Unity and indissolubility of marriage

516. What the Unity of Matrimony Is. The unity of matrimony, or monogamy, consists in this, that it is the union of one man with one woman. The unity of matrimony is perfect if neither spouse contracts another matrimony after the dissolution of the prior matrimony; it is imperfect if at least one of the spouses contracts another after the dissolution of the prior matrimony.

Polygamy is opposed to the unity of matrimony; it can be simultaneous and successive. Simultaneous polygamy is either polyandry, if one woman has several husbands, or polygyny, if one man has several women at the same time. Successive polygamy is called bigamy, whether one man successively marries several women, or one woman successively marries several men.

The Church at every time vindicated the unity of matrimony, which also the Roman civil laws prohibiting polygamy defended, and it never permitted polygamy, although it was importunately sought by supreme rulers. Among Protestants there are several examples of polygamy admitted by the heresiarchs. Polygamy, which the Mormons exercised for a long time, the Turks and pagans exercise today. Socialists, at least theoretically, admit not only polygyny but even polyandry itself.¹

1. Polyandry is repugnant to natural law, because it is repugnant to the primary end of matrimony, namely the generation and education of offspring: to generation indeed, because a woman to whom several men approach is rendered sterile; but to education, because the father of the offspring received is unknown, and consequently no father cares for its education. Hence polyandry was always and everywhere prohibited, so that not even God can dispense from this law.

2. Polygyny is repugnant to natural law and to the secondary end of matrimony; it is also repugnant to positive divine law: Every one who puts away his wife and marries another commits adultery.²

a. There are several reasons on account of which polygyny is contrary to natural law: a. it is physically impossible, since the number of persons of each sex is almost the same; therefore nature intends monogamy; b. it is repugnant to the equality of rights which belongs to each sex and universally to human beings; c. it is repugnant to the common good, since it weakens the man and deprives the woman of her dignity; d. it disturbs the tranquil fellowship of life and mutual help between the spouses.

b. God can dispense from this law and in reality did dispense from it; for after the flood polygamy was granted to the patriarchs and to the Israelite people, which concession was also extended to gentiles. Through Christ, however, who restored matrimony to its primitive integrity, this dispensation was removed even with respect to infidels, so that even among infidels a second matrimony during the prior one is invalid, and among the Jews matrimony is no longer dissolved through the bill of repudiation.³

3. Bigamy or successive polygamy is permitted to both man and woman even in the new law: A woman is bound as long as her husband lives; but if her husband dies, she is free: let her marry whom she wishes, only in the Lord.⁴ Therefore the Church always held second nuptials entered after the death of the prior spouse to be valid and licit, although it approved them less.

¹ Bebel, Die Frau (Stuttgart).

² Luke 16, 18. Cf. Council of Trent, sess. 24, can. 2.

³ Matt. 19, 3 ff.

⁴ 1 Cor. 7, 39. Cn. 1142.

517. What the Indissolubility of Matrimony Is. A twofold indissolubility must be distinguished, internal and external. Internal indissolubility consists in this, that matrimony cannot be dissolved by an internal cause or by the mutual consent of the contracting parties; external indissolubility consists in this, that matrimony cannot be dissolved by an external cause, namely divine or ecclesiastical. Concerning this matter dogmatic theologians establish the following theses.

1. Every matrimony is intrinsically indissoluble both by natural law and by positive divine law, so that it can never be dissolved by the consent of the contracting parties.

2. Ratified and consummated matrimony of the faithful is also extrinsically indissoluble, so that it cannot be dissolved except by the death of one spouse.¹

Indissolubility must also be asserted of consummated matrimony which is contracted by a faithful person with an infidel through dispensation of the supreme pontiff;² but it is not clear whether it is simply indissoluble, or only has in fact never been dispensed in.

3. But the ratified matrimony of the faithful and the consummated matrimony of infidels can be dissolved by external power.

¹ Cn. 1118.

² S. Office, August 1, 1759; July 4, 1855.

How it is dissolved. Even consummated matrimony of infidels can be dissolved by divine law in the case of the Pauline privilege, or in the case of the Apostle, as they say,¹ and through dispensation of the supreme pontiff.

This privilege is called Pauline because it was promulgated to us by St. Paul; it is also called the privilege of the faith, because it was divinely granted in favor of the faith or baptism. In interpreting the words of St. Paul theologians disagree to this extent, that some affirm an immediately divine power is promulgated by them, while others think they present a power only mediately divine, but immediately conceded to the apostles and the Church. But the former opinion is to be preferred, since the Holy Office expressly declares that this privilege was granted by Christ the Lord in favor of the faith and promulgated through the Apostle Paul.²

¹ "If any brother has an infidel wife, and she consents to dwell with him, let him not put her away. And if any faithful woman has an infidel husband, and he consents to dwell with her, let her not put away her husband. But if the infidel departs, let him depart: for a brother or sister is not subject to servitude (of matrimony contracted in infidelity) in such things; but God has called us in peace." 1 Cor. 7, 12 ff. Cn. 1120.

² S. Office, July 11, 1886. Cf. Zeitschrift f. k. Th. XVI (1892), p. 158 f.

520. On the Pauline Privilege.¹ The Pauline privilege is a right divinely granted, in certain circumstances, to the spouse converted from infidelity and baptized of entering another matrimony, by the entering of which the matrimony contracted in infidelity is dissolved.

1. That matrimony contracted and consummated in infidelity can be dissolved is declared by these words: But if the infidel departs, let him depart: for a brother or sister is not subject to servitude in such things. Namely, by the will of Christ care must be taken that conversion to the faith not be troublesome and burdensome to him who is converted; but conversion would be very burdensome to the faithful party if it were not licit for that party to pass to other nuptials: for the party would have either to remain unmarried or to cohabit with the infidel spouse with trouble of life and danger to the faith. Therefore Christ willed that the bond of matrimony contracted in infidelity could be dissolved.

By force of the Pauline privilege, the converted party does not have the faculty of entering new nuptials except with another Catholic party. Therefore, if that party contracted with an infidel party, the matrimony would be invalid because of the impediment of disparity of cult; and if that party contracted with a heretical or schismatic party, the matrimony would indeed be valid, but illicit because of the impediment of mixed religion. In the former case the pontiff dispenses; in the latter, however, no dispensation is given.²

2. Matrimony contracted in infidelity is not dissolved when baptism is received, nor when the infidel party declares that he or she does not wish to cohabit with the faithful party, but when the faithful party enters another matrimony.³

Therefore if the faithful party does not contract a new matrimony, and afterward the other party also is converted, it is no longer licit to use the Pauline privilege, because when the end of the privilege ceases through the conversion of the infidel party, the privilege itself ceases; indeed per se they are held to restore the fellowship of life, since matrimony still exists between them.

¹ Cf. De Becker, p. 438 ff.; Wernz IV, n. 701 ff.; Biederlack, "Uber das sog. paulinische Privilegium" (Zeitschr. f. k. Th. VII [1883], p. 308 ff.).

² Cf. Genicot II, n. 559, 5.

³ S. Office, July 11, 1866. Cn. 1126.

521. Four Conditions are required so that the faithful party can pass to other nuptials:

1. That the matrimony was contracted in infidelity; therefore if a spouse defects from the faith through apostasy, the other faithful party cannot enter a new matrimony.

Two spouses born of heretical or schismatic parents can use the Pauline privilege if it is established that they were not baptized before matrimony.¹ But the infidel party who had contracted matrimony with a faithful party through dispensation of the supreme pontiff cannot use it if that party is converted to the faith.²

2. That one party be converted to the faith through received baptism; for the privilege was granted in favor of those who are converted to the faith, lest they be deterred from embracing the faith.

Therefore a catechumen cannot use this privilege; but since conversion to the faith is made through reception of baptism, even an infidel who is converted to a heretical sect can enjoy this privilege, provided he or she is validly baptized.³

3. That the infidel party depart; and one is said to depart when these two things concur: a. if the infidel does not wish to be converted, b. and does not wish to cohabit peacefully with the faithful party.

a. The infidel does not wish to cohabit peacefully if he or she does not wish to cohabit at all, or only with contumely of the Creator, that is, in such a way that either directly or indirectly the faithful party is induced to grave sins: as if the faithful party, because of cohabitation with the infidel party, is exposed to the danger of losing the faith; or if the infidel prohibits the praise of God and the conversion of domestics, if the infidel does not permit the Christian education of offspring, if the infidel refuses to dismiss concubines, etc.

b. If the infidel party indeed refuses to be converted but wishes to dwell peacefully with the converted party, the latter cannot by force of the Pauline privilege pass to other nuptials; for St. Paul says: If he departs, let him depart; therefore only under the condition of departure are new nuptials permitted by St. Paul. Nevertheless the faithful party can separate from the infidel as to bed and table, indeed through dispensation of the supreme pontiff can also pass to other nuptials.

c. This privilege has force not only where the infidel party departs before or shortly after the baptism of the other party has been received, but also where the infidel departs afterward, when already for many years he or she had cohabited with the faithful party and had consummated the matrimony, provided the faithful party after baptism did not give the infidel a just cause of departing, e.g., through committed adultery.⁴

d. The faithful party cannot use the Pauline privilege if not the infidel spouse personally but the infidel's relatives do not allow the faithful party to cohabit peacefully with the spouse.

4. That an interpellation of the infidel spouse precede, unless dispensation from it has been obtained.

Note. On the extension of the Pauline privilege. The supreme pontiffs Paul III, Pius V, and Gregory XIII had granted for certain regions of missions that matrimony contracted in infidelity, if one party is converted to the faith and receives baptism, would be dissolved even in those circumstances in which the Pauline privilege could not be applied. Now those concessions previously given for particular places are extended also to other regions in the same circumstances, that is, to all regions in which the same circumstances recur.⁵

Paul III, by the constitution Altitudo, June 1, 1537, granted that a faithful husband who had several wives may retain the one who is converted with him, or at least wishes to cohabit with him without contumely of the Creator, even if she is not the first or legitimate wife.

Pius V, by the constitution Romani Pontificis, August 2, 1571, granted that a faithful husband may retain from his wives the one who is converted with him, even if she is not the legitimate one.

Gregory XIII, by the constitution Populi, January 25, 1585, not only granted dispensation from interpellation if this could not be made, but also declared valid a matrimony contracted with interpellation omitted, even if the infidel party who was not interpellated would have wished to cohabit, indeed even if in the meantime that party was converted to the faith.

¹ S. Office, March 14, 1901.

² Cn. 1120, 2.

³ Cf. Palmieri, De matrim. christ., thesis 27; Arendt, Archiv f. k. Kirchenrecht XXXXVI, p. 402 ff.; Wernz IV, n. 702.

⁴ S. Office, August 5, 1759; July 11, 1886. Cn. 1124.

⁵ Cn. 1125.

522. On the Interpellation to Be Made.

1. After baptism has been received, before a new matrimony is contracted, the infidel spouse must be interpellated: a. whether he or she also wishes to be converted to the faith; b. whether at least he or she wishes to cohabit peacefully with the faithful party.¹

The interpellation is prescribed for this end, that the departure of the other party be certainly established.

2. Interpellation must always be made, unless the Holy See has declared otherwise.²

a. The departure of the infidel spouse can be established not only from interpellation, but in particular cases without interpellation from other facts, as if the infidel husband casts the converted wife out of the house. But if the will of the infidel party to depart is already abundantly established, the interpellation is not for that reason to be omitted.

b. There are regions in which the faithful party, because of the common danger of perversion and because of scandal of the faithful, is not permitted to cohabit with the infidel party. In general cohabitation is permitted in regions of infidels and prohibited in Christian regions; everywhere, however, cohabitation with Jews is prohibited to converts, unless the Jews themselves wish to be converted. In regions in which, for removing danger of perversion or scandal, cohabitation with an infidel is prohibited to the faithful party by ecclesiastical law, it is licit for the faithful party to pass to other nuptials if the infidel does not wish to be converted, even if the infidel wishes to cohabit.

3. Interpellation is necessary for the validity of the new matrimony: "Before the converted and baptized spouse validly contracts a new matrimony, he or she must interpellate the non-baptized party."³

4. The infidel spouse must be interpellated.

If a husband converted to the faith had several wives, only the legitimate one, who is the first, must be interpellated, unless it is established that the matrimony with the first was invalid. But if one of the wives is converted to the faith, the converted husband by dispensation of the supreme pontiff, after dismissing the others, can retain her as legitimate wife, even if she is not the first whom he had married, and even if the first consents to cohabit without contumely of the Creator, unless she herself also wishes to be converted.⁴

5. As regards the formality of the interpellation, it must be made a. after the baptism of the faithful spouse, and this by ecclesiastical law;

b. by the authority of the ordinary of the converted spouse, in judicial form, or at least summarily and extra-judicially;

c. a private interpellation by the converted person personally is always valid, and if the form prescribed above is not possible, also licit, provided the fact of the interpellation can be established either by an authentic document or by two witnesses;

d. at least one; several interpellations are not required for satisfying the precept.

The ordinary can also grant to the infidel spouse, if he or she has sought them, delays for deliberating, but the person must be warned that, if the delays have passed uselessly, the response will be presumed negative.

6. From making interpellation, the supreme pontiff grants dispensation for a grave cause; a grave cause will be present then, if it is morally established that the infidel spouse cannot be interpellated, or that the interpellation will be useless or gravely dangerous.⁵

Once an interpellation has been made, the faithful party can enter new nuptials whenever it pleases him or her, even much time afterward, without need of a new interpellation. But if dispensation from interpellation has been obtained, a new dispensation is needed if the matrimony is delayed beyond a year.⁶

¹ Cn. 1121, 1.

² Cn. 1121, 2.

³ Cn. 1121, by which the controversy previously carried on was resolved in that sense which Gasparri (II, n. 1090) had already previously defended.

⁴ S. Office, March 28, 1860. Cf. constitution of Pius V, Romani Pontificis, August 2, 1571; S. Office, November 22, 1871; Wernz, n. 703 ff.

⁵ S. Office, March 13, 1901.

⁶ S. C. de Propaganda Fide, June 26, 1829.

523. Note. Just as the faithful party can enter other nuptials, so also can that party enter religion or receive sacred orders. Whether matrimony contracted in infidelity is dissolved through religious profession, just as it is dissolved through another matrimony, is not certainly established; but that matrimony contracted in infidelity is not dissolved through reception of sacred orders is certain.

a. Sanchez indeed thinks that there is no reason to doubt concerning dissolution of matrimony through religious profession; for although neither in law nor in the divine letters is there attributed to religious profession the force of dissolving consummated matrimony in infidelity, nevertheless there exists a certain reason for attributing that force to profession, because profession dissolves ratified matrimony of the faithful, whose bond is firmer than consummated matrimony of infidels. But since this efficacy of religious profession is established neither from the divine letters nor from canon law, the matter remains doubtful until the Church defines it.

b. If an infidel woman is converted after her faithful husband has already received sacred orders, and she desires to pass to other nuptials, dispensation must be sought, either so that the husband may return to his wife or so that the wife can enter new nuptials.¹

¹ Sanchez, l. 7, disp. 77, n. 9. Ballerini-Palmieri VI, n. 472 ff. Lehmkuhl I, n. 709 (n. 932).

524. On the Dispensation of the Supreme Pontiff. Matrimony contracted in infidelity, even if it has been consummated, can be dissolved through dispensation of the supreme pontiff, if either one or both parties are converted to the faith. The matrimony of infidels, as long as each party remains in infidelity, even if it has not yet been consummated, cannot be dissolved by the supreme pontiff, because infidels are not subject to his jurisdiction; but as soon as at least one of the spouses is converted to the faith, the matrimony by reason of the faithful party is subjected to the jurisdiction of the supreme pontiff, who by his power can dissolve it, even if it was consummated in infidelity, provided it has not been consummated after the conversion of both. This is clear from the fact that the supreme pontiff has already rather often dissolved marriages of this kind.

Theologians still dispute today concerning this question. Those who deny this power of the supreme pontiff say that the acts of the Holy See concerning the marriages of infidels are authentic declarations of divine law or of the Pauline privilege;¹ but those who attribute this power to the supreme pontiff draw especially from the acts themselves of the Holy See the argument for asserting it.² The Holy See itself purposely abstains from deciding the question, and in its decisions now uses those modes of speaking which do not expressly signify the dissolution of matrimony contracted in infidelity, but only dispensation from interpellation.³

The power of dissolving consummated marriages of infidels, which is attributed to the supreme pontiff, seems to be explained thus: the very power by which marriages are dissolved in favor of the faith is immediately divine and of divine law, but the supreme pontiff by his power can determine the conditions under which marriages of this kind are dissolved, just as St. Paul by his apostolic authority determined that matrimony can be dissolved if the infidel party departs.⁴

a. The internal reason on account of which the supreme pontiff can dissolve consummated matrimony in infidelity as soon as it is subject to his power must be taken from the lesser firmness which belongs to marriages of infidels: for consummated matrimony of infidels is less firm than ratified matrimony of the faithful, because it less perfectly signifies the indissoluble union of Christ and the Church; but ratified matrimony of the faithful can be dissolved by the supreme pontiff; therefore so also can matrimony contracted and consummated in infidelity.

b. The external reason is taken from fact: for there is a constant practice of the Holy See of permitting to newly converted infidels another matrimony even in those circumstances in which the Pauline privilege cannot be applied, because the required conditions are lacking, but especially because the infidel party does not depart; but this could not be permitted unless the prior matrimony were dissolved by declaration of the supreme pontiff.

c. The supreme pontiffs attribute this power to themselves in express words: "We, considering that marriages of this kind contracted among infidels are indeed true, yet are not to be considered so ratified that they cannot be dissolved when necessity urges."⁵

¹ Pontius, Schmalzgrueber, Benedict XIV, De Angelis, etc.

² Sanchez, Pirhing, St. Alphonsus, D'Annibale, Ballerini-Palmieri, Gasparri, Feije, De Becker, and the twelve distinguished theologians of the Society of Jesus must not be passed over, among whom are numbered Bellarmine, Azor, and Ledesma, who in 1589 offered to the supreme pontiff a disputation written by themselves concerning this power. Cf. Zitelli, De dispens. matr., n. 183 ff.

³ Wherever dissolution of matrimony contracted in infidelity was sought because the interpellation, or rather the response to the interpellation, was impossible, as in the case in which an infidel wife had fallen into insanity, the Holy See granted dispensation from interpellation. Cf. S. Office, December 9, 1803, Monitore eccl. 1904, p. 241.

⁴ Cf. Lehmkuhl, Theol. mor. II, 709 (n. 932).

⁵ Gregory XIII, constitution Populis ac nationibus (January 25, 1585); Urban VIII has similar things.

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

¹ Sess. xxiv, c. 2.

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

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

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

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

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

¹ Matt. xix 6.

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

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

¹ N. 126; S.O., December 19, 1860.

Two properties of matrimony especially are assigned, namely unity and indissolubility; and these indeed are essential, and in Christian matrimony obtain a peculiar firmness (canon 1013, § 2).

The unity of matrimony consists in the conjunction of only one man with only one woman, that is, monogamy. Opposed to unity are simultaneous polyandry, which is the simultaneous conjunction of one woman with several men, and simultaneous polygamy, which is the simultaneous conjunction of one man with several women. Now:

I. Simultaneous polyandry is prohibited by natural law; both because natural law is opposed to several heads in the same society, and because the education of offspring, which belongs to the primary ends of matrimony, is ruined. For the care both of father and of mother is required for the education of offspring. But from the fact that several men use the same wife, uncertainty arises as to who is the father of the offspring to be born; and this uncertainty will bring it about that no one has care of the offspring (St. Thomas, Supplement, q. 65, a. 1, ad 8).

II. Polygamy is prohibited by natural law. That it is prohibited to Christians is of faith from the Council of Trent;¹ that it is prohibited to all is clear from Sacred Scripture.² But that it is prohibited to all by natural law is gathered from the fact that it is opposed to the secondary ends of matrimony; namely, to mutual help, which will suffer detriment from the lack of peaceful cohabitation; and to the quieting of concupiscence on the part of the wives, to each of whom the debt will not be rendered sufficiently. There are added the Instruction of the Holy Office,³ and canon 1013, § 2, which counts unity among the essential properties of matrimony.

In the Old Law polygamy, besides for the reason alleged by Christ, that is, because of hardness of heart, was also conceded by God, so that the human race, and especially the Jewish race, might be multiplied more quickly (cf. St. Thomas, Supplement, q. 65, a. 2). The said concession also seems to have been extended to the nations. But Christ the Lord removed the aforesaid concession,⁴ so that in the evangelical law simultaneous polygamy is wholly and everywhere prohibited.

¹ Session 24, canon 2.

² Matthew 19:4 sq.

³ June 20, 1866 (Collectanea, 1354).

⁴ Matthew 19:4 sq.

Indissolubility is the property by force of which the bond of matrimony, while the spouses are living, cannot be dissolved.

Indissolubility is distinguished as twofold, intrinsic and extrinsic. Intrinsic indissolubility consists in this, that matrimony cannot be dissolved by the cause through which it arose, that is, by the consent of the contracting parties. Matrimony is said to be extrinsically indissoluble insofar as it is not dissolved by God and cannot be dissolved by another external cause. Therefore matrimony is extrinsically soluble insofar as God has either established that in some case it will be dissolved by the fact itself, or has bestowed on some power the faculty of dissolving it. Now:

I. Every marriage is entirely intrinsically indissoluble, that is, it can never be dissolved by the consent of the contracting parties. This is clear from Sacred Scripture,¹ from the Council of Trent,² from proposition 67 proscribed by Pius IX in the Syllabus of Errors,³ and from the encyclical of Pius XI Casti connubii;⁴ likewise from reason. Matrimony, as a natural society, must of itself be apt for the ends of matrimony, to which education belongs. But soluble matrimony is not of itself apt for education; for such a marriage would greatly harm education, which requires a prolonged union of the parents and demands that parents leave goods to their children. Add that solubility is opposed to the very close friendship proper to matrimony, and exposes the morals of married persons to dangers (St. Thomas, Contra Gentiles, book 3, ch. 123; Supplement, q. 67, a. 1; St. Alphonsus VI, 956). Add besides that the matrimony of Christians, by the fact that it has been raised to the dignity of a sacrament, has received a new firmness.

II. With regard to extrinsic indissolubility, first note that the faculty of dissolving any marriage whatever by its own authority belongs to no human power; for no human power can by its own authority dissolve a right established by a higher power, such as is the natural law, by force of which matrimony cannot be dissolved. Hence if some human power can dissolve certain marriages, it cannot do this except in the name of God, or by vicarious power, as it is called. With these preliminary points established, concerning the extrinsic indissolubility of matrimony the following are laid down:

1. Matrimony between baptized persons:

a) If it is consummated, it is entirely indissoluble. This is clear 1° from ecclesiastical documents, that is, from canons of Councils and Synods, from decrees of the Holy See,⁵ and from canon 1118, which declares: "A valid ratified and consummated marriage cannot be dissolved by any human power and by no cause, except death." It is deduced 2° from the fact that the Church has never used such a power. The reason is that ratified and consummated matrimony, by God's ordinance, perfectly represents the indissoluble union of Christ with the Church (p. 553).

Objection. Christ the Lord, when promulgating in the Gospel the indissolubility of Christian matrimony, nevertheless made an exception for the case of adultery: "But I say to you, that whoever shall put away his wife, except for fornication, and shall marry another, commits adultery" (Matthew 19:9). Therefore, in the case of adultery by one spouse, marriages even of baptized persons can be dissolved. So the Greek schismatics and most Protestants.

Response. As is clear from the context and from the parallel passages (Mark 10:11; Luke 16:18; 1 Corinthians 7:10, 11), Christ proclaimed the absolute indissolubility of the matrimonial bond, even for the case of adultery. Therefore he added absolutely: "And he who shall marry her that has been put away commits adultery."

Therefore it must be said that the exceptive clause "except for fornication" affects only the prior part of the sentence, "Whoever shall put away his wife, commits adultery" (or: "causes her to commit adultery," Matthew 5:32), but not the other part of the sentence: "Whoever shall marry another commits adultery."

Christ, therefore, when the Pharisees ask, "Is it lawful for a man to put away his wife for any cause whatever?" answers that it is indeed lawful to put away a wife for the cause of fornication; nevertheless it is never lawful to put away a wife in such a way that one marries another wife while the former is living. In other words, Christ teaches that in the case of adultery by one spouse separation, as they say, with regard to bed and cohabitation, is lawful, but that the matrimonial bond itself is not dissolved.

b) If it is not consummated, it is dissolved both by law itself through solemn religious profession, and by dispensation from the Apostolic See granted for a just cause, with both parties asking, or with one of the two asking even if the other is unwilling (canon 1119). It is said:

alpha) Through solemn religious profession; this is recognized in the law of the Decretals both by Alexander III⁶ and by Innocent III,⁷ and is of faith from the Council of Trent.⁸ Moreover note well that the said force does not belong to simple profession, even one emitted in the Society of Jesus or by nuns, nor to the reception of Order itself, nor to the vow of chastity solemnized in the reception of Order.⁹ Finally, since the marriage is not dissolved except at the very moment of solemn profession, the other party cannot pass to new nuptials before it is emitted.

It is disputed whether solemn religious profession dissolves marriage by ecclesiastical law¹⁰ or by divine positive law.¹¹ Now it seems to dissolve it by ecclesiastical law, and not by divine positive law. For, first, the opinion which asserts divine positive law is not proved, although such an assertion would seem to have to be proved. Next, a priori it seems little probable that a thing which belongs solely to an ecclesiastical institution, namely the solemnity of vows,¹² would by divine law have the force of dissolving matrimony. Then, solemn and simple vow seem not to differ in nature or substance;¹³ and, this being supposed, it is difficult to admit that an irritant force concerning matrimony belongs by divine law to the former, when the same cannot be affirmed of the latter. Finally solemn profession, considering only divine positive law, does not dirimently impede matrimony to be contracted, so that the later marriage, considering that law alone, can be reconciled with solemn profession; and, this being supposed, it can scarcely be admitted that a marriage already contracted, attending to divine positive law alone, is dissolved by solemn profession.

Objection. The Council of Trent declares: "If anyone says that a ratified but not consummated marriage is not dissolved through solemn religious profession by one of the spouses, let him be anathema."¹⁴ Hence the dissolution of the said marriage through solemn profession is a dogmatic, immutable truth. But if you admit ecclesiastical law, solemn profession can be deprived of the privilege.

Response. The opposed canon of the Council of Trent proves divine law no more than canon 9, session 13 and canon 2, session 23 prove the Easter precept and minor Orders to be of divine law. The cited canons condemn the errors of heretics with regard to the statutes of the Church; namely, those who deny force to the said statutes deny the power of the Church, which is heretical.¹⁵

Note. Solemn religious profession does not seem to dissolve a marriage entered between non-baptized persons and consummated in infidelity, even if after conversion it has not been consummated; since it is clear from no ecclesiastical document that such force belongs to the said profession, although those who judge that marriage is dissolved by natural law or by divine positive law through solemn profession ascribe the aforesaid force to it with greater right than others do.¹⁶

beta) Through dispensation granted by the Apostolic See for a just cause. This is clear from the constant practice of the Church.¹⁷ A just cause is required, however, because the Church proceeds by vicarious power; and just causes are, for example, notable error of quality in contracting marriage; voluntary and too-protracted delay by one spouse in consummating the marriage; extraordinary and implacable enmities of the spouses; supervening disease, especially that which impedes the use of marriage; supervening crime, especially if a lengthy punishment of imprisonment is inflicted on the delinquent; probable impotence of one spouse, which nevertheless cannot be proved either to have been antecedent or to be perpetual; asserted but not sufficiently proved nullity of the marriage, for example under the head of force and fear, joined with certainty of non-consummation.¹⁸ If the case and cause seem to occur, the matter should be referred to the Ordinary and through him recourse should be had to the Holy See, namely so that useless wanderings about may be avoided.

Note. A dispensation granted by the Holy See concerning a ratified and non-consummated marriage, or a permission made for passage to other nuptials on account of the presumed death of a spouse, always carries with it a dispensation from the impediment arising from adultery with a promise or attempted celebration of marriage, if there should be need of one (canon 1053).

2. Matrimony between a baptized party and a non-baptized party:

a) If it is not consummated, it is dissolved - as has been said concerning marriage entered between baptized persons - both by law itself through solemn religious profession, and by dispensation from the Apostolic See granted for a just cause (canon 1119).

b) If it is consummated, it likewise very probably can be dissolved by the Holy See, according to the doctrine soon to be handed down, by which any marriage can be dissolved by the Supreme Pontiff which has not been consummated after the baptism of both parties, except only the marriage of which neither party is baptized.

3. Matrimony between non-baptized persons:

a) If neither party is converted to the faith, that is, baptized, it is also extrinsically indissoluble. For a marriage of this kind cannot be dissolved: not by civil power, since it cannot dissolve the natural law (p. 548); not by the Supreme Pontiff, since he lacks power, even vicarious power, over infidels; nor by force of any law by which God has established that in some case marriage will be dissolved. In the Old Law, indeed, there had been conceded to the Jews the faculty of giving a bill of repudiation for dismissing wives, and this faculty also seems to have been extended to the nations.¹⁹ But Christ the Lord revoked the bill of repudiation and restored to matrimony its primitive indissolubility, as is clear from Matthew.²⁰

b) If one party is converted to the faith:

alpha) It is dissolved, the requisite conditions being fulfilled, in favor of the faith from the Pauline privilege (canon 1120, § 1), or in the case of the Apostle, as it is called; the Pauline privilege will be discussed particularly in the scholion.

Likewise it can be dissolved by the Holy See: certainly, if the marriage has not been consummated after conversion; very probably, even if it has been consummated after conversion. This follows from the things to be said under c).

c) If both parties are converted to the faith, it can be dissolved by the Holy See: certainly, if the marriage has not been consummated after the conversion or baptism of one of the converts; very probably, even if it has been consummated after the conversion of one of the converts; but not if it has been consummated after the conversion of both. It is said:

alpha) Certainly, if it has not been consummated after the baptism of one of the converts. For from ecclesiastical documents, especially from the constitution of Gregory XIII Populis ac nationibus,²¹ it is deduced that marriages of this kind can be dissolved. But they are not dissolved by force of the Pauline privilege, which does not regard the marriage of two converted infidels (n. 721).

The major is proved: the constitution of Gregory XIII decrees: "Considering that marriages of this kind contracted among infidels are indeed true, yet are not to be judged so ratified that, when necessity counsels, they cannot be dissolved... we grant the faculty of dispensing,... so that they may be able to contract marriage with any one of the faithful... provided that it is established... that the absent spouse cannot be lawfully admonished.... And these marriages indeed, even if afterwards it should become known that the former infidel spouses could not declare their will because they were justly impeded, and that they had even been converted to the faith at the time of the second marriage already contracted, nevertheless must never be rescinded, but are valid and firm." But these things must at least hold if the marriage was not consummated after the baptism of one of the converts.

beta) Very probably, even if it has been consummated after the conversion of one of the converts. So authors now rather commonly. The reason seems to be that in this case matrimony - as not yet both elevated to a sacrament on the part of each party and consummated after the sacrament received by each party - does not perfectly represent the union of Christ with the Church, and therefore lacks full firmness.²²

gamma) But not if it has been consummated after the conversion or baptism of both parties. This is deduced first from the fact that in this case there seems to be a ratified marriage (n. 713) and, as is supposed, a consummated one; next from the fact that the Church has never dissolved marriages of this kind. There is added the consensus of theologians and canonists.

Conclusion. The Supreme Pontiff, provided that at least one of the spouses is baptized, can by vicarious power and from a proportionate cause dissolve every marriage which was not consummated after the baptism of both parties.

In proving the things on which the aforesaid conclusion rests, we have relied only on divine documents, that is, Sacred Scripture, and ecclesiastical documents. But it is helpful to illustrate the intrinsic reason in these terms: the indissolubility of marriage arises from a twofold source, from natural law and from divine positive law: from natural law, insofar as both the good of offspring and the good of the contracting parties require indissolubility; from divine positive law, insofar as matrimony established by God was a foreshadowing of that divine and indissoluble union between Christ and the Church; and this foreshadowing or mystical signification is implanted not only in the sacrament of matrimony, but, as the Supreme Pontiffs²³ and theologians bear witness, in every marriage. Yet it is implanted more perfectly in the sacrament of matrimony than in a marriage which is not a sacrament, because the sacred element which is more present in the sacrament of matrimony is more apt to receive the character of representing that sacred union.²⁴ Furthermore, it is implanted more perfectly in a marriage which is not a sacrament when it has been consummated than when it has not been consummated; likewise more perfectly in sacramental matrimony when consummated than when not consummated,²⁵ because the bond which has been ratified by the real handing over of the flesh is more apt to receive the character of foreshadowing that perfect union of Christ with the Church; indeed sacramental matrimony, not yet consummated, according to authors represents the more dissoluble union of Christ with the soul. And these things seem sufficiently to exhibit the reason for the different degree of indissolubility.

¹ Mark 10:11; Luke 16:18; 1 Corinthians 7:10, 11.

² Session 24.

³ Denzinger-Bannwart, n. 1767.

⁴ A.A.S. 1930, pp. 550-556, 558, 572-576.

⁵ Cf. De Smet, De sponsalibus et matrimonio, n. 358, 359.

⁶ C. 2 (4) and 7, X, III, 32.

⁷ C. 14, X, III, 32.

⁸ Session 24, canon 6.

⁹ Cf. De Smet, op. cit., nn. 336, 337.

¹⁰ Understand, however, a vicarious ecclesiastical law, so to speak, because the Church cannot dissolve marriage except by vicarious power; see p. 548.

¹¹ St. Bellarmine (De monachis, book 2, ch. 38) and others judge that marriage is dissolved by solemn profession by force of natural law, that is, from the very nature of solemn profession.

¹² De officiis religiosorum, t. I, n. 1218.

¹³ Session 24, canon 6.

¹⁴ Session 24, canon 6.

¹⁵ Aertnys-Damen, op. cit. II, n. 924; Gasparri, op. cit., n. 1082.

¹⁶ Cf. De Smet, op. cit., n. 339.

¹⁷ Cf. De Smet, op. cit., nn. 328, 332.

¹⁸ Vlaming, op. cit., n. 606.

¹⁹ In the Old Law there was divorce with regard to the bond. For: 1° a repudiated wife could marry another man; 2° when the other man had died, the former husband could not receive her as wife, but she was not prohibited from marrying another (Deuteronomy 24:1-4).

²⁰ Chapter 19:3 sq.

²¹ January 25, 1585.

²² Cf. encyclical of Pius XI Casti connubii (A.A.S. 1930, p. 552).

²³ Leo XIII, encyclical Arcanum; Pius XI, encyclical Casti connubii (A.A.S. 1930, p. 570).

²⁴ Ephesians 5:32.

²⁵ Encyclical of Pius XI Casti connubii (A.A.S. 1930, pp. 552, 570).

To what extent the matrimonial bond itself can be dissolved we said in n. 720 sq. But the two cases explained theoretically in that place we will make clearer for the sake of practice. Namely, from a just cause the Church can dissolve: 1° marriage between baptized persons which has not been consummated; 2° marriage between a baptized party and a non-baptized party, for instance if the baptized party, heresy or schism having been rejected, or the non-baptized party through baptism, is converted to the Catholic Church.

I. Reasons for petitioning the dissolution of marriage between baptized persons, not consummated, are, for example: doubtful impotence, or impotence doubtfully antecedent or doubtfully perpetual and difficultly curable; supervening impotence; infirmity impeding the use of marriage; grave error concerning a quality of the person, detected after marriage; grave and continual discords between the parties; an infamous delict perpetrated by one party, especially if a sentence of a judge followed; danger of perversion; civil divorce, especially with celebration of a new civil marriage; probable nullity of the marriage, but which cannot be sufficiently proved, for instance on account of fear applied, on account of a condition added to the consent; malicious departure.¹

II. The mode of obtaining dissolution is presented summarily in these points:²

1. Only the spouses have the right of petitioning for a dispensation over a ratified and non-consummated marriage (canon 1973).

2. The petition to be directed to the Supreme Pontiff should be transmitted to the Congregation of the Discipline of the Sacraments; moreover, it should be directed through one's own Ordinary.

3. The Ordinary cannot instruct the process unless the Apostolic See has given him the faculty (canon 1963, § 1).

4. The Ordinary will take care to constitute the tribunal as soon as he can, employing for this purpose the ministers constituted in his Curia, or also others. A collegiate tribunal of three judges is not required; however, an instructing judge, a defender of the bond, and an actuary are required.

5. The tribunal should especially inquire: 1° into the legitimate causes of dispensation; 2° into the non-consummation of the marriage.

6. When the process has been finished, all the acts together with the vote of the Bishop and of the defender of the bond are to be transmitted to the Congregation, and the sentence of the Supreme Pontiff himself is to be awaited.

