The Power of the Church Over Matrimony

513. On the Power Itself. Since the few laws which exist from natural and divine law concerning matrimony do not suffice for ordering this contract, equally frequent and entangled with difficulties, it is asked whether God has entrusted the power of making laws concerning matrimony to ecclesiastical or civil authority. But to the Church and to it alone, not by concession of civil authority but by its own right, belongs power over the marriages of the faithful.¹ And indeed, to the Church and to it alone there has been committed by God the power of administering the sacraments and therefore of determining what is required for validly and licitly conferring and receiving the sacraments; but the matrimonial contract is a sacrament; therefore it pertains to the Church alone to determine what is required for validly and licitly entering the matrimonial contract. From this general canon it is inferred in species that the Church alone has power:

a. of positively prescribing conditions (rite, solemnities), which are required for the valid and licit celebration of matrimony;

b. of establishing diriment impediments;

c. of establishing prohibiting impediments;

d. of adjudicating matrimonial causes, and indeed:

concerning the value and nullity of matrimony, whether to be contracted or already contracted;

concerning the dissolution of matrimony;

concerning the separation of spouses from bed and table; for there is question of judging an obligation which immediately arises from matrimony itself;

concerning the legitimacy of offspring; for there is question of an effect which immediately results from valid matrimony.

Note. a. Concerning this matter a threefold error must be noted.

The error of Protestants, who deny that matrimony is a sacrament, and accordingly adjudge the power of ordering matrimony, as a simple contract, to civil authority.

The error of those Catholics who concede that matrimony is a sacrament, but in it really distinguish contract from sacrament and contend that the contract is subject to civil power alone, but the sacrament to ecclesiastical power. But if the Church in fact for centuries, by establishing diriment impediments, has exercised power over the matrimonial contract, they say this arose from usurpation and tacit concession of rulers.

The error of those Catholics who indeed do not really distinguish between contract and sacrament, but nevertheless attribute the power of establishing diriment impediments both to the Church and also, with the Church consenting, to the civil power. But if in fact the Church alone establishes diriment impediments, this was done, they say, because the Church reserved this power to itself.

b. Against these errors the certain doctrine of the Church must be urged. In matrimony the aspect of sacrament cannot be separated from the aspect of contract. Therefore the power of ordering matrimony, by making laws concerning it, belongs to the Church alone.

This power of the Church does not belong to it from concession of rulers, nor from a positive law by which the Church reserved this power to itself, but from divine law immediately granted to it by Christ the Lord.

Article Five.. On the Power of Civil Authority Over Matrimony.

The power of civil authority must be considered in relation to the matrimony of the faithful and in relation to the matrimony of infidels. Moreover the supreme ruler whose power over matrimony is to be examined can himself be faithful or infidel.

¹ Cn. 1016.

514. Over the Marriages of the Faithful. 1. Civil power has no right with respect to the marriages of the faithful, and consequently it can establish neither diriment nor prohibiting impediments, nor decree anything concerning the essential effects of matrimony; therefore it cannot effect that marriages of the faithful are per se either invalid or illicit. Reason dictates this, and the declaration of the Church confirms it.¹

But if civil power nevertheless establishes something concerning matrimony which is not evil in itself, the faithful not only can licitly comply with it, but it must also be enjoined upon them to observe the conditions which civil power prescribes for valid or licit matrimony; not because those conditions directly oblige in conscience, but lest the marriages of the faithful lack civil effects to the detriment of themselves and their children. Therefore indirectly, from charity toward themselves and their children, they are held to observe those laws.

2. Although civil authority cannot exercise influence over the essential effects of matrimony, nevertheless it can rule the civil effects of matrimony by its own power.² The reason for the first: he who judges concerning the matrimony itself and its value must also judge concerning those things which necessarily follow from it. The reason for the second: since matrimony is a social contract, it also produces civil rights and obligations, which are commonly called civil effects; now civil power, and it alone, makes laws concerning these effects, that is, can determine them and for a just cause deny them to certain marriages.

a. Some effects of matrimony are essential, others civil. Essential effects are: the obligation of cohabiting, paternal power over children, and the legitimacy of offspring. These effects are called essential because they necessarily follow from the matrimonial contract itself. The civil effects of matrimony, which by proper right pertain to political power, are: the contract of the spouses concerning temporal goods; the right of wife and children to participate in the goods, dignities, and titles of the husband or father; the right of succeeding as legitimate heir to the goods of the deceased; the amount of dowry, the amount of the legitimate portion, etc.

b. Political laws by which the civil effects of matrimony are ruled oblige in conscience; for they are laws made by competent authority for the common good; therefore nothing is lacking to them by which they would fail to oblige in conscience.

c. Which marriages are valid and which invalid, political power must learn from the Church; now to marriages which are held valid by the Church, it is held per se to grant civil effects, and to those which are held invalid by the Church, it is held per se to deny them. But if a matrimony which is valid in the face of the Church were truly contrary to the common good, political power cannot deny civil effects to such matrimony, but it must be left to the Church itself to meet the difficulty.

¹ Cn. 1016. Cf. Pesch VII, n. 881.

² Cn. 1016.

515. Over the Marriages of Infidels.¹

a. The practical importance of this question increases day by day; for not only do Catholic missionaries continually enter new regions of infidels and lead their inhabitants to the Christian faith, but the lands of infidels are from time to time also subjected to the power of Christian rulers; indeed among the faithful themselves the number of those who do not even care to have their children baptized grows day by day; these therefore live in the manner of infidels.

b. There is controversy whether the marriages of infidels are subject to civil power. The older theologians indeed, Sanchez, Pirhing, Schmalzgrueber, Suarez, etc., defended the affirmative opinion as true and certain. Afterward, however, especially in the past century, several theologians, Perrone, Taparelli, Liberatore, Zigliara, etc., attacked this doctrine, denying to civil authority the power of making laws concerning the matrimonial contract of infidels. Today nevertheless the affirmative opinion has again become common among theologians; D'Annibale, Ballerini, Gasparri, Lehmkuhl, Rosset, De Becker, Leitner, Wernz, and others uphold it. Yet not all explain it in the same way; for some think that civil authority by its own right can make laws concerning the marriages of its infidel subjects, since matrimony is a natural contract; others, on the contrary, teach that civil authority indeed by its own right rules the marriages of infidels, but not by force of merely civil power, since matrimony is a sacred thing, but by force of religious power, which in an infidel ruler is connected with that power. For in a society in which there is no religious authority distinct from civil authority, it belongs to the civil power to order sacred things, not as it is civil, but as it is at the same time religious. Finally, others think that civil authority can order the marriages of infidels not by its own right, but by a right devolved per accidens; for since in society there must be a power which can order the matrimonial contract, but the religious authority to which that power properly belongs does not exist in an infidel ruler, that power is devolved per accidens and by reason of necessity to the authority which alone legitimately presides there, namely to civil authority.

Assertion. Civil power has the right of ruling marriages of infidels among themselves; therefore it can establish diriment and prohibiting impediments, provided they are not opposed to natural law, and it can also adjudicate their matrimonial causes.

The arguments for this opinion are these.

1. The matrimony of infidels is a natural contract; but every natural contract, besides the norms of natural and divine law, is ruled by the laws of civil power; therefore the matrimony of infidels is ruled by the laws of civil power, whether by its own right or by a transferred right, just as also an oath and sacrifice in societies of this kind are ruled by civil authority.

2. Besides the norms of natural and divine law, matrimony requires several positive laws; for innumerable inconveniences would follow if the marriages of infidels were ruled by the laws of natural and divine law alone; therefore there must be an authority which makes laws concerning the marriages of infidels; but besides civil authority there is no other which can make laws of this kind.

