ought to flee into other remote regions. For the second in this case would be the true wife. And when certain and undoubted arguments of the feigning with the former woman appear, then the ecclesiastical judge, a penance being imposed and the loss inflicted upon the former woman being repaired, ought to absolve the guilty party and to declare the first matrimony null.

IV. Offspring received from a feigned matrimony is to be held legitimate, until the feigning be proved, as all teach. When one of the spouses knows that a former matrimony dissolved by the judge's sentence is before God valid, he cannot enter upon a second marriage.

V. QUESTION II. Whether consent extorted by fear makes matrimony null? ANSWER. Theologians distinguish manifold fear. One is grave, which is conceived concerning some grave evil imminent, as death, exile, prison, mutilation; or it can be grave from the vehement apprehension of the one fearing. To a woman an evil can be grave which to a man is slight. Slight fear is concerning a slight evil, both in itself and in respect of the person fearing. Besides, one fear arises from a natural internal cause, which impels to act for the preserving of life, or for the fleeing of eternal punishment. Another proceeds from a cause acting outwardly. And this is twofold: for either the cause acting outwardly is only an occasion, as is a tempest of the sea in respect of a merchant; or the cause directly strikes in fear, as a robber who with drawn dagger threatens death, unless money be consigned to him. Moreover another fear is just, struck in by a judge or lawful superior from a just cause; as when a judge casts the violator of a girl into prison, and binds him to take her in matrimony. Another is unjust, which is struck in without a just cause. Another lastly is reverential fear, such as is that of children toward parents.

VI. Matrimony celebrated from grave fear unjustly struck in is null and void, as all confess: because that consent extorted by such fear fights with a perpetual concord of souls and with benevolence. This matrimony is null by ecclesiastical right, most consonant with natural right, as seems to me the more probable. Matrimony on the contrary from fear justly struck in, whether from a natural and internal cause or from an external one, is valid, just as matrimony celebrated from slight fear.

VII. Hence: 1. He who takes a concubine for fear of death contracts a valid matrimony. 2. He who, justly condemned to death, if he be sought in marriage by some woman that he may decline death, contracts validly. 3. Valid also is the matrimony of him who, the judge threatening death or prison, marries the woman he deflowered.

VIII. Sempronius, having suffered an injury from Titius by theft or another crime, threatens to accuse him before a judge unless he marry such a girl: the matrimony would be null, because Sempronius has no right of compelling Titius to marry such a girl, although he has a right of accusing him for the theft. He who under an unjust fear was compelled to marry is not bound to render the debt.

IX. Matrimony entered upon under compulsion becomes valid through free consent, provided that in the other party which contracted freely the consent persevere. Temporal lords and magistrates who directly or indirectly unjustly strike in grave fear, that they may compel someone to contract matrimony, are by that very deed excommunicated by the Council of Trent, session 24, chapter 9 On Reformation.

X. Consent limited by a condition makes matrimony null. Wherefore if anyone say, I take thee as my wife, if my father shall have consented, the matrimony is null, because the condition suspends the consent. General and necessary conditions, as if you say, I will marry thee, if it shall please God, in no way suspend the matrimony. If they be impossible or shameful, which do not infect the substance of matrimony, they are held as not added. All conditions which infect the substance of matrimony make it null, as are these: I take thee as mine, if thou shalt bear me no sons, if thou shalt avoid generation, if thou shalt take the poison of sterility, if thou shalt prostitute thyself to be an adulteress. I contract with thee until I shall have found a fairer or richer. These and like conditions destroy the very substance of matrimony, and make it null.