¹ De Smet, op. cit., n. 330; Vlaming, op. cit., II, n. 606.

² The Decree of the Congregation of the Discipline of the Sacraments, May 7, 1923, established the rules to be observed (A.A.S. 1923, pp. 389-436).

I. The petition to be directed to the Supreme Pontiff should be transmitted to the Holy Office, to which this cause is committed.

II. The conditions required so that a marriage between a baptized party and a non-baptized party may be dissolved are:

1. If the non-baptized party desires to be converted to the Catholic Church, he or she should first be baptized, so as to be subjected to the jurisdiction of the Church. Besides, it is required that after receiving baptism he or she has not had copula with the spouse; otherwise there would be a marriage consummated after the baptism of both parties, which cannot be dissolved by the Church. In addition, juridical proof is demanded by which it is proved that baptism had in no way previously been conferred, or had been conferred invalidly.

2. If the baptized party wishes to be converted to the Church, he or she must first in fact be converted to it.

3. Finally, other things are to be inserted into the petition; these indeed will be investigated and inserted by the one to whom this matter is committed.

I. The causes of perpetual separation are adultery and the mutual consent of the spouses for conversion to a more perfect state.

1. Adultery furnishes to the innocent spouse the right of perpetual separation. This is clear from Sacred Scripture,¹ which, while excluding dissolution of the bond (n. 720), indicates perpetual separation. It is further clear from Tradition,² and from the fact that someone vainly demands that faith be kept with him by one to whom he refuses to keep the faith furnished by himself.³ Hence canon 1129, § 1: "Because of the adultery of a spouse, the other spouse, the bond remaining, has the right of dissolving, even in perpetuity, the communion of life, unless he consented to the crime, or gave cause for it, or expressly or tacitly condoned it, or also himself committed the same crime" (St. Thomas, Supplement, q. 62, a. 1; St. Alphonsus VI, 960). Moreover, adultery must be: consummated, formal, morally certain, not approved, not compensated, not condoned. It is said:

a) Consummated through copula of itself apt for generation, not merely begun through kisses, touches, embraces, etc.; nor, since here carnal union with a third person is considered, does mere lying together or union of bodies, or onanistic copula, suffice.

b) Formal, not committed by oppression or in good faith (St. Thomas, Supplement, q. 62, a. 1; St. Alphonsus VI, 960; Homo Apostolicus, tract 18, n. 95).

c) Morally certain. Certainty of this kind can also arise from indications, conjectures, and vehement presumptions (St. Alphonsus VI, 961; Homo Apostolicus, tract 18, n. 93).

d) Not approved, that is, it is required that the other did not consent to the adultery nor directly give cause for it; not, however, that he or she did not furnish an indirect cause for it, for instance by denying the debt, by treating the spouse badly (St. Thomas, Supplement, q. 62, a. 1; St. Alphonsus VI, 966).

e) Not compensated by adultery committed by the other party before the sentence of divorce was issued by the ecclesiastical judge. It does not matter that one committed adultery more often than the other, or that the crime of one is occult and that of the other public. But if, after adultery has been committed by both, one comes to his senses while the other continues in adultery, the one who is amended can with sufficient probability institute divorce (St. Alphonsus, loc. cit.).

f) Not condoned either expressly or tacitly. "Tacit condonation is had if the innocent spouse, after he has been made more certain concerning the crime of adultery, has freely associated with the other spouse with marital affection; moreover it is presumed unless within six months he has expelled or left the adulterous spouse, or has made a legitimate accusation" (canon 1129, § 2).

Sodomy with a third person and bestiality are equated with adultery, because what is considered here is present, namely carnal union with a third person. Otherwise one must speak concerning sodomy perpetrated with the spouse (St. Thomas, Supplement, q. 62, a. 1, ad 4; St. Alphonsus VI, 962, question 2°).

Corollary I. The innocent spouse is not bound of himself to institute divorce; incidentally he can be bound either on account of hope of amending the guilty one, or on account of avoiding scandal arising from the fact that someone would seem to consent to the continued adulteries of the spouse. Practically, however, an obligation will scarcely be present, with the inconveniences also about to follow considered (St. Thomas, Supplement, q. 62, a. 2; St. Alphonsus VI, 963, 964).

Corollary II. The innocent party, whether he or she has departed by sentence of a judge or by his or her own authority, is never bound to receive the adulterer, however amended, or to return to him or her (canon 1130), unless the innocent party commits adultery before the sentence of divorce has been issued by the ecclesiastical judge. After this sentence has been issued, the obligation is sufficiently probably lacking according to that maxim, "What has once been well decided... ought not to be reconsidered by any repetition" (St. Alphonsus VI, 965; 967, doubt 2; Homo Apostolicus, tract 18, n. 96). Nevertheless it is always laudable to receive the penitent one back into favor.

Corollary III. The innocent spouse can admit or recall the adulterous party, unless with the innocent spouse's consent the latter has taken up a state contrary to marriage (canon 1130), namely sacred Orders or Religion. If, however, the adulterous wife prudently fears cruelties, she is not bound to return (St. Alphonsus VI, 976).

2. Mutual consent confers the right of perpetual separation in a twofold case:

a) If one or both parties emit perpetual religious profession, with the other party consenting; but in order that religious profession be valid, a dispensation of the Holy See is required (canon 542, 1°). Once religious profession has been emitted in this way, neither ever has the right of returning to the other or summoning the other.

b) If the husband receives sacred Orders, with the wife consenting; but in order that the reception be licit, a dispensation of the Holy See is required (canon 987, 2°). The reception of Order without the consent of the spouse is likewise illicit, indeed in such a way that the husband can be compelled to return and to abstain from all acts of Order.

In occurring cases, the Holy See can establish conditions for the other party who does not enter Religion, or for the wife whose husband receives sacred Orders; common law now prescribes nothing.

¹ Matthew 5:32; 19:9; Mark 10:11; Luke 16:18; 1 Corinthians 7:11-12.

² The Dogmatic theologians should be consulted.

³ Rule of Law 75 in VI.

II. Causes of temporary separation. 1. Causes of this kind are comprehended by canon 1131, § 1: If one spouse has given his name to a non-Catholic sect; if he has educated the offspring non-Catholically; if he leads a criminal and ignominious life; if he causes grave danger, whether of soul or of body, to the other; if by cruelties he renders common life too difficult: these and other things of this kind are for the other spouse so many legitimate causes of departing. It is said:

a) If he has given his name to a non-Catholic sect. Therefore it is required that he be formally joined to a sect, whether of infidels, or heretical, or schismatic, and that after the marriage has been entered.

b) If he has educated the offspring non-Catholically.

c) If he leads a criminal and ignominious life, as if he joins himself to a band of robbers.

d) If he causes grave danger, whether of soul or of body, to the other. Danger of soul, for example if he solicits to heresy, poisoning, etc. Add if the husband introduces others into the house with danger that they may tempt to adultery. Or if he wishes to exercise sodomy with the wife, even if she refused to consent (St. Alphonsus VI, 973). Danger of body, to which belongs, for example, a contagious disease of the spouse, unless, which today more easily has place, the danger can be removed in another way (St. Alphonsus VI, 973).

e) If by cruelties he renders common life too difficult, for example by treating the consort cruelly. Mere beating, however, unless it is grave and happens several times, is ordinarily not judged among common people to be a just cause for withdrawing. Besides, it suffices that a grave evil be prudently feared (St. Alphonsus VI, 970, 971, question 3°). To this can also be referred insanity from which danger is imminent to the spouse; likewise very troublesome cohabitation, namely on account of grave and frequent insults or quarrels, especially if they bring in a just fear of a greater evil. Here, however, as was likewise said concerning cruelty, the condition of the persons is considered (St. Alphonsus VI, 971, question 3°).

f) And other things of this kind, for example malicious desertion by the spouse.

2. All these causes of themselves furnish only the right of temporary separation. Wherefore canon 1131, § 2 says: In all these cases, when the cause of separation ceases, the custom of life must be restored; but if the separation was pronounced by the Ordinary for a definite or indefinite time, the innocent spouse is not bound to this except by decree of the Ordinary or when the time has been completed.

III. The authority by which separation is to be instituted. 1. Adultery, provided it is certain, confers the right of instituting separation by one's own authority (cf. canons 1129, § 1; 1130). Nevertheless, for the sake of avoiding scandal, ordinarily the authority of the ecclesiastical judge must be invoked, unless the adultery is notorious by law or by fact, although even then ordinarily it is expedient to seek the intervention of the ecclesiastical judge. And this is to be advised all the more because, when adultery is neither notorious nor legitimately proved, the judge can compel the spouses to cohabitation; but one must obey the judge, yet not render the debt to the adulterous spouse (St. Alphonsus VI, 968).

2. Mutual consent requires the intervention of Ecclesiastical Authority, as was said in n. 840.

3. Other causes require the authority of the local Ordinary, unless they are certainly established and there is danger in delay; in that case separation can be instituted by one's own authority (canon 1131, § 1).

Finally, separation from bed alone can take place either by mutual consent, according to these words of the Apostle: "Do not defraud one another, except perhaps by consent and for a time, that you may give yourselves to prayer,"¹ or, if a just cause exists, for example a contagious disease, by the authority of one spouse. The same must be said of a separation not of long duration from bed and cohabitation, for instance to undertake a journey.

Note 1. The ecclesiastical judge in causes of separation of which canon 1131, § 1 treats can proceed without a judicial process, even in the second grade or instance.²

Note 2. In several dioceses the faculty has been granted to vicars forane of granting separation from bed and cohabitation for a time.

Note 3. Those who improperly instituted separation by their own authority can be left in good faith and admitted to the sacraments, if hope of fruit is absent and scandal is not feared. Besides, note that a wife illegitimately expelled by her husband is not numbered among those who are separated by their own authority.

¹ 1 Corinthians 7:5.

² Pontifical Commission, July 25, 1932 (A.A.S. 1932, p. 284).

IV. Consequences of separation legitimately instituted. 1. When separation has been instituted, the children must be educated with the innocent spouse; and if one of the spouses is non-Catholic, with the Catholic spouse, unless in either case the Ordinary, for the good of the children themselves, their Catholic education always preserved, has decreed otherwise (canon 1132).

2. The innocent spouse, perpetual separation having been legitimately instituted, can with a dispensation of the Holy See enter Religion or receive sacred Orders; the guilty one cannot do this unless the other either has already changed state by professing Religion or receiving sacred Orders, or consents expressly, or tacitly, for instance by refusing reconciliation repeatedly demanded (St. Alphonsus VI, 969).

3. Separated spouses can restore common life by private authority, and this holds even if the sentence of separation was issued by an ecclesiastical judge.

Question 1. Whether it is ever licit to petition for civil divorce.¹

Response 1. If the marriage is invalid from any cause whatever and has been declared such by competent ecclesiastical authority, it is licit, by petitioning, to intend and obtain civil liberty.²

Response 2. If the marriage is valid, the things to be posited having been posited, it is likewise licit if the law in force does not intend the dissolution of the bond. If it intends the dissolution of the bond, it is disputed; but a sufficiently probable opinion affirms it, because the petitioner can abstract from the intention of the legislator, and as a Catholic, for we are speaking of such a person, must be judged to abstract from it. This being posited, the petitioner, as we will immediately say, does not seek something which cannot be furnished by the judge without sin. I said "the things to be posited having been posited," that is, with the approval of the competent ecclesiastical authority first had, insofar as this is required according to what was said in n. 842. I said "can abstract from the intention of the legislator," just as he can and must abstract if there is question of an invalid marriage.

Question 2. Whether a judge can ever render a sentence of divorce if there is question of a valid marriage.

Response 1. If the law intends the dissolution of the bond, it is disputed; but a sufficiently probable opinion affirms it. For the judge can abstract from the intention of the legislator and, as a Catholic, for we are speaking of such a person, he is judged to abstract from it. This being posited, his action is not evil in itself; nor does it involve approval, and therefore neither formal cooperation, of the action of the petitioners, who perhaps do not abstract from the intention of the legislator or who intend the dissolution of the bond. I said "can abstract from the intention of the legislator," just as he can and must abstract if there is question of an invalid marriage. Besides, a just cause for admitting material cooperation is already had from the fact that otherwise good men would have to abstain almost entirely from an office of such great importance.

The controversy does not seem able to be settled by authority. Some favorers of the more benign opinion appeal to the response given by the Holy Office to the Apostolic Nuncio of Belgium, September 14, 1866. But if you admit that by Belgian law the dissolution of the bond was originally regarded, the sense of the law already for a long time seems to have been so changed by usage that the law rather permits one to act as if the bond were dissolved than itself intends to dissolve the bond. Favorers of the stricter opinion chiefly allege responses of the Holy Office, June 25, 1885 and May 27, 1886; but the adversaries respond that these were probably given by reason of peculiar circumstances.³

Corollary I. Advocates of themselves speak licitly for divorce only insofar as the spouses licitly petition for it. If they petition illicitly, the advocate is not excused except on account of a most grave cause.

Corollary II. Where separation from bed and cohabitation suffices for the intended end, divorce of itself cannot be petitioned. Nevertheless it is licit on account of a very grave cause; for instance if, when divorce is petitioned, the whole offspring will be entrusted to the religious spouse, but if it is not petitioned, a part of the children certainly or probably will be entrusted to the irreligious spouse.

Corollary III. Pastors and confessors should for the most part endeavor to turn the faithful away from the plan of obtaining divorce, and to exhort the separated to restore common life, namely on account of the danger of incontinence which rather often is imminent to each party. There is added the fact that the education of the offspring easily suffers detriment; indeed the fear that the offspring, wholly or in part, may be adjudged to a pernicious spouse can be a reason on account of which one must abstain from divorce or from a lesser separation.

¹ Cf. Duynstee, Burgerlijk Recht en zielzorg, n. 76.

² Holy Office, September 9, 1824.

³ De Smet, op. cit., n. 399.

The mere presence, however, of condemned matter in a writing does not cause it to fall under prohibition.

(a) Some works are not forbidden unless the author’s purpose to teach error or attack the truth is known. Hence, books on religion written by non-Catholics which contain errors against the Catholic Faith are not forbidden, unless they deal with religion ex professo (i.e., not incidentally or cursorily, but clearly for the purpose of teaching). It is not necessary, however, that religion be the main theme of the book, Similarly, books that attack religion are forbidden, not when attacks are casual or by the way, but when they are made purposely; and the same is true as regards books that insult the clerical state. The purpose is recognized from the declaration of the author, from the nature of the work, from the systematic treatment, length or frequency of argumentation or attack, etc.

(b) Other works are not forbidden, unless they contain not only agreement with error, but also argument in defense of error. Thus, books in favor of heresy, schism, suicide, duelling, divorce, Freemasonry, etc., are forbidden when they champion wrong causes by disputing in their behalf.

(c) Other works are forbidden, not because they state, but because they approve of error. Such are books that attack or ridicule the foundations of religion or the dogmas of faith, those that disparage worship, those that are subversive of discipline, those that defend proscribed propositions, those that teach and favor superstition, etc.

Can a judge render sentence when the law itself is certainly unjust and inequitable? - If it concerns a civil law contrary only to ecclesiastical laws in which the Supreme Pontiff can dispense, as, for example, is the law of ecclesiastical immunity, the judge can and must, if judgment must be rendered, speaking in itself, seek the due faculty from the Holy See, or from the Bishop of the place, according to the various laws and various cases that occur. But he will easily obtain this faculty, since it is especially expedient for the good of society that there be honest judges in it. The reason for seeking the faculty is the usurpation of the rights of the Church which otherwise would be had, and the public scandal to be guarded against.

If it concerns a civil law contrary to divine and natural laws, then either the judge must command something directly against this right, or he must only apply some penalty. The first is evidently not lawful, and thus he ought rather to relinquish his office than to oblige by military force a concubine to remain at home with her lover. Thus also it is not lawful to render a sentence of divorce according to the law, namely, by which the bond of marriage is dissolved, power being granted to the spouses to enter new nuptials. For this is openly against natural, divine, and ecclesiastical right. For as it is inequitable to execute an inequitable matter, so it is inequitable to command its execution. S. Th. 2. 2. q. 60. a. 5.

The other seems to some also altogether illicit, because it is intrinsically evil to condemn an innocent person, namely when the law itself is evidently unjust, whose transgression is punished. But to others it seems that it can be excused. For to decree some temporal penalty is not always evil in itself; and there is present a most grave reason on the part of the judge, lest he be compelled to renounce his office, and on the part of consenting society, for which it is better that judges be good rather than bad, scandal always having been removed, either from approved custom and the practice of the fearful, or from due faculty previously sought. And thus he can decree a fine because of the omitted formality of civil marriage, which the Church tolerates in this sense, scandal always having been removed, as was said.

But although there is question only of decreeing a penalty, one must distinguish between penalty and penalty. For if it concerns the penalty of death, for example, mutilation, etc., since neither the person himself can yield his right, nor can society by its authority sanction such a penalty, it is altogether inequitable to impose it. "For positive right has place where, as regards natural right, it makes no difference whether it is done thus or otherwise." S. Th. l. c.

But if it concerns some monetary penalty, or another similar one, since anyone in this matter can yield his right, and society can consent, the judge surely can impose some slight penalty of this kind, lest he be compelled to renounce his office with grave damage to himself and to society itself. Consent is then reasonably presumed. Yet this also seems to be limited to the case in which it does not concern a law directly against nature, although it is rather harsh and not sufficiently just. For since the sentence of a judge is not any declaration whatever, but an authoritative one, authoritatively to confirm a law against nature, even by determining a monetary and slight penalty, is against nature. It is against nature to condemn to death a Christian who refuses to adore idols; it is against nature to condemn him to a penalty and fine, even of only five small coins, because he did not wish to genuflect before an idol. Certainly of such a judgment it cannot be said that it is a "definition or determination of the just or of right," nor can it be said of the judge that he is "interpreter of justice" or "animated justice." S. Th. 2. 2. q. 66. a. 1; a. 5 ad 1; q. 67. a. 3; E. M.

Is the form used among the Greeks valid: The seal of the gift of the Holy Spirit? - Resp. In the affirmative with the common opinion of theologians. For the sense is: by this sign, which I confer upon you, the gifts of the Holy Spirit are given, with the verb omitted, according to the custom of the Greeks. But the invocation of the Most Holy Trinity, while in the Latin Church it is had after the anointing, is had in the Greek Church in the preceding prayer. Otherwise one would have to say that the Greeks do not have the sacrament of confirmation, which is very hard. Moreover, this is clear from the Declaration of Benedict XIV in the encyclical letter Ex quo primum to the Bishops of the Greek rite, March 1, 1756. - L. 164, 169.

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

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

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

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

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

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

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

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

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

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

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

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

What are the essentials of marriage, insofar as it is a contract? As all contracts, so marriage consists of thing, cause, and consent.

The thing is what is mutually given and accepted: power or right over the body, for coming together, in order to generation. Therefore the commingling itself does not pertain to the essence, but only to its consummation. Hence spouses can licitly abstain from the use of marriage, and wish that no more children be born than they can nourish, provided they do not positively impede them, nor procure abortion.

The cause is the procreation and education of offspring, the primary end of marriage, and the mutual help of the whole of life, the secondary end of marriage, Gen. 1:28. After the sin of Adam, a remedy also for concupiscence is another secondary end of marriage, 1 Cor. 7:2, 5, 9. The generation of offspring is from the primary institution of marriage, the remedy from the secondary institution, which presupposes the former. St. Thomas, Suppl. q. 42, a. 2; C. G., l. 4, c. 78. Hence marriage is licitly contracted as a remedy for concupiscence, provided offspring is not positively excluded, and therefore with the primary end of marriage presupposed, namely the generation of offspring, without which end marriage cannot exist. For that remedy is not to be sought in another thing, but in marriage. - And the same must be asserted of the use itself of marriage for calming concupiscence. St. Thomas, Suppl. q. 49, a. 5, ad 2, opines the contrary. But St. Alphonsus 882 departs from him, and rightly, since this is drawn by a more proper interpretation from the text of St. Paul cited. Likewise it is licit to contract marriage for an honest extrinsic end, for example, to reconcile the peace of families, to preserve love among blood relatives, to preserve the honor of the family, to protect health, etc. The reason is that "this is not disorder, to choose one of the honest secondary ends before the primary end, provided that this is not excluded. But otherwise, if the end is not honest, namely if it is of pleasure, or of desire for riches, or of vain honor." L. 883. Indeed for every right operation it is not necessary that the principal end to which that operation is ordered always actually be intended. It suffices actually to intend other ends to which that operation also by its nature is referred, provided the primary end is not excluded, or something is not positively done contrary to it, or they are subordinated to the primary end, so that another secondary end is not intended as principal, nor the others subordinated to that secondary end.

Finally it is perfected by consent, namely the true will of each concerning the same thing, i.e. the right of coming together, by handing this over on both sides, marriage is contracted. The right of coming together, namely in order to generation. And because marriage is perpetual, if one of them has the purpose of contracting it only for a time, from defect of legitimate will, although not manifested externally, nothing will be done. Wherefore marriage can indeed be given without the good of offspring and without the good of faith, or fidelity, according to themselves; because these two goods of marriage, according to themselves, regard the use of marriage, and the being of a thing does not depend on its use; but marriage cannot be given without the good itself of sacrament or inseparability; for this "pertains to marriage itself according to itself, because from this very fact, that by the conjugal pact spouses mutually hand over to each other power over themselves in perpetuity, it follows that they cannot be separated, and hence it is that marriage is never found without inseparability." St. Thomas, Suppl. q. 49, a. 3. - L. 879, 883; St. Thomas, Suppl. q. 41, a. 1; q. 42, a. 2, 4; q. 44, a. 1; q. 45, a. 1; q. 48, a. 1; q. 49; q. 54, a. 3; q. 58, a. 1, ad 3; 4 D. 2, q. un., a. 4; D. 26, q. 2, a. 4; Commentary on 1 Corinthians, Lect. 1; C. G. 146; C. B. 1325; E. M.

What sort of consent must there be? - Consent must be: 1. Mutual; for marriage consists in a contract, which is essentially the consent of two, or mutual consent. Whence if it is lacking on one side, it will be null. - 2. Concerning the present: because by a promise concerning the future only betrothals are made, not marriage. This is also deduced from C. Si inter 31, de Spons. et matrim. - 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 consents freely and fully. This is clear from Canon Law, which invalidates marriages contracted from grave fear. - 4. Manifested by external signs, because every agreement among men must be known by some external sign; for agreement necessarily supposes mutual acceptance among those contracting. - St. Thomas, Suppl. q. 45; Lugo, Resp. Mor., l. 1, d. 42; E. M.

Must consent be expressed by words? R. In the negative as regards validity, because by natural law in a contract it suffices that consent be expressed by some certain sign. C. un. section fin., de Despons. impub., in 6; C. Is qui fidem 31, de Spons.; C. Tuae fraternitati 25, de Spons. Wherefore it suffices that consent be externally manifested, for example, by the handing over and acceptance of a ring, and as regards the woman even by silence. L. 882, 887; St. Thomas, Suppl. q. 45, a. 2; q. 47, a. 3. - In the affirmative as regards liceity, because otherwise one would act against the Rubric and the custom of the Church. Yet it does not seem to exceed venial sin if words are not used; indeed shame or another reasonable cause would excuse from every fault. L. 888.

What is to be done if someone says that he consented fictitiously? - As regards the external forum, credence is not given to him, unless from the circumstances it is clear that he was either deceived by fraud or induced by grave fear to contract; for it cannot be supposed that he who freely entered marriage consented fictitiously. - As regards the internal forum, he who asserts that he consented fictitiously must be obliged to abstain from asking and rendering the debt until he has truly consented, and ordinarily also to place true consent, so that he thus repairs the injury inflicted on the other party. Ordinarily, because if the other party consents to separation, or if he himself was forced to contract, he is not bound to supply consent. But it suffices that the consent of the one party accede to the preceding and not revoked consent of the other. Wherefore, if someone before the parish priest and witnesses did not truly consent, he satisfies by consenting afterward.

Besides, the spouse who placed true assent is not obliged to believe the other asserting that he consented fictitiously, unless he confirmed it by oath; and therefore he would licitly ask the debt until the defect of consent was evidently proved. S. C. C., February 24, 1720; St. Thomas, Suppl. q. 45, a. 4, ad 2. But the obligation of entering marriage by true consent easily shows itself to be most grave, not only because otherwise one sins gravely against the reverence owed to the sacrament, but also because by injury a most grave damage is inflicted on the other party. Indeed since in the external forum fiction can be proved with very great difficulty, other nuptials are not permitted to the deceived party, and therefore this one thing remains to that party: either to enter Religion, or to remain unmarried in the world. - L. 887, 1113, 1114; Schmalzgrueber, l. 4, t. 1, n. 265 ff.

Does consent through a procurator suffice? - R. In the affirmative, as regards validity, provided the required conditions are present, because marriage has the whole nature of a natural contract. But any contract can be made through a procurator. - The conditions for contracting marriage in this way are: 1. that the procurator have a special mandate; that the mandate be concerning contracting with a determined person; that he execute the mandate by himself, C. fin., de Proc., in 6, unless he has had an express faculty for this; 2. that the one mandating has not revoked the mandate, neither only mentally, nor even tacitly, for example by celebrating betrothals with another; 3. that the procurator show the written mandate to the parish priest and witnesses: but it also suffices that the mandate be given orally; 4. that he contract marriage before the same, according to the Tridentine form formerly in force, and now also before the parish priest and witnesses according to the Decree Ne temere; it likewise matters nothing that the mandate is given to a man or a woman. For this neither removes nor changes the nature of mandate; 5. that he not exceed the limits of the mandate, if, for example, the condition required by the one mandating is that it be contracted with such a dowry, at such a time, etc. - In the negative as regards liceity, unless a very grave cause urges. The reason is that this mode of contracting is contrary to the ordinary practice of the Church, and marriages are scarcely made thus among any but Princes and Magnates. Hence the parish priest ought not by his own authority to bless marriages of this sort, as is clear from the practice of the Church and the Rituals. - L. 885, 886, 889; Sanchez, l. 5, d. 8, n. 24.

Marriage can likewise licitly be contracted by letter, which is read by the other party before the parish priest and witnesses, declaring at the same time his or her consent. And this also now after the Decree Ne temere. The invitation of the parish priest can well be made by an absent person through a letter, and through a letter read before the other party and witnesses the parish priest can seek the consent of the absent person, and likewise through a letter read before the same witnesses and the other party he can have the offered consent of the absent person and the accepted consent of the other.

Is marriage entered under condition valid? - It is certain that it is valid if the condition is concerning the past or 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. - If an honest and possible condition concerning the future is added, marriage is not perfected until the condition is fulfilled; because the contract must transfer the mutual right over bodies concerning the present.

But when the condition has been fulfilled, the marriage is valid without new consent, since a conditioned contract, once the condition has been fulfilled, passes into an absolute one, and by that very fact is valid by reason of sacrament, because among Christians the contract of marriage cannot be separated from the sacrament. Without new consent; although many deny this, and from St. Alphonsus 895 probably, it is safer to renew consent. Although the marriage is valid even if the contracting parties are ignorant that the condition has been fulfilled, because the existence of the condition does not depend on knowledge of it, nevertheless they cannot use marriage before receiving notice of its fulfillment; otherwise at least by will and intention they would commit fornication. - A condition impossible from the nature of the thing, or only in fact, is held as not added in the external forum, because in so grave a matter it is presumed not to have been added seriously. C. fin. 7, de Condit. apposit. But because presumption yields to truth, both for the external forum and for the internal forum those cases must be excepted in which the truth certainly opposes and prevails over the presumption. But if there is doubt, then the condition is held for both forums as not added, lest perhaps those who are legitimately joined be separated, and be joined illegitimately to others. - 5.

"But if the condition concerns a necessary future, as that the sun will rise tomorrow, then it is marriage; because such future things are already present in their causes." St. Thomas, 4 D. 29, q. un., a. 3, q. 3; L. Si pupillus 9, section 1, de Novationib. - L. 890, 892, 895; St. Thomas, Suppl. q. 47, a. 5; Schmalzgrueber, l. 4, t. 5, n. 37, 60 ff.

Is it licit to contract with conditioned consent? R. In the negative. Such a mode of contracting is illicit, especially if the condition concerns the future, unless perhaps, as St. Liguori 892 has it, there is a most urgent cause. The reason is that many and grave inconveniences can easily follow from such a mode of contracting, namely ambiguities, difficulties, and from them quarrels and scandals.

Is marriage entered under a shameful condition valid? - If the shameful condition does not repugn to the substance of marriage, the marriage is judged valid in the external forum; for in it the condition is held as not added. C. fin., de Condit. apposit. But because this rests on presumption, hence if from elsewhere it is certain that it was added seriously, and that consent in reality was not given except under its event, then certainly the marriage will be judged valid in neither forum unless the condition happens. But when the condition has been verified, as regards the internal forum it is controverted, as in other contracts. Ordinarily, however, it is not judged a condition sine qua non, but a mere purpose or promise independent of the matrimonial contract, and therefore consent is not judged suspended by such a condition unless this is altogether clear. Besides, in doubt one must always judge in favor of marriage. L. 891. - But the marriage is judged invalid in the internal forum if this condition repugns to the substance or essence of marriage, namely to its threefold essential good, that is, 1. the good of sacrament; 2. the good of faith; 3. the good of offspring; which would happen if the spouses, in contracting marriage, excluded perpetuity in marriage by making divorce, fidelity in marriage by not rendering the debt and by commingling with another, or the generation of offspring by positively impeding it. The reason is that by such a condition, whether added only interiorly in the intention of one or both contracting parties, or only exteriorly, either there is not had, or at least exteriorly there is not expressed, consent to true marriage, since the very substance or essence of marriage is taken away by force of such a condition.

But in the external forum, unless the condition is drawn into an express pact, the presumption is for the value of the marriage, since the cause is favorable and of the common good. - Therefore marriage is invalid, if such a condition repugnant to the substance of marriage is expressly added and drawn into a pact, in both forums, even if interior consent were present, because sufficient exterior consent would be lacking.

C. Si conditiones 7, de Cond. appos. - If the shameful condition does not concern the future, but the present or the past, according to the more common opinion the marriage is valid if the condition is verified, and is not valid if it is not verified. The reason is that such a condition is not properly a condition. L. Institutio 10, section 1, ff. de Condition. institution. - L. 881, 882, 891; St. Thomas, 4 d. 29, q. un., a. 3, q. 3; d. 31, q. 1, a. 3; Schmalzgrueber, l. 4, t. 5, n. 90 ff.; Lugo, de Sacr., d. 8, n. 129; E. M.

Resolutions: If the shameful condition does not affect the contract itself, but affects only the execution of the contract, because they do indeed wish to be bound by marriage, but do not wish to fulfill the offices of marriage, then they sin gravely, but the marriage is valid. - In places where a law of divorce exists, if knowledge of the law has itself antecedently as regards consent, i.e. if they contract for this reason, because they know that this is licit for them, and otherwise they would not contract, the marriage is invalid; but if it has itself concomitantly, because they have the general will of contracting, so that they would contract equally without such knowledge, the marriage is valid.

In the external forum the general will of contracting is always presumed, unless the contrary is proved, as Benedict XIV teaches, de Syn., l. 13, c. 22, n. 7, and as Pius VI declared, Letter to the Archbishop of Prague, July 11, 1789. - If marriage was indeed entered under a condition excluding the good of offspring, but one which is honest, namely under the condition of preserving chastity, the marriage is valid: for consent and object, which are altogether essential to the contract, are still had; for the object is the mutual handing over and power over one's own body. Yet others deny this. And Benedict XIV, l. c., n. 10, reports that a marriage of this sort was declared null by the S. C. C. in a certain particular case. And it seems thus to have to be held if by the aforesaid condition one renounces not merely the use, but the power.

"For that agreement, expressly drawn into a pact, by which the woman abdicated from herself power over the body of the man, and the man likewise power over the body of the woman, is openly contrary to the substance of marriage." Benedict XIV, l. c. And this certainly was verified in the aforesaid case decided by the S. C. - L. 881, 882; Lugo, de Sacr., d. 8, n. 131, 132; Collectanea S. C. de P. F., n. 1291, 1292, 1299, 1301, 1302.

"It must be noted here that a condition differs from a demonstration, cause, mode, and day, because a demonstration, or added cause, for example if someone says, I marry you, who are a virgin, or because you are a virgin, does not vitiate nor suspend marriage, even if the cause is false or shameful, even against the substance of marriage, as Sanchez, l. 5, d. 19, n. 2. For although he would not contract if he knew that she was not a virgin, nevertheless he then gives absolute consent, which is not impeded except by error concerning the substance, or concerning the substantial conditions of marriage. Nor does a mode suspend, if it is said, for example, I marry you so that you may serve me..., even if the mode concerns a shameful or impossible thing, I marry you so that you may kill, etc. The reason is that consent does not depend on a mode, as it depends on a condition. And even if, says Viva with Palaus, the mode is against the substance of marriage, namely, I marry you so that you may commit adultery, etc. But more probably Salmanticenses with Sanchez contradict this, because he who has an intention opposed to the contract does not seem to have the mind of contracting.

But whether an attached day suspends the contract, for example if it is said: I marry you after three days? Sanchez denies. But more probably Viva with Coninck, etc., affirm, because the one contracting then does not intend to place perfect consent except after the third day." L. 896. - St. Thomas, Suppl. q. 48, a. 2; Schmalzgrueber, l. 4, t. 5, n. 136 ff.; Sanchez, l. 5, d. 19, n. 2, 3.

What are the essentials of marriage insofar as it is a sacrament? The sacrament of marriage is not something distinct from the contract of marriage itself, but is the very contract of marriage itself, elevated by Christ our Lord to the being of a sacrament. Pius IX, Allocution, September 27, 1853; propositions 67 and 73 of the Syllabus given by Pius IX. - Hence it is clear that the contracting parties themselves are the ministers and subjects of this sacrament.

Florence, Decree for the Armenians; Trent, sess. 24, C. 1, de R. M. But the matter and form are contained in the contract itself. The remote matter is the bodies themselves or the right over the bodies of the spouses, to be mutually handed over in the contract of marriage in order to generation. But the proximate matter is the mutual handing over of bodies, which is perfected through words or signs expressing consent in the contract; and the form is the mutual acceptance of the contracting parties, expressed by words or signs. - Wherefore among Christians, laboring under no impediment, whether natural, divine, or canonical, there cannot be had a contract of marriage without at the same time having the sacrament of marriage; and conversely, the sacrament cannot exist without the contract. Among Christians, for unbaptized men are not capable of sacraments.

Laboring under no impediment, etc.; for although of itself every baptized human being is a subject capable of the sacrament of marriage, nevertheless accidentally many are barred from validly contracting marriage because of various impediments. - From the aforesaid mutual acceptance and handing over, moreover, the bond of marriage arises, namely the mutual right and obligation over bodies in order to generation, and therefore the union of husband and wife for one generation and education of offspring, and again for one domestic life. - L. 879, 880, 897-899; St. Thomas, 4 d. 26, q. 2, a. 1, ad 1; d. 28, q. 1, a. 3; Suppl. q. 44, a. 1; q. 45, a. 1, 2; q. 48, a. 1; E. M.

Resolutions: The marriage of unbelievers, although it is valid in the notion of contract, nevertheless is not a sacrament. St. Thomas, Suppl. q. 59, a. 2. Whether the marriage of a faithful person with an unbeliever, with the Pope's dispensation acceding, is a sacrament, some deny, others affirm. But a marriage contracted by unbelievers, when both spouses are converted to the faith, passes into a sacrament by the reception of baptism. - Heretics and schismatics who, in entering marriage, observe the laws of the Church as regards the substance of marriage, validly contract and are fortified with the sacrament. - All Christians who are altogether unwilling to receive the sacrament do not validly contract, even if they wish to contract marriage; and if they truly wish to contract marriage, they also receive the sacrament, even if they do not wish to make the sacrament. - Lugo, de Sacr., d. 8, n. 120-130; Schmalzgrueber, l. 4, t. 1, n. 302-304; t. 19, n. 164-176; Ferraris, v. Matrimonium, a. 1, n. 19; Clericatus, de Matr., decis. 4, n. 25.

Is marriage governed by civil or ecclesiastical authority? - Since among Christians the contract itself of marriage is a sacrament, marriage cannot, insofar as it is contract, be governed by civil power, and insofar as it is sacrament, by ecclesiastical power; nor at the same time, insofar as it is contract and sacrament, be governed by both powers, civil and ecclesiastical; but it must be governed exclusively, both as contract and as sacrament, by the authority of the Church.