3. Although the Church has not explicitly manifested its mind concerning this question, nevertheless it favors this opinion; for from the declarations of the sacred congregations it is gathered that it holds as invalid the marriages of infidels to which a diriment impediment established by civil power stands opposed.² Hence it is that missionaries also in places of infidels judge the marriages of those who are converted to the faith according to this opinion.³

Question Two.. On the Properties of Matrimony.

There are two principal properties of matrimony which arise from its nature: the unity and the indissolubility of matrimony.⁴

¹ Cf. Resemans, De competentia civili in vinculum coniugale infidelium (Rome: Desclee, 1887). Leitner, p. 26 ff.

² S. C. de Propaganda Fide, June 26, 1820.

³ Gasparri I, n. 284. Wernz IV, n. 75 ff.

⁴ Cn. 1013, 2.

“Since Matrimony is sacred by its own force, its own nature, and of itself, it is fitting that it be governed and regulated not by the command of rulers but by the divine authority of the Church, which alone possesses the magisterium of sacred things. Next, the dignity of the Sacrament must be considered, by whose accession the Marriages of Christians became exceedingly noble. But concerning a Sacrament, the Church alone, by the will of Christ, can and ought to establish and command, so that it is plainly absurd to will that even the smallest part of her power be transferred to the governors of the civil commonwealth.” Leo XIII, Encyclical Arcanum, 10 February 1880.

819. Some theologians think that the State does not have power to make laws concerning the marriages of infidels, because these, although they are a mere contract, bear something religious before themselves, and moreover it is greatly to be feared that the State, if a power of this kind is conceded to it, may transgress just limits and invade the sanctuary of the family and of religion.²

² Thus Perrone, De Matrim., II, 439 sq.; Feije, de Impedimentis, n. 67.

The common opinion, however, holds that this power belongs to the secular prince, so that he can establish diriment impediments for the common good. (a) For this was openly declared by the Sacred Congregation de Propaganda Fide in an Instruction which was issued in the year 1821:³ "Although among infidels marriage is true, nevertheless it can be referred only to the office of nature and of the community, and therefore is plainly to be moderated by natural and civil law. It follows from this that secular princes, whether faithful or infidel, retain the fullest power over marriages of their infidel subjects, so that, by impediments being imposed which are not contrary to natural and divine law, they may rescind the same completely not only as to civil effects, but also as to the conjugal bond." This was also confirmed by several decisions of the S. C. P. F. and of the Holy Office.

³ Ap. Collectanea, n. 1447, with note. Cf. Resemans, De competentia civili in vinculum conjugale infidelium, Rome, 1887; Cavagnis, l. c., n. 185; Gasparri, op. cit., n. 287 sq.; Sasse, II, p. 470.

(b) For princes can determine all those things which pertain to the common good of civil society, provided that the matter of which there is question, as being sacred, has not been withdrawn from their authority. But it especially concerns civil society that there exist a certain norm constituted by public authority, according to which marriages are rightly contracted; for by the law of nature this was not sufficiently determined in certain circumstances. Moreover, the marriage of pagans, although in some regions it is accidentally consecrated by some religious rite, nevertheless is not a sacrament, nor was it subjected by Christ to the authority of the Church, since the Church vindicates to herself no direct right over marriages of this kind. Therefore civil power can make laws concerning this matter. Nor indeed can the right of princes be denied because they can abuse it; otherwise, how many rights would remain untouched? Nor ought we to be wiser than the Roman Congregations themselves.

65. In no way can it be maintained that Christ raised marriage to the dignity of a Sacrament.

Apostolic Letters Ad Apostolicae, August 22, 1851.

66. The Sacrament of Marriage is nothing except something accessory to the contract and separable from it, and the Sacrament itself is situated in one nuptial blessing only.

Apostolic Letters Ad Apostolicae, August 22, 1851.

67. By the law of nature the bond of marriage is not indissoluble, and in various cases divorce properly so called can be sanctioned by civil authority.

Apostolic Letters Ad Apostolicae, August 22, 1851. - Alloc. Acerbissimum, September 27, 1852.

68. The Church does not have the power of introducing impediments diriment of marriage; but that power belongs to civil authority, by which existing impediments are to be removed.

Apostolic Letters Multiplices inter, June 10, 1851.

69. The Church in later centuries began to introduce diriment impediments, not by its own right, but using that right which had been borrowed from the civil power.

Apostolic Letters Ad Apostolicae, August 22, 1851.

70. The canons of Trent which inflict the censure of anathema on those who dare to deny to the Church the faculty of introducing diriment impediments either are not dogmatic, or are to be understood concerning this borrowed power.

Apostolic Letters Ad Apostolicae, August 22, 1851.

71. The form of Trent does not oblige under pain of invalidity where the civil law establishes another form and wills marriage to be valid with this new form intervening.

Apostolic Letters Ad Apostolicae, August 22, 1851.

72. Boniface VIII was the first to assert that the vow of chastity emitted in ordination renders marriages null.

Apostolic Letters Ad Apostolicae, August 22, 1851.

73. By force of a merely civil contract, a marriage of the true name can exist between Christians; and it is false either that the contract of marriage between Christians is always a Sacrament, or that there is no contract if the Sacrament is excluded.

Apostolic Letters Ad Apostolicae, August 22, 1851. - Letter of His Holiness Pius IX to the King of Sardinia, September 9, 1852. - Alloc. Acerbissimum, September 27, 1852. - Alloc. Multis gravibusque, December 17, 1860.

74. Matrimonial causes and betrothals by their own nature pertain to the civil forum.

Apostolic Letters Ad Apostolicae, August 22, 1851. - Alloc. Acerbissimum, September 27, 1852.

N.B. To this point can pertain two other errors, concerning abolishing the celibacy of Clerics and concerning preferring the state of marriage to the state of virginity. The former is struck down in the encyclical letter Qui pluribus, November 9, 1846; the latter in the Apostolic Letters Multiplices inter, June 10, 1851.

823. State of the question. - The governance of matrimony brings with it the right and power of commanding, judging, and punishing in matrimonial things and causes. It affects not only matrimony itself in its coming to be and in its fact of being, but also all things which antecedently, concomitantly, or subsequently are connected with it, which are required for it or impede it, and its obligations and effects, whether inseparable or separable, whether spiritual and moral, or temporal or civil. But since matrimony is ordered to a manifold good: to the private good of the spouses, to the good of the family, and also to the public good of civil society and of the Church, it follows that it can be subject to diverse governance. The words of St. Thomas are very well known, c. Gent. IV, 78: "It is fitting that... it be directed by diverse authorities. Therefore, insofar as it is ordered to the good of nature, which is the perpetuity of the species, it is directed to its end by nature inclining toward this end, and thus it is said to be an office of nature. But insofar as it is ordered to the political good, it is subject to the governance of civil law. But insofar as it is ordered to the good of the Church, it is fitting that it be subject to ecclesiastical governance." Hence it is asked under what diverse aspect it pertains to ecclesiastical and civil governance; for it is not enough to say that it is governed by natural and divine law: since this is for the most part vague, indeterminate, and incomplete, it must be determined and completed by human social authority.

Now then:

A. As to the matrimony of Christians:

1° Luther and other Protestants taught that it is not a sacrament but a civil and political contract, and therefore that matrimonial causes pertain to secular judges; for which reason not the Church, but only the civil power, can establish impediments diriment of matrimony. This the Council of Trent condemned, sess. 24, can. 3 and 4.