XI. If to matrimony or to betrothals conditions be appended concerning the present or the past, the condition being posited, the betrothals and the matrimony subsist; and the condition being taken away, the betrothals and the matrimony are null: as if you say, I take thee as mine, if thou be a virgin, if thou be the firstborn, if thy parents consent, if thou be noble, if thou be legitimate. If, the matrimony being consummated, it be detected that at the time of contracting she was not a virgin, nor legitimate, nor noble, nor firstborn, the matrimony is null; nor can carnal copulation make it valid. If anyone say, I take thee as mine, if it shall please thy father, and knew that the father was dead, the condition is held as not added. But if he was ignorant of the father's death, a new consent is necessary, that the matrimony be valid. For it is null by reason of the first conditioned consent, because the condition suspends the effect. If the father live and be silent, because the contract pleases him, then the matrimony is valid. If it be detected that he is silent because it displeases him, then the contract is null. If it be doubted why he is silent, the contract is to be suspended until he declare himself. If he consent, and afterwards dissent, the matrimony is valid, provided they persevere in the will of contracting until the father's consent. There is need nevertheless of prudence, and it is to be gathered from the circumstances regarded whether the father's consent was in fact full and true. Nay, prudence dictates that these conditions, as being wellsprings of doubts, are in a contract of so great moment — namely matrimony — altogether to be rejected; and that either one must contract absolutely, or abstain from such a contract.

XII. An honourable condition contrary to the goods of matrimony makes matrimony null; as if they contract under the condition of perpetual chastity, then no right to copulation is given. But this right being taken away, the matrimony is null. Nay, although there can be conjoined with matrimony an intention of not asking the debt, yet if this be brought into an agreement, the substance of matrimony is destroyed. The Blessed Virgin and the Patriarch Joseph contracted absolutely, and mutually transferred power over their bodies, no reciprocal agreement being added, although they had the mind of abstaining from all carnal copulation, God so illuminating their minds.

XIII. Those entangled in a diriment impediment who contract, the condition being added if the Pope shall dispense, effect a conditioned marriage; but conditioned marriages of this kind are never to be admitted, whether the impediment be of those in which the Pope is wont to dispense, or of another kind.

XIV. Consent is to be expressed by those formulas of words which according to the custom of the country declare a consent true, sincere, reciprocal, and of the present, such as are these: I take thee as my wife; I take thee as my husband, and so forth.

Titius and Caia, Catholics, had duly contracted betrothal and wished to enter marriage within a few weeks. Titius, twenty-two years of age, was numbered among the members of a certain theatrical company who wandered from place to place, and was not accustomed to remain in one place beyond a month. For about one month each year Titius returned to his father’s home in Scotland; at other times he was always wandering with his companions. Caia lived with her parents in Manchester. Titius fixed his residence for three weeks near the city of Liverpool, where he approached Lucius, a priest, and, after relating the aforesaid circumstances, asked him where he could celebrate the marriage and what must first be done according to ecclesiastical and civil laws. Hence it is asked:

1. Where must the marriage be celebrated?

2. How is domicile or quasi-domicile acquired and lost?

3. Where do children under parental authority have domicile?

4. What is to be said of the case?

1. Where should marriage be celebrated?

Marriage should be celebrated in the Church, and according to the decree Tametsi of the Council of Trent (XXIV c. 1, De Ref. Matrim.) in parishes where this decree had been published the presence of the proper parish priest of one of the parties and two witnesses were necessary conditions of validity. According to the decree Ne temere, which came into force April 19, 1908, marriage will be valid if it is celebrated before the parish priest of the place; for its lawfulness it should be celebrated before the parish priest of the bride; or by his permission, or that of the parish priest of the other party, or of the ordinary, it may take place before another priest. A parish priest acquires jurisdiction for the purpose of marriage if one of the parties has a domicile in his parish or has lived there for a month.

2. How is a domicile or quasi-domicile acquired and lost?

We saw above, p. 307 how they are acquired. They are lost when the two conditions which are necessary for their acquirement cease to exist— Omnis res per quascumque causas nascitur per easdem dissolvitur (C. 1, De Reg. Juris.).

The third question was answered above, p. 307.