Wherefore to the Church alone it belongs to establish especially those things which regard the substance of this contract, both as regards the incapacity of persons and as regards the form and solemnity to be constituted, namely as regards diriment impediments to be established. And likewise to the Church alone belong matrimonial causes and causes of betrothals and of other impediments immediately and directly impeding marriage. Trent, sess. 24, c. 4, 12; Benedict XIV, Const. Singulari, sections 7, 9; Leo XIII, Encyclical Arcanum, and Letter to the Bishops of the Province of Venice, February 3, 1893; Syllabus, prop. 68 ff. - But since families are members of Civil Society, hence marriage in Civil Society produces civil rights and obligations, which are called the civil effects of marriage.

Therefore if civil Princes can do anything over marriages, those things only are regarded which are situated in the civil order. Leo XIII, Encyclical Arcanum, and Letter dated February 8, 1893. - But marriage is not a certain civil contract, but is most of all natural. The contract of marriage was instituted by God Himself at the beginning of the world, Gen. 2:18; and furthermore it always was and is a sacred thing, sacred indeed not only by natural law, but also by the supernatural ordination of God. Trent, sess. 24, Doctrine on the Sacrament of Matrimony; Leo XIII, cited Encyclical.

Hence marriage, as regards unbelievers, both as natural contract and as sacred thing, by no means depends on the civil power and jurisdiction of Princes as regards impediments diriment of it, according to the opinion of many grave doctors. But there are other doctors who think that the marriages of unbelievers, since they are not sacraments, and therefore cannot be governed by canon law, lest those contracting be without law in so grave a matter, are governed by the power and jurisdiction of Princes, whether faithful or unbelieving. St. Thomas seems to adhere to this second opinion, 4 d. 39, q. 1, a. 2, ad 3, since "those things which pertain to the law of nature are determinable by positive law; and therefore if by some positive law among those unbelievers marriage with unbelievers of another rite is prohibited, disparity of worship impedes marriage among them." - St. Thomas, Suppl. q. 42, a. 2; 4 d. 34, q. 1, a. 1; Quodl. 5, a. 15; Schmalzgrueber, l. 4, t. 1, n. 360 ff.; t. 18, n. 2-8; Collectanea S. C. de P. F., n. 1089; E. M.

Resolutions: Impediments diriment of marriage are to be taken from Canon Law, by no means from Civil Law, except insofar as the approbation and confirmation of the Church has acceded to this, or insofar as Civil Law is conformable in this matter to Canon Law; from this it is to be corrected where it is discordant. Trent, sess. 24, Decree de R. M., etc.; C. I. 56 ff.; C. G. 161 ff.; C. H. 83 ff.; C. A. 47 ff.; C. B. 1303 ff.

Civil marriage contains nothing illicit in itself, if nothing else is signified by it except "an extrinsic ceremony for fulfilling the forms which are customarily required by civil authority." S. C. C., January 7, 1899. Wherefore in this sense it is permitted. Monit. Eccles., v. 11, p. 389.

Note: Since by present Italian, French, and German Civil Law marriage is not admitted unless civil, namely entered according to civil law, hence, if that is passed over, many grave damages can follow, both spiritual and temporal. Spiritual, because it will be open to one to depart from the other and to enter another civil marriage. Temporal, because the husband is not compelled by law to support the wife, and the children, in no way recognized by law as legitimate, do not succeed to the paternal inheritance by force of civil law in the external forum. Wherefore the civil ceremonies are not to be omitted. And if by civil law the bridegroom and bride are prohibited from marriage, it is not licit to join them in marriage without the command of the Bishop. S. Poenitentiaria, January 15, 1866. Cf. C. I. 70 ff., 93 ff., 721; C. G. 165 ff., 723; C. B. 1317, 1324. - But it is otherwise from C. A. 69 ff., 75 ff., and from C. H. 42 ff., 75 ff. - Cf. V. 1, n. 223, 680; Collectanea S. C. de P. F., n. 1390; E. M.

Civil marriage is not marriage, nor is it equivalent to betrothals, and therefore induces no impediment of public honesty.

Nevertheless, since it has the appearance of marriage, it can be sanated in the root. It is to be contracted before religious marriage by reason of civil effects, lest otherwise grave damages arise. And in this sense civil marriage, insofar as it signifies the civil rite to be observed in it for obtaining its civil effects, contains nothing, as has already been said, which cannot be approved. And when it cannot be contracted, recourse must be made to the Bishop. In particular cases, it can be permitted by the Bishop that first the religious marriage be contracted and then the civil. Therefore the Ordinary can permit religious marriage to be contracted without civil marriage having first been entered, but there is need: that if before this the spouses had been bound by civil marriage, they have obtained legal separation; or, if this cannot be had, that it be morally certain that the other party will never demand civil union before the law; that they promise in writing and before a person delegated by the Ordinary and two witnesses that they will celebrate civil marriage as soon as it can be done; that it be morally certain that those entering marriage are not afterward to be separated from one another. S. C. of Sacraments, March 1909. - Civil marriage, as also mixed marriage or a null marriage contracted ignorantly or knowingly, or the danger of marriage whether civil or mixed, is a canonical cause for obtaining dispensation from some diriment impediment. - Clerics constituted in sacred orders, or Regulars or Nuns after the solemn vow of chastity, presuming to contract marriage, and also all presuming to contract marriage with some one of the aforesaid persons, even merely civilly, incur excommunication reserved to the Ordinary. - Clerics constituted in sacred orders consummating this marriage incur irregularity besides.

Is the state of grace required for the sacrament of marriage? - Spouses contracting marriage must be in the state of grace, because marriage is a sacrament of the living. Those who contract in mortal sin become guilty of sacrilege, and do not receive sacramental graces. Probably, however, those graces are only suspended, and when the obstacle or mortal sin has been removed, they are applied to the soul. - If no fruit is hoped from admonition, it will be better not to admonish the unworthy person concerning the sacrilege, so that at least thus he may sin less; and rather he should be induced at least to approach confession as soon as possible. - L. 894.

Must the parish priest require that a certificate of Confession be exhibited by the spouses? He cannot of himself require this, unless law or a precept of the Bishop establishes it. The reason is that although the state of grace is required for receiving this sacrament, nevertheless Confession is not necessarily required, since contrition can suffice absolutely even for those who are in the state of mortal sin. From another source it is generally not known to the parish priest that the spouses are not in the state of grace. - Where a particular law exists, the parish priest must require testimony of Confession. Nevertheless cases can occur in which this law admits exception, as if marriage has already been contracted civilly, and one party exhibits the required testimony of Confession, etc. And if the bridegroom is not a public sinner, nor is his unworthiness clear, even less grave reasons suffice. Cf. 372 ff.

Must marriage be celebrated in Church, and be blessed by the parish priest at Mass? - It is fitting that marriage be celebrated in Church, and spouses are to be exhorted that they receive the nuptial blessing, which pertains to the solemnity of nuptials, and is altogether distinguished from the rite of celebrating the sacrament of marriage, by which the priest joins the spouses and blesses the ring, and which is contained in the Roman Ritual. The Missal exhibits the nuptial blessing in the Mass for the bridegroom and bride. If they omit it, either they are free from every fault, or certainly from grave fault.

Marriage can be celebrated at any time, even forbidden time, or time of interdict. The nuptial blessing is given only in Mass, and can be given even after marriage has been celebrated, even if the bride approaches pregnant. But it is given by the Bishop alone or by the proper parish priest, only in their own proper territory, and outside forbidden time and interdict. It consists in the Prayers which are had in the Missal: Propitiare, etc., and Deus, qui potestate, etc., to be said before Libera nos; and also Deus Abraham, to be said before the blessing. In Mass; namely, if it can be done, a votive Mass for the bridegroom and bride; this is therefore permitted on any day, except doubles of the first and second class, feast days of precept, and the vigil of Pentecost, and other excepted days. Cf. here 657; but on these days the prescribed commemoration for the bridegroom and bride is to be added to the Mass; and moreover after the Lord's Prayer and Ite Missa est the Prayers are added which are had for this purpose in the Mass for spouses. But once it has been given either to the man or the woman, it cannot be given again in second nuptials. But since that blessing chiefly regards the woman, if the woman has never received it, it can be given, whether she then marries for the first time, or then marries again, where this custom is in force. - C. 1, 3, de Secund. nupt.; Trent, sess. 24, C. 1, de R. M.; Roman Ritual, h. t.; Holy Office, September 1, 1841, Collect. S. C. de P. F., v. 1, n. 938; S. R. C., June 23, 1853; August 14, 1858, Mont. Alb.; May 9, 1893; June 30, 1896; Benedict XIV, Instr. 80, n. 8; L. 984, 988; Collectanea S. C. de P. F., n. 1536, 1537, 1559, 1560, 1561; E. M.

For imparting the nuptial blessing after forbidden time, the presence of both spouses is necessary, and that of the bride alone does not suffice. S. R. C., May 27, 1911, ad 7.

If one party is Catholic and the other has publicly cast off the faith or has enrolled himself in a condemned sect, although he has not also been enrolled in a heretical sect, the matter having been brought to the Bishop, the Bishop can permit the parish priest to assist at the marriage only as an authorized witness, if otherwise grave scandal or damage would arise, with every ecclesiastical rite excluded, and the celebration of Mass altogether excluded, unless the circumstances require otherwise. Holy Office, February 21, 1883; April 23, 1873; E. M.

All priests blessing nuptials, or joining spouses in marriage, without permission of the parish priest of the spouses are suspended until they are absolved by the Ordinary of the aforesaid parish priest. - The blessing after childbirth must be done by the parish priest, if he himself has been requested; it can be done by any Priest, if he likewise has been requested, in any church, after its superior has been informed. It is not to be denied to a woman after childbirth whose offspring died without baptism. A woman who has given birth to an illegitimate child does not have a right to the blessing after childbirth.

Proof of marriage. If legitimate proof of an entered marriage cannot be had, an oath is to be deferred to the parties by which they confirm their own assertion; when this has been furnished, the parties are to be held as joined in legitimate marriage, and their offspring as legitimate. Nevertheless those cases are to be excepted in which the law requires full proof, for example if the question concerns prejudice to another marriage, or receiving orders. But marriage confirmed by oath, as above, is to be inscribed not indeed in the common book of marriages, but in a distinct booklet destined for this purpose. S. C. of Sacraments, March 6, 1911.

What concerning the unity of marriage? The unity of marriage consists in this, that marriage is the union of one man with one woman. - It is certain that polyandry, or the simultaneous union of several men with one woman, conflicts with the natural law, because it is opposed to the chief ends of marriage, namely the generation of offspring and their good education. The seed of several mixed is sterile. Furthermore, the father becomes uncertain, upon whom the education of offspring especially falls. - It is certain that simultaneous polygamy, or the simultaneous union of several women with one man, is prohibited in every case, at least by positive divine law of the New Law, as is clear from Luke 16:18: Everyone who dismisses his wife and marries another commits adultery.

It is likewise clear from Trent, sess. 24, Doctrine on the sacrament of matrimony, c. 2. Moreover, it repugns at least to the peaceful dwelling of spouses, a secondary end of marriage, and renders the education of offspring more difficult. - It is certain that second nuptials and further nuptials are licit both for a man and for a woman even under the Evangelical law. This is clear from the authority and practice of the Church, and also from Sacred Scripture, 1 Cor. 7:39: A woman is bound by the law as long as her husband lives; but if her husband has fallen asleep, she is freed: let her marry whom she wishes, only in the Lord. - St. Thomas, Suppl. q. 63, q. 65; E. M.

What concerning the firmness of marriage, insofar as it regards the bond? - Marriage is indissoluble, i.e. once marriage has been contracted, divorce as regards the bond cannot be made, at least by positive divine law. It is of faith. Proof 1. From the words of Christ, Matt. 19:6: And so they are no longer two, but one flesh. What therefore God has joined, let not man separate. 2. From the words of St. Paul, 1 Cor. 7:10-11: But to those who are joined in marriage I command, not I, but the Lord, that the wife not depart from the husband; but if she departs, let her remain unmarried, or be reconciled to her husband. And let not the husband dismiss the wife. 3. From Trent, sess. 24, c. 5, 7. Therefore even if before consummated marriage a case occurs such that, were it standing, marriage could not have been entered, for example, if the man becomes impotent, if the woman becomes insane, the bond of marriage perseveres. C. 25, caus. 32. - L. 955; St. Thomas, Suppl. q. 67; Collectanea S. C. de P. F., n. 1295; C. B. 1348; E. M.

Is an exception given as regards the aforesaid firmness of marriage? - A threefold case must be excepted. 1. Ratified and non-consummated marriage of Christians can be dissolved, for a grave cause, by dispensation of the Pope, from the power divinely conceded to him. This is clear from the fact that the Supreme Pontiffs have already used this power many times, as St. Gregory VII, Paul III, etc.; Benedict XIV, Const. Dei miseratione. Cf. Perrone, de Matr., t. 3, s. 2, c. 6, a. 4. Moreover, this faculty is to be extended to marriages consummated in unbelief, if the spouses after baptism, by which the union becomes ratified, have not again consummated it; and likewise to marriages consummated in unbelief, when the spouse converted and baptized is permitted, by Apostolic Authority, to remain with the wife who was converted and baptized with him, as with a legitimate wife, the others having been dismissed, although she is not his first wife; or, because the absent unbelieving spouse cannot be warned, when it is permitted by Apostolic Authority that the spouse converted to the faith and baptized contract marriage with any faithful person. Indeed this marriage is valid and firm, even if afterward it becomes known that the prior unbelieving spouse could not justly declare his or her will because of an impediment, and had also been converted to the faith at the time the second marriage was contracted. This is most clearly established from the Letters of St. Pius V, August 2, 1571; Gregory XIII, January 25, 1585; Urban VIII, October 20, 1624; September 17, 1627. - Non-consummated, namely by an act of itself suitable for the effect of generation; and consequently, St. Alphonsus 1036, St. Thomas, 4 D. 41, q. 1, a. 1, q. 4, ad 2, by an act perfect on both sides. - Consummated marriage of Christians can in no way be dissolved, Matt. 19:6; Trent, sess. 24, C. 7, de M., and the same must be said if marriage is contracted by a faithful person with an unbeliever from dispensation of the Roman Pontiff. Clement XIII, August 2, 1759; Holy Office, August 1, 1753. - L. 955, 956, 959; Collectanea S. C. de P. F., n. 1308.

Dispensation from ratified non-consummated marriage is to be obtained exclusively from the Supreme Pontiff. The Bishop in this cause cannot, without a special faculty obtained from the S. C. of Sacraments, institute the process. But in other causes the Bishop is the competent judge in first instance.

2. Ratified and non-consummated marriage can be dissolved through the solemn religious profession of one spouse, and this from a special privilege conceded by Christ and declared by the Church. C. Verum, C. Ex parte, de Convers. coniugat.; Trent, sess. 24, c. 6. Solemn: i.e., not of simple vows, even in the Society of Jesus, but solemn vows. Profession; not mere entrance into Religion. - But so that the spouses may deliberate about the use of this privilege, by the law itself they have two months conceded to them after the nuptials, during which time they are not bound to render the debt. C. Verum, C. Ex publico, de Convers. coniug. And "either spouse can licitly deny the debt within the two-month period, although he does not have the intention of entering Religion, because he uses his own right." L. 956. Indeed after that two-month period also, if the marriage has not been consummated even through illicit denial of the debt, this privilege remains. Nor is it impeded by fornication had between the spouses before the celebration of marriage, unless the marriage is necessary for legitimating offspring, or for repairing scandal, or the honor of the bride. If within the two-month period violence is applied, and the marriage is thus consummated while the bride was in fact thinking about embracing religion, although the marriage is now indissoluble, nevertheless the bride can even in this case enter Religion. But he sins who contracts marriage with the intention of entering Religion without warning the other party. - L. 870, 958; St. Thomas, Suppl. q. 61, a. 2, 3; Schmalzgrueber, l. 3, t. 32, n. 11 ff.

There are those who judge that a right of this sort is not conceded except to those who, after nuptials have been contracted and not yet consummated, deliberate about entrance into religion. But in this sense that right would be void, for then immediately after the contract of marriage each one would be bound to render the debt. For who is so mad that, while deliberating about entrance into religion, he would contract marriage?

3. Even consummated marriage of unbelievers can be dissolved from divine concession, when either spouse is converted to the Christian faith, although not Catholic but heretical, through reception of baptism, and the other refuses to cohabit peacefully with him, or does not cohabit except with injury to the Creator and contempt of the Christian Religion, or makes an attempt to draw the faithful party into mortal sin. This divine concession is drawn from the words of the Apostle, 1 Cor. 7:12-15, where he says: 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 the brother or sister is not subject to servitude in such matters; but God has called us in peace. Innocent III explains the same more fully in C. Quanto 7, de Divortiis. - L. 955, 956; St. Thomas, Suppl. q. 59, a. 3-6; E. M.

Interpellation of the unbelieving spouse is to be made, if the other, while that one remains in unbelief, is converted and wishes to enter a new marriage. Provided it is clear that the spouse is unwilling to live peacefully from that one's response, or from a process at least summary that he or she was unwilling to give any response, or dispensation from making interpellation has been obtained from the Holy See, marriage can be contracted.

Note: Marriage is not dissolved immediately by reception of baptism; Crimes are dissolved in baptism, not marriages, C. Gaudemus 8, de Divortiis, C. Si quis 28, q. 2; but when the converted and baptized spouse enters a new union. Even after intercourse has been had after the conversion of either party, if the other party is unwilling to cohabit peacefully without insult to the Creator, the marriage can still be dissolved, whatever time has elapsed. But when the spouse converted passes to other nuptials, since the prior marriage is now dissolved, even the spouse who remains in unbelief can validly and licitly contract another marriage. - Regularly, from the prescription of the Law, C. Quanto 7, de Divortiis, interpreting the Pauline privilege, But if the unbeliever departs, let him depart, the converted party cannot pass to other vows before the unbeliever, having been interpellated, has either absolutely refused to cohabit with the converted party, or at least has been unwilling to cohabit without insult to the Creator. - If the unbeliever cannot be interpellated, because he or she is far absent and has fled, or lies hidden, several judge, apud Sanchez, l. 7, d. 74, n. 13-15, that interpellation can be omitted, because there is no obligation of impossibilities; nor is there need of it, since it is now clear with moral certainty that the unbelieving spouse is unwilling to be converted, nor willing to live peacefully. Others, with whom Benedict XIV agrees, de Syn., l. 6, c. 4, n. 3, think pontifical dispensation necessary; and the S. C. C., January 17, 1722, adhered to this opinion apud the same Benedict XIV, l. c., and the Holy Office, September 16, 1824. Cf. Collectanea S. C. de P. F., n. 1328. The case would certainly be different if the unbelieving spouse is absent from the spouse by some compulsion and wishes to be joined with that spouse; for then the unbeliever neither departs nor can depart, in which case Apostolic dispensation would be needed for the converted unbeliever, and then indeed in this sense the dispensation from interpellation which is given can be well understood. - When, in some places, by law or custom, in order to remove a peculiar danger of perversion, it is prohibited that the converted party cohabit with the unbeliever unless this one also wishes to be converted to the faith, not only must the unbeliever be interpellated whether he consents to cohabit peacefully, but also whether he wishes to embrace the Christian faith. But if, when the time prefixed by law or custom has elapsed, he has declared that he is unwilling to be converted to the faith, although from another source he would wish to cohabit peacefully, the converted spouse recovers liberty and is permitted to fly to new nuptials. For by the judgment of the Church, according to the circumstances of places, the pertinacity alone of the unbeliever in unbelief is judged to present danger for the perversion of the faithful spouse, and for insult to the Creator. - By the Pauline privilege, it is not conceded to the converted party that he can enter a new marriage with another unbeliever, or even with a catechumen, but only with a baptized faithful person. S. C. de P. F., January 16, 1683; August 7, 1891, Collectanea cit. n. 2183; L. 956, 957; St. Thomas, Suppl. q. 59, a. 3, 6; Benedict XIV, de Syn., l. 13, c. 21; Sanchez, l. 7, d. 73; Monit. Eccles., v. 11, p. 533.

When one of two unbelieving spouses is converted to the faith, the other remaining in unbelief, the converted one can receive sacred orders or profess religion. In the first case the marriage is not dissolved, and therefore if the other spouse is converted, he or she cannot contract a new marriage. Sanchez, l. 7, d. 76, n. 11. But in the other case, "it must altogether be held," says Sanchez, l. c., n. 9, "that the prior consummated marriage is dissolved through profession, just as it would be dissolved through subsequent marriage." - Ferraris, Supplementum, v. Privilegium Paulinum; E. M.

What and of how many kinds is divorce, and by what cause and authority is it licitly made? - Divorce is separation and disjunction. It is threefold: as regards the bond, as regards habitation, as regards the bed. Divorce as regards the bond is that by which the very bond of marriage is dissolved, so that the former spouses can licitly and validly enter another marriage; this is verified in the three cases explained in the preceding number. Divorce as regards habitation is separation merely as regards cohabitation, while the bond of marriage remains. - Divorce as regards the bed is separation regarding the use itself of marriage and the conjugal debt, while again the bond of marriage remains.

A spouse can separate from a spouse as regards habitation and bed: 1. From mutual consent, which is clear of itself, provided the danger of incontinence is absent; whether for a time, because of affairs, or perpetually because of a desire for a more perfect life. 2. Because of adultery of the spouse, on account of violated fidelity, Matt. 5:32; 19:9; 1 Cor. 7:11; C. 4, 5, 8, de Divort. Because of adultery, namely morally certain, not condoned either expressly or implicitly through a conjugal act, not mutual, because then compensation would exist, voluntary, but not committed from violence inflicted, perfect and consummated. Whether also because of sodomy and bestiality? The common opinion affirms, from which St. Alphonsus 362 says one must not withdraw, but he says that it is not really proved. St. Thomas, 4 D. 39, q. 1, a. 1, ad 4. 3. Because of supervening heresy. C. de illa, de Divort. 4. Because of any grave danger of body and soul, can. 28, caus. 1; C. 8, 13, de Rest. spol.; Trent, sess. 24, c. 8; for example, if danger of life, mutilation, enormous or frequent cruelties is imminent; or danger of perversion. - C. I. 148-155.

The aforesaid divorce from bed because of adultery certainly can be made by one's own authority; likewise from bed and habitation, provided that, if the delict is hidden, scandal is absent, which can scarcely be absent; and more truly also because of heresy; and because of the aforesaid danger, if it is proximate and clear. - But no one of himself is bound to make divorce; since neither is anyone bound to this from justice, as is undoubted; nor from charity, which does not urge with grave inconvenience, which is ordinarily inherent in divorces: provision is made besides for one's own and the other's incontinence, and greater scandals are prevented.

Divorce is one thing perpetual, another temporary. Perpetual divorce is of itself divorce made because of adultery, or by the authority of a judge. Once perpetual divorce has been made, the innocent spouse, in whose favor it is, can still call the spouse back to himself or herself whenever he or she wishes; yet he or she is not compelled to admit that spouse, since this is not without grave inconvenience, although the other spouse has been converted to good fruit, or, more probably, has afterward fallen into the same delict, for example, of adultery, whether the divorce was made by one's own authority, or, more truly, by the authority of a judge. But if the divorce is temporary, the spouse is compelled to receive the spouse returned to the faith, C. 6, de Divort., or when the danger because of which he or she separated has now been removed. - L. 960-977; St. Thomas, Suppl. q. 59, a. 3, 6; q. 62; Sanchez, l. 10; Schmalzgrueber, l. 4, t. 19; E. M.

What concerning children to be educated after divorce has been made? - The doctors unanimously establish that children are to be educated with the innocent party. But when the other spouse is an unbeliever or heretic, the offspring must always be educated with the faithful party, although this one is guilty, and this in favor of the faith, from C. fin., de Conv. infid. But the expenses for educating the offspring are to be borne by the father, if he is at fault, Auth. Si pater apud L. 976. But if the mother is at fault, the law establishes nothing; Sanchez, l. 10, d. 20, n. 8, nevertheless judges it equitable that what has been established for the father also be understood for the mother. But if, once divorce has been made, the man retains the dowry, the wife would now seem sufficiently to concur for the education of the offspring. These things according to Roman Law. But now the more recent laws of various places are to be consulted. C. I. 148 ff.; C. G. 229 ff.; C. H. 104 ff.; C. A. 103 ff.; C. B. 1585, 1635, 1636, 1685. - Schmalzgrueber, l. c., n. 181-183.

What concerning a sentence of divorce from the bond to be pronounced by a lay judge? - Where civil law of divorce is in force not only from bed and habitation, but also from the very bond of marriage, spouses cannot, for any reason, petition the sentence of the judge; nor consequently can advocates petition and defend it; nor can judges in any way pronounce it, namely a sentence which repugns to natural, divine, and ecclesiastical law concerning the indissoluble bond of marriage. For there is question of a thing intrinsically illicit. But if by supreme crime spouses have petitioned and obtained from a judge a sentence of this sort of divorce from the very bond of marriage, the civil registrar can in no way admit these spouses to another civil marriage and authorize it by his presence. For then by his authority he would admit them to nothing other than public and legal adultery, which would be protected by the very favor of the law. Hence he would inflict the greatest injury on the pre-existing marriage, and authoritatively declare those capable of the civil effects of marriage who, while the prior marriage still endures, are altogether incapable of these effects. C. B. 1564 ff.; E. M.

What about other books of special subject matter? "Books are condemned in which God, or the Blessed Virgin Mary, or the Saints, or the Catholic Church and her worship, or the sacraments, or the Apostolic See, are disparaged. Works in which the concept of the inspiration of Sacred Scripture is perverted, or its extension is too much restricted, are subject to the same judgment of reprobation. Books also are prohibited which deliberately afflict the ecclesiastical hierarchy, or the clerical or religious state, with insults." § 11. Books of any authors whatsoever, whether non-Catholic or Catholic. Disparage: namely speak ill, although not explicitly, but in grave matter. Inspiration of Sacred Scripture, which, "written under the inspiration of the Holy Spirit, has God as author." Vatican Council, Constitution Dei Filius, chap. 2; Decree of the Holy Office Lamentabili, July 3, 1907, prop. 9. Is perverted: if, for example, the concept of inspiration were constituted in a subsequent approval of the Sacred Books by the Church; or in a certain concomitant direction of the Holy Spirit, if necessity demands; or in divine assistance for preventing errors. Cited Decree, props. 10, 12, 19, 20. Is restricted: namely to only some books of Sacred Scripture, not to all; or to only some part of the books, not to the entire books; or only to dogmas of faith and morals, not also to the remaining matters, to historical matters, to profane matters, to matters pertaining to the natural sciences; or only to matters concerning which they treat explicitly, not also to others said only incidentally. Cited Decree, prop. 11. Deliberately: and therefore not if there is only some injurious expression, but if either the whole book, or a notable part of it, or some entire chapter afflicts the ecclesiastical hierarchy, or the clerical or religious state with insults; not some private person, unless from this vituperation turns against the hierarchical order itself, or a part of it, or against the clerical or religious state itself. "Let it be forbidden to edit, read, or retain books in which sorceries, divination, magic, evocation of spirits, and other superstitions of this kind are taught or commended." § 12. Are taught, for exercising them. Are taught or commended: not if they merely narrate superstitious facts, or treat or discourse concerning them, for reproving them and showing their malice and danger. "Books or writings which narrate new apparitions, revelations, visions, prophecies, miracles, or which introduce new devotions, even under the pretext that they are private, if they are published without legitimate permission of the Superiors of the Church, are proscribed." § 13. Writings, although they are not books, but booklets or leaves; although they are manuscripts, for they are most properly writings. If they are published: therefore the prohibition does not affect books published before this Constitution. Without legitimate permission: if this is had, it now no longer seems to be required, by force of the present Constitution, that there be a protestation according to the Decree of Urban VIII. But cf. what is had here at the end of the number. Without legitimate, etc. All books concerning sacred things and morals are indeed to be subjected to ecclesiastical censure so that they may be licitly edited; but not for that reason are all prohibited if they have been edited without legitimate approval, § 41; while on the contrary books of which there is question in this paragraph, published without permission of the superiors of the Church, are proscribed, and consequently can neither be read nor retained. Cf. 1306. "Likewise books are prohibited which establish as lawful duel, suicide, or divorce; which treat of masonic sects or other societies of the same kind, and contend that they are useful and not pernicious to the Church and civil society; and which defend errors proscribed by the Apostolic See." § 14. Books of authors of any kind, non-Catholics or Catholics. Establish, contend, defend: therefore they do this not incidentally but deliberately. Errors proscribed by the Apostolic See, e.g., errors proscribed in the Syllabus. Sacred Congregation of the Index, May 23, 1898. E.M. "Concerning sacred Relics these things are to be held. If Bishops, who alone can in this matter, know certainly that a Relic is spurious, let them remove it from the worship of the faithful. If the authenticating documents of some Relic, perhaps because of civil disturbances or from any other case, have perished, let it not be proposed publicly unless duly recognized by the Bishop. The argument of prescription or of founded presumption will then only be valid if the cult is commended by antiquity; namely according to the decree issued in the year 1896 by the sacred Council for examining indulgences and sacred Relics, by which it is declared: Ancient Relics are to be preserved in that veneration in which they have been up to now, unless in a particular case certain arguments are present that they are false or supposititious. But when there has been a judgment concerning pious traditions, it is necessary to remember this: the Church uses so great prudence in this matter that she does not permit traditions of this sort even to be narrated in writing unless much caution has been employed and the declaration sanctioned by Urban VIII has been prefaced; and although this is duly done, nevertheless she does not assert the truth of the fact, but, unless human arguments for believing are lacking, only does not prohibit it from being believed.

Thus plainly the sacred Council for guarding legitimate rites, thirty years ago, declared by Decree of May 2, 1877: Apparitions or revelations of this kind have neither been approved nor condemned by the Apostolic See, but have only been permitted as piously believable by human faith alone, according to the tradition which they bear, confirmed also by suitable testimonies and records. He who holds this will be free from every fear. For the religion of any apparition, insofar as it regards the fact itself and is called relative, always has the implicit condition concerning the truth of the fact; but insofar as it is absolute, it always rests on truth, for it is borne toward the very persons of the Saints who are honored. Similarly it must be affirmed concerning Relics. Finally We entrust this to the Council of vigilance, that they assiduously and diligently keep their eyes also on social institutions and on any writings concerning the social matter, lest anything of modernism lie hidden in them, but that they correspond to the precepts of the Roman Pontiffs." Pius X, Encyclical Letter Pascendi dominici gregis, September 8, 1907.

1. Paulus, an infidel, converted to the faith, married Paulina, a Catholic. After three years of marriage, Paulus, having apostatized from the faith, returns to infidelity. Can Paulina 1. marry another Catholic? 2. at least be separated from Paulus by divorce from bed and cohabitation?

R. To the 1st: Negatively. "Faithful spouses cannot, on account of the return of the other spouse to infidelity, contract another marriage with another faithful person." S. C. de P. F., Dec. 7, 1626. - To the 2nd: The other particular circumstances of the case which are present must be set forth and weighed. "Catholic spouses can remain with an apostate infidel, or separate themselves from him, according as the danger of perversion and the dishonor of the Creator, in the judgment of a prudent confessor, require; and the sacraments can be administered to these." S. O., Sept. 19, 1671. Cf. Collect. S. C. de P. F. n. 1257, 1280-1282, 1284, 1287, 1288; I. M. 978.

2. Franciscus, converted to the faith, once the interpellation had been made and a negative response had been received, decided to pass to other nuptials only after a notable time. - Must the interpellation be repeated?

R. If the spouse remains in infidelity, the interpellation must not be made again. But if the spouse has embraced the faith, or now embraces it, Franciscus is bound to receive her. S. C. de P. F., June 26, 1820; Enchir. Moral. n. 980; Innocent III, c. Gaudemus.

3. Francisca, recently converted to the faith, having obtained an apostolic dispensation from making the interpellation, enters into marriage with Caius, a Christian. After three months her former husband appears, reclaiming her, and he had already received baptism a whole year before. - Must Francisca return to the former husband?

R. Negatively. The reason is that, by the apostolic dispensation, that former marriage was dissolved. Whatever may be said concerning the question by what law the Supreme Pontiff dissolves the bond of marriage consummated in infidelity, cf. Ballerini apud Gury 759, it is wholly certain what Benedict XIV affirms, de Synodo, l. 13, cap. 21, n. 5: "The first marriage remains dissolved at that very moment, and indeed irrevocably, at which the spouse converted passed to other nuptials with a faithful person, whether because he was vindicated into this liberty by divine law, for the reason that the infidel spouse, judicially interpellated, had denied himself to evangelical truth or to harmless cohabitation, or because peculiar circumstances of things opened the way to an apostolic indult; which indult indeed, since it is bound to no condition, perpetually asserts the validity and firmness of the second marriage, and closes off return to the first nuptials, even if someone should contend that he can prove that the first spouse interpellated had not been free to respond, or that he had even then been prepared to embrace the Christian Religion, indeed that before that day on which the second marriage was celebrated by the converted spouse, he himself also had given his name to Christ and received baptism." Enchir. Moral. 980; I. M. 980.

4. Ubaldus, a missionary, furnished with the faculty of dispensing with gentiles and infidels having several wives, so that after conversion and baptism they can retain whichever of them they prefer, if she also becomes faithful, unless the first wishes to be converted, using this same faculty with a certain gentile woman converted to the faith at the same time as her last husband, likewise converted to the faith, dispensed so that she might retain this man in preference to her first legitimate husband, who was in another region and persisted in infidelity, without his being interpellated as to whether he wished to cohabit peacefully and be converted to the faith.

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

R. 1. That Ubaldus used the aforesaid faculty, not with a gentile man converted to the faith, but with a gentile woman converted to the faith, seems to deserve no blame. For in the aforesaid faculty, what is said of a man in relation to several wives is valid also with respect to a woman in relation to several husbands. S. C. de P. F., Jan. 14, 1793; Collect. n. 1317. This declaration was again given by the Holy Office, June 12, 1850; Collect. S. C. de P. F. n. 1339. Nevertheless, there is a later Decision of the Holy Office, Sept. 5, 1885; Collect. S. C. de P. F. n. 1345, which seems to suppose that the aforesaid faculty, as regards polygamy, does not also comprehend a faculty as regards polyandry. Therefore, in the case, it would certainly be safer to have recourse to the Holy See for an extension of the aforesaid faculty.

2. Nor did Ubaldus sin in this, that he used that faculty with a woman who had had several husbands not simultaneously and jointly, but successively; namely, who, the first husband having been dismissed, married another, and, this one likewise dismissed, adhered to another. For the word several in the aforesaid faculty can be understood in both ways: both simultaneously and jointly, and also successively, whether they are cohabiting or have been left. S. C. de P. F., Jan. 14, 1806; Collect. n. 1321.

3. But the question is whether Ubaldus acted rightly by dispensing from the interpellation. According to the Instruction of the Holy Office, June 11, 1760, to the Superior of the Mission of Pegu, Collect. S. C. de P. F. n. 1313, Ubaldus indeed could dispense from the interpellation, but only when there stood a true impossibility and an urgent necessity, concerning which nothing is said in the case; and after a summary process had been made, of which likewise no mention is made in the case. For the aforesaid faculty is explained thus in that Instruction: "Although on the sheet of faculties which are granted by the Holy See ... the following is read, Of dispensing with gentiles, etc. ... nevertheless ... there is not to be dispensation from the interpellation of the infidel spouse except when the infidel party is absent, and either it is not known where he or she is, or on account of distance the interpellation is rendered too difficult, and also for urgent reasons and in a case of necessity, and rarely. But the Father Superior of the Mission must diligently observe, and with every possible caution, that in each of these cases in which he will believe it necessary to dispense from the interpellation, it will not suffice that he be internally persuaded of it, but he must make a summary little process, from which this necessity may appear for every future time, either because the one interpellated does not respond, or because it is not known where he is, or because he has given proofs by the fact of his open dissent; and it will be well in such a case, lest caution be lacking, that citations also be made ad valvas et per edictum, with the assignment of a fitting time ad comparendum et denuntiandum, etc. This previous summary little process arises from the letter and the spirit of the Gregorian Brief: provided that it be established even summarily and extrajudicially, etc." Cf. Enchir. Mor. n. 980.