2° In the seventeenth century, Marcus Antonius de Dominis, an apostate, in the book De Republica Christiana (a. 1617), and Launoy, a Parisian doctor, in the work De regia in matrimonium potestate, said that the sacrament and the matrimonial contract are altogether distinct; that the Church can make determinations concerning the sacrament, but not concerning the contract, except from the consent of princes; that the contract, namely, as being merely civil, is subject to the political power, and that when it is itself made invalid, the sacrament does not subsist, since the matter is lacking. And Launoy adds that the Tridentine canons are disciplinary, not dogmatic. This system the Holy See condemned, September 10, 1668.

3° In the middle of the eighteenth century, many civil jurists and also the Jansenists and their Synod of Pistoia, celebrated in 1786, propagated the same doctrine, which Pius VI condemned in 1794; and during the course of the French disturbance, legislation came forth which considers matrimony as a merely civil act. This error, renewed by Fr. de Paula Vigil, a priest of Lima in the Peruvian republic, and by Nuytz, a professor of Turin, Pius IX respectively condemned on June 10 and August 22, 1851, and in the Syllabus, props. 68-70.

4° Several Catholics, as P. Soto, Catharinus, Sanchez, Pichler, Zech, formerly held that matrimony is subject to a twofold governance: namely, of the Church insofar as it is a sacrament, and of the civil law insofar as it is a contract, and not only as to merely civil effects, but also as to liceity and validity, so that, just as the Church, the civil power also itself could establish prohibiting or diriment impediments.

B. As to the matrimony of unbelievers, which cannot be subject to the authority of the Church, several Catholics also denied to the civil authority every power over it, under the pretext that by nature it is not profane but religious and sacred.

C. As to mixed matrimony, between a faithful person and an unbeliever, it can be asked why it is subject to the power of the Church, and, even granting this, whether it is not at the same time subject to the civil authority to which the unbeliever is subject.

824. Principle I. The matrimony of the baptized is governed by law not only natural and divine, but also canonical, with the competence of the civil power preserved concerning the merely civil effects of the same matrimony. Thus can. 1016.

1° That the Church can govern the matrimony of the baptized is of faith from the Council of Trent, sess. 24, can. 3, 4, 9 and 12; these canons are not merely disciplinary but dogmatic, since they do not treat of those things which are to be done, but of the very power of the Church, and intend "to exterminate the heresies and errors of schismatics"; - that it does this by its own and native right, not by a right derived from the civil power, is clear from the Constitution of Pius VI Auctorem fidei, in the propositions of the Synod of Pistoia 59 and 60, where the opposite doctrine is condemned as heretical and subversive of the canons of the Council of Trent, and from props. Syll. 68-70.

This is proved from the manner of acting of Christ and the Apostles (Mt. V and XIX; Lk. XII, 14; I Cor. VII); - from the practice of the Church at least from the sixth century, exercised for the most part without the connivance of the civil power, as Leo XIII shows in the encyclical Arcanum; - and from the nature of the thing, because matrimony is a sacred thing, as being a sacrament, and for this reason subject to the power of the Church.

2° That the Church governs the matrimony of the baptized by full and exclusive right is certain from Pius VI interpreting the Council of Trent, can. 12, thus, and declaring that all matrimonial causes pertain to the Church alone (September 16, 1788); likewise from prop. 74 of the Syllabus, from the encyclical of Leo XIII Arcanum, and from can. 1960.

This is proved both from the continual practice of the Church, which never acknowledged this power in princes; - and from the fact that the matrimonial contract itself was elevated to the dignity of a sacrament, whence the civil power could not govern the contract without by that very fact touching the sacrament, but sacraments are not subject to temporal power; - and because it implies a contradiction for the same matter to be subject to two supreme and independent powers, since they could establish contrary things.

Nor is it an obstacle that matrimony is ordered not only to spiritual but also to bodily good; because the Church, in governing matrimony, can and ought to attend not only to spiritual but also at the same time to bodily good.

3° That the civil power by its own right is competent as to merely civil effects is certain, as is clear from the nature of the thing itself and from the formal recognition of the Church.

This is proved from the fact that civil effects in the present matter are not understood as effects of the temporal order essential to matrimony and inseparable from it, but as merely civil and separable effects. But these depend essentially on civil law itself, such as the dowry of the wife, the nuptial gift, the governance of temporal goods, hereditary succession at least for the greater part, civil privileges, etc. Whence, from the nature of the thing, they are governed by the civil power by its own right; and only if they are treated incidentally and accessorily can they also be known and defined by the ecclesiastical judge from his own power (can. 1961).

From the things said, they are accustomed to conclude that the governance of the matrimony of the baptized, civil effects excepted, pertains exclusively to the Church by divine right; and that, by that very fact that the conjugal contract was carried up to the dignity of a sacrament, the right of the civil power over it was withdrawn, on account namely of the concurrence of a higher right to which it ought to yield. Hence the opinion of several Scholastics now seems to have been abandoned (as Sanchez, the Salmanticenses, Billuart), who said that matrimony as a sacrament is governed by the Church, but as a contract is of itself governed by the civil power; but that the Church can, if it has judged it opportune, call matrimonial causes to itself and reserve them to itself, and has done this, and therefore now those causes pertain exclusively to it by ecclesiastical law. For this opinion would be reconciled with difficulty with the words of Leo XIII: "the dignity of the sacrament must be considered, by whose accession the marriages of Christians have become far most noble. But concerning the sacraments to establish and command, so from the will of Christ, the Church alone can and ought to do, that it is plainly absurd that even the least part of its power has been transferred to the governors of the civil state." Nevertheless we confess that, for satisfying several of the arguments adduced, it is strictly sufficient that the right belong to the Church of reserving all matrimonial matters to itself.

825. Principle II. The matrimony of unbelievers is governed not only by natural and divine law, but also by civil law. - That the governance of these marriages pertains exclusively to the civil power, with natural and divine law preserved, is clear from various documents of the Church, e.g., S. Off., October 29, 1739 and September 20, 1854; S. C. P. F., October 8, 1631 and June 26, 1820; - that it pertains to it of itself and by its own right seems truer.

This is proved: a) because to the civil power pertains the right of governing natural contracts insofar as they have importance for the common good, but the matrimony of unbelievers is a natural contract which has the greatest importance for the common good; - b) because it is necessary for the common good that matrimony be governed by positive human law, since natural and divine law is too indeterminate; whence great inconveniences would follow if the marriages of unbelievers were subject only to the laws and impediments of natural and divine law: but it cannot be governed except by the civil power, since the Church cannot have any jurisdiction over unbelievers and their marriages. Whence among all nations, at least cultivated ones, there has been civil legislation concerning marriages.

Nor is it an obstacle to this that matrimony of itself naturally is something sacred and religious. For a) it is not intrinsically sacred but merely extrinsically (n. 775, 4°); b) in the natural order there would not be a twofold perfect society, one civil, the other religious, as now in the supernatural order the Church exists; but there would be one society which would care for all human affairs for leading men into happiness. But since unbelievers do not actually pertain to the supernatural order and to the Church, the right of caring for all things has not ceased for them in the civil power, just as from it has been taken away the care of Christians concerning religious affairs.

826. Principle III. Mixed matrimony, between a faithful person and an unbeliever, on the part of the faithful person is governed by canon law; but whether besides this, on the part of the unbeliever, it is also governed by civil law, can be doubted.

1° That the Church can govern matrimony between a faithful person and an unbeliever, and indeed by its own right, is certain from the very constant practice of the Church, and from various canons, e.g., 1119 sq., 1036, § 3, 1070, 1962.

It is proved because the matrimony of a faithful person connaturally and of itself is a sacrament, ordered to the good of the Church; whence it is to be governed by the law of the Church, by which the faithful person is directly bound, while the unbeliever is touched indirectly, insofar as the matrimony does not limp.