4. The case. Titius retained his parental domicile in Scotland, and so, according to the Tridentine law, the marriage might have taken place before the parish priest of either of the parties, or before any other priest who had been delegated by either of them. According to the decree Ne temere, it should take place at Manchester before the parish priest of the bride. For good reason, it might be celebrated in Scotland before the parish priest of the bridegroom, or before any priest in whose parish Titius had lived for a month. The parish priest of either party, or their ordinaries, might give leave to any other priest to marry them in his parish. The banns should be published in the parish churches of both parties, and whoever marries them should have evidence of their freedom to marry. The requirements of the civil law must also be complied with. For those in force in England, see “ The New Marriage Laws,” by Rev. T. Slater, p. 9, C. T. S.

While the priest has nothing to do with the marriage ceremony in such cases, he will have to inquire into the validity of such unions if one or both parties after their marriage adopt the Catholic faith. For this inquiry he must regard not only the new decree Ne temere, but sometimes the previous law.

If such a marriage was entered before Easter, 1908, its validity is to be judged according to the older law.

When in the following the assistance of a Catholic parish priest is required it is to be understood to mean parish priest and at least two witnesses.

1. Marriage among Protestants (schismatics). Before the decree Ne temere the following distinctions were made:

(a) In non-Tridentine territories such marriages were undoubtedly valid regardless of the attendance of a Catholic priest.

(b) For certain districts special laws have been promulgated (so

‘for Hungary, Belgium, Holland, Germany), which made such marriages valid, but unlawful.

(c) For Tridentine territory marriages entered by two Protestants are variously viewed by canonists, who are not agreed as to whether the presence of the Catholic parish priest was necessary for their validity or not. The Roman canonists and Congregations declare themselves for the necessity of the Tridentine form in the case of such marriages.

The decree Ne temere puts an end to all doubts by deciding that marriages among Protestants (schismatics) may after Easter, 1908, be validly contracted throughout the world without a Catholic priest.

It no longer seems to require the assistance of a Catholic priest even for lawfulness, because it says “nowhere are they bound to the Catholic form of marriage.”

, 2 Marriages among Jews (unbaptized).

Ecclesia non judicat de iis, qui foris sunt. Jews who marry Jews were bound invariably by the jus naturae and divinum only, and never by Canon Law. Hence at no time Jews and unbaptized were bound by the Tridentine form of marriage, not even in Tridentine territory. Also under the new decree they marry validly and lawfully without parish priest and two witnesses (Num. XI, Par. 3, of the decree). Heathens, Mohammedans, in brief all unbaptized are in reference to the marriage laws classed with Jews.

3. Marriages among apostates.

‘Apostates are former Catholics or Protestants (schismatics) who have renounced their Christian faith; whether they have embraced another form of religion, or whether they live as free thinkers, is immaterial for the technical appellation. According to the former law apostates (without distinction as to whether they had formerly been Catholics or Protestants) were considered by the marriage laws the same as heretics. Therefore marriages of apostates were subject to the (above mentioned) regulations concerning marriages among Protestants. A distinction was made between Tridentine and non-Tridentine territory.

The new law is toward former Catholics more severe than toward apostate Protestants. If two apostate Catholics marry, their marriage can everywhere only be validly contracted before a Catholic parish priest (Num. XI, Par. 1, of the decree). If two apostate Protestants enter into matrimony the union is valid and lawful without a Catholic priest (Num. XI, Par. 3, of the decree). Should an apostate Catholic desire to wed an apostate Protestant, then as a rule a valid ceremony can take place only before a Catholic priest; exception being made only for exempted places (Num. XI, Par. 2, of the decree).

What if such persons present themselves before a Catholic parish priest to be married? What is he to do? The impediment of religio mixta is not present, for in that regard both parties are regarded as heretics. Neither is there the impedimentum disparitatis cultus. The ratio dubitandi is in this case really only, (a) the excommunication, of the candidates for Matrimony, preventing the reception of a Sacrament of the living, and, (b) the co-operation of the priest at an unlawful wedding of this kind. Hence the priest will endeavor first of all to reclaim the apostate persons for the true religion, that they may be absolved from the censure. Should this be futile, then he must lay the case before his Bishop. Pope Pius VI in a similar case gives to the ordinary instructions to apply to Rome (Aichner, Comp. Jur. Eccl., 1890, p. 666, nota 28). The case is really analogous to the marrying of impenitent candidates whom the priest tries in vain to bring to a proper frame of mind. Hence the Bishop could in my opinion, in an urgent case, even give of his own authority the decision warranted by the circumstances.