Outside the aforesaid case of impossibility and urgent necessity, according to the recent Instruction of the same Holy Office, March 28, 1860, Collectan. cit. n. 1297, a partial interpellation must altogether be made; for there it is said: "The infidel, if after baptism he wishes to enjoy the Pauline privilege, if he has had only one wife and she legitimate, is bound to interpellate her: 1. whether she wishes to be converted; 2. whether at least she wishes to cohabit peacefully without injury to the Creator. He will accept her consenting to both or to either, according as the laws establish. The same is to be said of a woman who would wish to be converted; and in this spouses who are infidels are judged as equals. But for polygamous infidels a special concession was made in favor of the faith, namely, that that interpellation must be made as regards the first part, that is, whether she wishes only to be converted. If the first wife refuses, he will be able to choose any one from the others, provided that she also becomes faithful, consent having been renewed. For by these words is expressed the aforesaid faculty granted to missionaries, of dispensing with gentiles, etc. Therefore to this prior wife full nuptial right is attributed; for this reason, if she is converted, she will be able to remain in legitimate wedlock, provided it be without injury to the Creator; but if he wishes to enjoy the Pauline indult, he will make the interpellation as is noted above, nor can missionaries at their pleasure turn aside from this rule, but if they find anything worthy of note to the contrary, they will most faithfully report it to the Sacred Congregation." And "whenever it is certainly established that the infidel spouse wishes neither to embrace the faith of Christ, nor to cohabit with the converted spouse without dishonor to the Creator, bishops, as delegates of the Apostolic See, and vicars apostolic, will be able to dispense upon the interpellation, provided that necessity urges and there is not sufficient time to have recourse to the Holy See." S. O., Aug. 11, 1859; Collect. S. C. de P. F. n. 1351.

And in another later Instruction of the Holy Office, June 20, 1866, Collectan. cit. n. 1354, these things worthy of note as regards the present case are had: "It is a most thoroughly established principle that a marriage celebrated, in the time of infidelity, by a man with a woman, while another was living with whom he had bound himself by an earlier marriage, is null and void, both by divine and by natural law. Hence, where it is established that an infidel man wished to enter true marriage, not simple cohabitation, with the first woman whom he took, and that no impediment of natural law stood in the way of this marriage, that first woman is to be held as a just and legitimate wife; but all the others whom, while she had not yet been removed by death, the man afterward married are to be held as adulteresses and concubines. Therefore the polygamist must retain the wife earlier in time, who alone is the just and legitimate wife, and dismiss the rest as adulteresses and concubines.... In only one case does this obligation cease, and it becomes free for the polygamist, converted to the Christian religion, to dissolve the conjugal bond of the prior and only legitimate wife, and to contract other nuptials with the woman whom he himself has preferred, namely, when there can be place for the privilege granted in favor of the faith by Christ the Lord and promulgated by the Apostle Paul.... Such is the force of the Pauline privilege, that a marriage entered into and consummated by infidels in the state of infidelity is dissolved when, one of the spouses having been converted to the faith, the other wishes neither to be converted, nor to consent to cohabit without dishonor to the Creator. Therefore it is clear, 1. that this privilege belongs only to the true and legitimate husband toward the true and legitimate wife, and vice versa. It is clear, 2. that the converted spouse cannot enjoy this privilege except after baptism has been received, and after the interpellation has duly been made to the other spouse concerning embracing evangelical truth and permitting peaceful cohabitation. It is clear, 3. that no place can exist for this privilege if both legitimate spouses are converted to the faith at the same time. But as regards the interpellation, two things besides must be noted. First, that to polygamous infidels embracing the Christian religion together with one of their concubines, it is conceded by the Apostolic See that they are bound to interpellate only concerning the purpose of conversion. The other, that with any infidels converted to the faith, by the authority of the same Apostolic See, dispensation can be given so that they omit both interpellations, whenever these either cannot in reality be made, or, if made, are judged to be of no utility, according to those things which are handed down by Benedict XIV, l. 13, c. 21, de Syn. dioec."

Also worthy of note, as regards the present case, is the recent Response of the Holy Office, Nov. 22, 1871; Collect. S. C. de P. F. n. 1356. "Whether the missionaries can use in its whole latitude the power granted universally by St. Pius V through the Brief which begins Romani Pontificis, Aug. 2, 1571. Cf. Enchir. Moral. n. 980. - R. The Brief of Pius V, of holy memory, regards the case in which the first legitimate wife is not known, and at the same time it is most difficult to find her; but in its use the rule prescribed by his successor Gregory XIII must be observed, that is, that before the neophyte is joined in marriage with another woman who has been baptized together with him, it must be established by a summary and extrajudicial process that it is in reality most difficult to find the first wife."

From all these things it appears that Ubaldus did not act rightly. For there was no question of a case of true impossibility and urgent necessity. Nor indeed, in the case, was it most difficult to find the first spouse. The cited Brief of St. Pius V. - Cf. S. C. de P. F., March 20, 1836; Sept. 26, 1837; S. O., June 8, 1836; July 4, 1855; Aug. 6, 1856; Aug. 11, 1859; March 28, 1860; June 3, 1874; Nov. 29, 1882; Collect. n. 1331, 1332, 1333, 1344, 1348, 1351, 1352, 2185, where these things are confirmed in particular cases and are still more declared. I. M. 980; Collectan. S. C. de P. F. n. 2185 ad 2; Compend. Privil. Soc. Iesu n. 388.

757. • The unity of matrimony is situated in this: that matrimony is the union of one man with one woman.

1. It is certain that polyandry is opposed to the natural law, because it is opposed to the principal ends of matrimony, namely, the generation of offspring and their good education. - Thus all.

2. It is certain that simultaneous polygamy is prohibited in every case, at least by the divine positive law of the New Law, as is evident from Luke 16:18: Everyone who dismisses his wife and marries another commits adultery. It is likewise established from the Council of Trent, session 24, canon 2.

3. It is certain that second and further marriages are licit both for a man and for a woman, even under the evangelical law. This is established from the authority and practice of the Church, as well as from Sacred Scripture, 1 Corinthians 7:39: A woman is bound by the law as long as her husband lives; but if her husband has fallen asleep, she is free: let her marry whom she wishes, only in the Lord.

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

758. • Matrimony is indissoluble, that is, once matrimony has been contracted, divorce as regards the bond cannot take place, at least by divine positive law. This is de fide. It is proved: first, from the words of Christ, Matthew 19:6: Therefore they are now not two, but one flesh. What therefore God has joined together, let no man separate. Second, from the words of St. Paul, 1 Corinthians 7:10-11: But to those who are joined in matrimony I command, not I, but the Lord, that the wife not depart from her husband; but if she has departed, that she remain unmarried or be reconciled to her husband. And let not the husband dismiss his wife. Third, from the Council of Trent, session 24, canon 7.

759. • Nevertheless, three cases must be excepted, for:

1. A ratified and non-consummated matrimony of Christians ¹ can be dissolved for a grave cause through a dispensation of the Pope ², from a power divinely granted to him. This is evident from the fact that the Supreme Pontiffs have already used this power many times, as St. Gregory VII, Paul III, etc.

¹ Above (note to no. 745) we said that matrimony cannot be called consummated unless the act is of itself apt for the effect of generation. Indeed, St. Alphonsus (book 6, no. 1036), after St. Thomas (In IV Sentences, distinction 41, question 1, article 1, question 4, reply to objection 2), further requires an act perfect on the part of each spouse, which doctrine can contribute to the solution of grave questions.

Moreover, observe two things. The first is that this has force not only as regards the first matrimony which anyone contracts, but also as regards the second, third, etc. Hence, if widowed persons marry, even persons who have offspring from a preceding marriage, the law has force also with them; and therefore, if either makes profession in Religion before the present matrimony is consummated, the bond will be dissolved. The second is that a wife who, within two months while deliberating about embracing Religion, has been known by her husband through force can nevertheless, according to the more common and more probable opinion of Theologians and Canonists, enter Religion even against the will of her husband; and he ought therefore to impute it to himself that, since profession in the case does not dissolve the bond, he must remain without hope of marriage until the death of his wife. The Doctors except the case in which the wife has conceived offspring who could not easily be educated without the mother. See Sanchez, book 2, disputation 22, no. 7, and Pirhing, book 3, title 32, no. 56.

² There is no dispute in the forum and in practice concerning the power of the Supreme Pontiff to dispense in a ratified and non-consummated matrimony, and the sole controversy is accustomed to be reduced to the cause, namely, whether a cause sufficient for granting such a dispensation is present. Thus Benedict XIV (Canonical Question 24). See also his Canonical Questions 108 and 479, in which he says that this doctrine is notoriously common among Theologians and Canonists. Therefore what St. Alphonsus says (book 6, no. 959), that there are two probable opinions concerning this question, must be held among obsolete opinions. You have several examples of these dispensations in Schmalzgrueber (book 4, title 19, no. 46) and Pignatelli (volume 1, consultation 148, no. 5), and later examples down to Pius VII, Gregory XVI, and Pius IX in Perrone (On Matrimony, volume 3, pages 509-510, Roman edition).

This faculty must also be extended to marriages consummated in infidelity if, after baptism, by which the marriage becomes ratified, the spouses have not yet consummated it again. And this is most clearly confirmed from the Letters of Gregory XIII of January 25, 1585, which you have in Clericatus (On Matrimony, decision 11, no. 28), in which he first establishes this faculty in these words: Therefore, considering that marriages of this kind contracted among infidels are indeed true, yet are not considered so ratified that, when necessity urges, they cannot be dissolved, etc. Hence he concludes that by force of the dispensation those marriages are valid which spouses converted to the faith contracted with others, even though the prior spouse also then already existed as converted to the faith. These marriages, even if it afterward became known that the former infidel spouses, being justly impeded, could not declare their will, and that they also had been converted to the faith at the time the second matrimony was contracted, nevertheless must never be rescinded but are valid and firm. Nor did Gregory XIII alone, but also Urban VIII, in Letters given October 20, 1624, and again September 17, 1627, declare this very thing, namely, that for a grave cause the Apostolic See can sometimes dissolve marriages of infidels, as Cardinal de Lugo testifies in the supplicatory libellus which he offered to Urban VIII and which you have in Cardenas (Theological Crisis, part 4, dissertation 2, no. 552). But as for the attempt of Pontius (book 7, chapter 48, no. 22, and book 9, chapter 2, no. 17), and after him Lambertinius (On the Synod, book 13, chapter 21, nos. 4-6), to twist the Letters of Gregory into a mere dispensation from interpellating the spouse, it must all but be rejected among absurdities, as plainly repugnant to the text brought forward.

Concerning the aforesaid text of Benedict XIV, the VV. object (page 805) that the words, There is no dispute in the forum and in practice, indicate that a speculative controversy still subsists in the schools and among theologians.

Reply. The VV. show (ibid.) that they surely are not ignorant of what is read thus in Canonical Question 479 of the same Benedict XIV: The second point is that no question can any longer be raised concerning the power of the Supreme Pontiff in that which pertains to dispensing in a ratified and non-consummated matrimony, since today the affirmative opinion is common among Theologians and Canonists and is received in practice, as is notorious. How, then, do the VV. assert that the words of Benedict XIV indicate that a controversy STILL subsists in the schools and among theologians, when the same Benedict establishes as a principle that no controversy can any longer be raised concerning this power of the Supreme Pontiff, because TODAY the affirmative opinion is common among Theologians and Canonists? Do these two things not mutually conflict: the controversy still subsists, and no controversy can any longer be raised?

The VV. reply (ibid.) that in question 479 Benedict speaks of a more recent time.

Reply 1. When the VV. say that according to Benedict XIV the controversy STILL subsists, do they affirm this concerning theologians who had written two centuries before, and not rather concerning the age of Benedict himself? Reply 2. Does not the same Benedict, in question 108, which is also cited in the Note, report from letter 180 of Cardinal d'Ossat that even under Clement VIII there was no controversy in the Sacred Congregation concerning this power of the Pontiff, although fourteen men had been summoned by the Supreme Pontiff for consultation, namely, eight Cardinals, four Auditors of the Rota, and two Penitentiaries of the Vatican Basilica? Reply 3. And if in the Roman Congregation there was already no controversy from the age of Clement VIII, and Benedict XIV in question 479, namely, a century and a half before us (for that cause was treated in January 1726), wrote that no question could any longer be raised concerning this power of the Supreme Pontiff, while from that age down to us ever greater light has shone upon this controversy, why finally will it be held unlawful to say that the opinion which denied this power to the Roman Pontiffs is now obsolete?

The VV. add (ibid.) that Benedict XIV (On Beatification and Canonization, book 4, chapter 42, no. 13) has the following: Concessions of this kind are sometimes made, yet from them it is not deduced that it is certain de fide that Pontiffs can release men from a ratified but non-consummated matrimony and from a vow of continence annexed to monastic profession.

Reply. Let it pass; for it is not contended in the Note that it must be held de fide that the Roman Pontiffs possess this power, so that whoever contradicts it must be considered a heretic. Moreover, who does not know that the Church has not been accustomed to arrive at definitions of this kind, namely, that something must be held de fide, unless a grave cause demanded it? Benedict brings forward those examples to show how the Apostolic See permits the cult of the Blessed, and yet that it must not therefore be held de fide that they are participants in heavenly glory. But he had premised (ibid., no. 9) that although it appears probable that the judgment of the Supreme Pontiff in equipollent Beatification is not infallible and does not pertain to the faith, nevertheless it is also certain (he says) that he will not be free from the note of temerity who contends that he erred and who reproves the cult which the Pontiff himself approved.

And indeed James Pignatelli judged no differently concerning the opinion which denies to the Roman Pontiffs the faculty of dispensing in a merely ratified matrimony (Canonical Consultations, book 1, consultation 148, no. 6), writing: Therefore, by the judgment of all Canonists and very many Theologians, and by the examples of the Supreme Pontiffs down to our times, this has been so confirmed that it would be temerarious to assert the contrary. Nor did George Gobat judge otherwise (tract 10, no. 691): Nor do I think that the opinion of Pontius can now be defended without insult to the Apostolic See, since Diana named seven Pontiffs who easily dispensed in thirty such cases, and most recently Innocent X, after such long and sharp disputes among the Theologians concerning this power, used it toward a common laborer, supported by no favor at all, and indeed without a cause concerning the public good, as I most faithfully related above (no. 678). Hence also Elbel (On Matrimony, conference 15, no. 360): It cannot be said without the note of temerity that the Pontiffs erred in dispensing.

Moreover, whatever anyone judges must be thought concerning these judgments, not even the VV. will be able to call into doubt that the affirmation of the Holy Doctor concerning this question, There are two probable opinions, leads to very grave inconveniences, even with their own principles considered. And indeed it now follows that the Roman Pontiffs therefore acted in this matter relying upon an opinion which can be false, indeed which is probably false. Yet, first, the right of a third party is also at issue here, for it is known that dispensations of this kind were also granted against the will of the other party. And if the dispensation must be called merely probably valid, did not the VV. elsewhere contend (page 799) that probability avails nothing against a right certainly existing beforehand? But is it not otherwise certain that a right had already been acquired by the other party through the contract of matrimony? Would it not therefore have to be said that the Roman Pontiffs acted unjustly toward the other party? Does not Pontius (book 9, chapter 3, no. 8) bring forward this argument for denying this power to the Pontiff, because it appears difficult for the Pontiff to make a law against a right of justice acquired by a third party, or to dissolve a matrimony, which we see clearly in lesser contracts?

Furthermore, no one calls into doubt that through the rescission of matrimony a most grave injury is inflicted upon the Sacrament itself unless the matrimony was legitimately dissolved. But according to the principles of the VV. and of the Holy Doctor Alphonsus, is it licit to act with a merely probable opinion and at the same time with a probable and grave irreverence toward the Sacrament? Is it not evident that there is danger of this grave irreverence if a marriage is said to have been dissolved by pontifical dispensation only probably?

Moreover, since through a pontifical dispensation of this kind the faculty of passing to other nuptials is given to each spouse, could the spouses licitly proceed to these other, probably adulterous, nuptials? Could the Church consent that one be admitted to the Sacrament of matrimony who is still probably bound by the bond of a prior marriage and would probably remain in an adulterous union?

Deservedly, therefore, the Salmanticenses (tract 9, chapter 4, no. 59) say: Very often the Supreme Pontiffs have dispensed so that a ratified matrimony might be dissolved; but it must not be believed that the Pontiffs erred in a matter so grave and one which pertains especially to morals, because in matters pertaining to morals IT APPEARS IMPIOUS TO ASSERT that the Supreme Pontiffs err. And yet, if the affirmation of St. Alphonsus is admitted, would it not probably have to be said that the Supreme Pontiffs probably erred in a grave matter pertaining to morals?

Nor does Diana, whom the VV. otherwise sometimes exhibit as too benign, judge differently (volume 3, tract 1, resolution 94, no. 4): It is in no way likely that the Pontiffs err in a matter of such importance, since their error would gravely harm the Churches. For it would not only be in fact but would redound into doctrine pernicious to the Church, because by their deed they implicitly teach, etc. And a little later (no. 5): Their error would concern one of the principal heads of our Religion, which would indeed be intolerable. And, meeting an evasion, he adds: You will say that the error is only speculative, in which they are excused because they follow a probable opinion of various Doctors. The reply is that this does not satisfy, since even a speculative error in moral doctrine, or in a deed from which error in moral doctrine would follow, and especially in the Sacraments, would be most pernicious to the Church. Then he admirably adds (no. 12): And certainly it ought to suffice for any Christian, however learned, that the Roman Pontiffs, and especially Pius V, otherwise a most holy man and an eminent theologian, frequently dispensed in the aforesaid marriages.... It ought also to suffice that the same Roman Pontiffs declared that it was not in the mind of Christ in Matthew 5 and 19 to include the aforesaid matrimony, to which interpretation the greatest faith must be given, chapter Haec est fides, cause 24, question 1.

In support of the affirmation of St. Alphonsus, the VV. cite (pages 802-803) certain Authors whom they say were contemporaries of the Holy Doctor. Two things can be displeasing in this. The first is that from Cardinal Gotti, as though he denied this power to the Pontiff, they bring forth the general thesis concerning the indissolubility of matrimony and concerning its dissolubility on the occasion of conversion from infidelity or of Religious Profession; but they then suppress in silence the fact that he plainly proves the power of the Pontiff concerning dispensing in a ratified matrimony (question 8, doubt 3, section 1, no. 15). The second is that they likewise report from Antoine (chapter 2, question 8) what he states generally thus (reply 1): Every matrimony contracted absolutely is and always has been indissoluble without a special permission of God; and then suppress what is read thus (ibid., reply 4): A ratified but non-consummated matrimony of baptized persons is dissolved in two cases: first, through solemn Profession in an approved Religion; second, according to very many Canonists and Theologians, it is dissolved by the authority of the Pope. He then defends this thesis with several arguments.

Whatever may be the truth concerning this (as also concerning the fact that the VV. add on page 802 that Arriaga, S.J., was cited by the Salmanticenses, although these certainly mention Aragon but nowhere Arriaga), no one is ignorant that several others, especially somewhat more ancient Authors, could have been cited for the opinion which either denies or calls into doubt that power of the Roman Pontiff of which we speak. But this cannot or ought not move anything. We discern in this controversy what we have known to have occurred also concerning others: when they began to be debated in the Schools, there existed the greatest and afterward the sharpest disagreement of the Doctors; but in the course of time, both by the aid of maturer discussion and especially by that light which manifests itself from the Roman Apostolic See, even apart from any definition, through deeds or other reasons, the disagreement gradually diminished and finally vanished altogether.

In this matter the most prudent economy and long-suffering patience of the Apostolic See indeed showed itself admirable: while, at the time when by deeds or another reason it sufficiently indicated toward which side it inclined and where its sense tended, nevertheless, where no grave danger threatened, it did not prevent its children, otherwise prepared to obey, from meanwhile disputing among themselves, and sometimes in disputing from arriving at the point where they perhaps appeared to fall short of the reverence and honor due to so great a Mother.

In a not dissimilar manner, the same Apostolic See, while vindicating to itself by the deeds themselves the right of dispensing in a ratified matrimony, nevertheless patiently endured that, for example, Soto (In IV Sentences, distinction 27, question 1, article 4, section His tamen nihil obstantibus) should write concerning this doctrine: Nevertheless, to confess the weakness of my intellect, always saving the censure of the Church, it represents to me no appearance of probability. The Apostolic See further patiently endured that someone should say it to be free from sin while it dispenses concerning solemn vows and a ratified matrimony only because invincible ignorance excuses it. Thus Martin Wigandt (Tribunal of Confession, tract 2, proem, examination 3, no. 7): If, however, an opinion less probable in itself appears more probable to someone, he does not sin by following it in practice, because invincible ignorance excuses; and thus it can happen in dispensations of the Pope concerning solemn vows and a ratified matrimony. Therefore, according to this opinion, lest we ascribe to the depravity of the Roman Pontiffs acts of the Apostolic See of this kind, which we see frequently repeated through several centuries down to our days, we must evidently impute them to their ignorance! And hence Charmes, as the VV. themselves report (page 804), excused the Roman Pontiffs because THEY HAD BEEN DECEIVED! What wonder, then, that an opinion which necessarily leads to consequences of this kind became obsolete in the course of time?

The VV. observe (page 801) that St. Alphonsus, when he calls probable the opinion which denies that the Pope can dispense in a ratified matrimony, speaks only of speculative probability, as do the other Doctors.

Reply. What those mean who use a phrase of this kind in this controversy (for St. Alphonsus does not have it thus) can scarcely be understood, and one would rightly say that they labor under an equivocation. The controversy is whether the Pontiff has the power of dissolving a merely ratified matrimony, and therefore whether the dissolution of a matrimony through pontifical dispensation is valid or not. Does their opinion, then, reduce to this: speculatively, the Pontiff probably does not have this power, but practically he has this power absolutely? And again: the dissolution of a matrimony of this kind is probably not valid speculatively, but in practice it is absolutely valid? Such an opinion plainly savors of something most absurd.

But, as I said, these appear to labor under an equivocation. For when they ask whether the Pontiff can dispense in a ratified matrimony and reply that, speculatively speaking, he probably cannot, they understand that can concerning power necessary for the validity of the act. But when they speak of practice, they understand that can, not likewise concerning power for the validity of the act, but concerning the liceity or honesty of the act, which they finally derive either implicitly or explicitly from the invincible and therefore inculpable ignorance of the agent. But if, once the equivocation is removed, the question is asked whether the Apostolic See can licitly dispense in a ratified matrimony, will they dare to reply: speculatively speaking, it is probably illicit, but practically it is altogether licit? For if you set aside the excuse of invincible ignorance, do any circumstances arise in practice which dissolve the reasons for which the action is speculatively probably illicit?

In brief: if the power of the Pontiff necessary for the validity of the act must really be called doubtful, in practice there can by no means be avoided those inconveniences which we touched upon above, and especially this one: that those who are probably still bound by the bond of a preceding matrimony are admitted to other nuptials.

And indeed whatever may finally be added concerning invincible ignorance which excuses the dispensing Pontiff from sin must deservedly be called most empty. For all the Doctors now agree on what is deduced from the propositions condemned by the Apostolic See: that in conferring Sacraments it is illicit to follow a probable opinion concerning the validity of the Sacrament. And therefore it manifestly follows that in the present case it is illicit to admit to the Sacrament of matrimony where the consent of the contracting parties is probably invalid. Moreover, if this is illicit in practice, it must also be called illicit speculatively. Cardinal de Lugo writes excellently to the point (On Justice and Right, disputation 10, no. 189): If these inconveniences follow of themselves from that opinion, it certainly will not be probable even speculatively; for even for the speculative probability of a moral matter, the matter must be such that in human circumstances it does not bring inconveniences which render it illicit; but if of itself it brings inconveniences of this kind, by that very fact it is intrinsically illicit even speculatively speaking. Since, therefore, to conclude at last, this reason for excusing acts of the Apostolic See, repeated so often through several centuries down to us, as though through mere ignorance the Roman Pontiffs had used so doubtful a power as to give occasion to those gravest inconveniences on account of which they themselves condemned the use of probability in the subject matter, must be called most empty and altogether unworthy of a Theologian, it ought not appear surprising that Theologians finally judged empty the arguments which cast doubt upon this power of the Apostolic See, and that in the course of time the matter was brought to the point that the opinion became obsolete and must be called outmoded.

2. A ratified and non-consummated matrimony can be dissolved through the solemn religious profession of one of the spouses, and this by a special privilege granted by Christ and declared by the Church. For thus the Council of Trent, session 24, canon 6: If anyone shall say that a matrimony ratified but not consummated is not dissolved through the solemn religious profession of one of the spouses, let him be anathema ³. But in order that the spouses may deliberate about the use of this privilege, they have two months after the nuptials granted to them by the law itself ⁴, during which time they are not bound to render the debt. - St. Ligorius, nos. 870, 958. Indeed, even after that period of two months, if the matrimony has not been consummated, even through an illicit refusal of the debt, this privilege remains. Ferraris ⁵. Nor is it impeded by fornication had between the betrothed persons before the celebration of the matrimony ⁶. - Scavini.

³ It must be added here, which the Author omits, that before the convert to the faith binds himself in a second marriage, it is necessary to interpellate the spouse who is still an infidel, so that it may be established whether that spouse is willing to cohabit peacefully with the convert, etc., or, according to the different circumstances, whether that spouse is also willing to embrace the faith, etc. The reason is evident, because just as, in doubt concerning the death of a prior spouse, it is necessary before entering a second marriage to inquire whether the former is in fact dead, so in this case it is necessary to inquire whether the infidel spouse, according to the Pauline phrase, in fact departs.

Cardinal Brancatius, whom Clericatus afterward copied (On Matrimony, decision 11, no. 21), indeed judged (In IV Sentences, disputation 16, no. 198) that this interpellation is so necessary that a matrimony contracted without the will of the prior infidel spouse having been ascertained must be held invalid. He brings forward this reason (ibid., no. 199): that the Privilege does not have its force unless the conditions required by the legislator are observed. But the chief condition, he says, is that the infidel depart. Yet for the argument to conclude, the minor would have to be this: But the condition necessary for the validity of the matrimony is that the faithful party first investigate and know that the infidel wishes to depart. He himself does not prove this, nor, I think, will anyone easily prove it. And it is equally certain that a second marriage is not valid before the death of the prior spouse. But anyone who, confusing the occurrence of the condition with knowledge of that occurrence, reasoned thus would argue badly: Therefore, in doubt concerning the death of a spouse, another matrimony contracted without the doubt whether the spouse is in fact dead having been removed is invalid. The correct conclusion is that one sins who contracts another matrimony without certain knowledge of the death of the prior spouse, but that matrimony is valid or invalid according as the prior spouse was living or dead at the time when the new marriage was contracted. By parity you will conclude in our case that the faithful party indeed sins who, without consulting the infidel spouse and therefore in ignorance whether that spouse wishes to depart, contracts new nuptials; nevertheless, these nuptials are valid or invalid according as the condition of that departure exists or does not exist. But the argument which some, especially Missionaries, thought could be taken in favor of the opinion of Brancatius from a Declaration of the Sacred Congregation for the Propagation of the Faith in 1816 fails for several reasons. For other reasons were available on account of which the second marriage of a certain Tullius with Martha was judged invalid, as is easily evident to one inspecting the genuine Acts of the Sacred Congregation. See Sanchez (book 7, disputation 74, nos. 13-18), where he discusses both the necessity and manner of interpellation and the delays to be granted to the infidel.

The greater difficulty is what must be done when the convert cannot interpellate the other. This can happen especially for two reasons: either because the infidel cannot be approached, or because it is not established which of several persons must be interpellated, for example, when it is unknown which of several women whom a man has or has had is his legitimate wife.

As regards the first case, let the question now be omitted concerning an infidel who has maliciously fled or lies hidden so as not to be interpellated.

For, as the Doctors observe (see Clericatus, On Matrimony, decision 11, no. 26), it is then sufficiently established that the infidel is unwilling to be converted or to cohabit, and therefore the faithful party will be able freely to enter another matrimony. The question is when the infidel cannot be interpellated because it is unknown where the infidel is, or because the infidel is so far away that an admonition is considered impossible.

Many, whom Benedict XIV acknowledges to have been the greater number (On the Synod, book 6, chapter 4, no. 3), taught that in this case there is no need of interpellation because it is then morally certain that the infidel is unwilling to be converted and to leave his own people in order to cohabit legitimately with the convert; and no admonition is needed when there is moral certainty concerning the infidel's obstinacy. See Sanchez (book 7, disputation 74, no. 14) and Clericatus (On Matrimony, decision 11, no. 26). But perhaps one will admit this with difficulty. For the reason of distance and ignorance of the place to which one's own spouse was carried, for example, if a husband were seized and carried away from Africa and transported to the Americas, will indeed perhaps remove from the wife left in central Africa the hope of recovering him; but whence is it certainly proved that she is also obstinately unwilling either to be converted or to cohabit with him if perhaps found? Indeed, experience not rarely shows the contrary, and sometimes it has been discovered that the spouse first left behind came to the Christian faith before the abducted spouse did.

Pontius (On Matrimony, book 7, chapter 48, no. 22), whom Benedict XIV afterward copied (On the Synod, book 6, chapter 4, no. 3), contends that the faithful party cannot marry unless a dispensation of the Pontiff intervenes by which that admonition is supplied, namely, as Benedict XIV explains (l.c.), so that a new matrimony can be entered with the interpellation of the other infidel spouse omitted, when it is established that the spouse cannot legitimately be interpellated. But if these things are understood so that the sole effect of the dispensation is to release the faithful party from the obligation of inquiring whether the spouse wishes to depart or not depart, this opinion can deservedly appear more intolerable than the preceding opinion of Sanchez. For the latter at least supposes there to be moral and therefore sufficient certainty of the departure of the infidel spouse, and consequently supposes that essential condition to be present which, from the doctrine of the Apostle Paul, is both necessary and sufficient for the faithful party to pass to other nuptials once the bond of the prior marriage has been dissolved. The later opinion of Pontius, on the contrary, taking no account of the existence or nonexistence of that necessary condition, thinks that sufficient provision is made for the matter if, by means of a dispensation, someone makes no further inquiry into the will of the infidel, whether the infidel wishes to depart or not; just as if, in doubt concerning the death of a prior spouse, someone should think it sufficient for validly contracting another matrimony that it be authoritatively declared by the magistrate that an inquiry concerning the life or death of the spouse is very difficult or even morally impossible! For to this they finally reduce the whole force of the pontifical dispensation in this question. In this matter they also reserve for pontifical power parts which I would almost call ridiculous, namely, that it dispense from the interpellation of a spouse whom it is established cannot legitimately be interpellated! Yet if the condition required by the Apostle is perhaps in reality lacking, and the spouse left, for example, in Africa has a firm intention of preserving fidelity to his or her spouse for all time rather than departing, how will the bond of this legitimate and consummated matrimony cease? What if this spouse left behind has already received the Christian faith and baptism when the spouse abducted into slavery comes to baptism, or at least when the abducted spouse thinks about new nuptials, so that the former marriage has now become ratified and the nature of a Sacrament has accrued to it? Whence, I ask, will we derive, in the opinion of Pontius, the dissolution of this bond which is certainly essentially required beforehand for entering a new matrimony?

Therefore this difficulty, which clear facts testified was not imaginary, had to be provided for in another manner. For what even now occurs in the markets of Egypt, that both men and women carried away into slavery from the Mediterranean regions of Africa are sold although they are joined in matrimony, we know was also commonly done in past centuries so that colonists might be obtained for the immense deserts of America. When the Christian charity of the Missionaries had led these persons to the faith, there pressed the grave difficulty of how provision might be made for those whom it was not easy either to keep continent or to assist with matrimony, since they were bound by former marriages. The use of the faculty which the Apostle grants to those converted to the faith was impeded not only because the spouses left in barbarous places could not be interpellated but also because it had been learned by experience that not rarely the spouses left in Africa also had already been converted to the faith by the aid of Missionaries and cleansed by baptism. Therefore a remedy was needed by whose aid those wretched persons, whether carried abroad into slavery or left in their homeland without a spouse, would not lack matrimony even when perhaps there was no longer any place for the faculty of marrying granted by the Apostle; and since a new matrimony cannot be contracted while the bond of the prior matrimony remains, a remedy was needed by which the bond of the prior matrimony would certainly be dissolved even when the departure of the former spouse furnished no access to this dissolution.

And this indeed is the remedy which Gregory XIII, and afterward Urban VIII, judged should be applied in the Letters which we mentioned in the preceding Note. For in them there appears most expressly even the case in which there can be no place for the faculty given by the Apostle on the occasion of the departing infidel spouse: namely, when this departure is not only unknown but is supposed to be lacking, because the other spouse is also presented in the same Letters as already converted to the faith at the time when the former contracted new nuptials. These marriages, says Gregory, even if it afterward became known that the former infidel spouses, being justly impeded, could not declare their will - namely, the will of adhering to their spouses, for otherwise a will of this kind would have been of no importance - and that they had also been converted to the faith at the time the second matrimony was contracted, nevertheless must never be rescinded but are valid and firm. But how can the second marriages be valid and firm unless the preceding bonds have been dissolved? These could not have been held dissolved by force of the Pauline concession, as is evident, because the necessary condition, namely, the departure of the prior infidel spouse, is lacking. Therefore, the removal of the prior bond must be ascribed to apostolic power, which, by force of that granted dispensation, possesses the authority of dissolving marriages of infidels not yet consummated after conversion to the faith but still merely ratified, and in fact dissolves them. And for precisely this reason Gregory XIII and afterward Urban VIII, when about to grant this dispensation, make express mention in the same Letters of this power, through these words: Therefore We, considering that marriages of this kind contracted among infidels are indeed true, yet are not considered so ratified that, when necessity urges, they cannot be dissolved, etc. This observation would have been inserted altogether without purpose in the same Letters unless the exercise or use of this apostolic power intervened in the dispensation granted there.

That Pontius, having these Letters before his eyes, could affirm (l.c.) that it is not gathered from them that the Pontiff dissolved those marriages, but only declared that the case in which the infidel does not wish to cohabit with the faithful party is then verified, since, he says, for so long a time the faithful party is not sought by the infidel - words altogether ridiculous, since in the hypothesis interpellation is supposed impossible, and the Pontiff, as is evident from his own words, supposes that the infidel, being justly impeded, could not declare his will - this, I say, can be explained only by one who knows that Pontius, carried away by a blind passion for contradicting Sanchez, for Sanchez had affirmed that the Pontiff wished through those Letters to dissolve the marriages where necessary, not only in this place but very often and everywhere throughout the course of his work turned aside into paradoxes and absurd opinions. And it must plainly be regretted that this paradox of Pontius also crept into Cardinal Lambertinius's work On the Diocesan Synod (book 6, chapter 4, no. 3, and book 13, chapter 21, nos. 3-4). Hence it happened that this question, otherwise sufficiently simple, rather than being flooded there with some new light, as often occurs with other questions, was wrapped in denser darkness and entangled in inextricable difficulties. This happened also as regards the other case proposed above, to which we now proceed.

Another difficulty, therefore, occurs when interpellation of the infidel spouse becomes nearly impossible because it is unknown which of several wives whom a man actually has or formerly had is to be interpellated as legitimate. For although after the promulgation of the evangelical law only the first wife is legitimate by law, it sometimes becomes uncertain among barbarians, who readily repudiate wives, which is truly the first wife. For it happens that someone's first wife had previously married another man and was repudiated by him; yet the doubt does not thereby cease, since it is uncertain whether she was the legitimate spouse of the prior man, who perhaps had previously repudiated another wife. And for the same reason it is again not established whether the first wife of that former man was legitimate, since she herself had previously been repudiated by another husband, concerning whom it is doubtful for the same reasons whether she was his legitimate wife. And thus one must proceed almost to infinity without it being possible to establish anything certain.

This condition of affairs had for a long time kept the Bishops, Pastors, Missionaries, etc., of those regions very anxious. For when those who were converted to the faith were commanded to choose for themselves only one wife from those whom they either had or had had, they generally desired one who herself would embrace the faith, although she was not the first. Hence a twofold rock. First, to find the first wife who could be interpellated sometimes appeared not merely difficult but nearly impossible; and even if she could have been found, it was hard for the neophytes to dismiss the one whom they preferred, and therefore many were deterred from embracing the faith. On the other hand, how could the bond of a prior matrimony, if one existed, be believed dissolved, since either the former wife, who was unknown, could not be interpellated, or even though interpellated and consenting to cohabitation, she was rejected by the man as hated? Therefore, in neither case did the permission given by Paul to pass to other nuptials, and thus the dissolution of the prior bond, have place: not in the latter case, because there plainly lacked a cause for dismissing the first and legitimate wife, who would rather have wished to remain with her spouse; not in the former, because the departure of the first wife could not be established, and therefore it was no more licit to deliberate about new nuptials than when nothing can be learned concerning the life or death of a prior spouse.