It is no obstacle that in the case the matrimony is not a sacrament; for this is merely per accidens, on account of the unbeliever in whom there is an obstacle, namely, the absence of Baptism. Rather, it is the inchoation of a sacrament, because on the part of the faithful person all things necessary for it are posited, and it is in a state altogether proximate to completion, so that when the Baptism of the other party accedes, by that very fact a perfect sacrament exists.

2° That the Church can exclusively govern matrimony between a faithful party and an unbelieving party is the opinion of many, because it is impossible that one individual matrimony be governed by two distinct powers; but in the collision of rights the higher right of the Church prevails, to which it is necessary that the lower right of civil society yield.

Nevertheless several teach that a matrimony of this kind is governed both by the Church and by the civil power, whence they hold that it is impeded both by ecclesiastical impediments which directly touch the faithful person, indirectly the unbeliever, and by impediments, if there are any, established by civil law, which directly bind the unbeliever, indirectly the faithful person, insofar as the matrimony does not limp.

827. Corollaries. - From the foregoing it follows:

1° That the civil power cannot determine concerning the value, liceity, or essential effects of the matrimony of Christians, nor prescribe conditions, form, or solemnity for the celebration of matrimony or espousals, because those things are reserved to the Church, but can touch only separable temporal effects, or merely civil effects; - the contrary holds for the matrimony of unbelievers.

2° Nor can it establish diriment impediments or even merely prohibiting ones for the marriages of Christians; - the contrary holds for unbelievers.

3° Nor can it abrogate impediments established by the Church or dispense in them.

4° Consequently, it cannot directly and absolutely prohibit matrimony to the baptized, even for eugenic reasons, lest namely offspring be contaminated by hereditary infirmity to the detriment of the people; - indeed, neither can it do this for unbelievers, just as neither can the Church do it for the baptized, because it is against the primary natural right which each one has from nature to matrimony, antecedently to every human society; - nevertheless, in matter subject to itself it can establish something (e.g., the imprisonment of a guilty person) by which indirectly and per accidens someone is impeded from entering matrimony.

5° Nor can it impose upon the baptized (although it can advise) a medical examination or inspection as a condition without which matrimony is interdicted or not recognized, or is deprived of its effects, because this is equivalently to establish an impediment and to prohibit matrimony; and therefore neither can it do this to unbelievers, if it would imply the interdiction of matrimony for those for whom the testimony of a physician would not be favorable; - the contrary holds if it were done only to urge the natural obligation of revealing harmful defects to the other party before matrimony, without inhibition of matrimony, although even this does not seem opportune.

6° On the contrary, it can promote and urge the very laws of the Church concerning matrimony, and punish crimes which are opposed to the moral law concerning matrimony, such as adultery, polygamy, divorce, insofar as they are opposed to the common good, with due subordination, however, to the power of the Church; - yet not directly in order to matrimony itself.

7° Laws passed by the civil power beyond its competence are invalid and of themselves do not bind in conscience.

8° Nevertheless, generally Christians are bound to them, insofar as they do not stand in the way of natural and divine law, lest namely they themselves be deprived of civil effects and be made liable to graver damages.

828. Notice. - From the words of St. Thomas, q. 50, a. un., ad 4: "Matrimony, insofar as it is an office of nature, is established by the law of nature; insofar as it is a sacrament, it is established by divine law; insofar as it is in the office of the community, it is established by civil law," the power of civil society to govern Christian matrimony insofar as it is constituted for the common good cannot be deduced. For St. Thomas himself does not admit that the civil power can establish impediments of matrimony without the approval of the Church, since q. 57, a. 2, he says: "Such a prohibition is approved by the Church; and hence it is that legal kinship impedes matrimony"; and ad 4: "The prohibition of human law would not suffice for an impediment of matrimony, unless the authority of the Church intervened, which also interdicts the same thing." Whence the text is to be understood, as to the matrimony of Christians, concerning civil effects; nevertheless it seems to intimate that certain marriages are governed by civil authority, which St. Thomas acknowledges in establishing impediments among unbelievers: "Among unbelievers there is matrimony... insofar as it is in the office of nature. But those things which pertain to the law of nature are determinable by positive law, and therefore if by some positive law among unbelievers it is prohibited to contract matrimony with unbelievers of another rite, disparity of worship will impede matrimony between them" q. 59, a. 2, ad 3.

In publishing a treatise on Marriage, now polished with a second care, we are surely conscious that we are treating that head of Catholic doctrine which is of the greatest moment and, especially in our age, demands most exact study and most exquisite diligence. For the matter at issue is one which, although it pertains properly to the Church, also touches civil society and pervades the family; from which it has come about that civil powers have not hesitated to assert for themselves a right over that which the Church testifies has been committed by God to herself alone, and thence a struggle of human authority against the divine authority of the Church has broken forth. But besides a dissension of this sort, which is due indeed partly to ignorance, but most of all to the malice under which certain men labor, who in these times preside, to our harm, over public affairs; if we wish to search out the cause and root of this very malice, there will appear another, deeper and more universal stain of evil, which strives to overthrow the divine right of the Church and the divine institution of marriage. It is that unbridled license, impatient of every obligation, which, first wandering and diffused, now reduced into a certain order and system,

attacks the foundations of civil and religious society and, while it turns all things upside down, abusing the divine gift of reason, endeavors also to shake the sanctity of marriage and to prostitute the chaste union of man and woman to ungoverned lust. For men in this our age do not merely wish to indulge their desires, but besides this they claim for themselves a right to fulfill them, and compel reason, if it can be done, to patronize their vices and to illumine with specious lights what is base and wicked. Now that opinion is spread abroad in books and resounds also in schools, which formerly was veiled by the darkness of mysteries and brothels. It is, namely, the doctrine of libertines, to which an atheistic society, having nothing to oppose, yields obedience even unwillingly: that the end of the coming together of a man with a woman is pleasure alone; that this coming together is determined by the love of the one toward the other; that those who love one another are spouses; that the man and woman are bound by no obligation; that she is not subordinated to the man; that any women whatever are common to any man, and conversely men to a woman; that there is no family; that the offspring which is begotten is to be nourished and educated by society, to which alone it belongs; whence, by the civil power already imbued with the principles of this doctrine, there are to be instituted establishments for the nursing of infants, and, for forming their minds as soon as they have scarcely attained the use of reason, public schools, to which all are to be obliged, every care or power concerning the instruction of offspring being withdrawn from parents. Thus the modern socialists and communists, the Fourierists, the Saint-Simonians, and others of the same bran; concerning whom see the excellent work of

Avogadro de la Motta, Teorica dell' Istituzione del Matrimonio, etc., part II, chapters 19 and 20. There is indeed nothing new in this battle against the divine institution of marriage except the excess of shamelessness and the veil of voluptuous science. For in the first centuries of the Church the Gnostics handed down the same principles and reduced them to practice. For, according to the witness of Clement of Alexandria, Stromata, book III, impious men existed who openly attributed to the devil the invention of that marriage, namely the society of man and woman which is joined with perpetual obligation; among whom the same writer counts Tatian the Syrian. And in the same place he reports that Epiphanes, from whom flowed the heresy of the Carpocratians, taught, among other things, this also: that since God had made all things in common for man, and had joined the female with the male in common, and had likewise coupled all living things, he proclaimed that justice is communion with equality; and therefore that one man can have intercourse with all women, as the other living things do. Whence he testifies that there are also those who proclaim common sexual intercourse to be a mystical communion, and practice it, and say that they do this in order to oppose the Creator who forbids fornication. He attributes the same doctrine to the Marcionites, concerning whose founder Marcion Tertullian testifies, Against Marcion, book I, chapter 1, that he abolished nuptials. The same things pleased the Manichaeans, who, according to the witness of Augustine, On Heresies, no. 46, if they used wives, nevertheless avoided conception and generation, lest the divine substance, which enters into them through food, should be bound in fleshly chains in offspring; whence in Against Faustus, book XXX, he says

that they especially detest that intercourse which alone is honorable and conjugal. This pest was derived to their heirs, namely the Albigenses in the Middle Age, who, poured out into every lust, abhorred nuptials. Cf. Natalis Alexander, century XIII, part I, chapter 3. Modern sects, moreover, are connected with the ancient ones in a continuous series.