4. Marriages among infidels.

Three kinds of infidels may here be distinguished: Those who formerly were Catholics, those who were Protestants (schismatics), and, former Jews or persons from childhood without Baptism and religion.

If both infidel parties are former Catholics, their marriage before the decree Ne temere was regarded the same as the union of two Protestants; the new law regards the marriage only as valid, everywhere, if performed before a Catholic priest (Num. XI, Par. 1, of the decree). When two infidels, former Protestants, marry, the old law likewise regarded them the same as Protestants. Corresponding to the new decree they can validly and lawfully marry everywhere without a Catholic priest (Num. XI, Par. 3, of the decree).

Two unbaptized infidels could formerly, and can now, be validly and lawfully married without a Catholic priest (Num. XI, Par. 3, of the decree).

An infidel who has been a Catholic, married to an infidel formerly a Protestant, are according to the older law regarded the same as Protestants. Under the decree Ne temere they can only be validly married before a Catholic priest, except in exempted places (Num. XI, Par. 2, of the decree). The impediment of religio mixta is not present here because both are regarded as heretics; neither of course the impediment disparitatis cultus.

If a former Catholic, now infidel, wishes to wed an unbaptized infidel party, the former Canon Law regarded it the same as a marriage between Protestant and Jew. The new law requires for the validity of the ceremony that it shall take place before a Catholic parish priest except in exempted places (Num. XI, Par. 2, of the decree). In this case the impediment disparitatis cultus is not to be overlooked.

The marriage between an infidel, former Protestant, and an unbaptized infidel was by the older rule regarded the same as a marriage between Protestant and Jew. The new decree allows their union as valid everywhere without a Catholic parish priest (Num. XI, Par. 3, of the decree), provided the impediment of disparitas cultus has been removed.

Should infidels who formerly were Catholics or Protestants come to a Catholic parish priest to be married, our remarks above, under marriages of apostates, about such a contingency would also apply in this case.

Alois Schmöger, D.D.

Illicit relations with Caius, a gentleman of high standing, have not remained without consequences for Amelia. For the sake of his own reputation Caius urges Amelia to marry Brutus, for whom she does not care; eventually, however, she does marry Brutus. Is this marriage valid? What grounds are there for and against its validity?

In this case the question arises whether the impediment of compulsion invalidates this marriage. To answer this is not an easy matter, owing to the lack of an exact account of the circumstances. First of all we must presume that Amelia gave actual consent. Should her aversion for Brutus have moved her to give only pretended consent at the marriage, no doubt could exist that the marriage is invalid. We presume then that she gave her consent; it was, however, induced by fear. Now Impedimentum Metus invalidates the marriage if the fear is great, unjust, and caused for the purpose of entering the marriage. By unjust it is understood that it must have been occasioned by another person. For the fear that arises only from one’s inner self, ab intrinseco, does not make a contract invalid, so long as there exists sufficient deliberation. Ab intrinseco is the fear that proceeds from the matter itself, and not from the person who threatens. D’Annibale, I, n. 138, well expresses it thus: “It is called intrinsic when the thing itself causes fear; extrinsic when another inflicts fear in order to extort consent.” Hence not only is the fear of an illness, the symptoms of which we observe in ourselves, ab intrinseco, but also the fear of infection, the fear of a thunderstorm, of a storm at sea, of hell-fire, etc. Fear such as this may move us to do things which we do not like to do, nevertheless it leaves our power of determination quite intact, we do something, and will to do it, although with an effort. If, however, the fear is due to the threat of another person, then a certain exterior compulsion is present, which, though it leaves us freedom of will and deliberation, induces an action which is not so much dictated by our will as by the pressure upon us. Hence Alexander II says, in De Sponsalibus: “Since consent has no place where fear or compulsion intervenes, it is necessary that, wherever someone’s consent is required, the occasion for compulsion be repelled.” When, however, there is metus ab intrinseco, then he decides for the validity of the act, for instance, De Regularibus, c. 17.