When these things had been reported to the Apostolic See, St. Pius V, applying by Letters given August 2, 1571, a remedy not unlike that which Gregory XIII afterward applied, decreed that the converts could remain with that wife among the several whom they had married who was baptized together with the husband, even if she had been neither the first nor legitimate. Since therefore, he says, as We have learned, several wives are permitted to Indians while they remain in their infidelity, whom they repudiate even for the lightest causes, hence it has happened that those receiving baptism have been permitted to remain with that wife who is baptized together with the husband; and because it very often happens that she is not the first, whence both the ministers and the Bishops are tormented by most grave scruples, judging that this is not a true matrimony; but because it would be most harsh to separate them from the wives with whom those Indians received baptism, especially because it would be most difficult to find the first wife, therefore We, wishing with paternal affection to provide for the condition of the aforesaid Indians and to free the Bishops and ministers themselves from scruples of this kind, by Our own motion and from Our certain knowledge and from the plenitude of apostolic power, declare by apostolic authority through the tenor of the present Letters that the Indians thus baptized, as premised, and to be baptized in the future, are to remain with the wife who was and is baptized with them as with a legitimate wife, the others having been dismissed, and that a matrimony of this kind legitimately subsists between them, etc. Moreover, since these marriages could not legitimately subsist unless the bond of the prior marriage had been dissolved, and since the dissolution of the bond in the case cannot be attributed to the faculty granted by the Apostle Paul on account of the departure of the prior infidel wife, it is manifest, unless someone should prefer to say that St. Pius V dispensed so that the Indians could have two legitimate wives at the same time, that the Roman Pontiff, from the plenitude of power, wished to dissolve and remove that first bond, if any existed.

But behold, here also Pontius, for whom discourse concerning the Roman Pontiff dissolving these marriages by extraordinary power was like a dreadful apparition, and after Pontius Lambertinius (On the Synod, book 13, chapter 21, no. 4), twist this Constitution of St. Pius also into a mere dispensation, so that extrajudicial knowledge of the impossibility of interpellating the infidel spouse might be substituted for juridical interpellation. Thus they again introduce a ridiculous scene of a Pontiff who by apostolic authority dispenses from interpellating a spouse who cannot be interpellated, and who substitutes ignorance of whether that spouse wishes to depart for the spouse's departure required by the Apostle, as though these were one and the same thing; just as though, in relation to celebrating new nuptials, it were one and the same thing that a prior spouse is dead and that it is unknown whether the spouse is dead or still lives! The same is repeated in Lambertinius's Canonical Question 546, no. 37, where it is held to be one and the same that it is most difficult to find the first wife and that, according to the words of the Apostle, she departs although she was not interpellated!

In the latter place Lambertinius also adds an argument of this kind: In order that a dispensation concerning the consummated matrimony of infidels might be argued from the Brief of St. Pius V, it would have to be shown that the same Supreme Pontiff supposed that the first wife had been found, and, notwithstanding this, that the same Pontiff declared the validity of the matrimony with the second or third wife converted to the faith. But others will very easily deny this, since it is shown to be false without any difficulty. For, in order that a dispensation as regards the bond in preceding marriages of infidels may be argued, it suffices that these two things were established: first, that St. Pius decreed that the matrimony afterward contracted with another should be held legitimate by all and always; second, that it could nevertheless sometimes happen that the dissolution of the preceding conjugal bond could not be ascribed to the departure of the prior spouse according to the phrase of the Apostle.

But the first point is manifestly clear from the words of the Supreme Pontiff. As regards the second, who, I ask, or for what reason, would say it impossible that the first wife, if she should perhaps be found - St. Pius says this is most difficult, not impossible - would wish to adhere to her legitimate spouse, especially if she herself had already been converted to the faith or was prepared to be converted? Since these things are sufficiently manifest, we shall refrain from adding the several other things which could be brought forward upon the same matter.

It is useful to add only this concerning the present matter: it is to be desired that the little work of the Most Reverend Father Camillus Tarquini, Professor of Canon Law in this Roman College, should come forth into public light. In it, solidly according to his custom and most learnedly, he treats the question whether the Pauline privilege of which we spoke also has force when someone receives himself through baptism from infidelity into a Christian Communion which is nevertheless separated from the Catholic Church. For I do not doubt that, after considering the reasons brought forward by him, everyone will concede to his opinion, which holds the affirmative part.

⁴ This time, however, can be restricted or prolonged at the discretion of the judge, although one ought not readily to depart from that period. See Sanchez (book 2, disputation 24, no. 12) and Schmalzgrueber (book 3, title 32, no. 1). According to the truer and more common opinion, however, the two months must be computed not from the day of the nuptials but from the day on which the judge fixes the term. Sanchez (ibid., no. 21) and Schmalzgrueber (ibid., no. 3).

⁵ A profession is called solemn when it is made in a Religion approved by the Apostolic See, as distinguished from Congregations in which only simple vows are emitted. These simple vows, far from having the force of dissolving a preceding matrimony, do not even render a subsequent one invalid, as will be said below where merely impeding impediments are treated. Therefore Pontius wrote erroneously (On Matrimony, book 9, chapter 6) that a ratified matrimony is dissolved through the profession of the simple vows which are emitted after two years of novitiate in the Society of Jesus; and Vincent de Justis also copied this error from Pontius (On Dispensations, book 2, chapter 14, no. 106). For indeed, by a singular Privilege granted to the Society of Jesus by Gregory XIII, those simple vows constitute a diriment impediment, and therefore certainly render those bound by them incapable of contracting matrimony validly; but that they also dissolve a matrimony already contracted, the Society of Jesus itself has never known or imagined. See Suarez (On Religion, tract 10, book 4, chapter 2), Vasquez (In I-II, disputation 165, chapter 10), Sanchez (On Matrimony, book 1, disputation 18, no. 6), Croix (book 6, part 3, no. 413), Schmalzgrueber (book 3, title 31, no. 210, and book 4, title 6, nos. 61-64), etc. There is added the Resolution of the Sacred Congregation which Barbosa reports (Collection of Apostolic Decisions, collection 465, under MATRIMONY, no. 30).

⁶ Except when it is necessary to remain in the matrimony in order to legitimate offspring, repair scandal, or repair the honor of the bride. - St. Alphonsus, book 6, no. 958.

Nevertheless, one sins who contracts matrimony with the intention of entering Religion without warning the other party. - St. Ligorius, ibid.

3. Even a consummated matrimony of infidels can be dissolved by divine concession when either spouse is converted to the Christian Faith ⁷, and the other refuses to cohabit peacefully with the converted spouse, or does not cohabit except with injury to the Creator and contempt of the Christian Religion, or attempts to pervert the faithful party ⁸. This is deduced from the Declaration of Innocent III cited by St. Ligorius, no. 956, etc. This divine concession is drawn from the words of the Apostle, 1 Corinthians 7:12, where he says: 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 the unbeliever depart; for a brother or sister is not subject to servitude in such cases: but God has called us in peace. Innocent III explains the same more fully in chapter Quanto 7, On Divorce. - See more in case no. 903 and following ⁹.

⁷ Understand conversion through the reception of baptism. Through baptism, however, the conjugal bond with the infidel is not yet dissolved, but only when the convert, upon the refusal of the other to cohabit peacefully and without insult to the Creator, contracts other nuptials. Benedict XIV (Canonical Question 546, no. 6) acknowledges this doctrine to be common, indeed most common, among Theologians and Canonists. Hence, unless we suppose a typographical error, it can scarcely be understood why elsewhere (On the Synod, book 6, chapter 4, no. 4), although he again acknowledges it to be almost commonly received and defined by the Sacred Congregation of the Council in 1679 and 1680, he nevertheless says that MOST of the Doctors hold the contrary.

Hence two consequences. First, if the spouse who remained an infidel afterward comes to the faith and baptism before the other has entered a new matrimony, the latter is bound to receive the former and can be compelled to cohabit. Thus chapter Gaudemus 8, On Divorce; and Benedict XIV reports that this was again confirmed by the Sacred Congregation with the approval of the Pontiff on July 1, 1679, and April 13, 1680 (cited Canonical Question, no. 6). The reason is that the marriage, not yet dissolved, becomes ratified through the baptism of the other; indeed, it fully assumes the nature of a Sacrament, which, as has now been defined, cannot in Christian marriages be separated from the nature of a contract, just as when marriages are sanated in the root. Second, if the former marriage has already been dissolved through the new nuptials of the convert, it will be open also to the other party, for the bond of matrimony is indivisible, to enter other nuptials not only validly but also licitly, both if that party is converted to the faith and, as the more common opinion holds, even if the party perseveres in infidelity. - See Schmalzgrueber, book 4, title 19, nos. 32-33.

Since the opinion of the Doctors agrees that the converted spouse, if the other infidel refuses to cohabit, etc., can either make profession in Religion or receive sacred Orders, the marriage is restored anew in neither hypothesis even if the other is afterward converted, unless perhaps the former is still a novice or received only minor Orders. The reason is that through religious profession, and likewise through sacred Orders, a state incompatible with matrimony is assumed. Schmalzgrueber, book 4, title 19, no. 37; Sanchez, book 7, disputation 76, no. 6; De Justis, book 2, chapter 15, no. 40. Sanchez (l.c.) thinks that the same must be held if the convert emitted a vow of absolute chastity. And in the hypothesis of religious profession having been emitted, St. Bonaventure, Sanchez, etc., more truly affirm, as Maschat says (Institutes of Canon Law, book 4, title 19, no. 9), that the matrimony is dissolved; and the common opinion of the Theologians, as Sanchez says (l.c., no. 9), deduces this by similarity as follows. For if such force was granted by Christ to profession in Religion that it dissolves the bond of a ratified matrimony between the faithful, much more will it dissolve a matrimony consummated during infidelity, which is not ratified, from chapter Quanto 7, On Divorce. But in the hypothesis of only sacred Order having been received, or of a vow of absolute chastity having been emitted, since the bond of matrimony is not dissolved according to the common opinion, and since otherwise the spouse bound by these bonds cannot be restored without dispensation to the other spouse who may have converted, then, if the spouse first converted would not willingly admit dispensations and the other could live in the state of continence only with difficulty, it would be expedient to have recourse to a dispensation by which the Pontiff, as was said above, would break the bond of the prior matrimony.

⁸ If, however, the party who entered Religion delays profession beyond what is reasonable, wandering from one Religion to another within the period of novitiate, the judge can assign a peremptory time so that the party either remain in some Religion and, after completing the novitiate there, make profession, or return to the spouse and consummate the matrimony. - Sanchez, book 2, disputation 24, no. 9.

⁹ The danger of perversion has caused it to be the case that, although the infidel party consents to dwell peacefully with the faithful party, the infidel party is nevertheless sometimes not admitted to cohabitation unless also converted to the faith. In this matter Benedict XIV (On the Synod, book 13, chapter 21, no. 1) praises the opinion of Cabassutius, who, after Sanchez, concludes (Practice of Canon Law, part 3, chapter 23, no. 11) that the question must be determined from the circumstances of the cases and the customs of the regions.

Moreover, practice bears that in regions of infidels, for example, among the Chinese, Indians, etc., converts are permitted to cohabit with an infidel and also to pass to other nuptials according to the doctrine of Paul if the infidel either refuses to cohabit or does not consent to cohabit except with injury to the Creator. To this pertains chapter Gaudemus of Innocent III and the Declaration cited by Benedict XIV (l.c.). Among Christian nations, however, the practice has prevailed that cohabitation is not permitted with a party who obstinately adheres to an infidel sect, for example, the Jewish, although that party protests a willingness to cohabit peacefully. See Sanchez (book 7, disputation 73, no. 12), who rightly observes that in this case also those circumstances have place on account of which the Apostle taught that the convert can dismiss the infidel party and pass to other nuptials and is not to be obliged to lead a celibate life; for this, since it could be a grave yoke, could remove the convert from embracing the faith, indeed, contrary to the mind of the Apostle, would subject the convert to servitude under a matrimony contracted in infidelity. Concerning this Cabassutius (l.c.) writes of Jews living under pontifical dominion: Liberty is granted both to the converted spouse and to the obstinate spouse to bind themselves in other nuptials, but to the obstinate spouse not before the converted spouse has contracted another marriage.

The diversity of practice according to the diversity of places and circumstances is seen in the Decree of the Council of Lima (act 2, chapter 10), which Sixtus V confirmed by apostolic authority (in Pignatelli, Canonical Consultations, volume 4, consultation 189, final proposition). It reads thus: Concerning those who, joined in matrimony, are converted to the faith while the spouse still remains an infidel, provision was prudently made in the preceding Council that if the infidel shows a ready hope of conversion, the Christian should in no way pass to other nuptials, as is defined in the sacred Canons, but should await the gain of the spouse in Christ. But if the infidel delays conversion, yet is not pernicious to the baptized spouse by turning that spouse away from the faith or drawing that spouse into mortal sin, then the infidel is still to be awaited for a period of six months, being assiduously admonished meanwhile concerning conversion. But since both the danger to the recent convert must be guarded against, lest, if the infidel remains long in the bed, the convert perhaps lose the faith of Christ, and provision must be made for the convert's liberty, lest the convert be compelled to live celibate, therefore we decree that, after the space of six months has elapsed, the matter be referred to the Bishop, who, after the cause has been well examined, is to declare to the faithful party that there is the faculty of entering another matrimony.... But if he sees that there is no danger in cohabitation, he is to command the faithful party to await

the infidel, or even to counsel cohabitation if he understands it to be profitable, according to the counsel of the Apostle Paul. For the same law cannot be fixed for all converts, since various circumstances certainly occur and the condition of all infidels is not the same.

“And among other things, do not omit continually and accurately to hand down and inculcate to the faithful committed to your vigilance the doctrine of the Catholic Church concerning the Sacrament of Matrimony and concerning the indissoluble bond of Matrimony. For none of you is unaware that, according to the doctrine of the Catholic Church, a ratified Marriage of the faithful before consummation can be dissolved by the solemn profession of either spouse in some approved religious institute, or by a canonical dispensation which can be granted only by the Roman Pontiff and which is granted most rarely and only for the gravest causes. And you also know very well that the same Church, according to evangelical and Apostolic doctrine, clearly teaches that the bond of Matrimony can never be dissolved on account of the adultery of either spouse, or on account of heresy, or troublesome cohabitation, or affected absence from a spouse, but remains perpetually firm and indissoluble according to the very well-known pronouncement of inspired Adam, the oracle of Christ the Lord, the words of the Apostle, and the tradition of the Church, all of which you know very well. Indeed, this perpetual and indissoluble firmness of the matrimonial bond, not flowing from ecclesiastical discipline, is so great in a consummated Marriage both by divine and by natural law that it can never be dissolved for any cause, not even by the Roman Pontiff himself, even if conjugal fidelity is broken by the adultery of either spouse.” Pius IX, Letter Verbis exprimere to the Archbishop of Făgăraș and Alba Iulia and the Suffragan Bishops, 15 August 1859.

“67. By the law of nature the bond of Matrimony is not indissoluble; in various cases divorce properly so called can be sanctioned by civil authority.” Proposition of the Syllabus condemned by Pius IX.

“Marriages of Protestants dissolved by Protestant consistories cannot be regarded as dissolved; a sentence of non-Catholic assemblies, by which especially the nullity of Marriages is declared and the dissolution of their bond is intended to be effected, can obtain no force and absolutely no effect before the Church.

“The party released cannot be joined to a Catholic in Matrimony.

“Parish priests cannot approve such nuptials by their presence and confirm them by their blessing.

“Catholic spouses who, by the authority of a non-Catholic consistory alone, having shaken off the bond of the prior Marriage, have hastened to second nuptials before a non-Catholic minister, can be admitted to participation in the Sacraments if, repenting of the crime committed, they humbly seek pardon and produce true fruits of penance, the first of which must be that they separate from the second spouse if the first is still living.” Pius VII, Brief of 8 October 1803 to Karl Theodor von Dalberg, Archbishop of Mainz; C. 1286.

“After legitimate present consent, it is lawful for either party, even against the opposition of the other, to choose a monastery (as certain saints were called from their nuptials), provided that carnal intercourse has not occurred between them; and it is lawful for the other who remains, if, after being admonished, he is unwilling to observe continence, to pass to second vows. For since they had not been made one flesh together, one can very well pass to God and the other remain in the world.” Chapter Verum, 2, On the Conversion of Married Persons.

“...Moreover, because, although the woman M. was espoused to the aforesaid man A., nevertheless, as she asserts, she is still unknown carnally by him, We command that, if the aforesaid man has not known her carnally and she wishes to pass to the religious life, after sufficient caution has been received from her that within the space of two months she must either pass to the religious life or return to her husband, you absolve her from the sentence of excommunication by which she is bound; but if each passes to the religious life, let each restore to the other what he or she is known to have received from the other. Certainly, that which the Lord says in the Gospel, that it is not lawful for a man to dismiss his wife except on account of fornication, is to be understood, according to the interpretation of the sacred utterance, of those whose Marriage has been consummated by carnal intercourse, without which it cannot be consummated.” Chapter Ex publico, 7, same title. Cf. chapter Ex parte, 14, same title, where it is established that Matrimony is dissolved by religious profession, not by a resolve to observe chastity in the world.

“You sought to be instructed by an Apostolic writing whether pagans who take as wives women related to them in the second, third, or a more remote degree ought, thus joined, to remain together after their conversion or to be separated from one another. Concerning this We respond altogether that, since the Sacrament of Matrimony exists among the faithful and unbelievers, as the Apostle shows when he says, ‘If any brother has an unbelieving wife, and she consents to dwell with him, let him not dismiss her’; and since a Marriage in the aforesaid degrees was lawfully contracted by pagans so far as concerns them, who are not bound by canonical constitutions (‘For what is it to us,’ according to the same Apostle, ‘to judge those who are outside?’), especially in favor of the Christian religion and faith—from the reception of which men can easily be called back because they fear being abandoned by their wives—the faithful who were joined matrimonially in this manner can freely and lawfully remain united, since Marriages are not dissolved by the Sacrament of Baptism, but crimes are forgiven. But because pagans, with regard to several women at the same time divide conjugal affection, it is not undeservedly doubted whether after conversion they can retain all of them, or which one from among all. But this seems absurd and inimical to the Christian faith, since from the beginning one rib was changed into one woman; and divine Scripture testifies that for this reason a man shall leave father and mother and shall cleave to his wife, and they shall be two in one flesh: it did not say three or more, but two; nor did it say that he shall cleave to wives, but to a wife. Nor was it ever lawful for anyone to have several wives at the same time, unless it was granted to him by divine revelation, which is sometimes reckoned as custom and at times even as divine right; by which, just as Jacob is excused from falsehood, the Israelites from theft, and Samson from homicide, so also the patriarchs and other just men, who are read to have had several wives at the same time, are excused from adultery. Certainly this truthful judgment is proved also by the testimony of the Truth, Who testifies in the Gospel: ‘Whoever dismisses his wife, except on account of fornication, and marries another commits adultery’ [the printed text omits “except”]. Therefore, if another cannot by law be married after the wife has been dismissed, much less while she is retained; from which it plainly appears that plurality in either sex is to be reproved, since they are not judged by unequal standards concerning Matrimony. But he who, according to his rite, repudiated his legitimate wife, since the Truth in the Gospel has reproved such repudiation, will never be able lawfully to have another while she lives, even after being converted to the faith of Christ, unless after his conversion she refuses to cohabit with him, or, even if she consents, does not consent without insult to the Creator or without drawing him into mortal sin. In this case, restitution would be denied to her if she sought it, although unjust dispossession were established, because, according to the Apostle, a brother or sister is not subject to servitude in circumstances of this kind. But if she follows him when he is converted to the faith and she too is converted, before he takes a legitimate wife for the aforesaid causes, he will be compelled to receive her. Moreover, although according to evangelical truth he who marries a dismissed woman commits adultery, nevertheless the one who dismissed her will not be able to object to the dismissed woman that she committed fornication because she married another after the repudiation, unless she had committed fornication otherwise.” Chapter Gaudemus, 8, On Divorces.

The Pauline privilege persists even if, after the conversion of either spouse, consent is renewed. Holy Office, 20 September 1848, Vicar Apostolic of New Zealand; Zitelli, p. 120.

“1. Whether, for the purpose of dissolving a Marriage according to the privilege in favor of the faith granted by Christ the Lord and promulgated by the Apostle, the interpellation of the party persevering in unbelief is of divine law and therefore so necessary that, if it is neglected, there is plainly no place for dissolving the Marriage? Or does it pertain only to the judicial form and is required only that the dissolution be made lawfully, especially when it is otherwise established by morally certain indications that the other spouse wishes neither to embrace the faith nor to cohabit without insult to the Creator?

“2. Supposing that the first part is answered affirmatively, it is asked whether the inquiry concerning embracing religion alone suffices, namely, whether the party remaining in unbelief wishes to be converted or not, as some of the missionaries, relying upon the authority of Thomas Sánchez, think; or whether rather the interpellation as to whether the party persevering in unbelief at least consents to cohabit without insult to the Creator is also essential and absolutely required, so that, if it is omitted, the Marriage can be dissolved not only unlawfully but also invalidly?

“3. Whether the solemn expulsion of a wife effected by her husband, namely, by giving a writ of repudiation before the leading men of the village according to the laws of the kingdom, can take the place of an interpellation and be regarded as such, since it is most certainly established concerning the will of that husband, namely, that henceforth he by no means wishes to have the aforesaid woman as wife; or whether rather, no account being taken of the repudiation, even in those circumstances the twofold interpellation prescribed in law is required for the validity of the dissolution of the Marriage?

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

“5. It is asked whether adultery gives unbelieving spouses, as it does Christians, an occasion for effecting a perpetual divorce, so that it is entirely open to the innocent party, when washed in the sacred font, either to bid farewell to the world or to pass life in the state of widowhood, although the other party wishes to be reconciled and to cohabit without insult to the Creator?

“6. When an unbelieving husband indeed permits his wife, already washed in the waters of sacred Baptism, to observe her religion and does not formally command anything that is a mortal sin, but so importunately entices her in the use of Matrimony to many grave things contrary to conjugal chastity that the woman is always in grave danger of sinning mortally, it is asked whether, in this case, the aforesaid woman can leave him and pass to other vows. But what if the danger comes not from the other spouse, but from others who are in the same house, for example, from a father-in-law who solicits his daughter-in-law to incest, or from a mother-in-law who is a most quarrelsome woman and most addicted to superstitions?

“Response. To 1: There is no place for dissolution of a Marriage contracted in unbelief, in the case in question, unless an interpellation has first been made, or unless, for legitimate causes, an Apostolic dispensation from the interpellation has been obtained.

“To 2: The unbelieving spouse is to be interpellated not only as to whether he wishes to be converted, but also, in the event that he does not wish to be converted, whether he wishes to cohabit with the faithful spouse without insult to the Creator, according to the provision of Innocent III, chapter Quanto, On Divorces.

“To 3: The interpellation is to be made even in the case in question, if it can be made; otherwise recourse is to be had to the Apostolic See in order to obtain a dispensation.

“To 4: Nothing prevents Baptism from being conferred upon the woman in question, provided that she is otherwise sufficiently instructed.

“To 5: A spouse converted to the faith and baptized can make a divorce as regards the marriage bed from an unbelieving spouse on account of adultery committed by him, although he seeks pardon and wishes to cohabit without insult to the Creator.

“To 6: The converted woman can depart from the unbelieving husband and pass to other vows, in the event that he draws her into grave sins against conjugal chastity (chapter Quanto and chapter Gaudemus of Innocent III, On Divorces). But if the drawing of the converted woman into mortal sin proceeds not from her unbelieving husband but from others who dwell in his house—a father-in-law, for example, or a mother-in-law—the faithful woman can, when other means are not available, withdraw herself from that house where she is drawn into sinning gravely; but she cannot dissolve the Marriage and pass to another.” Sacred Congregation for the Propagation of the Faith, 5 March 1816, to the Pro-Vicar General of Western Tonkin.

“If a Marriage with a Catholic party should occur after the reception of Baptism, it will have to be investigated whether the canonical interpellation of the still-unbelieving spouse preceded, or whether at least a dispensation from that interpellation was granted by legitimate authority. Insofar as it is established that the interpellation was made or that a dispensation from it was granted, the first Marriage can no longer constitute a bond invalidating the second union; but insofar as neither the interpellation nor its dispensation preceded, the first Marriage will indeed stand in the way of the second, but the Ordinary must suspend judgment and refer the case with all its circumstances to the Holy See.” Instruction of the Holy Office, 20 June 1883, no. 44; Instruction of the Sacred Congregation for the Propagation of the Faith, 1883, no. 45.

“What is to be thought concerning the Marriage of the said man with a Christian maiden, contracted without interpellation and dispensation, and what is now to be done?—Response. From the things set forth, the first Marriage contracted by the man in paganism with a pagan woman subsists; therefore, let the Most Reverend Lord Vicar Apostolic, the petitioner, take care, in the more prudent manner in which it can be done, to summon the parties before himself to set forth their rights, and, if he finds nothing to the contrary, let him oblige them to return to the first union.” Holy Office, 20 June 1858; Sacred Congregation for the Propagation of the Faith, March 1816.

“There are pagans who, for the sake of conducting commerce, leave their own place for a time in order to betake themselves to other provinces at a distance of ten or fifteen days’ journey, and sometimes more, and there marry other wives while the first are living. One of these was recently converted to the faith together with his second wife; then, receiving word that his first wife grieved over his conversion and indeed exhorted him not to embrace the faith, he requested Baptism, promising that, content with the second, he would abandon the first absolutely and would in no way cohabit with her when he returned to his own country. A certain Chinese missionary assented to his wishes, although the faculty of dispensing from the interpellation had in no way been granted to him by the Vicar Apostolic; and, thinking that in this circumstance there was no room for doubt, he baptized this Christian together with the second wife and, after obliging them to renew their consent, joined them in solemn Matrimony. Afterwards that Christian, having returned, found the first wife changed and disposed in every way to embrace the faith. It is asked whether, in the proposed case, the Marriage entered into with the second wife is valid. The reason for our doubt is, on the one hand, that this missionary had no faculty of dispensing from the interpellation; on the other hand, however, several missionaries protest, admitting indeed that in this case the Marriage with the second wife was celebrated unlawfully, but not so certainly invalidly: both because, when the Sacred Congregation for the Propagation of the Faith was questioned by us on 3 January 1777 as to whether certain Marriages of this kind, celebrated through ignorance without a dispensation, were invalid, it gave no response, although it responded to other things; and because, according to Benedict XIV of holy memory, book 13, On the Diocesan Synod, chapter 21, article 6, most theologians assert that a judicial interpellation can lawfully be omitted whenever it is judged that it will be of no utility; the Supreme Pontiff, however, did not reject this opinion as false, but declared it only not sufficiently safe in practice. But in the proposed case the interpellation seemed useless to them, since the will of the first wife was clearly established.—Response. In view of the circumstances concurring in the fact, the spouses in question are not to be disturbed; but let missionaries beware of granting a dispensation from the interpellation of a spouse if they lack such a faculty.” Sacred Congregation for the Propagation of the Faith, 5 March 1787.

“Whether, when Matrimony has been delayed for a notable time on the part of the faithful party after the interpellation was made or after a dispensation from it was obtained, a new interpellation or a new dispensation is necessary? And insofar as the response is affirmative, what interval of time ought to intervene between the first and second interpellation, or between the first and second dispensation from it?—Response. Negative insofar as an interpellation was made; affirmative after a year in the case of a dispensation obtained at the beginning.” Sacred Congregation for the Propagation of the Faith, 26 June 1820, to D. Escodeca, Apostolic Missionary in Sichuan.

“The interpellation is to be made after Baptism.” Holy Office, 13 April 1859; 21 November 1883. For a grave cause, and with a special faculty obtained from the Apostolic See, it can also be made before Baptism. Holy Office, 3 June 1874.

“...We decree that those who before conversion had several wives according to their customs and do not remember which one they received first, after being converted to the faith, may take one of them whom they wish and contract Matrimony with her by words of the present tense, as is customary; but those who remember which one they received first, dismissing the others, shall retain her.” Paul III, Constitution Altitudo Divini consilii, 1537, for the West Indies.

“...Since therefore, as We have learned, the Indians while remaining in their unbelief are permitted several wives, whom they repudiate even for the slightest causes, it has consequently occurred that those receiving Baptism have been permitted to remain with that wife who is baptized together with her husband; and because it very often happens that she is not the first spouse, both ministers and bishops are consequently tormented by the gravest scruples, judging that this is not a true Marriage. But because it is most harsh to separate them from the wives with whom the Indians themselves received Baptism, especially because it would be most difficult to find the first spouse, therefore We, wishing benignly to provide for the state of the said Indians with paternal affection and to free the bishops and ministers themselves from scruples of this kind, by Our own motion, from Our certain knowledge, and from the fullness of Apostolic power, by Apostolic authority and the tenor of the present letters declare that Indians baptized in the manner set forth above and to be baptized in the future can remain with the wife who was or will be baptized with them as with a legitimate wife, the others being dismissed, and that a Marriage of this kind legitimately subsists between them, etc.” Pius V, Brief Romani Pontificis, 2 August 1571; A. S. S., vol. 26, p. 150.

“Therefore, since it often happens that many unbelievers of either sex, but especially of the male sex, after contracting Marriages according to a pagan rite, are captured by enemies from Angola, Ethiopia, Brazil, and other regions of the Indies and driven from the boundaries of their native lands and their own spouses into the most remote regions, to such an extent that neither they themselves nor the captives who remain in their native land, if they are afterwards converted to the faith, can, as is fitting, admonish the unbelieving spouses separated by so great a distance of places as to whether they wish to cohabit with them without insult to the Creator, either because sometimes access even for messengers is not open to hostile and barbarous provinces, or because they are altogether ignorant into which regions they were carried, or because the very length of the journey presents great difficulty; therefore We, considering that unions of this kind contracted between unbelievers are indeed judged true, yet not so ratified that, when necessity urges, they cannot be dissolved, and having compassion with paternal piety upon the infirmity of such peoples, by Apostolic authority and the tenor of the present letters grant full faculty to each and every Ordinary of the said places, and to parish priests of the Society of Jesus approved for hearing confessions by the superiors of that Society and sent to or admitted into the said regions for the time being, to dispense with any Christian faithful of either sex dwelling in the said regions and later converted to the faith who had contracted Matrimony before receiving Baptism, so that any one of them, while an unbelieving spouse survives and without the latter’s consent being sought or a response awaited, can lawfully contract Marriages with any faithful person, even one of another rite, solemnize them in the face of the Church, and, after they have subsequently been consummated by carnal intercourse, remain in them as long as they live; provided that it is established, even summarily and extrajudicially, that the spouse absent as stated above cannot lawfully be admonished, or that, having been admonished, did not signify his or her will within the time fixed in the same admonition. We decree that these Marriages, even if it afterwards becomes known that the prior unbelieving spouses were unable, being justly impeded, to declare their will and had even been converted to the faith at the time the second Marriage was contracted, must nevertheless never be rescinded, but shall be valid and firm, and that the offspring to be received therefrom shall be legitimate.” Gregory XIII, 25 January 1585. Cf. Constitution of Benedict XIV, In suprema catholicae Ecclesiae, 16 January 1745; C. 1309.

“...There are several among the Christians who, in the time of paganism, sold their own wives to pagans, afterwards embraced the faith, received sacred Baptism, and in good faith entered into a new Marriage with Christian women without any prior interpellation, whether because they were ignorant of its necessity, or because the wife who had been sold was too far distant, or because they did not know where she now dwelt, or finally because they feared that on account of the interpellation they would be ill-treated by the second husband and accused before the governors concerning the Christian religion. It is asked: 1. Is a Marriage made in these circumstances valid? 2. Whether and when does the right of dispensing from the aforesaid interpellation belong to the Vicars Apostolic of this region, especially if the Christian has received children from the second Christian wife? But if it does not belong to them, it is humbly requested. 3. When these women thus sold migrated to provinces in which the number of Christians abounds, but cannot be found and there is no word concerning them, ought ignorance of the fact whether perhaps they became Christians before the seller passed to second nuptials to impede the dispensation? 4. Finally, in the hypothesis in which these women can be admonished, does it suffice to exhort them once, either personally or through another, to become Christians, saying nothing concerning the Marriage, so that, if on this occasion the aforesaid women are unwilling to be converted, it is lawful for the faithful party to pass to new nuptials?—Response. To 1, 2, and 3: Petition is to be made to His Holiness for the granting of an Indult according to the Brief of Gregory XIII of the year 1585 and the Instruction of the Holy Office of the year 1760, which is to be transmitted; after this Indult has been obtained, the Vicar Apostolic can use the faculty of dispensing according to the form of the aforesaid Brief of Gregory XIII and the Instruction. To 4: Negative.” Sacred Congregation for the Propagation of the Faith, 3 January 1777, to the Missionaries of the Province of Sichuan in China.

“1. Under the name of a legitimate impediment, by reason of which the faithful spouse is dispensed from the interpellation of the unbelieving spouse, does there fall the mere presumption of the husband’s shamelessness, namely, that just as he sold his wife the first time, it seems to be feared that, after recovering her, he would dare to sell her a second time also? 2. Does there fall the mere presumption that the unbelieving party is unwilling to return because, namely, during the preceding cohabitation, either on account of a difference of temperaments or for other causes, both disagreed with one another and were troubled by continual dissensions? 3. Does there fall the mere presumption that the unbelieving husband, because he has already passed to other nuptials, is unwilling to reject the second wife in order to cleave again to the first; or, if perhaps he wishes to receive the first again, is nevertheless unwilling to reject the second, but wishes to retain both at the same time? 4. Does there fall the mere fear of Christians, namely, that the unbelieving party, learning from the interpellation made to him that Christians are present in such a place, can consequently bring harassment upon the Christian religion?—Response. To 1, 2, and 3: Negative. To 4: In a case of this kind, let the Apostolic See be consulted.” Clement XIV in the Congregation of the Holy Office, 23 November 1769, to the Vicars Apostolic of Shaanxi and Shanxi.

“...A ratified and non-consummated Marriage is dissolved only by the solemn profession of vows, and not by the profession of simple vows. Therefore, in a case in which a man, according to the law issued on 19 March 1857 by the Sacred Congregation on the State of Regulars, must emit simple vows before solemn profession, either he or his spouse will be able to have recourse to the Apostolic See to obtain the faculty that solemn vows may be emitted at once.” The same Sacred Congregation, 25 January 1861.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

"Whether, when marriage has been delayed on the part of the faithful party for a notable time after the interpellation made, or after a dispensation from it has been obtained, a new interpellation, or a new dispensation, is necessary? And insofar as affirmatively, what space of time ought to intervene between the first and the second, either interpellation or dispensation from it? Resp. Negatively, insofar as the interpellation was made; affirmatively, after a year, in the case of dispensation obtained at the beginning." S. C. de P. F. 26 June 1820, D. Escodeca, Missionary Ap. in Sutchuen.

"The interpellation is to be made after Baptism." S. C. S. I. 13 Apr.

1859, 21 Nov. 1883. For a grave cause, and with special faculty obtained from the Apostolic See, it can also be made before Baptism. S. C. S. I. 3 June 1874.

"... We decree that those who before conversion had several wives according to their customs, and do not remember whom they took first, when converted to the faith, should take one of them whom they wish, and with her contract marriage by words de praesenti, as is customary; but those who remember whom they took first, the others having been dismissed, should retain her." Paul III, Const. Altitudo Divini consilii, 1537, for the West Indies.

"... Therefore, since, as We have received, among the Indians remaining in their infidelity several wives are permitted, whom they themselves repudiate even for the lightest causes, from this it has happened that, for those receiving Baptism, it has been permitted to remain with that wife who has been baptized together with the husband; and since it very often happens that she is not the first spouse, whence both Ministers and Bishops are tormented by very grave scruples, thinking that that is not a true marriage; but since it is very harsh to separate them from the wives with whom these Indians have received Baptism, especially because it would be most difficult to find the first spouse: therefore We, wishing kindly to consult with paternal affection for the state of the said Indians, and to free the Bishops and Ministers themselves from scruples of this sort, of Our own motion and from Our certain knowledge, and from the fullness of apostolic power, by the apostolic authority and tenor of the present letters declare that Indians thus baptized, as is premised, and to be baptized in the future, may remain with the wife who has been baptized and will be baptized with them, as with a legitimate wife, the others having been dismissed, and that a marriage of this sort legitimately subsists between them, etc." Pius V, 2 Aug. 1571.