It is indeed irksome to refute these most shameful inventions. The sole end of man is placed in animal pleasure; the human race is brought back to the multitude of swine from the herd of Epicurus; the foundations of all rights, by which rational creatures are mutually bound, are shaken; the family, only the appearance of it being retained, is utterly abolished; and the structure of all social life is dissolved, and in place of the moral law of justice, by which the human mind is to be ruled, physical and material force is substituted as the supreme reason. The propagators of these errors cannot be refuted by arguments of reason, since they are led by a perverse will alone, which refuses to look upon the light of truth. Their refutation, therefore, belongs rather than to theologians, to those to whom the care of society has been committed by God, and who can commit no greater sin than if they allow men of this sort to go unpunished.

These things, therefore, being set aside, we shall rather have to contend with those who, while reverencing the divine institution of marriage, nevertheless dissent in many things from the doctrine of the Church. To this doctrine, indeed, a splendid light has been added in this most recent age, with the Apostolic See bearing the torch before us, so that the darkness sent in by enemies may be dispersed. There exist, indeed, distinguished documents on this article of faith

which the most recent Roman Pontiffs have given us, especially the three Piuses, VI, VII, and IX, and most recently Our Most Holy Lord Leo XIII; by these the knowledge of the truth has received increase, so that many things are now investigated and certain for us which were doubtful and obscure to theologians not very far removed from this age. This fruit has been borne for us, as often happens, by the assault of adversaries, who, while they strive to extinguish the light of the Church, rather sharpen its force, so that they may be overwhelmed by its very brightness.

In this matter of Christian Marriage, dogmatic writers, moral writers, and canonists are engaged. But we shall have to treat only those things which Theology claims for itself as contained in the Word of God, whether written or handed down; for these things, and not others, our hearers required of us. The questions indeed are not many, but for the most part they are difficult, and one of them also (On the words of Christ, Matt. XIX, 3 ff.) does not yet seem to have attained full light. What lay in us, we have furnished for the benefit of our hearers, and now we publish the treatise in type: for by the same right by which the others have gone forth, this one also can be joined with them.

We said these things by way of preface in the former edition; now that this second edition follows, the reader must be admonished by us of this one thing: not a few things here have been changed, especially in the demonstrations to be brought forward.

Christian marriage, when it is entered into, is a contract (as we said above, Th. I and Question I from p. 102, compared with Th. XXIII, n. II), and it is a Sacrament. It is permissible to regard each aspect separately. Therefore, if the aspect of contract alone is considered, which properly obtains in marriage in fieri, it itself 1° is a natural contract; for nature itself urges toward it, in whose office it is (q. XLI, a. 1), and it itself preceded every public society, of which the origin is through the family; and consequently it could validly be entered into without the aid or authority of any public power.

2° But since this same contract is made by men existing in society, it itself, like other contracts, even those which are made by the law of nature, is subordinated to the public authority ruling that society in which the contract is made. This indeed is the general law of contracts. For nature has not determined all things ἐν ἀτόμῳ, in the individual, which are required so that in any given case contracts which are made by the law of nature may be made as they ought; but it has left them to the determination of the public authority having coercive force, which, on account of the good itself of men united together, has from God the power of establishing the form according to which natural contracts may be made both licitly and validly. Moreover, neither nature nor its institutor has determined everything one by one with respect to entering into the matrimonial contract: for example, with respect to degrees of consanguinity, of affinity, with respect to sacred persons, criminal persons, etc., in which bare reason, the nature of the thing considered, establishes nothing as to many things concerning whether matrimony ought or ought not to be permitted. The same reason therefore teaches that there must exist in society a rule by which this is determined. For many cases occur in which, even if, with only the natural right of marriage inspected, marriage seems able to be entered into, nevertheless, once other rights are inspected which arise from the relations of other essences, a certain repugnance at once appears to its being done licitly or even validly. Nor has the author of nature and institutor of marriage sufficiently determined all things by positive law. Therefore, since it is necessary that a certain norm exist according to which this contract may be rightly made by all in so many diverse circumstances, it follows that the public authority of some society, in which the same contract is entered into, has the power of pre-establishing the form according to which it may be made licitly and validly; therefore the contract of marriage is subordinated to the public authority of that society in which it is made. Nor is there a question concerning this matter among theologians, philosophers, and jurists, who indeed dispute to which authority under God this contract is subject, yet all grant or suppose that it is subject to some authority. Wherefore there is no need for us to dwell much on this matter, especially because discourse concerning the same matter will necessarily return when it will be necessary to demonstrate the authority of the Church in particular.

3° Now the power of establishing the form according to which a contract is made validly is at the same time the power of invalidating contracts made otherwise. But to invalidate the matrimonial contract is to prevent the mutual consent of the contracting parties from being efficacious or sufficient for transferring dominion over bodies, or it is to render persons incapable of contracting. The former is called direct invalidation, the latter indirect (Sanchez L. III, D. 4). But when this latter invalidation is had, the former also is consequently present. For when the persons are incapable, their consent does nothing. Trent mentions each mode, Decree on Marriage, in the invalidating clause.

4° Wherefore by the law of nature, indeed, legitimate consent is efficacious; but nature alone does not determine what consent is legitimate; whence contracts, as to their formal being or value, depend also on public authority, which ultimately and in the individual prescribes the form of a valid contract. Once this has been posited, even those contracts which are made otherwise, and which, if only the law of nature were in force, would be valid (because the law of nature by its primary precepts does not prohibit them, but leaves them to be prohibited by social or superior authority, dictating that they are less becoming), are null, not because public authority is opposing the law of nature, but because it is declaring and determining it.

5° Thus the matter and form of the matrimonial contract is (Th. XIII) efficacious mutual consent expressed by words, by which namely there is made a mutual handing over of dominion over bodies; but its value or efficacy also depends on the manner or form of contracting, which is established by public authority.

6° But the end of this contract is mutual power toward carnal copulation; the end of this power, by the law of nature, is the procreation and education of offspring, by which the human race is propagated and the act of creation of the same is, as it were, continued. But because the adequate reason why men exist is the glory of God, by procuring and obtaining which men themselves also become happy, to which reason the other things are subordinated as means, even existence itself in society; hence it comes about that this end of marriage is necessarily the procreation and education of offspring for the worship and honor of God, and consequently the power ruling it is, insofar as such, a religious power, whether this be distinct from the supreme civil power or not, as could happen in pure nature; for we are not now disputing about this distinction.