Hence it is evident that the impedimentum metus imposed by the Church applies only to the fear of a threat if it is unjust, 1. If no just claim exists for the marriage, and 2. If the evil threatened can not justly be inflicted. Therefore if a bride forces her tardy betrothed, by threats of legal action, to marry her, she is justified in so doing; also if a judge gives the seducer of a young girl the choice to marry her, or to go to prison, the resulting fear is just, and does not, therefore, render the induced consent invalid.

Let us now solve our present casus. A marriage between Amelia and Caius apparently is out of the question, either because of inequality of station or because Caius is already a married man. (there is no mention of social injury resulting for Amelia from her relations with Caius). Therefore a love for Caius is not the reason for her aversion to Brutus. Caius urges or, as is understood here, compels, Amelia to a hasty marriage with Brutus, but by what means? If he only points out to her the disgrace that will befall him and her, and if Amelia is thus induced to marriage, there would be no impedimentum metus—such fear would be ab intrinseco. Should he, however, threaten to do her harm, or to disgrace her, then there would be the impediment of fear; the fear being great, unjust, and compelling to marriage.

We may suppose the case to be practically as follows:

Caius has a large household in which Amelia is servant, and likewise Brutus. Brutus, though knowing of her condition, is willing to marry Amelia, out of regard for his master and for his own benefit, but Amelia does not want him. The master threatens dismissal and withdrawal of support. Amelia sees a hard future before her, and in order to escape this hardship, she gives her consent. Under these circumstances the impediment of fear would be present.

There is a considerable misfortune threatened unjustly, because Caius should justly provide for the expected infant, and the purpose of the threat is to induce marriage. Should the master, however, be willing to do in any case his duty in regard to Amelia, and only threaten to discontinue his special generosity, then there would be no injustice (in the particular threat) and therefore no impediment.

The confessor should, therefore, closely question Amelia without saying anything about an invalidity of the marriage. Should he find that the impedimentum is undoubtedly present, he should meanwhile not disturb the bona fides, but examine into the whole situation as to whether an agreement between Amelia and Brutus can not be induced. If Amelia can be moved to consent actually, Brutus being still agreeable, nothing further is required, because the causa metus is then certainly removed. But if Amelia of her own will insist upon a separation, the confessor must refer her to the bishop, because then the whole case belongs to the forum externum,

In this solution Brutus’ previous knowledge of Amelia’s condition is presupposed; otherwise we should have to discuss the wrong that Caius and Amelia inflicted upon him.

W. Stentrup, S.J.

Silvia, when receiving the last Sacraments, confesses that in her younger days she had unlawful relations with her present husband Claudius, but also with one Ignotus, and that her relations with the latter had not been without consequences. A marriage with Claudius offering better prospects she led him to believe that he was responsible for her condition. Accordingly, on this condition, he married her, she declaring that he was the parent of the expected child. They have been married for many years, and more children have been born to them. The child conceived before the marriage is also living.

How about the validity of this marriage?

There can be no impedimentum erroris. According to Canon Law such error is essential only which excludes the necessary consent jure divino (the error conditionis servilis forms an exception)—this would apply in the case of an error of person. The error of person, an error of identity, however, annuls the consent, only under certain suppositions; the intention must be absent. The error in quality, though always accompanying the error of identity, differs essentially from it, and does not take away the validity of the contract, not even if the quality about which there is error is of decisive influence upon the resolution to consent; the consent is not excluded. The important so-called error qualitatis in personam redundans is not merely an error in quality, but a special kind of error in person.

The error in our case is merely an error in quality—Claudius erred concerning the paternity of the child—though the error influenced his resolution.

The marriage is therefore not invalid because of error. Let us inquire whether it is invalid by reason of non-fulfilment of a stipulated condition.