"Since therefore it often happens that many Infidels of either sex, but especially of the male sex, after marriages contracted according to the gentile rite, captured by enemies from Ancola, Ethiopia, Brazil, and other Indian regions, are carried away from their native territories and their own spouses into most remote regions, so that both they themselves, and the captives who remain in the fatherland, if afterwards they are converted to the faith, cannot warn their unbelieving spouses, separated by so long an interval of places, whether they wish to cohabit with them without contumely of the Creator, as is proper, either because sometimes there is no access even for messengers to hostile and barbarous provinces, or because they are wholly ignorant into what regions they have been transported, or because the very length of the journey brings great difficulty: for that reason We, considering that marriages of this sort contracted among Infidels are indeed true, but not to be judged so ratified that, necessity persuading, they cannot be dissolved, having compassion with paternal piety on the weakness of such peoples, grant, to all and singular the local Ordinaries and Parish Priests of the said places, and to Priests of the Society of Jesus approved for hearing confessions by the Superiors of the same Society, and sent for the time to the said regions, or admitted in them, by apostolic authority and the tenor of the present letters, full faculty of dispensing with whatsoever faithful Christians of either sex dwelling in the said regions and later converted to the faith, who before receiving Baptism had contracted marriage, so that each of them, the unbelieving spouse surviving, and his or her consent in no way required, or response not awaited, may licitly contract and solemnize in the face of the Church marriages with any faithful person even of another rite, and may afterwards, when they have been consummated by carnal copula, remain in them as long as they live: provided that it is established, summarily and extrajudicially, that the absent spouse, as is stated above, cannot legitimately be warned, or, having been warned, has not signified his or her will within the time fixed in that same warning; which marriages indeed, even if afterwards it should become known that the prior Infidel spouses, justly impeded, were unable to declare their will, and were converted to the faith even at the time of the second marriage contracted, nevertheless must never be rescinded, but are to be valid and firm, and We decree that the offspring to be received therefrom will be legitimate." Gregory XIII, 25 Jan. 1585. Cf. Const. of Benedict XIV, In suprema Catholicae Ecclesiae, 16 Jan. 1745.

"... There are several among the Christians who, in the time of gentility, sold their own wives to Gentiles, afterwards embraced the faith, received sacred Baptism, and in good faith entered into a new marriage with Christian women without any prior monition, either because they were ignorant of its necessity, or because the sold wife was too far distant, or because they did not know where she was now living, or finally because they feared that on account of the monition they would be ill-treated by the second husband and accused before the Prefects concerning the Christian Religion. It is asked: 1. Whether a marriage made in these circumstances is valid? 2. Whether and when there belongs to the Apostolic Vicars of this part the right of dispensing from the aforesaid monition, especially if the Christian has had children from the second Christian wife? But if it does not belong, it is humbly requested. 3. When these women thus sold have migrated to provinces in which the number of Christians abounds, and they cannot be found nor is there any message concerning them, whether ignorance of the fact, namely whether perhaps they had become Christians before the seller passed to second nuptials, ought to impede the dispensation? 4. Finally, whether, in the hypothesis in which these women can be warned, it suffices once to exhort them, either personally or through another, that they become Christians, saying nothing concerning the marriage, so that if on this occasion the aforesaid women are unwilling to be converted, it is lawful for the faithful party to pass to new nuptials? Resp. To the 1st, 2nd, and 3rd: The Most Holy One is to be supplicated for the concession of an Indult according to the Brief of Gregory XIII of the year 1585, and the Instruction of the Holy Office of the year 1760, which is to be transmitted; once that Indult has been obtained, the Apostolic Vicar can use the faculty of dispensing according to the form of the mentioned Brief of Gregory XIII and of the Instruction. To the 4th: Negatively." S. C. de P. F. 3 Jan. 1777, Missionary of the Province of Sutchuen in China.

"1. Whether under the name of a legitimate impediment, by which the faithful spouse is dispensed from the interpellation of the unbelieving spouse, there comes only the presumption of the shamelessness of the man who, just as the first time he sold his wife, seems to be feared lest, having recovered her, he would dare to sell her a second time also? 2. Whether there comes only the presumption that the unbelieving party is unwilling to return, namely because in the preceding cohabitation, either on account of diversity of temperaments or from other causes, both disagreed among themselves and were agitated by continual dissensions? 3. Whether there comes only the presumption that the unbelieving husband, from the fact that he has already passed to other nuptials, is unwilling to reject the second wife so as to adhere again to the first; or, if perhaps he wishes again to receive the first, nevertheless is unwilling to reject the second, but to retain both together? 4. Whether there comes only the fear of Christians, namely lest the unbelieving party, understanding from the interpellation made to him that there are Christians in such a place, could thence bring trouble upon the Christian Religion? Resp. To the 1st, 2nd, and 3rd: Negatively. To the 4th: In a case of this sort, the Apostolic See is to be consulted." Clement XIV in C. S. O. 23 Nov. 1769, Apostolic Vicar of Shensi and Shansi.

"... Only by the solemn profession of vows is a ratified and non-consummated Marriage dissolved; but not by the profession of simple vows; and therefore in the case in which the man, according to the law of 19 March 1857 issued by the S. C. sup. St. Reg., must emit simple vows before solemn profession, either he himself or his spouse will be able to recur to the Apostolic See for obtaining the faculty that solemn vows can be emitted immediately." E. S. C. 25 Jan. 1861.

"... 1. I ask whether in order to the validity or nullity of a contracted marriage, the conferral or non-conferral of Baptism, while it is unknown, is to be determined from the principle of presumption? ... 2. Whether, while the conferral of Baptism is unknown, the principle of presumption is rightly applied in order to the value of a contracted marriage in the following articles:

1. If the non-Catholic party or parties have had parents belonging to a sect which rejects Baptism, Baptism is not to be presumed here.

2. The same must be resolved if they had parents belonging to a sect which does not admit infant Baptism, or in which it is not conferred except on adults, for example those who have already attained the thirtieth year of age, as the matter stands in the sect of the Baptists.

3. The same must likewise be resolved if they had parents who, while they were living, professed that they did not wish to belong to any sect, and that they honored the Supreme Being rather by honest morals, as they say, than by any special worship.

4. If they had parents belonging to a sect which holds the same Baptism as necessary, or in which at least it is ordinarily administered, and those same parents were zealous in their sect, Baptism is to be presumed. But what if the parents were sluggish in the sect, or belonged to a sect which indeed does not reject Baptism, but does not hold it as necessary and in which it is not ordinarily administered? In both or in either case is Baptism to be presumed or not?

5. If according to the sect of only one parent and a zealous disposition of soul as above, the presumption favors Baptism, and in the education of the offspring that parent in fact and indubitably had the first parts, Baptism is to be presumed.

Resolve the same if, inquiry having been made, it is unknown or is not sufficiently established whether that parent had the first parts; for Baptism in order to marriage is to be presumed, since a union once entered is to be judged valid so long as an obstacle does not reveal itself. But what if it is certainly established that the sect and disposition of soul of the parent who in fact and indubitably had the first parts in education do not favor Baptism, while the sect and disposition of soul of the other parent favor the same?

6. In the case in which no presumption militates for Baptism, the rule is to be applied: a fact is not presumed, but must be proved. The application of this rule in these United States, where among non-Catholics there are very many who care nothing or little about conferring Baptism on their infants, perhaps ought to have place with the stronger right than in many other regions.

The aforesaid questions are proposed chiefly for this reason, that from their solution there may be had a norm according to which one can proceed safely especially in these cases. 1st. When, of two non-Catholic parties separated from each other as above, one asks to be received into the bosom of the Church, and desires to fly to other nuptials. 2nd. When a Catholic party separated from a non-Catholic as above asks to be joined with another spouse, or, already joined with another, desires to be admitted to the sacraments.

Resp. To the 1st: Affirmatively, yet investigation having been carried out in individual cases.

To the 2nd, namely: Whether, while the conferral of Baptism is unknown, the principle of presumption in order to the value of a contracted marriage is rightly applied in the following articles? They responded: Affirmatively as to the first, second, and third article, and as to the first part of the fourth and the first part of the fifth number; but in this last article, after the words "had the parts," let there be added: "nor is the other spouse known to be positively contrary to the conferral of Baptism," Baptism is to be presumed. In the remaining cases, which are noted in the second part of the fifth number, recourse must be had to the Holy See, with all circumstances of things, places, and persons, and other things bearing on the matter, set forth.

To the 6th: Provided for in the preceding." S. I. C. 1 Aug. 1883, Bishop of Savannah.

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

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

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

673. 1° Historical arguments. The adversaries contend that the union of the sexes in antiquity was free and promiscuous², and therefore that the modern manner of contracting marriage, as introduced only by customs and by civil law, can and ought to be abolished.

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

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

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

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

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

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

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

² Fonsegrive, op. cit., pp. 21-29.

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

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

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

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

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

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

³ Modestin., Digest., XXII, 2.

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

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

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

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

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

679. 2° Philosophical arguments. From the very ends of marriage it is logically inferred that marriage demands some stability.

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

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

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

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

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

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

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

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

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

683. 3° It is confirmed by theological arguments. (a) For God, after the first man had been created, seeing that it was not good for man to remain alone, made for him a help like himself. Therefore He took one of the ribs of sleeping Adam, and built it into a woman and brought her to Adam. He said: "This now is bone of my bones, and flesh of my flesh; she shall be called woman, because she was taken from man. Wherefore a man shall leave his father and mother, and shall cleave to his wife; and they shall be two in one flesh."¹ For there especially five things are declared: 1) the formation of the woman made by God, that she might become the companion of the first man and a help like him; 2) the intimate union which ought to exist between man and woman both for the generation of offspring and for the fellowship of life; 3) yet a certain dependence of the woman upon the man, because she was taken from the man; 4) the unity of the matrimonial bond: for they shall be two in one flesh; 5) the stability of the same: a man shall leave his father and mother and shall cleave to his wife. Deservedly, therefore, Leo XIII says:² "That union of man and woman, in order that it might respond more aptly to the most wise counsels of God, even from that time bore before itself two chief properties, and these especially noble, as though deeply impressed and inscribed, namely unity and perpetuity."

¹ Gen., II, 18-24.

² Encycl. Arcanum.

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

³ Deut., XXII, 20-22.

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

⁴ Matt., XIX, 4-6.

¹ Rom., VII, 3.

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

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

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

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

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

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

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

705. Preliminary notes. The unity of marriage consists in the conjugal union of one man with one woman. To this are opposed polyandry and simple polygamy. The former is the conjunction of one wife with several men; the latter is the conjunction of one man with several wives.

We premise a few things concerning polyandry, which exists very rarely. Simultaneous polyandry, or the conjugal union of one wife with several men at the same time, according to all, is repugnant at least to the secondary natural law. For although, strictly speaking, it does not render absolutely impossible the procreation and education of offspring, nevertheless it is opposed to the principal ends of marriage: (a) to the procreation of offspring, for the fecundity of the woman, although it is not altogether destroyed by carnal commerce with several men, is nevertheless greatly diminished; (b) to the education of offspring, because it renders the father uncertain, and consequently renders uncertain his obligation of educating the children; (c) to the natural subjection by which the woman ought to be subject to the man; for no one can perfectly serve several masters at the same time.¹

¹ St. Thomas, Supplement, q. 65, a. 1, ad 8.

Nevertheless a certain polyandry has flourished and still flourishes among certain tribes, especially where women are fewer than men. Sometimes the matter stood thus: when a woman had married the firstborn, his younger brothers approached her successively, according to certain defined rules and customs; and sometimes two or three men married the same wife and dwelt together in the same house. But facts of this kind occur rarely, and among the husbands generally one is principal, who presides over the whole household. Yet even among those tribes monogamy generally prevails.¹

¹ Westermarck learnedly discusses the extension and causes of polyandry, op. cit., ch. 20-22, pp. 425-485.

706. Polygyny, before Christ, flourished among most peoples, although not all men were polygamous. Today also among unbelievers it prevails, especially among the richer, who can support several women. But among Christian nations monogamy is acknowledged as the foundation of the family. - Yet Luther taught that simultaneous polygamy, even under the New Law, was licit, and, with P. Melanchthon and M. Bucer agreeing, kindly granted Philip, Landgrave of Hesse, that while his lawful wife was still living he might marry another, Margaret de Saal. The Anabaptists defended the same error, and in our century the Mormons,³ who very recently nevertheless declared that they had taken leave of polygamy, so that thus they might submit themselves to the laws of the State. But on the opposite side Calvin contended that simultaneous polygamy, even under the Old Testament, was illicit, and therefore that the ancient Patriarchs, who had several wives at the same time, were guilty of adultery. To refute this calumny, some theologians said that polygamy is not opposed to the natural law, nor before the evangelical law was it prohibited by divine law. What we think the following proposition will declare.

² St. Thomas, Supplement, q. 65, aa. 1-2; Bellarmine, c. 10-11; Drouin, l. IX, q. III, c. 1; Billuart, diss. V, a. 1; Perrone, l. III, c. 1, aa. 2-4; Carriere, p. II, sect. 2, c. 1; de Augustinis, a. 7; Palmieri, th. 13 sq.; Billot, th. 40; Watkins, Holy Matrim., ch. IX, p. 591 sq.

³ Concerning the Mormons, who call themselves "The Church of Jesus Christ of Latter-Day Saints," see Book of Doctrine and Covenant (1880), Book of Mormon (1881); Encyclop. Britan. with American Supplement; H. Lyon, A Study of the Sects, p. 187 sq.

707. Thesis: Simultaneous polygamy, contrary to the primitive institution, but permitted to the Patriarchs after the flood, was prohibited by Christ, and is opposed to the secondary precepts of the law of nature.

(A) Simultaneous polygamy is contrary to the primitive institution of marriage. Thus more commonly. For (a) when God created man, He made one man and one woman;¹ now, as Chrysostom² rightly observes, if the Lord had willed that one man be joined to several wives, when He made one man, He would have made many women. But afterwards Adam, seeing Eve, exclaimed: "Wherefore a man shall leave his father and his mother, and shall cleave to his wife; and they shall be two in one flesh"; there, however, as Innocent III says,³ "he did not say three or more, but two; nor did he say he shall cleave to wives, but to his wife"; which indeed exclude polygamy. (b) Hence, before the flood, Lamech alone is said to have had two wives, and on that account he is severely reproved by the Fathers; thus Nicholas I writes:⁴ "but the crime of adultery, which Lamech first of all perpetrated in two wives, stood as abolished only by the blood of Christ"... (c) On this account Innocent III (loc. cit.) says: "Nor was it ever permitted to anyone to have several wives at the same time, except to him to whom it was granted by divine revelation"; and these words indeed manifestly suppose that polygamy was prohibited by the primitive law.

¹ Gen., II, 7, 22.

² Hom. 62, al. 63, in Matt., n. 1, P. G., t. LVIII, p. 597.

³ Decretal., l. IV, t. 19, Cap. Gaudemus, de Divort.

⁴ Ad Consulta Bulgar., n. 51, in Harduin, Act. Concil., t. V, p. 37.

708. (B) Yet polygamy after the flood was permitted to the Patriarchs and to the Jews under the Mosaic law, indeed very probably also to the Gentiles. (a) For the Patriarchs, who enjoyed the friendship of God, such as Abraham, Jacob, and others, had several wives, nor are they reproved on that account, but rather they are exhibited as men outstanding in piety. (b) The Mosaic law likewise supposes plurality of wives to be licit, since it establishes that the sons born from either wife are to be equated.⁵ In reality Elkanah,⁶ David,⁷ Joash,⁸ and other men had several wives; and while David is gravely chastised on account of adultery with Bathsheba, the wife of Uriah, he is never reproved on account of the other wives whom he had married.

⁵ Deut., XXI, 15.

⁶ I Reg., I, 2.

⁷ II Reg., II, 2.

⁸ II Parap., XXIV, 3 sq.

Nor let it be said that some of these wives are called concubines and therefore were not legitimate; for in Scripture sometimes legitimate wives are called concubines, and conversely; thus Hagar and Keturah are now called wives, now concubines.¹ Indeed among the ancients two kinds of wives were distinguished: some were married not only for the procreation of offspring, but also for the society of all goods and the governance of the house, and these were called mothers of families; but others only for the generation of offspring, and these were called secondary wives or concubines. (c) But the chief reason why polygamy was permitted after the flood was the multiplication of offspring to be educated for the worship of God. For, as St. Thomas says (loc. cit., a. 2): "The more principal end must always be observed more than the secondary. Hence, since the good of offspring is the principal end of marriage, where the multiplication of offspring was necessary, the impediment which could occur in the secondary ends had to be neglected for a time."

¹ Gen., XVI, XXV.

It is commonly handed down by theologians that the dispensation from the primitive law concerning the unity of marriage was given only after the flood; nevertheless nothing certain can be defined concerning this matter. Nor was it necessary that the dispensation be expressed in writing; for the law concerning unity of wife, as St. Thomas observes (loc. cit.), had not been handed down by word or letters, but impressed on the heart; and therefore the dispensation could take place through internal inspiration, which indeed was principally made to the holy fathers, and from their example derived to others. From this also it can be gathered, with Bellarmine and others against Sanchez, that the same dispensation was given to the Gentiles; for since it was granted in the time of the patriarchs, there is no reason why it should have been limited to the Jews alone, especially because it was more difficult for pagans than for Israelites to preserve the perfect unity of marriage. Hence Esther was joined to Ahasuerus, who already had a wife, and she is not reproved on that account; likewise Abimelech, who had a wife, wished to marry Sarah, and was not blamed except because he had taken the wife of another.

709. (C) Simultaneous polygamy was prohibited by divine law under the New Law. This is of faith from Trent:² "If anyone shall say that it is lawful for Christians to have several wives at the same time, and that this is prohibited by no divine law, let him be anathema."

² Trent, sess. XXIV, can. 2.

(a) For Christ recalled marriage to its first institution; for when asked whether it was lawful to put away a wife, He answered that it was not lawful, and added this reason: "Have you not read that He who made man from the beginning made them male and female? And He said: For this cause a man shall leave father and mother and shall cleave to his wife, and they shall be two in one flesh: therefore now they are not two, but one flesh."¹ But the primitive institution of marriage excluded polygamy, from what has already been said, and from the words of Christ Himself: "they shall be two in one flesh." It is confirmed by other words of the Lord: "Whoever shall put away his wife, and marry another, commits adultery";² for he who puts away his wife and marries another commits adultery for this reason, that the former does not cease to be his wife; but when she has not been put away, a fortiori she remains his wife; therefore he who marries another truly commits adultery. Hence St. Paul, as often as he speaks of marriage, supposes it to be of one man with one wife, and says: "The woman, while her husband lives, shall be called an adulteress, if she be with another man";³ moreover, from the same Apostle,⁴ the rights of the spouses are equal: "The woman has not power over her own body, but the husband: and likewise also the husband has not power over his own body, but the woman"; therefore neither can the man, while his wife is living, marry another.

¹ Matt., XIX, 3 sq.

² Luke, XVI, 18; Matt., XIX, 9.

³ Rom., VII, 3.

⁴ I Cor., VII, 2 sq.

(b) The same is proved by the unanimous testimony of the Fathers and the constant practice of the Church. Thus St. Augustine⁵ writes that in the Church it has been commanded "that it is not lawful even to leave a sterile spouse, so that another fruitful one may be married. But if anyone shall do this... by the law of the Gospel he is guilty of adultery." Hence the Roman Pontiffs have always stood forth as strenuous defenders of the unity of marriage, even against the lust of Princes; thus, in the ninth century, Nicholas I openly reproved King Lothair, the husband of two wives at the same time, and deposed the Bishops who in the Council of Metz had dissolved the bond of the first marriage.⁶

⁵ De Nuptiis, l. I, c. 10, n. 11, P. L., t. XLIV, 420.

⁶ J. Roy, Saint Nicolas I, Paris, Lecoffre, ch. 3.

Nevertheless two facts are alleged to the contrary. The first is that of Socrates, who reports⁷ that the Emperor Valentinian had two wives at the same time, and established that the same should be permitted to anyone who wished. But testimony of this kind is commonly rejected by learned men, both because some things in this narration are false, and because Ammianus Marcellinus, although sufficiently hostile to Valentinian, praises him because¹ "with every cultivation of modesty he was chaste at home and abroad." Besides, a fact of this kind, even if true, would prove nothing against the unanimous tradition of all centuries. The second is the response of Gregory II,² declaring that it is lawful for a man to marry another wife, because this one, on account of bodily infirmity, was not able to render the debt. But likewise there is doubt concerning the genuineness of this response, which was diligently sought in the Roman archives and nevertheless not found; but if it were authentic, perhaps it could be understood of an impotence which makes marriage invalid. Moreover the Roman correctors noted concerning this decree: "That decree of Gregory is found to be wholly opposed to the sacred canons, indeed to evangelical and apostolic doctrine"; therefore nothing can be gathered from it against the constant doctrine and practice of the Church.

⁷ Histor., l. IV, c. 31.

¹ Lib. XXX, circa finem.

² Epist. 13 ad S. Bonif., in Labbe, t. VI, col. 1448. Here is the text as it is alleged: "For as to what thou hast proposed, that if a woman, overtaken by infirmity, should not wish to render the debt to her husband, what should her spouse do? It would be good if he so remained, so that he might be free for abstinence. But because this belongs to the great, he who cannot contain himself, let him rather marry: yet let him not withdraw the assistance of support from her whom infirmity hinders." Cf. Kuth, S. Boniface, Paris, Lecoffre, p. 55.

710. (D) Simultaneous polygamy is opposed not to the primary natural law, but to the secondary. Thus commonly. For the matter stands so if polygamy, although saving the primary end of marriage, harms the secondary ends; but polygamy (a) neither totally removes nor in any way impedes the first end of marriage, since one man suffices for fecundating several wives and for educating the children born therefrom; (b) however, the secondary ends it does not indeed totally remove, but it greatly impedes them: for peace can not easily exist in a family where several wives are joined to one man, since one man cannot suffice for satisfying several wives according to their wish; namely, each one will endeavor to draw the man's affection to herself, and if the man does not pursue all with equal love (which can scarcely happen), thence quarrels will arise, inimical to peace, as is clear from the history of the Patriarchs. Likewise it is to be feared lest the husband, intent especially on the children of the wife preferred, neglect the rest. Finally the third end of marriage, namely the remedy of concupiscence, will not rarely be frustrated, since one man cannot satisfy several wives at the same time. Therefore plurality of wives is opposed not to the primary, but to the secondary natural law.

711. Successive polygamy, or second and further nuptials as illicit by divine law, were once condemned by the Montanists, to whom Tertullian adhered (De Monogamia), and also by the Novatians. Some Fathers, especially Greek ones, spoke too harshly concerning second and especially third and further nuptials. Indeed, among the Greeks, already from the tenth century, by ecclesiastical law, fourth nuptials are held as invalid.²

¹ St. Thomas, Supplement, q. 63; Drouin, l. IX, q. III, c. 2; Billuart, diss. V, a. 1, § 3; Carriere, n. 203 sq.; Perrone, l. III, sect. 1, c. 2; de Augustinis, loc. cit.; Palmieri, th. 12.

² "The Orientals also disapprove successive polygamy... For second nuptials indeed there is in the Euchologia a prescribed rite, which nevertheless they disapprove after the forty-fifth year of age; third nuptials were subjected to ecclesiastical censure, but fourth were condemned as brutal... According to present practice, help is given by dispensation of the bishop, when it is sought." (Papp-Szilagyi, Enchiridion juris eccles. orient., p. 414.)

712. Thesis: Successive polygamy, although less approved by the Church, is licit by divine law, nor was it ever universally prohibited in the Latin Church. It is certain.

(A) Scripture. St. Paul expressly affirms that repeated nuptials, the prior spouse being dead, are licit: "A woman, if her husband shall have died, is freed from the law of the husband, so that she is not an adulteress if she shall be with another man";³ "But I say to the unmarried and to widows: it is good if they so remain, even as I. But if they do not contain themselves, let them marry; for it is better to marry than to burn."⁴ Indeed elsewhere⁵ he exhorts younger widows to marry again: "Therefore I will that the younger marry, bear children, be mothers of families, give no occasion to the adversary for the sake of evil speaking." From these it is clear that, according to the mind of the Apostle, it is indeed better to remain in the state of virginity or widowhood; yet nevertheless nuptials are licit for virgins and widows, indeed sometimes expedient for restraining concupiscence.

³ Rom., VII, 3.

⁴ I Cor., VII, 8.

⁵ I Tim., V, 14.

713. (B) Tradition. (a) Explaining the aforesaid text of the Apostle, St. Augustine writes:⁶ "Concerning third and fourth and still further nuptials men are accustomed to raise a question. Hence, that I may answer briefly, I dare condemn no nuptials... For who am I, that I should think something must be defined which I do not see that the Apostle defined? For he says: A woman is bound as long as her husband lives. He did not say first, or second, or third, or fourth; but, he says, a woman is bound as long as her husband lives: but if her husband shall have died, she is freed; let her marry whom she will, only in the Lord. But she shall be more blessed if she so remains.¹ What can be added to or taken from this sentence, so far as this matter is concerned, I do not know." We indeed acknowledge that some Fathers, especially Greek ones, disapproved third or further nuptials, indeed said that they were worse than fornication. In speaking thus they principally condemned the affection of those who, not content with first or second nuptials, wished to enter a third or fourth marriage, not from the intention of receiving offspring, but for the sake of satisfying lust.² Yet they never said that these spouses were to be separated, but they receive them to communion after penance has been performed.

⁶ De bono viduit., c. 12, P. L., t. XL, p. 439.

¹ I Cor., VII, 39-40.

² As to the principal texts of the Fathers which seem to condemn repeated nuptials, cf. Drouin and Perrone, loc. cit.

(b) Eugene IV³ states the doctrine of the Church concerning this matter thus: "We declare that not only second nuptials, but third and fourth and further ones, if some impediment does not stand in the way, can be contracted licitly. Yet we say that those are more commendable if, abstaining further from marriages, they remain in chastity."

³ Decret. pro Jacobitis.

(C) Theological reason. With the nature of things alone inspected, nothing prohibits that repeated nuptials be licit; for on the one hand the first bond, when one of the spouses is dead, has been dissolved; and on the other a new matrimonial consent can be furnished between parties otherwise capable; indeed, sometimes nature itself counsels that, whether for the procreation of offspring or for avoiding incontinence, a new covenant be entered.

714. The other property of marriage is indissolubility, by force of which the bond entered between the spouses cannot be dissolved except by the death of either spouse. To this indissolubility divorce is opposed, which is usually distinguished as threefold: divorce as to the bond, or full divorce, by which the matrimonial union is so dissolved that new nuptials can be entered; divorce as to the bed, or separation from bed, where, while the conjugal bond remains, the spouses are immune from rendering the conjugal debt; divorce as to habitation, by which the spouses are freed from the obligation of cohabiting together. Here we treat especially of divorce properly so called, or as to the bond, yet adding a few things concerning separation as to bed and habitation.

Therefore we shall speak: 1° of the indissolubility of the matrimonial bond from divine law; 2° of the same indissolubility from natural law; 3° of the cases in which the bond can be dissolved even under the evangelical law; 4° of the manner of acting with regard to civil divorce; 5° of separation as to bed and habitation.

715. Among Christians it is commonly acknowledged that marriage was indissoluble from the beginning, but that in the time of the Mosaic law it could be dissolved under certain conditions, and that it was recalled by Christ to its primitive indissolubility. Nevertheless the schismatic Greeks and Protestants teach that marriage, even as to the bond, can be dissolved by adultery, or even, according to many, on account of the obstinate desertion of either spouse.²

¹ St. Thomas, Supplement, q. 67; Sanchez, l. X, disp. 1; Drouin, l. IX, q. IV, c. 1; Bellarmine, c. 16; Billuart, diss. V, a. 2, historical digression; Carriere, n. 228 sq.; Perrone, l. III, sect. 2, cc. 1-4; de Augustinis, a. 8; Palmieri, th. 17-22; T. Wolsey, Divorce and Divorce Legislation, 1882, c. 1; J. Cauviere, Le Lien conjugal et le Divorce, Paris, 1890; Congres scient. internat. 1894, Sc. jurid., p. 133 sq.

² As to the doctrine of the Greeks on this matter, see Jos. Selinger, Divorce a vinculo in the schismatical churches, in Amer. Eccles. Review, April 1892, p. 264 sq. But the doctrine of the Protestants is exhibited thus by the Westminster Confession of Faith (cap. XXIV, 5-6): "But if adultery is committed after marriage, it will be lawful for the innocent party to seek and obtain divorce by law; and indeed after the divorce has been made to be joined in marriage to another, just as if that person who was violating the fidelity of marriage were dead... Nevertheless, outside adultery and desertion so obstinate that by no remedy can help be given to it, either by the Church or by the civil Magistrate, there can be no sufficient cause for dissolving the bond of marriage." (In Schaff, Creeds, vol. III, p. 656.)

716. First Thesis: Marriage, from the primitive institution of God, was indissoluble; but under the Mosaic law it could be dissolved through a bill of repudiation, even in the forum of conscience, under certain definite conditions. Thus commonly.

(A) The first part is proved. (a) For when the Pharisees asked whether it was lawful for a man to put away his wife for any cause whatever, Christ answers that God Himself is the author of marriage, and that it is not lawful for man to dissolve this union: "What therefore God has joined, let not man separate." But when they objected that a bill of repudiation had been permitted by Moses, the Lord adds: "Because Moses, for the hardness of your heart, permitted you to put away your wives: but from the beginning it was not so."¹ These words indeed manifestly suppose that from the beginning marriage was not so instituted that license was given to the man of repudiating his wife. (b) This is confirmed by Trent:² "The first parent of the human race, by the impulse of the divine Spirit, pronounced the perpetual and indissoluble bond of marriage, when he said: This now is bone of my bones, and flesh of my flesh"...

¹ Matt., XIX, 3 sq.

² Trent, sess. XXIV.

717. (B) The latter part is clear; for it is read in Deuteronomy:³ "If a man takes a wife, and has her, and she does not find favor before his eyes on account of some uncleanness, he shall write a bill of repudiation, and shall give it into her hand, and shall send her out of his house. And when, having gone out, she has married another husband, and he also hates her and gives her a bill of repudiation, and sends her out of his house, or certainly has died, the prior husband will not be able to receive her again as wife"... Now by these words either the faculty of divorce as to the bond is granted, or it is supposed already granted; for the dismissed wife is exhibited as marrying another man, and moreover priests are prohibited from marrying a repudiated woman;⁴ from which it is gathered that this was permitted to others.

³ Deut., XXIV, 1 sq.

⁴ Levit., XXI, 7.

(a) But it is disputed among the Fathers and theologians whether a concession of this kind was valid not only in the external forum, but also in the internal forum.⁵ The opinion affirming that this was a true permission valid in the forum of conscience seems to us more probable; for he who marries a dismissed wife is called husband, and he himself can give a bill of repudiation, which right belonged only to a legitimate husband; besides, the prior husband is prohibited from receiving the dismissed wife again; but if the bond had not truly been dissolved, why that prohibition? Moreover, if a permission of this kind had not been valid in conscience, the law would have furnished occasion for many adulteries; the condition of women would have been most unjust, since, after receiving a bill of repudiation, they would have had to observe continence perpetually; finally, all the Jews embraced this interpretation, and although two schools, Shammai and Hillel, disputed concerning the causes on account of which divorce could be granted,¹ yet in this they agreed, that sometimes it was lawful.

⁵ St. Bonaventure, Soto, Estius, Sylvius, Card. Billot think that divorce was only civilly tolerated, and therefore immune from civil penalty but not from sin; nevertheless this opinion seems less probable.

¹ According to Hillel, the sufficient cause was any thing displeasing to the husband, as if the wife had prepared the foods negligently; but, according to the school of Shammai, a certain immodesty on the part of the wife was required.

(b) Only under certain definite conditions was the faculty of divorce granted; first, it belonged not to the wife, but only to the man; indeed it was not permitted to the man when, before marriage, he had had carnal commerce with the wife, or had unjustly accused her of not being a virgin.² Besides, the man could not dismiss his wife for any cause whatever, but only on account of some uncleanness ('ervat dabar), a word which designated something base and dishonorable. Nor was he permitted to dismiss her without a written bill of repudiation, by which not only was provision made for the state of the wife, but divorce became more difficult. Finally, when the woman thus repudiated had entered a new marriage, she could not again be received as wife by the prior husband; by which it happened that the man acted more cautiously. By these various formalities the sacred legislator sufficiently showed that divorces are something less perfect, and he confined them within certain limits. But the reason why God gave such a faculty is indicated by the words of Christ, "for the hardness of heart," or, as St. Thomas explains (a. 3), "on account of restraining a greater evil, namely wife-murder, to which the Jews were prone on account of the corruption of the irascible power."

² Deut., XXII, 19, 29.

718. Second Thesis: The marriage of the faithful, ratified and consummated, cannot, under the evangelical law, be dissolved as to the bond, even on account of adultery. It is certain and proximate to faith against the Greeks and Protestants from Trent:¹ "If anyone shall say that the Church errs when she has taught and teaches, according to evangelical and apostolic doctrine, that the bond of marriage cannot be dissolved on account of the adultery of either spouse; and that both, or even the innocent one, who gave no cause for the adultery, cannot contract another marriage while the other spouse is living; and that he commits adultery who, having dismissed an adulterous woman, marries another, and she who, having dismissed an adulterer, marries another, let him be anathema." The canon is directly directed against the Protestants, who were accusing the Catholic Church of error concerning this matter; therefore it is of faith that the Church does not err when she teaches that, on account of adultery, the matrimonial bond cannot be dissolved; only indirectly is it against the Greeks, because the Council did not wish to condemn their opinion as heretical,² and on that account employed such a formula as places the doctrine of the Church in safety, without this being proposed as of faith; for it is one thing to define that the Church does not err when she teaches, another to say that what she teaches is of faith: for the Church can teach truths which are certain, although they are not of faith.

¹ Trent, sess. XXIV, can. 7.

² According to Pallavicini (Hist. Concil. Trid., l. XXII, c. 4, n. 27), the canon had first been composed so that it also struck the Greeks with an anathema; but, at the request of the Venetian orators, it was reformed as it now stands, lest a new obstacle be placed before the union of the Greeks.

In the proposition we said the marriage of the faithful, ratified and consummated, because if there is question of the marriage of unbelievers, or of the marriage of the faithful ratified only and not consummated, exceptions can be present, as will be declared below.

719. (A) Scripture. (a) In three places Christ openly declares that adultery is committed by him who marries a dismissed wife: "But I say to you: that everyone who puts away his wife, except for the cause of fornication, makes her commit adultery: and he who marries her who has been put away commits adultery";³ "Everyone who puts away his wife, and marries another, commits adultery: and he who marries her who has been put away by a man, commits adultery."⁴ But if marriage could be dissolved as to the bond, adultery would by no means be committed by him who married a dismissed wife.

³ Matt., V, 32.

⁴ Luke, XVI, 18; cf. Mark, X, 11-12.

(b) The same is clearly drawn from the words of the Apostle:¹ "But to those who are joined in marriage I command, not I, but the Lord, that the wife not depart from the husband; but if she has departed, let her remain unmarried, or be reconciled to her husband. And let not the husband put away the wife." Now these words are entirely general and manifestly suppose that a dismissed wife, for whatever cause, cannot marry again.

¹ I Cor., VII, 10.

(c) Indeed the words of the Lord are objected: "Whoever shall put away his wife, except on account of fornication, and shall marry another, commits adultery: and he who shall marry her who has been put away, commits adultery";² from which both the Greeks and Protestants gather that in the case of fornication, or adultery, the matrimonial bond can be dissolved. We indeed acknowledge that a text of this kind, if taken by itself, apart from the context and parallel places, is obscure and can be understood in either sense; but, with the context and parallel places inspected, it cannot be understood of divorce as to the bond, but of dismissal alone without dissolution of the bond. This is clear from the context. For the Pharisees were asking Christ concerning dismissal alone; for since they were disputing among themselves whether it was lawful to put away a wife for any cause, or only for adultery, Christ answers that the wife can be dismissed (perpetually) only on account of fornication; and because He wished to abolish divorce from the bond, He adds that it is not lawful, even in this case, to marry a dismissed wife under pain of adultery. In other words, the words "except on account of fornication" constitute an incidental proposition, which is referred to the preceding words "shall put away his wife," but not to the following words "and shall marry another," so that the sense is: whoever shall put away his wife (which indeed is not lawful except on account of fornication), and shall marry another, commits adultery. Therefore fornication, or adultery, is indeed a sufficient reason why the wife may be dismissed, that is, why separation from table and bed may be made, but not why a new covenant may be entered.³

² Matt., XIX, 9; cf. Fillion, Evang. selon S. Matthieu, in this place.

³ This can be illustrated by an analogy. Let some law be supposed to be conceived thus: "Whoever shall strike his son, except on account of a grave crime, and shall kill him, will be punished"; surely the incidental proposition in this case affects only the prior part of the sentence, not the latter; nor will it be lawful to conclude that the father can, on account of grave crimes, kill his son. Cf. Rene de Kerallain, Revue gen. du droit, 1884, p. 481.

In reality, a little before He had said: "what God has joined, let not man separate," and had declared that the bill of repudiation was no longer granted under the New Law, by these words sufficiently showing that the matrimonial bond is dissolved in no case. - There are added the parallel places already cited, in which without any restriction it is asserted that he who puts away his wife and marries another commits adultery, and again that he who marries a dismissed wife commits adultery. Now it is an unshaken principle that obscure places must be understood through other clearer ones.¹ Finally every doubt, if any remained, is removed by Catholic tradition.

¹ Some Protestants have understood this, for example, E. J. Phelps, Forum, December 1889, p. 359.