II. But if the aspect of Sacrament is considered, Christian marriage 1° is certainly a sacred thing, such as, before all things, a sacrament is. Moreover 2° it is a sacred thing in such a way that it is not something mixed from a purely natural thing and a sacred thing, as from two elements; but it is a physically simple thing, intrinsically and essentially sacred, indeed retaining the entity of nature, but supernaturally elevated. Namely, to be sacred is not some nature or substance, but is a certain mode of a thing which is some nature; whence, in order that something be intrinsically sacred, it cannot be required that it be only sacred, and not something of nature, which would be absurd; for what, indeed, is more sacred than the Humanity of Christ? which nevertheless is certainly a thing of nature. Therefore they are deceived who wish to prove that Christian marriage is mixed from a natural thing and a sacred thing, because the aspect and thing of nature remains in it. And certainly a mixture from a natural thing and a sacred thing supposes two really distinct elements, although united, of which the former is a purely natural thing, that is, lacking the mode which is to be sacred; for if it has this mode, then to be sacred is not another thing, but one. But that Christian marriage is not a mixture of this sort is clear from Th. X, in which it was proved that the contract and the sacrament are the same thing. Therefore the same marriage is a physically simple thing, and the multiplicity of aspects or formalities certainly does not obstruct this simplicity; for what is simpler than God? Now this simple thing is intrinsically and essentially sacred. In order that something be such, it is required that the aspect of sacredness be its mode, which is predicated of it in the direct case, that it be an absolute mode, not a pure relation, and that it be a necessary mode, without which it cannot exist. But Christian marriage is a sacrament in such a way that the being of sacrament is predicated of it in the direct case; for it is truly said: marriage is a sacrament. This being of sacrament is an absolute mode, not a pure relation; for it returns to this, that it is efficacious of grace and has such a form which is the foundation of the likeness between itself and the union of Christ and the Church. Finally this being of Sacrament is inseparable from Christian marriage; for, if this mode does not exist, neither is the thing, that is, there is no marriage or matrimonial contract. Cf. Th. X. Therefore there remains a thing of nature, but supernaturally elevated, that is, intrinsically and essentially made a Sacrament, and therefore a sacred thing.

3° Now it is certain that the Church has no power over the matters and forms of the Sacraments instituted by Christ, insofar as she cannot substitute others for them and cannot bring it about that, when they are posited with due intention, there is no Sacrament; but the administration of the Sacraments has been entrusted to the Church herself, and to her it belongs to establish the mode and form by which they may be licitly administered and to pass judgment concerning their existence and value.

4° But the difference between the matter and form of the Sacrament of marriage and of the other Sacraments must especially be noted. For the matter and form of marriage is not consent alone, but efficacious consent, that is, efficacious of the bond; but there can be true consent without its being efficacious, and its efficacy can depend on some public authority which prescribes the form for the contract. Wherefore the defect of power over the very matters and forms of the sacraments does not exclude the power of assigning a form to the contract and of invalidating it; for by that power are established the conditions which, when posited, make the matter and form of the sacrament itself, and which, when lacking, make it not to be. Wherefore by laws of this sort assigning a form, the matter and form of the Sacrament is changed materially, not formally; for formally it is always mutual expressed consent signifying and effecting the handing over of power. Just as (says Sanchez, l. c.) if the Church could bring it about that this word body no longer signified what it signifies, but that this were signified only by another term, then the Church would bring it about that no longer the word body, but this new term, belonged to the form of the Eucharist; nevertheless the change would be only material, not formal; for the signification would remain the same, which is the formal reason why the word body belongs to the form of the Eucharist.

5° Wherefore the power of the Church to administer the Sacrament of marriage can also extend itself, unless something else prevents it, to this: that she assign the form to a valid contract and invalidate one made otherwise. Concerning this matter it will have to be disputed more fully hereafter.

6° But this power (that we may sketch its notion) has a twofold act, each positive. For it invalidates contracts made apart from the form prescribed by itself, and it approves and holds ratified contracts made according to that form. Now this approval, either explicit or at least implicit, is necessary with respect to those contracts which can be invalidated by legislative power, when they are in reality subject to that power. For if they can be invalidated by legislative power, the law of nature has not yet determined their value ultimately and independently of that power; but it has indeed given them the possibility that they should be valid, while as to actual value it has left them, as it were indifferent, to be determined by the legislative power to which the contracting parties are subject; otherwise they could not be invalidated by it. For positive human law cannot make invalid that which the law of nature wills to be valid. Therefore the permission, even by itself alone, of this power that those contracts actually be valid confers upon them that determination which they do not have from nature alone; whence even that permission is an act positive as to value, since it is the cause, and that a necessary cause, of a positive effect. Wherefore when the competent power assigns the form for the value of the contract, it exercises a twofold act, namely it prevents those entered into otherwise from having value, or invalidates them, and it approves and makes valid those which are made according to that form; so that he who would reject those contracts would act not only against the law of nature, but also against the law of that power.

7° Such a power is not borne immediately upon the bond itself, so as to render it null if it exists; nor is it immediately borne upon the matter and form of an existing Sacrament, so as to impede their effect if they actually are present; but it is borne immediately upon the consent or the persons, which consent can be valid and invalid, which persons can be capable or incapable; and it establishes those conditions or the form by which the former is valid and the latter are capable. Therefore only mediately does it touch the matter and form of the Sacrament, which the contracting parties posit, and the bond which follows. For immediately the form and matter are posited by the contracting parties; but that power antecedently establishes the conditions by which, if they are observed, the contracting parties can enter into a valid contract.

III. With these things posited, let us enter the question. The question is not whether in Christian society there is a power of establishing the form of the matrimonial contract; but the question is concerning the subject of this power. This question can be twofold, namely concerning the power of establishing the form for the honesty of the act, or of establishing impedient impediments, and concerning the power of establishing the form for the value of the act, or of establishing diriment impediments. Moreover they are called diriment impediments because they prevent the bond from existing, and bring it about that the persons who seem to be joined, if marriage has been attempted, are in reality separated as before and must be separated. Concerning the first there is no need that we dispute separately, both because no one denies it to the Church, whose authority we are going to defend, and because from what is to be said for the other question the matter will be sufficiently known. The other question to be disputed by us can be distinguished in three ways: 1° whether this sort of power belongs to the Church; 2° whether it belongs to her by her own right; 3° whether it belongs to her alone. The affirmative opinion can be proved by a twofold kind of argument, namely by a demonstration demonstrating that the thing is so, and by one demonstrating why the thing is so. But first a certain inept imagination of Launoius must be excluded (in the work On Royal Power over Marriage, p. I, a. IV, c. 4, and a. II, c. 8). Let it therefore be:

In can. 4 of Trent (if anyone shall say that the Church could not constitute impediments diriment of marriage, or that she has erred in constituting them. A. S.), by the name of the Church are signified not kings and secular princes, but the sacred principate: moreover that canon is dogmatic.

I. Namely, we teach that the Church is not said to be able to do this because some persons who belong to the body of the Church, and these either determined persons, namely kings, or taken indefinitely, whether Priests or Kings, can do it, but because the sacred Principate or body of Pastors who succeed the Apostles, or the Roman Pontiff their head, that is, the ecclesiastical authority which was communicated by Christ to the Apostles and their successors, and it alone, can do this.

The single argument, proposed in many ways, of the Launoian interpretation (supposing indeed what he thinks he has demonstrated, that the right of establishing impediments of marriage, even of Christians, is of itself civil) consists in this, that the Church has never been defined as the assembly of Priests of the first or second order, but as the congregation of the faithful; consequently, without merit, that definition is substituted for the term Church in the canon. Namely the Tridentine Synod would have spoken in a new and unusual manner if, by the name Church, it had understood Priests of the first order or even of the second order. Launoius also adorns this argument with dialectical lights. For he says that the supposition of the name Church is simple when it is taken of the assembly of the faithful, because this is its immediate definition; but that the supposition is personal when certain persons are understood. But a transition cannot be made from simple supposition to personal; therefore.