720. (B) Tradition. Three times can be distinguished in the history of this dogma. (a) It is certain that the Fathers, in the first three centuries, with unanimous mouth teach that Christian marriage is indissoluble, even in the case of adultery. It will suffice to report a few testimonies.² Hermas indeed has these things concerning the manner of acting toward an adulterous woman:³ "What therefore, I said, lord, should the husband do if the wife remains in this lust? Let him dismiss her, he says, and let the man remain by himself; but if, after his wife has been dismissed, he marries another, he himself commits adultery." In the same sense wrote St. Justin,⁴ Athenagoras,⁵ Clement of Alexandria,⁶ and many others. - But although the Fathers agreed concerning this matter, certain rulers of the Church, according to Origen's testimony, sometimes tolerated divorce permitted by civil law, in order to avoid worse evils. He censures them, saying: "Against the law of Scripture, certain rulers of the Church permitted a woman to marry while her husband was living, acting against that which is written: The woman is bound by the law for as long as her husband lives." Yet he excuses them in some way, without approving their manner of acting: "Nevertheless they did not permit this altogether without reason; for it is likely that, against the law established and written from the beginning, they permitted these things, to avoid worse evils, accommodating themselves to the judgment of another."¹ Thus the way was being prepared, in the Greek Church, for the abuses of a later age.

² See the matter thoroughly discussed in Perrone, l. III, c. 3; Roskovany, op. cit., De Indissolubilit. matrimonii, c. IV, Doctrine of the Church, § 101 sq. Cf. A. Esmein, Le Mariage en Droit Canonique, Paris, 1891; Watkins, op. cit., p. 198 sq.

³ Pastor, Mandat. 4, n. 6, p. 475, ed. Funk.

⁴ Apol. I, n. 15; Apol. II, n. 2, P. G., t. VI, p. 350.

⁵ Leg. pro christ., n. 32.

⁶ Stromat., l. II, c. 23, P. G., t. VIII, p. 1095.

¹ Origen, homil. 14 in Matt., n. 23, P. G., t. XIII, p. 1246.

(b) From the fourth century to the decree of Gratian (1115), a distinction must be made between the Eastern Church and the Western Church. In the East, some writers, too easily assenting to civil laws which permitted divorce on account of adultery, a long absence of the husband, and other causes, first timidly, but afterwards more boldly, taught that divorce was to be tolerated, while the bishops at first dissembled and afterwards even approved, especially after the schism had been consummated.² The Holy See more than once disapproved these abuses; and in the Council of Florence, where there was question of union with the Roman Church, Eugene IV, in the decree to the Armenians, again declared the doctrine concerning the firmness of marriage: "Although, on account of the cause of fornication, it is lawful to make separation from bed, nevertheless it is not lawful to contract another marriage, since the bond of a legitimately contracted marriage is perpetual." The Greeks, for the time, gave assent to this declaration, and when there was question of union they did not mention this among the causes of dissension; but a little afterwards they returned to their practice. Today also some Orientals who have embraced the Catholic faith, although speculatively they admit our doctrine, in practice tolerate divorce on account of adultery.

² Cf. Perrone, op. cit., t. III, pp. 359-376; Watkins, op. cit., pp. 346-362.

But in the Latin Church, which strongly resisted the emperors, especially in matters of faith and morals, the firmness of the matrimonial bond was happily preserved. For although civil law permitted divorce, the Fathers refused to admit its force and authority, agreeing with St. Jerome, who wrote:³ "The laws of the Caesars are one thing, those of Christ another; Papinian commands one thing, our Paul another... Among us, what is not lawful for women is equally not lawful for men, and the same servitude is judged by an equal condition." This especially obtained in Italy, where the Roman Pontiffs watched over the indissolubility of marriage so carefully that even Protestants acknowledge that the Church in no way wavered concerning this matter.⁴ Thus Innocent I, in the year 405, wrote to Exsuperius, Bishop of Toulouse:¹ "Your charity has also asked concerning those who, with repudiation intervening, were joined to another in marriage. It is manifest that these are adulterers on both sides. But those who, while the wife is living, although the marriage seems to have been dissociated, hastened to another union, cannot but be seen as adulterers." This letter was often alleged by the Roman Pontiffs as the norm to be followed. But in Gaul, Ireland, and England, there were a few particular councils which, favoring more than was right the authority of kings and of civil laws, admitted some causes of divorce, such as incestuous adultery, incurable leprosy, and the entrance of one spouse into religion.² But the other provincial councils rejected every cause of divorce and constantly defended the firmness of the bond against the dissolute morals of the people and the vexations of princes, so that the few exceptions alleged above rather confirm the general rule.

³ Ep. 77 ad Oceanum, n. 3, P. L., t. XXII, p. 691.

⁴ Thus Watkins, op. cit., p. 380, who nevertheless adds that a single Pontiff, Gregory II, admitted a single exception in a particular case; concerning this case, which pertains to bigamy rather than to divorce, we have already spoken above, n. 709; it suffices to add here that elsewhere, in the Instruction concerning marriages (year 722), the same Gregory openly sets forth his mind concerning the perfect indissolubility of marriage, as may be seen in Mansi, t. XII, p. 259.

¹ In Migne, P. L., t. XX, p. 500.

² Thus the Synod of Verberie (753) and the Council of Compiegne (756), held under King Pepin, in Harduin, t. III, pp. 1990 sq., 2005 sq.; the second Synod of St. Patrick, in Mansi, t. VI, p. 526, which, although it cannot be ascribed to St. Patrick, nevertheless is very ancient; Paenitentiale Theodori, in Haddan and Stubbs, Councils, vol. III, p. 188. - Some theologians, such as Perrone, have attempted to understand the aforesaid canons in a Catholic sense, but in vain, as will be clear to anyone attentively reading them. To bring forward one example, canon 9 of the Council of Verberie has itself thus: "If anyone, compelled by inevitable necessity, shall have fled into another duchy or province, or shall have followed his lord, to whom he cannot lie in faith, and his wife, though she is able and can do so, out of love of her relatives or of her goods, refuses to follow him, she shall remain always unmarried for all the time, as long as her husband, whom she did not follow, lives. For that husband of hers, who, compelled by necessity, fled into another place, if he hopes never to return to his own country, if he cannot abstain, can receive another wife with penance." Nor is it astonishing that a few particular councils erred, since only the universal Church, speaking through an ecumenical Council or through the Roman Pontiff, is infallible. Cf. Perrone, op. cit., pp. 323-359; Watkins, op. cit., pp. 362-437.

(c) Finally, from the time of Gratian, no variations can be found in the Latin Church, even in particular Councils. For the authority of the Decree was accepted everywhere; now concerning the indissolubility of marriage it has these things: "The bond of marriage cannot be dissolved by fornication. By no reason is a marriage dissolved which is proved once to have been entered. He commits adultery who presumes to marry her who has been dismissed by a man." Nor indeed can the unconquered firmness of the Church be praised too much: she has always been intent on protecting the perpetuity of marriages, openly reproving civil laws concerning divorce, striking with anathema the Protestant heresy concerning repudiations, resisting most powerful princes when they menacingly demanded that divorces made by them be approved by the Church.

"In this matter all posterity will admire the proofs of an unconquered soul put forth by Nicholas I against Lothair; by Urban II and Paschal II against Philip I, king of the French; by Celestine III and Innocent III against Philip II, prince of the French; by Clement VII and Paul III against Henry VIII; finally by Pius VII, that most holy and most strong Pontiff, against Napoleon I, exulting in favorable circumstances and in the greatness of empire." (Leo XIII, Arcanum.)

721. 1° State of the question. Most pagan philosophers judged that marriage is dissoluble by natural law, and divorces flourished more or less among most nations.² Nevertheless, even among certain barbarians, the matrimonial union was perpetual. Among the Greeks and Romans, as long as morals flourished, there were only a few divorces; at Rome especially a certain ignominious mark was branded on this practice in the common estimation, and Spurius Carvilius, who is reported as the first of the Romans to have dismissed his wife on account of sterility so that he might marry another, did not lack reproach. But in the time of the Emperors divorces were multiplied. The Christian religion took care to abolish divorces, as we have already proved. But Protestants again opened the way to divorces by teaching that they are licit in some cases; and very many Rationalists taught that the dissolution of the matrimonial bond is not only licit, but also useful and laudable in many cases, among whom were: Diderot in France, Werkmeister and Braun in Germany, Bentham in England, Ferrari in Italy, and others; hence Politicians in various States established laws by which divorces were permitted on account of various causes.¹ Therefore it is expedient that we set forth what right reason teaches concerning the indissolubility of marriage.

¹ St. Thomas, Supplement, q. 67, aa. 1-2; C. Gent., l. III, c. 123; Bellarmine, c. 16; de Rastignac, Accord de la revelation et de la raison contre le divorce, 1790; Barruel, Lettres sur le divorce, 1789; de Bonald, Du Divorce considere au XIXe s., 1801; Hume's Essays, XIX; Carriere, n. 213 sq.; Perrone, l. III, sect. II, c. 1, a. 1; Palmieri, th. 16, 23; Woolsey, Divorce and Divorce Legislation, 1882, c. VI; Monsabre, Careme 1887, 86-87th Conferences, English Confer. on Marriage, II-III; Fonsegrive, Mariage et union libre, p. 90 sq.

² On this see Westermarck, op. cit., ch. 23, pp. 486-502.

¹ That the number of divorces increases where the civil law favors divorce is clear from experience:

Thus, in the Federated States of America, according to the official census recently published (1908), divorces were multiplied three times faster than the number of citizens (cf. Howard, Is the freer granting of divorce an evil? in American Journal of Sociology, May 1909; The Catholic Encyclopaedia, Appleton, New York, t. V, pp. 66-69).

In France:

In Germany likewise the divorces which in the year 1881 were counted as 3,942 were already 6,582 in the year 1891, and in the year 1899 many more, namely 9,333, etc.

R. Lemaire, Le Mariage civil, pp. 197-198, shows that the same progress has prevailed in other regions. In the same place, p. 205, it is proved that there are fewer divorces among spouses who have lived longer together than among those who have cohabited only for a few months or years.

Therefore let Catholic deputies strive with all their strength to abolish civil laws favoring divorce, or to prevent them from being established in regions where they are not in force.

722. Now it is certain that divorce permitted simply to the judgment of the spouses, from any motive whatever, is repugnant to the natural law, since the education of offspring requires a certain stable society of the spouses. But if the question is of divorce granted by public authority on account of grave reasons, some theologians, such as Sanchez and Swartz,¹ deny that it is prohibited by natural law alone; others, on the contrary, such as Scotus, Alphonsus Tostatus, and St. Ligori,² affirm it; finally others with Perrone distinguish, and establish that the indissolubility of marriage does not pertain to the primary natural law, but flows from secondary law. This last opinion indeed seems to us to be embraced. For (a) on the one hand, the primary end of marriage, namely the procreation and education of offspring, even if the conjugal bond is sometimes dissolved, can strictly speaking be obtained; indeed in some cases, for example, when the wife is sterile or suffers from a perpetual disease which prohibits the use of marriage, that primary end is better obtained through divorce; (b) on the other hand, there are so many evil consequences flowing from divorce, especially with regard to offspring, that it is deservedly called contrary to the secondary natural law, as will now be declared.

¹ Sanchez, l. II, disp. XIII; Bellarmine, c. IV, n. 2; Swartz, Instit. juris publici, part. II, tit. I, n. 3 sq.

² St. Alphonsus, Theol. moralis, l. VI, n. 956, with the authors there alleged.

723. 2° Thesis: The indissolubility of marriage, especially of consummated marriage, rests on the secondary natural law, and therefore divorce, on account of the evil consequences which it introduces, must be altogether rejected.

For that is opposed to the secondary natural law which, although it does not destroy the primary end of marriage, nevertheless prevents this from being obtained integrally, and besides is repugnant to the nature of marriage, greatly harms the secondary ends, and introduces evil consequences for society. But such is the case with divorce.

724. (A) For although it does not absolutely stand in the way of the primary end, as was said in n. 722, nevertheless it prevents this from being obtained integrally. For the primary end is the good education of offspring: for marriage was instituted principally for this, that offspring not only be generated, but rightly educated, and thus the good of the whole of society and humanity be promoted. Wherefore, although in certain cases the spouses would be unhappy by living together, the good education of offspring, which regards the common good,¹ must be preferred to their private happiness. These things being posited, it is easily proved that divorce generally harms the good education of offspring. For the child needs the help of both parents, not only at the time when he is born, but for many years (above, n. 684); in the beginning indeed he is nourished by the mother, but the father must at the same time supply to the mother the necessities of life; as the children grow, not only the sweet love and provident care of the mother are desired for their education, but also the severe authority and outstanding prudence of the father. Now for this there is required a stable, indeed, from things commonly occurring, perpetual union of the spouses; for before the education of all the children has been perfected, which often must be extended even beyond the twentieth year, the parents, now advanced in age, generally will no longer be fit for a new marriage. Besides, if they enter a new covenant, the children will adhere either to the father or to the mother: if the former, they will lack the tender love of the mother, and will suffer many things from the envy of the stepmother, who, intent upon her own offspring, will neglect them or even afflict them in various ways; if the latter, they will be deprived of the enjoyment of paternal love at the time when they will have greater need of his care, and perhaps they will suffer many things on the part of the second husband, who fears lest his own children be neglected; therefore in either hypothesis their education will be imperfect. - Besides, offspring, in order to be rightly educated, needs not only a family, but its own family, since paternal love cannot be delegated.

¹ Fonsegrive, op. cit., pp. 283-294 and 310-319.

725. (B) Divorce likewise prevents the nature and equality of the contract from being integrally preserved: (a) For marriage by its own nature demands perpetuity: for both spouses by copulation become one flesh, and by generating children are bound by a new and most close bond, namely by the offspring generated, which is common to each parent and from which neither can be separated without losing something of himself or herself: therefore if, while the other spouse is living, new nuptials are entered, what nature had so closely joined is divided. (b) Moreover the equality of the contract requires that, when divorce occurs, one of the spouses not be in a worse condition than the other; but this is morally impossible; for the man has lost nothing or little of his dignity, and can easily enter a new covenant, while the woman, who was married for very many years, and brought forth and nourished children, after she is dismissed by the man generally falls from her dignity, has lost beauty and fecundity, and can scarcely hope that she can contract a new marriage. "If therefore," says St. Thomas,¹ "someone, taking a woman in the time of youth, when both beauty and fecundity are present to her, could dismiss her after she has become advanced in age, he would inflict harm on the woman against natural equity."

¹ Cont. Gent., lib. III, cap. 123.

726. (C) Divorce harms the secondary ends, namely the true happiness of the spouses: (a) It favors unequal marriages and those hastily entered; for, if it is lawful to break the matrimonial bond after some time, many will enter the matrimonial state with a light heart, without diligent and mature consideration,² while marriages will be established with greater care and only after the matter has been diligently weighed, if it is known that perpetual happiness or unhappiness depends on the choice of a spouse. Now nothing harms the union of spouses more than those marriages in which the spouses, unequal in mind, dispositions, and condition, are joined together under the impulse of blind love, or rather passion.

² "Many of the common people contract nuptials, probably considering this with themselves: if they do not obtain happiness in this union, it will be in their power to dissolve it and try fortune again. And in truth it was reported to me by a certain minister that conversations of this kind had been held by some youths of his parish." Woolsey, a Protestant, op. cit., p. 277.

(b) It restricts mutual love; for the happiness of spouses consists chiefly in this, that they be intimately united by perpetual love, and be one heart and one soul, just as they are one flesh; hence, with nature as guide, they promise to each other eternal love, and in that love they find the alleviation of miseries and happiness; for where one loves, one does not labor, or if one labors, the labor itself is loved. But that intimate conjunction of souls can scarcely subsist with the faculty of divorce; for true love wishes to be perpetual, and as soon as we suspect that a friend will probably be unfaithful, we already cease to love him singularly. Who therefore will intimately adhere to a spouse from whom he expects to be separated after some years, and perhaps after some months? Will not suspicions of this kind destroy or retard this perfect friendship? Therefore rightly it can be said with St. Thomas (loc. cit.): "The greater friendship is, the more firm and lasting it ought to be. But between man and woman there seems to be the greatest friendship; for they are united not only in the act of carnal copulation, which also among beasts makes a certain pleasant society, but also for the fellowship of the whole domestic life; whence, as a sign of this, a man because of his wife also leaves father and mother... Therefore it is fitting that marriage be altogether indissoluble."¹

¹ Nor let it be said that it is not lawful for a man to bind himself by perpetual vows, since he is by nature inconstant and changeable; for, as Paul Janet rightly says (La Famille, p. 300): "If love is bound by the bond of duty, so that it is held to promise perpetual fidelity, this is not opposed to the nature of love, indeed it is favored. So much does the nature of love demand perpetuity, that no lover would dare to ask anything without promising perpetuity. To strengthen fidelity by oath forever, and to feign the same even when he speaks with fiction, are the first acts of love; if these are lacking, he would waste his effort. - They object the rights of the heart and the perpetuity of vows. We freely acknowledge the rights of love for binding the union of spouses, by no means for dissolving it. Let us oppose fidelity to liberty; and thus the heart has claimed for itself a nobler dignity and more splendid glory than if it were lawful to adhere to another as it pleased, and continually change the object of love... I confess, however, that only on account of grave arguments is the heart to be bound by an indissoluble bond. But these two seem irrefutable to me: the dignity of the wife and the good of the children."

(c) It increases slight disagreements, on account of the hope of finding happiness in another marriage. Indeed it is of the greatest interest to domestic society that spouses forgive many things to each other, patiently bear one another's defects, and indeed anticipate one another by mutual services. But if marriage is indissoluble, spouses fear lest through disagreements the yoke which they cannot shake off become most grave and intolerable; they more patiently forgive one another's defects, and, as the poet says, whatever it is wrong to correct becomes lighter by patience; but on the contrary the hope of divorce provokes dissensions, quarrels, and adulteries; for he who thinks of finding a new and better spouse will soon be seized by a foreign love, and in order that he may break apart the marriage burdensome to himself, he will indulge insults, reproaches, blows, and adulteries, so that, experience bearing witness, divorce is the occasion and cause of the greatest crimes.² Nor let it be said that adultery is so base and wicked that at least on account of that crime the bond of marriage ought to be dissolved; for, if the matter is so, adulteries will not rarely be committed for the purpose of obtaining divorce, as jurists know by experience;¹ therefore it is expedient for the public good that spouses either cohabit peacefully, or be separated as to bed and habitation, without hope of entering new nuptials.

² "How many futile quarrels, how many wearinesses do those endowed only with common prudence wear away by easy forgetfulness, led especially by this reason, that life must necessarily be carried on together by them perpetually! Those very small dissensions would have yielded to the greatest envy, brought to the highest degree by the hope of easy divorce. Therefore we must weigh that nothing is fuller of danger than to join two so intimately, as man and wife are joined to each other, unless we render this union perfect and indissoluble. The least probability of separation would become a most abundant source of dissensions and suspicions; the wife, less secure about her state, will daily turn over in her mind the plan of separation, and the husband, consulting only himself and relying on greater power, would bring the union into greater danger." (Hume, Essay XIX.)

¹ "It is known to all that the desire of freeing oneself from that state which has become burdensome has led several men and some women to that manner of life which produces divorce, or at least persuades them that, if it should happen, it will not be unwelcome to the spouses. Chancellor Kent rightly noted from several judgments issued concerning divorce that a man had sometimes committed adultery for the sake of obtaining divorce. Among other nations the history of marriage warns us that corrupt morals are increased to the degree that more causes of divorce are furnished, which not only do not prohibit divorce, but rather prepare the way for it." (E. Phelps, Forum, December 1889, p. 363 sq.; cf. Woolsey, op. cit., p. 261 sq.)

727. (D) Divorce introduces evil consequences for society: (a) it disturbs the peace of families; for by marriages families are united with each other, lawsuits and enmities are extinguished, bonds of concord among the various members of society are formed; but on the contrary, from divorce divisions arise, hatreds and acts of vengeance flourish between two or several families for many years, and if they are multiplied, the peace of society itself is disturbed.

(b) It corrupts morals; for the faculty of divorce gradually turns marriage into concubinage: for given the inconstancy of man, the conjugal bond can be broken not once, but three times, four times, or even more often, all the more because inconstancy increases by repeated acts; and history shows that this has already happened: for Seneca speaks of those wives who "reckon their years not by the number of consuls, but of husbands";² and Juvenal says:³ "Thus eight husbands are made through five autumns: a matter worthy of the title of a sepulcher." The same is the case in our days among tribes or nations where divorce flourishes.¹ Now what are marriages that will last for only two or three years, except concubinage covered with a cloak? Nor does it help to say that by divorce disagreements and separations are diminished: for it is clear from undoubted facts that these have increased where divorces have been permitted, and that they grow stronger daily. Besides, a law of this kind furnishes occasion for many crimes, but especially for adultery, which is committed or permitted by some for this purpose, that the conjugal bond may more easily be dissolved before tribunals. Now who is there who does not see that by all these things morals are gradually corrupted?

² De Beneficiis, l. III, c. 16.

³ Sat., VI, v. 229.

¹ To the point Westermarck, op. cit., p. 488: "At Cairo, according to Mr. Lane, there are only few people who have not divorced once, if they have been married for some time; and many men, in Egypt, have married twenty, thirty women or more; while there are women, not far advanced in age, who have been wives successively of twelve men or even more."

Leo XIII clearly sets forth all these things thus (Encycl. Arcanum): "But indeed it hardly needs to be said how much material of evil divorces contain in themselves. For on account of them marital covenants become changeable; mutual benevolence is weakened; pernicious incentives are supplied to infidelity; harm is done to the protection and education of children; occasion is given for dissolving domestic societies; seeds of disagreements are scattered among families; the dignity of women is lessened and depressed, and they come into danger lest, after they have served the lust of men, they be held as abandoned. And since nothing is so powerful for destroying families and breaking the strength of kingdoms as the corruption of morals, it is easily perceived that divorces are exceedingly hostile to the prosperity of families and states; for they are born from the depraved morals of peoples, and, with experience as witness, they open the entrance and gate to more vicious customs of private and public life. And it will be clear that these evils are much graver if it is considered that there will be no restraints so great that they can keep the faculty of divorces, once granted, within certain or previously foreseen limits. Truly great is the force of examples, greater that of passions: by these incentives it must happen that the desire for divorces, creeping more widely every day, invades the souls of very many, like a disease spread by contagion, or like a mass of waters overflowing after the barriers have been overcome."

728. The adversaries object that not a few spouses lead a miserable life unless they are separated from each other, and that often separation does not suffice, but the faculty of entering new nuptials is required, so that not only the perpetual unhappiness of the spouses, but also adulteries and scandals may thus be avoided.

Resp. (a) The norm of morals is not the happiness of private persons, but the dictate of right reason, which, from what has already been said, demands the perpetuity of the bond, especially for the good education of offspring, which is one of the primary ends of marriage (n. 724), and for avoiding innumerable evils for the family and society (n. 727). Therefore, although certain private persons must suffer many and difficult things from the indissolubility of the contract, nevertheless the law is not therefore to be changed, because the moral good must be preferred to the temporal good, and the public good to the private good. (b) But adulteries and scandals which are said to arise from the perpetuity of the bond have become not rarer but more frequent in France and other regions from the time when divorces were permitted by law, as experience shows;¹ nor is it astonishing, since the hope of passing to new nuptials is accustomed not to extinguish concupiscence, but rather to inflame it.

¹ Which Fonsegrive proves, op. cit., p. 203.

Therefore prudence demands that other remedies be applied, namely either Christian patience or temporary withdrawal: for time heals many wounds, and often long patience lessens or wholly removes dissensions of souls, especially if it is helped by the virtue of religion: "which brings it about that vices, if there are any in the persons, such as difference of morals and dispositions, the weight of maternal cares, the laborious solicitude of the education of children, the labors that accompany life, adverse events, are borne not only moderately, but even willingly" (Encycl. Arcanum).

729. Thesis: The marriage of unbelievers, even consummated, can be dissolved as to the bond, if, when one has been converted to the faith, the other is unwilling to cohabit peacefully, or without injury to the Creator or spiritual harm to the faithful party. It is certain from the declaration of Innocent III:¹ "For if one of the unbelieving spouses is converted to the Catholic faith, while the other is willing to cohabit with him either in no way, or not without blasphemy of the divine name, or so as to draw him into mortal sin, the one who is left will pass, if he wishes, to second vows: and in this case we understand what the Apostle says: if the unbeliever departs, let him depart..." - A privilege of this kind is called the privilege of faith, because it was granted in favor of the faith; it is also called Pauline, as promulgated by St. Paul.

² St. Thomas, Supplement, q. 69, a. 5; Sanchez, l. VIII, disp. 74; Drouin, l. IX, q. IV, c. 1, § 3, dic. 2; Billuart, Diss. V, a. 2, § 2; Benedict XIV, De Synodo, l. VI, c. 4, n. 3; J. Leplat, Collectio variarum dissertationum casum Apostoli illustrantium; St. Alphonsus, n. 957; Carriere, n. 256 sq.; Perrone, l. II, sect. 1, c. 7, a. 2; Palmieri, th. 26-27; Ballerini P., n. 429-473; De Angelis, lib. IV, tit. 19, nn. 6-11; Gasparri, nn. 1083-1110; Putzer, nn. 127-132; Wernz, nn. 701-705.

¹ Decretal., l. IV, tit. 19, c. 7.

730. (A) Scripture. For Paul, after promulgating the general law of the indissolubility of marriage, adds these things: "For to the rest I speak, not the Lord.² If any brother has an unbelieving wife, and she consents to dwell with him, let him not put her away... But if the unbeliever departs, let him depart: for a brother or sister is not subject to servitude in such cases"³... Now by these words the Apostle grants the faculty of dissolving the matrimonial bond for the cases expressed in the thesis; for (a) here Paul grants to the converted faithful party a special privilege, and indeed for determinate circumstances; but if there were question only of separation from bed and table, and not of dissolution of the bond, a special privilege would not be given, since separation is the common remedy in a similar case; besides, no declaration was needed that the faithful spouse be freed from cohabitation, since by hypothesis it is impossible; therefore there is question of dissolution of the bond; (b) it is added that the faithful party is no longer subject to servitude; now servitude of this kind, the departure of the unbelieving party having already been carried out, can be nothing other than the matrimonial bond itself, which in reality the Apostle below (27) calls a bond; this is confirmed from the fact that speech of this kind is directed to the newly converted, among whom the dissolution of marriage, but not simple separation, flourished, and who therefore by the word "let him depart" naturally understood the dissolution of the bond; (c) finally the force of the argument grows if one notices the antithesis which Paul establishes between marriages of the faithful, concerning which he says (11) that if the man departs, the woman must remain unmarried, and the marriages of unbelievers, concerning which he writes: "but if the unbeliever departs, let him depart"; for by this opposition he sufficiently shows that in the last case there is question of a true dissolution of the bond.¹ We acknowledge, however, that the argument is not apodictic unless the practice and authority of the Church accede.

² More probably these words are referred not to the following sentence, but to the preceding one, where the Apostle had spoken of widows and virgins; and the sense is that those things which he wrote concerning preserving virginity are not a precept, but a counsel. Cf. Corluy, Spicilegium, vol. II, p. 489.

³ I Cor., VII, 12-15.

¹ The Apostle speaks directly only of the case in which the unbeliever does not wish to dwell with the converted spouse; but the two latter cases are included in the first: for he departs morally who does not wish to cohabit except with injury to the Creator, or by drawing the faithful spouse into sin.

731. (B) From the authority and practice of the Church: (a) Most of the Fathers indeed were silent concerning this, because there was no opportunity for them to write concerning this matter; nevertheless some, such as Ambrose, Chrysostom, Theophylact, and others, spoke in such a way that they seem to have held the doctrine set forth above.² (b) Innocent III (1160-1216) openly declared the matter, and from his time this practice became common in all the churches established among recently converted nations. Now a practice of this kind is connected with the dogma of the indissolubility of marriage, and with good morals; it was approved many times by the Roman Pontiffs, who handed down rules to be observed by Missionaries in that case; therefore it is an unconquered argument of truth, since the Church cannot err in a matter of such moment.

² See their testimonies in Carriere, n. 258, note 1.

What duel is? Which things are touched here

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

What suicide is

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

Divorce?

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

What if they are said to be lawful by accident?

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

When they are established as lawful

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

¹ Cf. Gennari, cited place, p. 40.

2. The unity of marriage (unitas matrimonii), flows directly from the spiritual and moral nature of Matrimony.

104. - The origin of matrimony from nature. These things are manifest to natural reason. The good of human offspring, which is of the greatest importance to the good of the human race and therefore, at the command of nature, must be preserved, demands that an infant be born not from promiscuous intercourse, but of parents who have come together into a sacred unity, so that by the common solicitude of both parents it may be led perfectly to human life. For it comes forth from the mother's womb so wholly defenseless and lacking in counsel that it would immediately perish unless provision were made for it affectionately by general protection and minute attention. The father will give rather the protection, the mother chiefly the patient and minute cares, and both will give love. Then for several years the infant, child, adolescent, and young adult must be aided and directed in every manner; in this variety and succession of needs, now the mother, now the father, can furnish more useful work, yet in such a manner that each acts less well alone than when they are joined, so that a certain fitting tempering of the qualities of each sex is most greatly to be desired. This, moreover, will exist most happily if both parents, just as they were one principle of generation, so also become one principle of education.

But in turn, while man considers himself, he feels a great propensity toward the other sex, by which he is directed not only toward carnal conjunction with it, but toward a more complete union of persons ¹. As we said in no. 61, carnal conjunction is the symbol and material expression of this union, in the same manner as bodily pleasure figures the fuller happiness of persons whereby they have completed one another.

¹ Compare nos. 2 and 61.

If we now compare this good of offspring with these inclinations, do we not observe that there proceeds from nature an institution by which two persons complete one another and are made, as it were, one; and that, once this unity has been effected or this bond admitted, but not before, they will legitimately generate offspring? Ribbing writes aptly: "Founded upon the distinction of the sexes, matrimony constitutes the union of one man and one woman into one personality" ².

² "Founded upon the distinction of the sexes, marriage is the union of one man and one woman into one personality" (Sexuelle Ethik, in Moll, Handbuch, etc., p. 927).

105. - The unity and stability of matrimony. 1. The morally equal number in which each sex exists also proves, to say the least, that it is among the desires of nature that one man with one woman contract this bond. For only a few more powerful men will be able to practice polygamy without killing the other men or reducing them to abject servitude.

What of the fact that this unity, this full and mutual communication which love affects, is not properly made except between two persons; what of the fact that this "exclusivism," or this jealousy, indicated above in no. 40 among the marks of love, which shuts others out from this intimate union, itself commends monogamy? Again Ribbing writes very well, op. cit.: "In sexual life one cannot hand oneself over to another except under the condition that one himself acquire the other."

2. The stability, and even perpetuity, of matrimony is required on account of the offspring itself. For for a long time both parents, insofar as they have been fashioned into one, are necessary to the offspring; but they are always useful.

Moreover, children are bound by a perpetual duty of piety toward their parents, insofar as, having been made one, they generated and nourished them: they will perform this duty with difficulty if they find their parents divided by another marriage, as if made strangers to them. By a certain spontaneous estimation, a parent who, having spurned the prior bond, has attempted to admit another is judged to have done an injury to the spouse. But if both have entered a new matrimonial contract, they appear both guilty and victims of mutual injury.

Nor is the force of this argument diminished because it happens to the institution of matrimony that many marriages remain sterile.

For, since it is manifest that provision was made primarily through matrimony for the due multiplication of human beings, nature established its inviolable order concerning matrimony according to those things which this primary end required. And at the first intuition of common sense it is perceived that there cannot be different laws for a fecund marriage and for an infertile marriage: we all perceive what a path would be opened through this distinction of laws to the inventions of unbridled lust.

Add now that, through matrimony, after it has been consummated, the spouses have come together, as it were, into one human being, and that a mysterious communication of qualities has been effected ³.

³ Compare the cited dissertation of Dr. Desplats in the work L'Honnêteté conjugale (Mercier, Desplats, Vermeersch), or Matrimonio e Maltusianismo (Marconsini).

Wherefore, according to the testimony of St. Paul ⁴, the wife must be loved by the husband as a part of himself. The sayings which are likewise commonly repeated agree, in which a husband calls his wife half of himself; in which love is described as the egoism of two persons (un égoïsme à deux). Does there not belong of itself to that composite being the firmness of a singular human being, so that it is dissolved only by death?

⁴ Ephesians 5:28, 29, 31.

Moreover, consider what the mutual handing over of bodies has effected. Through it, it has come about that each person lost something of his own person and at the same time acquired something of the person of the other. This mutual handing over cannot be rendered void by a contrary restitution. This appears especially in the woman, who has irreparably lost her integrity through carnal intercourse. But it is also true in the man: he too cannot recover that which he communicated to the other. Nor can there be a valid renunciation or abdication here, since the matter concerns a part of a human person, but man does not possess that complete ownership of the person or of a bodily part of the person which would be required for alienation. Therefore, as long as that which one spouse acquired belongs to a living person, whose body must remain inviolate, that spouse cannot, as it were, transfer it together with himself or herself to another spouse. Only after death, when the soul has put aside the body, can this be done without injury to another ⁵.

⁵ It is useful to hear Kant himself concerning this matter. In sexual intercourse, since one uses the members and faculties of the other, a person hands himself or herself over as though a thing. But this is opposed to the inviolable possession of one's own person, unless one recovers from the person of the other that which the other yields from his or her own person, and thus, as it were, reintegrates one's own person. But this is not obtained except by matrimony, in which mutual possession of the body is handed over for life. (Rechtslehre, Das Eherecht.)

Therefore, considering nature alone, it is now established that matrimony, at least after offspring has been conceived, indeed already after the unity has been completed or consummated through the perfect use of marriage, has been withdrawn from the will of the spouses, so that it is intrinsically indissoluble.

Indeed, it seems that a marriage of this kind cannot be dissolved by any human authority. For this dissolution is opposed to the necessary relations between parents and children, and contains a certain partial disposition of the human person: but no human power can break or directly impede the necessary relations of persons, nor can it dispose directly of the human person.

106. - But before the marriage has been consummated, or before both spouses have been made one flesh, can it be dissolved by mutual consent? Speaking not of the sacrament of matrimony but of that which is a mere contract, it seems to us that an indissolubility which takes its beginning from consent itself can be demonstrated with difficulty by natural reason alone. For until the spouses have been made one flesh, you would say that nothing irreparable has been done; a perfect restitution of the bodies remains possible. Thus, in a related argument, the material element of virginity is lost irreparably through the completed carnal act; but the formal element, or the purpose of virginity, if it has been revoked, even sinfully, can be restored by a new purpose according to the doctrine of St. Thomas. Compare below, no. 142, where virginity is treated.

Indeed, concerning the marriage of Christians itself it was long doubted in the Church whether, before copulation, it was perfect and indissoluble. And the Bolognese school, with Gratian (in Cause XVII, q. 2) and Master Roland (who afterwards became Alexander III), against the Parisian school defended the so-called "copula theory," according to which, before consummation, matrimony was neither a sacrament nor indissoluble. Freisen at one time favored this theory even in our own days ⁶. The fruit of the controversy was that the dissolution of a ratified and non-consummated marriage, both through solemn religious profession and through a dispensation granted by the Apostolic See for a just cause, became certain doctrine of the Church, confirmed by canon 1119 of the Code itself. This matter is treated in the Summa of St. Thomas, Supplementum, III, q. 42, art. 4.

⁶ In the first edition of his Historia Iuris Matrimonialis, written in German. Compare De Smet, De sponsalibus, etc., no. 98.

107. - The intervention of public power. Among all nations it has been perceived how great an importance the conjugal union has for the common good in human society, so that everywhere there exist written laws or customs concerning the right contracting of matrimony. Rightly and deservedly, therefore, the competent public authority claims for itself no small part in the ordering of this institution. Matrimony cannot, therefore, be regarded as a merely private covenant of two persons. Compare Ribbing, op. cit.

108. - The religious nature of matrimony. We have not yet considered the matter adequately. How great an office they exercise, with how great dignity do those persons seem to be increased who give a new rational creature to the world! Yet the spouses could not effect this unless, while they use the powers received from God and form the body, God should create and infuse the spiritual soul. Therefore, a properly divine action inserts itself into the human action, concurs in a special manner with it, and cooperates with it. Shall we call profane this production which is mingled with divine and human cooperation? Shall we call profane the very institution in which alone human beings are generated legitimately? Do we not rather all perceive that there is something mysterious and sacred in the sexual union of human beings? "Both the monuments of antiquity and the morals and institutions of those peoples who had advanced further toward civilization and had excelled in a more exquisite knowledge of law and equity testify," says Leo XIII; "it is established that it had been formed and anticipated in the minds of all of them that, when they thought about matrimony, the form of a thing joined with religion and sanctity occurred to them" ⁷.