II. It must be observed that Launoius errs in the definition of the Church. In Tom. V of his works, p. 2 of the epistles, L. 8, there stands epistle 13 to Nicolaus Gatinaeus. In it, by many arguments, he strives to refute the definition of the Church given by Bellarmine, which he says is contrary to the laws of dialectic, and to belong to explaining the state and government of the Church, not to explaining its nature. But he contends from the Scriptures and perpetual Tradition that the Church is to be defined as an assembly of the faithful or of Catholics. As though government and authority in a society were something accidental, not belonging to its intrinsic nature, or as though, in order that the Church of Christ exist, it would be enough that men exist coming together into the same faith, as Protestants will. The Church is indeed an assembly of the faithful, but an assembly of many can be had in many ways; but it belongs to the essence of this assembly of the faithful instituted by Christ that it be united by the apostolic government and authority vicarious of Christ, which flourished first in the Apostles and then in their successors, the Bishops, and especially and most fully in Peter and his successors, the Roman Pontiffs, to whom the sheep of Christ subject constitute that assembly of the faithful which is the Church of Christ. But concerning this matter, in the treatise on the Church.

III. But that the interpretation of Launoius is inept and false is easily demonstrated. And first indeed, the consequence of that argument is denied. For if from the fact that the Church is an assembly of the faithful it does not follow that, by the name Church, Priests, who are a part of the Church, are to be understood in the canon, why will Kings have to be understood, who are neither a necessary part nor an equally noble part? The consequent will be that this power is in the hands of the faithful and therefore that the right of establishing the form of the matrimonial contract belongs to the multitude of the faithful gathered together, and that the same multitude can delegate this its power to others as to its ministers. But why (on this false hypothesis having indeed been made) it would have delegated its power rather to kings, who can be lacking in the Church and who in the Church are simple faithful, and not to Priests, who belong to the Church insofar as it is Church and are a necessary part of it, is not yet clear, and Launoius forgot to declare it. It is indeed supposed that this right is of itself civil and that this has been demonstrated; but besides the fact that it has not been demonstrated, is it permitted, not only to one defending himself but to one arguing, as Launoius does here in the interpretation of this canon, to derive the force of his argument from a hypothesis which the adversaries deny, and, once this hypothesis is set aside, there is no force of the argument?

Then we do not understand why, with this interpretation posited, Launoius grants that those who in can. 12 are called ecclesiastical judges are judges from the priestly order or having authority from it; for if the Church is nothing except the assembly of the faithful, ecclesiastical judges will be judges from the faithful, or any faithful persons whatsoever.

But, these absurdities having been omitted, who does not see that, when the Church is introduced as bearing laws, the name of Church is drawn from the common usage of speaking to stand for the ruling Church, just as the name of kingdom, empire, or state, according to the words of Christ, Matt. XVIII, 17.

IV. And indeed is not the object of the canon at once power and infallibility in the use of this power (could constitute, has not erred in constituting them)? But the subject of power and at the same time of infallibility is only the ruling and teaching Church, not kings or civil powers or the people of the faithful. But what is proscribed in this canon? The error of Luther, who denied to the Church, that is, to the Roman See, the power of establishing diriment impediments; yet he did not deny it to secular princes. "The union of man and woman is of divine right, which holds in whatever way it may have occurred against the laws of men, and the laws of men ought to yield to it without any scruple (De Captiv. Babyl. de Matrimonio)": these men he afterward calls Roman tyrants. Then in the Extemporaneous Response to the articles which our masters extracted from the Babylonian Captivity, to that doctrinal head, "Nothing by any right can be imposed on Christians, whether by man or by Angels, except as much as they will," he himself says: "I said this not about civil laws but about ecclesiastical laws." Therefore the civil power, which was not denied, did not have to be asserted by the Fathers, but the ecclesiastical power proper to priests, which alone was denied.

What of the fact that the same thing is evidently plain from the practical interpretation itself which the Council furnished to its canon? For the Council itself afterwards, by its own authority, constituted new diriment impediments, and tempered certain old ones, and besides established that marriages of children entered into without the consent of parents have validity, even though certain Princes wished otherwise, as the King of the Gauls, and pressed sharply for the opposite decision. Therefore by their own deed the Tridentine Fathers interpreted their canon. For why do the Fathers, who judged that this right belonged to Kings, without these having been heard, and with no account taken of their will or desire, decree absolutely what pleases themselves? Why did kings acquiesce? Moreover, in this whole matter concerning Marriage, the Church to which some authority or power concerning the Sacrament of Marriage is asserted is always the ruling and teaching Church; cf. cann. 7, 8, 12; and the same is understood in those words: celebration of marriage in the face of the Church. For such a celebration is understood, which is made before a qualified witness constituted by the ruling Church herself, and which is public so that the marriage may become known, or of itself can become known, to the ruling Church, which must pass judgment concerning matrimonial causes. For this form of celebration was prescribed because, when an evil had arisen from clandestine marriages, the Church, which does not judge concerning hidden things, cannot meet it. Decr. De Reform. Matrim.

V. We add that this canon is dogmatic. For it treats of the right of the Church and of her infallibility in the exercise of this right; but right and infallibility are the object of dogma and are presupposed by discipline as its cause; therefore they are not disciplinary matters. Moreover, it does not treat of one who is disobedient, but of one who affirms that the Church lacks this power or that she has erred in its use; but by affirmation or negation truth is attacked; therefore the Council treats of establishing truth, which is dogma, not discipline. Cf. the Treatise of Cardinal Gerdil On Marriage, Works, Tom. XV, Rome 1809, P. II, § 5.

But what we have said concerning can. 4 must also be said concerning can. 3, which has itself thus: "If anyone shall say that only those degrees of consanguinity and affinity which are expressed in Leviticus (c. XVIII) can impede marriage to be contracted and dirimently dissolve one contracted, and that the Church cannot dispense in some of them, or constitute that more degrees impede and dirimently dissolve: A. S."

You see, therefore, that we gather the argument not from the fact that the canons are established under penalty of anathema; for who is ignorant that even transgressions of law can be punished by anathema? but from the fact that the object of the canon is doctrine and truth to be asserted and believed.

Historically it is established that the Church by her own judgment established impediments diriment of the marriage of Christians.

I. We are now considering only the historical matter and the fact alone. Whether the Church did this by right or by wrong will have to be judged in the following Theses. For the moment, since the adversaries, among whom after Marcus Antonius de Dominis John Launoius stands forth as chief, contend that all impediments were first constituted by the secular power and in this way obtained force in the Church, we wish to demonstrate the historical falsity of this opinion, which nevertheless is the foundation of the whole doctrine of the adversaries. But in order that this historical thesis may be demonstrated, certain things must be premised.

1° A twofold function of Ecclesiastical authority or jurisdiction must be distinguished: the one by which it authentically proposes divine doctrine and divine law and commands that the former be believed and the latter observed; the other by which, by force of the power divinely conferred upon it, the Church sanctions positive laws which must be observed. Moreover, since in the present question ecclesiastical jurisdiction is being treated, the question is not properly concerning the first, but concerning the second. For the adversaries do not deny that God can bear laws concerning marriage and establish impediments, nor do they deny that the Church is an authentic witness of divine revelation; but they deny that there has been made by God to the Church the power of bearing laws concerning the bond of marriage, or that she alone has this power. Wherefore the things which the Apostle decreed in 1 Cor. would not now be brought into the middle very opportunely; for in certain things he certainly acted as a witness of revelation and of divine law, while in others he can be seen to have acted otherwise.

2° It must be held not only that the legal Jewish economy was abolished by Christ through the institution of the Church, but also that this was always believed in the Church; and therefore that it was believed that the positive precepts which exist in the law of Moses no longer have, of themselves, the force of obliging. Yet this does not prevent one from being able to appeal to them as to a norm according to which the Church may found her laws; for that which at some time proceeded from God, although only for a definite time, always retains the dignity of a certain norm to which men may conform their actions when they are placed in the same or similar circumstances, so that they may act more perfectly. Therefore if it happens that impediments are found to have been established by the Church which God had already established by positive law through Moses, someone would wrongly infer that these were constituted from divine right and by its command.

3° In order that it be demonstrated that the Church has used her own authority, there is no need to bring forward decrees of the universal Church; rather even decrees of particular Synods which, with none contradicting, established something are sufficient.

4° In order that we may demonstrate what we have proposed in the thesis, it is not necessary that we describe the origin of each single impediment, but it is enough to dwell on some. For if it is established that the Church by her own judgment established certain diriment impediments, what we affirm in the Thesis is already true.

A man named John, married a woman named Dora. Both were unbaptized at the time of their marriage. Besides, they were first cousins, and their marriage was against the law of the State where it took place. The laws of that State declare the marriages of first cousins null and void. In the course of time John and Dora separated and John took up with a Catholic woman whom he promised to marry as soon as he procured a divorce from Dora. The divorce has since been granted and the Catholic woman now desires to be married to John by a Catholic priest. Would it be lawful for a priest to marry them?

Answer.—The first question which this case raises, is: Were John and Dora validly married before God, although the State declared their marriage null and void, ab initio, because they were first cousins? In other words, have the civil authorities power to make diriment impediments which will nullify, in foro conscientiae, marriages of the unbaptized? This is the first question that must be decided, before there can be any question of John marrying anybody, until Dora dies.

The Catholic Church teaches that the State has no jurisdiction over the marriage of the baptized, quoad vinculum conjugale. The marriage contract of the baptized is a Sacrament, and as such has been committed by Christ to the care of His Church. Only the Church can legislate validly concerning the marriage bond of baptized persons.

The State may make laws affecting the civil effects of marriage in the case of baptized persons. The State can create civil disabilities to be incurred by baptized persons for the non-observance of certain legal formalities in contracting marriage. But the State has no power whatsoever over the marriage bond, conjugale vinculum, of baptized persons. Only the Church can make laws that affect the marriage bond, or vinculum, of the baptized. This has always been the teaching of the Catholic Church.

But now the question arises, by what laws are the marriages of the unbaptized to be governed? For it is just as important that the marriages of the unbaptized should be governed by law, as it is that the marriages of the baptized should be so governed. Now the Church has no jurisdiction over the unbaptized. "For what have I to do with judging those who are outside?" says St. Paul (I. Cor. v, 12). Of course the marriages of unbaptized, as well as the marriages of the baptized, are subject to the divine and the natural laws. But if the divine and the natural laws are not adequate for the regulating and controlling of marriage among baptized persons, how can they suffice for regulating and controlling the marriages of the unbaptized. The Church, herself, acknowledges the insufficiency of the divine and natural law in the matter of marriage between baptized persons, by creating many diriment impediments over and above those arising from the divine and natural law. And in so doing the Church acts wisely and for the best interests of human society. It is of the highest importance to society, for instance, that certain marriages should be declared not only unlawful, but also null and void from their inception. Such are, for instance, marriages without any legal or public formalities, marriages between very near blood relations, marriages between children, marriages procured through grave threats and fear. Such marriages, as a rule, are very harmful to society and are rightly prohibited under pain of being null and void. The impediments placed in the way of such marriages are not found either in the divine or natural law. They are the creation of the Church, for the protection of society. And it must be admitted that the Church in making them consulted the gravest interests of human society, because they are absolutely necessary for its welfare.

But now, we ask, is it not equally necessary that the marriages of the unbaptized should be controlled in the same manner for the same good ends? Is it not equally harmful to society for near blood relations to intermarry, whether they be baptized or unbaptized? Is it not equally harmful to society for children to marry or for public formalities to be omitted, whether the parties be baptized or unbaptized? And more especially in our own time, when the number of the unbaptized is increasing every day. But what authority can control the marriages of the unbaptized? Certainly not the Catholic Church. She has always disclaimed any jurisdiction over the unbaptized. If, therefore, the civil State has no jurisdiction, quoad vinculum conjugate, over the marriages of the unbaptized, there is no authority on earth that has jurisdiction over them. But to admit this would be equivalent to admitting that almighty God had not made sufficient provision for the good and adequate government of society. As this cannot be admitted, we are forced to the conclusion that the civil authorities have received from almighty God ample jurisdiction to regulate and control the marriages of the unbaptized, quoad vinculum, just as the Catholic Church has received adequate jurisdiction in the case of the baptized. The exercise of this power by the State must not be in contravention of the divine or natural law, nor against the dictates of reason.

This is one of the reasons why a great many modern theologians and canonists concede to the State the power to make diriment impediments nullifying, in foro conscientiae, the marriages of the unbaptized; the necessity on the one hand, of controlling and regulating the marriages of the unbaptized for the protection of society, by more ample legislation than is contained in the divine and natural law, and the absence, on the other hand, of any authority competent to make such legislation, unless it be conceded that the civil State be such competent authority.

Among the theologians who take this view of the matter are St. Thomas, Lessius, Schmalzgruber, Gasparri, D'Annibale, Cavagnis, Ballerini, Konings, Lehmkuhl and a host of others. Thus, for instance, Cardinal Gasparri considers this opinion not only very probable, but even certain: "We hold this opinion to be more probable, indeed certain, especially by the authority of the sacred Roman congregations" (de Matr. I, 282).

The constant and uniform practice of the Congregation of the Council, as well as of the Propaganda Fide, in deciding marriage cases among the peoples of the Far East, has always proceeded on the assumption that the State possesses legitimate authority to make diriment impediments in the case of marriage of its unbaptized citizens. In 1854 the following dubium was proposed to the Congregation of the Council by the Vicar Apostolic of Yun-nan in China: It often happens in these parts, says the Vicar, that a younger brother marries the widow of his older brother, deceased, and afterwards becomes a Catholic. It is very difficult to separate them, both on account of the children born to them and the danger of turning them away from the faith. Yet such marriages seem to be invalid, because they are forbidden under severe penalties by the civil law, even under pain of death. Now, after their baptism, will it not suffice, for the revalidation of such marriages, that the parties to them renew their consent?

To this the Congregation of the Council answered, September 20, 1854, as follows:

“After a prior dispensation from disparity of worship and from the first degree of affinity by means of the faculties which the missionaries enjoy, the consent must be renewed.”

This answer supposes that the civil impediment, forbidding such marriages, did, in fact, render the marriage, from its inception, null and void.

The Propaganda, in 1631, sent instructions to the missionaries in the Far East concerning polygamist converts. Any polygamist who, with all his wives, shall be converted and baptized, must put away all his wives except the first one, who alone is the true wife, if in that marriage no impediment of natural law or of positive law established by their ruler intervened.”

It may be said, therefore, that it is practically certain, as Cardinal Gasparri maintains, that the State does enjoy the power to make diriment impediments, nullifying in conscience the marriage of the unbaptized, provided such impediments are not against the divine or natural laws and are reasonable for the promotion of the public welfare.

The second question raised by this case is: Did the Catholic woman incur the impedimentum criminis by agreeing to cohabit with John, under a promise of marriage, when she knew that John had a wife living? She did not. In the first place, it is practically certain that John did not have a wife living, since his marriage to Dora was rendered invalid by the civil law. But suppose that John’s marriage to Dora is doubtful. Even in that case it is doubtful whether one incurs the impedimentum criminis if one is ignorant of its existence. This impediment differs from all other ecclesiastical impediments in that ignorance probably excuses from it, while ignorance does not save one from incurring the others. It is very probable that the Church intends this particular impediment in the nature of a punishment, poenae vindicativae extraordinariae. Ignorance, however, always saves one from incurring extraordinary penalties. This is the view of a great many theologians and canonists.

A dispensation, however, super impedimento criminis adulterii, might be procured, ad cautelam; and, of course, a dispensation from the diriment impediment disparitatis cultus.