⁷ Arcanum divinae sapientiae, February 10, 1880.

History also establishes that the protection of religion was needed so that matrimony might actually obtain its firmness and inviolability as required by the natural law itself.

What, therefore, will the competent public power be? It certainly belongs to the desires of nature that religious power assume the more important parts in governing matrimony, so that all the essentials of matrimony may be defined, declared, and sanctioned by sacred authority.

But where a social authority occupied with sacred matters is lacking, the public power itself will care for religious matters identically. I say identically, because then it manages this province not formally insofar as it is placed over civil matters, but insofar as, by reason of being more universal, it administers and provides for common matters.

Natural reason itself, therefore, shows all these marks to be present in matrimony.

The benefits which the Catholic faith conferred upon conjugal society, and at the same time upon public morals and human society in general, regard some things immediately concerning matrimony itself, and other things concerning the preparation of persons for embracing this institution rightly.

111. - On the institution of matrimony. 1. The Catholic Church protects the perfect unity of matrimony and the absolute indissolubility of consummated matrimony; and, withdrawing it from profane authority, places it fully under the protection of religious power. Thus she perfectly fulfills and completes the desires of nature concerning the institution of matrimony.

2. Nor was she content with this. But, taught by Christ her author, she shows that the matrimonial covenant between the baptized has been raised to the dignity of a sacrament, and thus demonstrates conjugal life to be suffused with the holy power of grace. She then inculcates the honor bestowed upon the permanent union of the spouses of representing the inviolable sanctity of the mysterious union by which Christ is joined to the Church.

It is useful here to explain briefly the celebrated passage of the Apostle to the Ephesians 5:22-33. On account of the humble condition in which women were placed at that time, St. Paul did not have to linger long in preaching the subjection of the wife. He rather recalls it in order that he may induce the man more gently to fulfill and profess his own duties. "How greatly," he reasons approximately thus, "is the Church rightly and deservedly subject to Christ! Yet how greatly He loves her! He handed Himself over for her." Christ Himself took upon Himself the care which of itself fell to the wife, that she should cleanse and adorn herself to please the man, so that He might "sanctify the Church, cleansing her by the washing of water in the word of life, that He might present to Himself a glorious Church." Thus also men ought to love their wives. If the man is the head of the woman, the wife is his body. Wherefore the wife completes the man as a part, so that by loving his wife the man loves himself. Do we not know from Scripture that unity of man and wife and the devotion of the man for the wife: "For this cause a man shall leave his father and his mother and shall cleave to his wife. And the two shall be in one flesh"? A great mystery lies hidden here, whose signification I find in the union of Christ and the Church. That is, unless we are mistaken: this marvelous disposition of divine Providence, by which the human race is so constituted that man and woman, divided by sex, should become one flesh and the man should leave all things for the sake of his wife, was destined by God to signify that more marvelous conjunction of Christ with the Church, from whom He was separated by His divinity, and for whom He nevertheless left heaven and the Father so that He might cleave to her and compose with her one body of which He Himself would be the head. Something great, therefore, the union of man and wife mysteriously portends in Christ and the Church. "But, even apart from this interpretation" (so says the Apostle himself), let each man love his wife "as himself" ¹.

¹ Compare also Prat, Saint Paul.

Certain theologians of an earlier age expanded the very rationale of the figure. And although perhaps destitute of certain arguments, nevertheless these comparisons are salutary and apt for establishing a great estimation of marriage. Wherefore the Church also profits not a little through them for the cause of matrimony. Thus it is read in Sanchez: A ratified marriage signifies the union of Christ with a soul existing in grace, or the union of Christ through charity with the whole Church, certain members of which can fail. But a consummated marriage signifies the indissoluble union of Christ with the Church through assumed flesh. Christ was made one flesh with the Church "through the mystery of the Incarnation" (De matrimonio, book 2, disp. 13, no. 1).

If we now consider the ends of matrimony: as regards the end of offspring, Christian matrimony no longer aims only that the human race be propagated, but that children be begotten for the Church, "fellow citizens with the saints and domestics of God" ². As regards the remedy of concupiscence, the value of chastity is so exalted in the Catholic Church that the moderate use of marriage, sometimes tempered or interrupted by voluntary will in order to devote time to prayer, and exercised gently according to the desires of nature, fully suffices of itself for satiating lust; and so that souls also may be equal to bearing even a prolonged obligation of continence which circumstances sometimes render necessary. Finally, as regards love, the most noble exemplar of affection is proposed to spouses in the love by which Christ loves the Church.

² Ephesians 2:19.

But insofar as we attend to the sacramental signification, the speculative signification of Christian marriage, by which it represents the union of Christ with the Church, impels spouses to imitate the holy fecundity of the Church by a more chaste generation and a better education of offspring; the fidelity of Christ placed before their eyes strengthens their mutual fidelity by an ineffable example, with a new sanction also added by which infidelity becomes the violation of a sacred thing; finally, it perfects the indissolubility of a consummated marriage by an inviolate sacrament, so that Augustine could celebrate offspring, fidelity, and sacrament as the three goods of Christian marriage ³.

³ De Genesi ad litteram, book 9, chapter 7 (Migne, Patrologia Latina, vol. 34, col. 397).

112. - On the preparation of persons. 1. By the general rationale by which the Catholic faith cultivates chastity, humility, and noble affections, it already disposes souls not a little toward entering matrimony holily and bearing its burdens faithfully.

2. It indeed assigns to the wife an inferior place, but compensates for this humility by the affectionate devotion of the husband, so that it places the two bonds and means of the firmest and happiest union in humility and love.

3. Then, by admitting and rather commending the preparation of betrothal, through which only a union of souls is permitted, the Church provides for the nobility of mutual affection and at the same time offers no slight aid to youth that it may preserve itself perfectly chaste.

4. In the equal chastity which the Catholic religion imposes upon each betrothed person, there is held a new pledge of a happy union. St. Augustine already wrote what today we hear so often inculcated: "You who do not have a wife and wish to marry, preserve yourselves intact for them, just as you wish to find them intact" ⁴. Therefore, long ago the Catholic faith rejected that foul worldly distinction by which the sin of a youth or a man, but not of a maiden, is excused, and which is marked by the name of the double standard (la double morale).

⁴ Sermon 224 (Migne, Patrologia Latina, vol. 38, col. 1094).

5. Yet since misfortunes threaten us from every side in this life, religion in the patience of Christ hands on to spouses a most opportune teaching for alleviating hardships and for bearing adversities not without merit.

Therefore, that we may now comprehend in summary the whole matter concerning matrimony and the preparation of persons, these goods are of themselves available to Christian marriage: full mutual confidence and the communication of the whole of life; the hope of a spiritual union which, beyond the limits of the present life, will endure forever; protection against temptations and infidelities from the absolute firmness of the marriage; holy authority over children; formation for patience, always necessary in this life.

— What marriages can be dissolved. 1. By no human power, and by no cause, can a valid marriage which at the same time has existed ratified and consummated be dissolved (c. 1118).

2. But a non-consummated marriage between baptized persons themselves, or between a baptized and a non-baptized party, is dissolved: a) by the law itself, through solemn religious profession; b) by dispensation conceded by the Apostolic See for a just cause to at least one party requesting, even if the other is unwilling.

It is controversial whether the dissolution of marriage through solemn religious profession should be attributed to a dispensation of the Holy See or to divine-natural law, on account of a perfect change of state. Wherefore the Code abstains from the word dispensation or concession, since the law of the Code could be a mere declaration of divine law.

But a dispensation of the Apostolic See, since it is made in a matter of itself withdrawn from human power, and therefore requires a power divinely conceded, cannot be validly conceded without a just cause. But a just cause is morally present if common life has become morally impossible. The Code, however, expressly recalls that a dispensation can be conceded even if the other party is unwilling, in order to demonstrate that the dissolution is founded in no consent of the parties. For it must firmly be held that a validly contracted marriage is intrinsically indissoluble.

3. "A legitimate marriage between non-baptized persons, although consummated, is dissolved in favor of the faith by the Pauline privilege."

"This privilege does not obtain in a marriage entered between a baptized party and a non-baptized party with dispensation from the impediment of disparity of cult" (c. 1120).

We shall speak at once of the Pauline privilege. Therefore use of the privilege is denied, indeed it is declared not to be had, when with dispensation from the impediment of disparity of cult a baptized party entered marriage with a non-baptized party.

But what if the marriage was contracted without dispensation? The solution is easy if the baptized party was in the Catholic Church: for then the marriage is attempted in vain without dispensation. But the party who has been neither baptized nor converted Catholic is not held by the diriment impediment of disparity of cult. Therefore the solution seems theoretically to have to be sought from the nature of the contract itself: is there or is there not a sacrament in the baptized party? This question lacks a certain solution. Practically, the Holy See positively permits nothing in this case. But if a baptized non-Catholic party has repudiated a non-baptized party in adjuncts which would give place to the Pauline privilege, the new marriage will be of doubtful validity, concerning which one must pronounce according to those things which will be proposed in the moral section.

— Concerning the Pauline privilege according to itself. Scholion. The Pauline privilege, or Case of the Apostle, is a privilege, promulgated by the Apostle Paul from a divinely conceded power, by force of which the spouse who in infidelity contracted nuptials with another infidel party, indeed consummated them, can, after receiving baptism, if the party who remains infidel departs, validly and licitly join new nuptials. When these new nuptials have been made, the prior marriage is dissolved.

The place of the Apostle is found in 1 Cor. 7:12 ff.: "For to the rest I say, not the Lord. If any brother has an unbelieving wife, and she consents to dwell with him, let him not put her away. And if any faithful woman has an unbelieving husband, and he consents to dwell with her, let her not put away the husband: for the unbelieving husband is sanctified through the faithful woman, and the woman is sanctified through the faithful husband; otherwise your children would be unclean, but now they are holy. But if the unbeliever departs, let him depart: for a brother or sister is not subject to servitude in matters of this kind; but God has called us in peace."

But the infidel is judged to depart not only if he refuses cohabitation, but also if he does not wish to cohabit peacefully and without contumely of the Creator, or wishes only that cohabitation which is intolerable for the faithful party, whether on account of annoyances to be borne by him or her, or on account of snares of sin which are cast for him or her, or on account of offensive things which he or she would have to behold, e.g., polygamy, idolatry.

Whether the privilege is immediately divine, of which St. Paul was only the herald, or, on the contrary, St. Paul himself, using a divinely conceded power which now the Supreme Pontiff preserves, defined that the departure of the infidel furnishes sufficient cause for neglecting the marriage which was contracted with an infidel: the matter is disputed. Up to this point the style of the Curia, e.g., of the Holy Office, has been accommodated to an immediately divine origin: the privilege is described as "conceded by Christ the Lord, and promulgated by the Apostle Paul." And although the Church is not accustomed to concede anything to heretics before conversion, nevertheless it does not deny the use of the privilege to them.

Thus most writers. Yet those seem to speak better who refer this privilege to that general ministerial power conceded to the apostles and now to the Supreme Pontiff, by force of which, for a just cause, a marriage which is not both ratified and consummated can be dissolved by Apostolic authority. To this explanation the words of the Apostle are better fitted: "to the rest I say, not the Lord." Nor do the various dispensations which have been conceded seem capable of explanation unless over marriages consummated in infidelity the Supreme Pontiff can do the same things as over ratified non-consummated marriages. But once this faculty of the Supreme Pontiff has been admitted, why would we gratuitously affirm a divine intervention, not necessary, and which fits little with the general economy of the New Testament, which is this, that besides necessary precepts concerning faith and sacraments, God has established no other positive laws?

— Regular use of the privilege: 1. requires that the converted and baptized spouse interpellate the non-baptized party: a) whether he or she also wishes to be converted and receive baptism; b) whether at least he or she wishes to cohabit peacefully without contumely of the Creator;

2. the interpellations are regularly to be made by the authority of the Ordinary of the converted spouse, in a form at least summary and extrajudicial. This Ordinary must also grant delays for deliberating to the infidel spouse requesting them, with that one nevertheless warned that, the delays having passed uselessly, the response will be presumed negative.

Private interpellations made by the converted party himself or herself are nevertheless also valid. Indeed they are licit, if the juridic form cannot be observed. In the external forum, however, it must be established by two witnesses or by another legitimate mode of proof concerning the interpellations made and concerning their outcome.

3. Interpellations must always be made, unless the Church has dispensed. Otherwise, a marriage made without interpellations is not valid, if the departure of the infidel after the baptism of the other is not plainly established.

But if the departure has been entirely established, interpellations do not seem to be necessary for validity, although some speak more strictly (cf. e.g., De Smet, n. 351, 352). The words of c. 1121, §1, favor the strict opinion: "Before a converted and baptized spouse validly contracts a new marriage, he must ... interpellate the non-baptized party"; and c. 1122, §2, where speech is made of valid interpellations and licit ones. Yet the texts are explained by the fact that interpellations are necessary for the very validity if the departure is not established. Therefore the legislator could say: in order that marriage be valid, certainly and in every hypothesis, interpellations must have preceded. He himself in c. 1121, §2, seems deliberately to have omitted the words "for validity," while he declares that interpellations must always be made.

You should observe that they must regularly be made after baptism, so that the departure after baptism can be established.

4. The use of marriage after baptism leaves intact the right of the faithful party of using the privilege: whether he or she did not interpellate the infidel, or whether that one later departs or does not stand by the promises (c. 1124). It is extinguished only by the baptism of the other party, since then there is no longer an infidel to be interpellated.

If before the faithful party has contracted new nuptials the infidel has sincerely and efficaciously repented of his or her departure, so that he or she is no longer departing, or if he or she has been baptized, use of the privilege without dispensation of the Holy See would be invalid.

Nor is there place for the privilege if after baptism (by which prior faults are blotted out) the faithful party himself or herself has given to the non-baptized party a just cause of departing, e.g., by adultery, by selling the wife, etc. (c. 1123).

5. From the moment at which the faithful party has legitimately celebrated new nuptials, the prior nuptials are perfectly dissolved, so that the infidel himself or herself recovers liberty (c. 1126).

— Force of dispensations by the Holy See. For just causes, especially of the common good, the Holy See can dispense so that an interpellation is made only concerning the will of conversion; or so that interpellations are entirely omitted. Once that dispensation is obtained, the faithful party has the same right of making new nuptials which negative responses of the interpellated party would give him or her (c. 1123).

Concerning particular dispensations these two general norms have force:

1. whenever interpellation is morally possible, and not plainly useless, the Supreme Pontiff does not concede a full dispensation, but merely indulges that it be enough to interpellate the infidel concerning conversion;

2. when dispensation has been made concerning interpellation, unless the marriage is celebrated within a year, either the interpellation must be made or a new dispensation must be obtained. That year runs from the moment at which the grace has come into the region, i.e., into the hands of the Ordinary, if it was conceded in gracious form, or from the moment at which the Ordinary conceded or executed it.

This last point is founded on c. 38. What we say concerning a grace simply conceded at Rome seems to be contrary to the same canon establishing this: "Rescripts by which a grace is conceded without an interposed executor have effect from the moment at which the letters are given"; but it has often been answered that faculties given to missionaries or Ordinaries of missions run not from the day on which they were given, but from the day on which they came into their hands. Therefore by employing the argument of analogy, so that the parties may in reality enjoy a whole year, we have judged that the beginning of the year can be established from the moment at which notice of the made dispensation can be had.

— Various ratios of dispensations. The Holy See can dispense immediately by general indult, or by particular rescript; or it can confer faculties of dispensing. Dispensations themselves of themselves are of strict interpretation, while faculties of dispensing admit a benign interpretation.

I. General dispositions. - Moreover, from the Constitutions of Paul III, Altitudo, June 1, 1537, and St. Pius V, Romani Pontificis, August 2, 1571, which c. 1125 extends to all regions in the same adjuncts, it is permitted: a) that converted polygamists who do not remember which wife they first received may accept any of their wives with whom they contract a true marriage. If they know which one they first received, the others having been dismissed, they are to retain her; nor does the third degree of consanguinity stand in the way of these marriages; b) that converted polygamists can remain with the wife who was baptized or is baptized with them.

You should observe that sometimes certain women are assumed without solemnity, and then another is more solemnly accepted, who will hold the first place among the wives. This one must then be judged the first wife, if it is sufficiently established that the prior women were not held as true spouses. The first wife is she who can be called first among equals (cf. response of the Holy Office, August 17, 1898, Coll. P. F., n. 2017).

When it is not established which wife was first, it also seems intact to the man that (if the case should ever occur) he remain unmarried.

— II. Faculties of dispensing. - 1. From c. 1125, to Ordinaries of missions among gentiles, and to pastors and missionaries approved there for hearing confessions, there is given a general faculty of dispensing from every interpellation of the infidel spouse, "provided it is established, even summarily and extrajudicially, that the absent spouse cannot legitimately be warned, or that the one warned has not signified his or her will within the time fixed in that same warning," and consequently of permitting to the baptized faithful other nuptials, which can never be declared invalid on account of omitted interpellations or of an excellent disposition of the infidel detected afterward (after the nuptials), indeed of his or her baptism.

This dispensation is called for ordinary cases.

2. In the third greater formula of the Sacred Congregation of Propaganda Fide, these faculties are conceded as delegable:

a) "of dispensing with gentiles and infidels having several wives, so that after conversion and baptism they can retain whichever of them they prefer, if she also becomes faithful, unless the first wishes to be converted" (n. 24);

b) of dispensing concerning interpellation, for all ordinary cases (n. 25; cf. here under n. 1);

c) "of dispensing concerning interpellation of the spouse left in infidelity, if indeed it has certainly been established, at least summarily and extrajudicially, that the interpellation cannot be made without evident danger of grave harm to be inflicted either upon the spouse already converted to the faith, or upon Christians" (n. 26);

d) "of permitting that, when a grave cause is present, the interpellation of the infidel spouse can be made before the baptism of the party who is converted to the faith"; or even of dispensing from that interpellation before that baptism, "provided that, in this case, from a process at least summary and extrajudicial it is established that the interpellation cannot be made or will be useless" (n. 27. Cf. our Commentary concerning these faculties).

— "In a doubtful matter the privilege of faith enjoys the favor of law" (c. 1127).

The same Holy Office, in the response of April 19, 1899 (Ann. eccl. 1899, p. 236), expressed this in these other words: "In doubts, let the judgment always be in favor of the faith." Wherefore: a) although of itself one must respond in favor of the validity of a doubtful marriage, nevertheless a doubtful marriage contracted in infidelity will be dissolved in favor of the liberty of the converted party (cf. De Smet, I, 343, p. 300, note 3). And an infidel who has no certain marriage with any of his wives can marry any Catholic woman (response of the Holy Office, August 17, 1898, Coll. P. F., 2017); b) if it is doubtful whether or not the conditions of the Case of the Apostle are present, again one must respond in favor of the liberty of the faithful party (De Smet, I, 354).

Since we have treated of the essence of matrimony, logical order now demands that we treat of its properties. Now there are two essential properties of matrimony: unity and indissolubility or firmness. First we treat of unity, and then of the indissolubility or firmness of matrimony.

659. The unity of matrimony or monogamy is the matrimonial bond between one man and one woman. For this reason, in the definition of matrimony above we said in the singular and not the plural: the marital conjunction of a man and a woman. Simultaneous polygamy and polyandry are opposed to the unity of matrimony; second nuptials after the death of either spouse, however, are by no means opposed to it.

Simultaneous polyandry, which is the marital conjunction of one woman with two or more men, exists very rarely among nations,²¹¹ and is not only contrary to the precept of Sacred Scripture: "They shall be two in one flesh," but also directly contrary to the natural law. For the primary end of matrimony is the generation and education of offspring. Moreover, experience proves that a woman who habitually has intercourse with several men is infertile, as is evident in prostitutes. But even if offspring should perhaps be generated, education would be almost impossible, since there would be no certain father, and consequently the bodily and spiritual care of the offspring would be most difficult.²¹²

²¹¹ Westermarck (History of Human Marriage, cc. 20-22) indeed brings forward several examples of polyandry among wholly depraved nations, but nevertheless one may suspect from his account that it is not simultaneous polyandry.

²¹² Cf. Suppl., q. 65, a. 1, ad 7.

660. Simultaneous polygamy (polygyny), which is the marital conjunction of one man with two²¹³ or more women, flourished before Christ not only among the nations, but also among the Israelites. In our times it still flourishes among pagans, and especially among Mohammedans.²¹⁴

Simultaneous polygamy is indeed contrary to the primeval institution of matrimony in paradise, but it was permitted to the patriarchs in the Old Testament.²¹⁵ That polygamy was not the primeval form of matrimony is a certain opinion. For Adam exclaimed, after Eve had been handed over to him as wife: "They shall be two in one flesh." Innocent III, explaining this text, says: "He did not say three or more, but two; nor did he say he shall cleave to wives, but to his wife."²¹⁶ From the words of Christ also, "But from the beginning it was not so,"²¹⁷ it is clearly inferred that polygamy was not the primeval form of matrimony. Lamech seems to have been the first who had two wives.²¹⁸

There are those who teach that polygamy was never lawful, and consequently that the wives of the patriarchs were called concubines; nevertheless, that the patriarchs did not sin formally by having several wives, because they were in good faith. This explanation, however, does not please, nor is it sufficiently proved. For it seems absurd that most holy men such as Abraham, Jacob, and others, who had miraculous divine revelations, should have erred in a matter of such great moment. Moreover, while David is vehemently reproached and punished because of the adultery committed with Bathsheba, he is never reproved because of the other wives of his own whom he had. The book of Deuteronomy, c. 21, vv. 15-16, seems to suppose the lawfulness of polygamy, decreeing: "If a man have two wives, one beloved and the other hated, and they have begotten children by him, and the son of the hated be the firstborn, and he will divide his substance among his sons: he cannot make the son of the beloved the firstborn and prefer him to the son of the hated." The same is confirmed from the law of the levirate,²¹⁹ by which the wife of a deceased brother (without children) had to be taken in matrimony by the surviving brother (although he was already married). But if women maritally joined to one man are called concubines in Sacred Scripture, it is not yet permissible to conclude from this that they were not legitimate wives, because frequently in Sacred Scripture by the name of concubine is signified a true and legitimate wife who was not married with such great solemnity. Thus Hagar, Keturah, Bilhah, and Zilpah are called now wives, now concubines of Abraham in the book of Genesis.²²⁰

The intrinsic reason, however, why simultaneous polygamy could have been lawful in the Old Testament consists in this, that polygamy is not opposed to the primary end of matrimony, namely, the generation and education of offspring. For one man suffices to fecundate several women and to educate the offspring born from them.²²¹ Nevertheless, it must be admitted that some men of the Old Testament committed excesses in the number of wives, for it is difficult to understand how, for example, Solomon could have had several hundred wives²²² without a mark of intemperance.

Authors commonly teach that the dispensation to have several wives was not granted by God until after the flood. Nothing certain can be said concerning this matter. Authors do not agree whether the same dispensation was granted not only to the Jews but also to other peoples; but there does not seem to be sufficient reason why a stricter discipline should be established for pagans than for Jews, and all the less because pagans, as lacking the Mosaic law, could observe the unity of matrimony with greater difficulty than the Jews.²²³ Thus Esther, a Jewess, was joined to Ahasuerus, who already had several wives; Mordecai, her adoptive father and a man fearing God, would neither have counseled nor approved this union if it had been gravely unlawful.

Simultaneous polygamy from the times of the New Law onward is unlawful and invalid for all, so that neither the faithful nor unbelievers any longer have the faculty of having several wives. For Christ restored matrimony to its primeval unity and called that man an adulterer who married another even after dismissing his first wife.²²⁴ Therefore, a fortiori, he is an adulterer who marries another while retaining his first legitimate wife. Innocent III argues likewise in the celebrated chapter Gaudemus:²²⁵ "If, therefore, after a wife has been dismissed, another cannot lawfully be married, much less while she is retained; from which it plainly appears that plurality concerning matrimony is to be rejected in each sex, since they are not judged according to unequal standards."

Although in the Council of Trent²²⁶ it was defined only: "If anyone says that it is lawful for Christians to have several wives at the same time, and that this is prohibited by no divine law, let him be anathema"; nevertheless it is by no means permissible to conclude from this that it is still lawful for unbelievers to have several wives; for plurality of wives is contrary to the primeval institution of matrimony, and the dispensation granted in ancient times was expressly revoked by Christ. Hence St. Thomas²²⁷ teaches: "To have several wives is contrary to the law of nature, to which unbelievers also are bound; and therefore the matrimony of an unbeliever is not true except with her with whom he first contracted."

Indeed, the Holy Office in an Instruction to the Apostolic Vicar of the Gallas, March 20, 1860,²²⁸ says: "It is most certain that simultaneous polygamy is altogether unlawful by evangelical law; hence, after Jesus Christ²²⁹ restored matrimony to its pristine sanctity, unity, and indissolubility, with the dignity of a sacrament added for the baptized, it was lawful neither for the faithful, nor for Jews, nor for any mortals to join several wives to themselves. Consequently, with monogamy thus divinely restored, that only one can be bound to one by a legitimate and valid marriage is held as an unshaken dogma of faith." If, however, some emperors are reported to have had several wives, as, for example, Constantius, Valentinian, and Lothair, Billuart²³⁰ rightly responds: "No law is established from deeds unjustly done. Constantius was an Arian; Pope Nicholas I (865) excommunicated Lothair with his concubine. Valentinian I, in order to avert from himself the disgrace of a double marriage, unjustly enacted this law."

²¹³ Such polygamy is properly called simultaneous bigamy.

²¹⁴ It is known to all that Luther gave his consent that Philip, Landgrave of Hesse, while his first legitimate wife was living, should marry another, namely Margaret von der Sale.

²¹⁵ Cf. Suppl., q. 65, a. 2.

²¹⁶ C. 8, X 4, 19.

²¹⁷ Matt. 19:5 ff. and Mark 10:2 ff.

²¹⁸ Gen. 4:19.

²¹⁹ Deut. 25:5 ff.

²²⁰ Cf. St. Thomas, Suppl., q. 65, a. 5, ad 2.

²²¹ Cf. ibid., a. 1; Billuart, De matrimonio, diss. 5, a. 1.

²²² Cf. 3 Kings 11:3.

²²³ Cf. De Smet, De sponsalibus et matrimonio, n. 306.

²²⁴ Cf. Matt. 19:3-9 and Mark 10:1-12.

²²⁵ C. 8, X 4, 19.

²²⁶ Sess. 24, can. 2, De matrimonio (Denz., n. 972).

²²⁷ Suppl., q. 59, a. 3, ad 3.

²²⁸ Collect. de Prop. Fide, n. 1188.

²²⁹ Cf. Matt. 19:5 f.

²³⁰ Loc. cit., diss. 5, a. 1.

661. Successive polygamy (which by ancient authors is customarily called simply bigamy) is lawful, and consequently among Christians constitutes a true sacrament. The same holds concerning third and further nuptials. Thus the Council of Florence, in the Decree for the Armenians given in 1441,²³¹ declares "that not only second nuptials, but third and fourth and further ones, if no canonical impediment stands in the way, can lawfully be contracted." The Code of Canon Law, c. 1142, decrees: "Although chaste widowhood is more honorable, nevertheless second and further nuptials are valid and lawful."

The lawfulness of successive polygamy is manifestly proved from 1 Cor. 7:39, where St. Paul says: "A woman is bound by the law as long as her husband liveth; but if her husband sleep, she is at liberty; let her marry whom she will, only in the Lord"; and ibid., vv. 8 f.: "But I say to the unmarried and to the widows: it is good for them if they so continue, even as I; but if they do not contain themselves, let them marry; for it is better to marry than to burn."²³²

The Montanists and Novatians taught that second nuptials were unlawful. Nicholas, Patriarch of Constantinople, contended that fourth nuptials were contrary to divine law. Since harm not rarely arises from second nuptials for offspring born in the prior matrimony, and since those contracting also often celebrate second or further nuptials for the sake of pleasure rather than for some other upright motive, some of the Holy Fathers, especially the Greeks, spoke more harshly concerning second nuptials. Thus, for example, St. Basil calls bigamy "chastised fornication," while he calls a third matrimony "a defilement of the Church." St. Gregory Nazianzen²³³ has similar things, saying: "The first [matrimony] is law; the second pardon and indulgence; the third iniquity; but he who exceeds this number is altogether swinish." Some particular Councils also, for example, those of Ancyra and Laodicea, inflicted penances upon those who entered second nuptials. Even in our times the Easterners do not permit second nuptials except after a previous dispensation of the bishop.²³⁴

Scholion. Those who live in notorious simultaneous polygamy are accounted public sinners, and consequently can be admitted neither to the sacraments nor to ecclesiastical burial. Moreover, they are gravely punished by almost all penal Codes in civilized regions.²³⁵

²³¹ Mansi, Ampl. coll. Conc., 31, 1741.

²³² Cf. also Rom. 7:3; 1 Tim. 5:14.

²³³ Orat. 37, 8 (Migne, Patr. graec., 36, 291).

²³⁴ Papp-Szilagyi writes concerning this matter, Enchir. iur. eccl. orient. cath., § 87: "The Easterners also reject successive polygamy.... For second nuptials there is indeed a prescribed rite in the Euchologia, but they reject those very nuptials after the forty-fifth year of age; third nuptials were subjected to ecclesiastical censure; but fourth nuptials were condemned as brutal.... According to modern practice, assistance is supplied through a dispensation of the bishop."

²³⁵ Cf. German Penal Code, § 171; Belgian Penal Code, art. 391.

The other property of matrimony is indissolubility, to which divorce or the dissolution of matrimony is opposed. A twofold divorce is customarily distinguished: one perfect, which dissolves the matrimonial bond itself, so that it is lawful for the spouses to pass to other nuptials; the other imperfect, which, while the bond remains intact, grants separation of the spouses with regard to bed and habitation. After we have proved the complete indissolubility of consummated Christian matrimony, we shall treat: 1. of perfect divorce or divorce with regard to the bond; 2. of imperfect divorce or divorce with regard to bed and habitation.

662. Proposition. A valid, ratified, and consummated matrimony can never be dissolved by any human power or for any cause (except death). Thus the Code of Canon Law, c. 1118.

Proof 1. From the Council of Trent.²³⁶ "If anyone says that the Church errs when she has taught and teaches, according to evangelical and apostolic doctrine, that the bond of matrimony cannot be dissolved because of the adultery of one of the spouses, and that neither one, even the innocent one who gave no cause for the adultery, can contract another matrimony while the other spouse is living, and that he commits adultery who, having dismissed an adulteress, marries another, and she who, having dismissed an adulterer, marries another: let him be anathema."

From these words it follows that it is of faith that the Church does not err when she teaches that the matrimonial bond cannot be dissolved because of adultery. Since, however, it is added in the canon that the Church teaches this according to evangelical and apostolic doctrine, the indissolubility of consummated Christian matrimony is certain from evangelical and apostolic doctrine, and consequently seems to pertain to the faith. There are some, however, who vindicate certainty indeed for this truth, but not the certainty of faith.²³⁷ Yet whatever may be the case concerning this controversy, according to all Catholics he is a heretic who says that the Church errs when she has taught and teaches that the matrimonial bond cannot be dissolved because of the adultery of one of the spouses. Consequently, under this head Protestants are heretics. But he who should say that the bond of matrimony can be dissolved because of adultery would be at least in an error proximate to heresy.²³⁸

Launoy and a few others contend that this canon is not dogmatic but only disciplinary, and consequently subject to change; but this is false, as is evident from its object, which is the inerrancy of the Church teaching according to evangelical and apostolic doctrine.²³⁹

Proof 2. From Sacred Scripture. In diverse places Christ declares that adultery is committed by him who marries a dismissed wife. Thus He says: "And I say to you, that whosoever shall put away his wife, except it be for fornication, and shall marry another, committeth adultery; and he that shall marry her that is put away, committeth adultery."²⁴⁰ Now if matrimony could be dissolved with regard to the bond, certainly he who married a dismissed wife would not commit adultery. Therefore, according to the precept of Christ, it is not lawful to effect a divorce with regard to the matrimonial bond.

Certainly, in the cited text Christ seems to permit divorce in one case, namely, in the case of fornication, since He says: "except it be for fornication," and in St. Matthew, c. 5, v. 32: "saving the cause of fornication." For this reason many, both Protestants and heterodox Greeks, permit the dissolution of matrimony (even with regard to the bond) when adultery has been committed by one spouse. But this text, accurately examined, does not have this meaning. From the first centuries onward there has been much dispute concerning what the words "except it be for fornication" mean.²⁴¹ The best, most ancient, and more common explanation of all is that which St. Thomas brings forward:²⁴² "That exception [namely, saving the cause of fornication], which is in the words of the Lord, is referred to the dismissal of the wife, and therefore the objection proceeds from a false understanding."

Therefore the meaning of the words of the Lord is: It is not lawful to dismiss a wife except because of fornication or adultery committed by her; but even in this case it is not lawful to enter new nuptials; and if anyone nevertheless contracts another matrimony while the adulteress is living, he commits adultery. Thus also the Council of Florence understood the text of St. Matthew, teaching: "Although it is lawful to effect a separation of bed because of fornication, nevertheless it is not lawful to contract another matrimony, since the bond of a matrimony legitimately contracted is perpetual."²⁴³

That this is truly the meaning of the words of Christ appears manifestly from the parallel places in St. Mark 10:10 and St. Luke 16:18. For there Christ says simply and without limitation: "Whosoever shall put away his wife and marry another committeth adultery against her; and if the wife shall put away her husband and be married to another, she committeth adultery"; or: "Every one that putteth away his wife and marrieth another committeth adultery; and he that marrieth her that is put away from her husband committeth adultery." Hence St. Augustine²⁴⁴ exclaims: "Who, then, are we that we should say: there is one who, dismissing his wife and marrying another, commits adultery, and there is one who, doing this, does not commit adultery, when the Gospel says that everyone who does this commits adultery?"

Finally, if anyone rightly understood the words of Christ, it is certainly St. Paul, the "vessel of election." Now he says: "But to them that are married, not I, but the Lord commandeth that the wife depart not from her husband; and if she depart, that she remain unmarried, or be reconciled to her husband."²⁴⁵ Very few Catholic theologians taught the dissolution of matrimony with regard to the bond because of adultery committed, at least after the time of Gratian, who, after adducing many texts of the Holy Fathers, thus concludes: "By these authorities it is most evidently shown that whoever has dismissed his wife because of fornication cannot marry another while she is living, and if he marries, he will be guilty of adultery."²⁴⁶

But if some older theologians and bishops seem to have permitted this dissolution of matrimony, it must be noted: a) that frequently their words are not so clear and certain; b) that they were somewhat more lenient in particular cases because of the hardness of the spouses' hearts, in order to avoid greater evils.²⁴⁷

Leo XIII²⁴⁸ beautifully and concisely says: "But the Supreme Pontiffs, as often as they resisted most powerful princes menacingly demanding that divorces effected by them be ratified by the Church, must be judged so often to have fought not only for the integrity of religion, but also for the civilization of nations. In this matter all posterity will admire the proofs of unconquered spirit given by Nicholas I against Lothair II; by Urban III and Paschal II against Philip I, King of the French; by Celestine III and Innocent III against Philip II, Prince of the French; by Clement VII and Paul III against Henry VIII; finally, by Pius VII, a most holy and most courageous Pontiff, against Napoleon I, exulting in prosperous affairs and in the greatness of his empire."

Since Protestants and civil governments permit the perfect dissolution of matrimony, the number of divorces increases from year to year, drawing with it the greatest harms against the education of offspring, the peace of society, and uprightness of morals. Leo XIII vividly describes in the truly golden Encyclical Arcanum how great are the evils arising from divorces:

"It is scarcely necessary to say how much matter of evil divorces contain within themselves. For because of them matrimonial covenants become changeable; mutual benevolence is weakened; pernicious incentives are supplied to infidelity; harm is done to the protection and education of children; occasion is provided for the sundering of domestic societies; seeds of discord are scattered among families; the dignity of women is diminished and depressed, and they come into danger of being held as abandoned after they have served the lust of men. And since nothing avails so much for destroying families and breaking the strength of kingdoms as the corruption of morals, it is readily perceived that divorces are especially hostile to the prosperity of families and states, for they arise from the depraved morals of peoples and, as experience testifies, open an approach and doorway to more vicious customs of private and public life. That these evils are much graver will be evident if it is considered that there will be no restraints so great as to be able to confine within fixed or previously foreseen limits the faculty of divorce once it has been granted. Great indeed is the force of examples, greater that of desires: by these incitements it must happen that the lust for divorces, creeping more widely each day, invades the minds of very many, like a disease spread by contagion or a mass of waters overflowing after the embankments have been overcome."

²³⁶ Sess. 24, can. 7, De matrimonio (Denz., n. 977).

²³⁷ For example, Tanquerey, Synopsis Theol. mor., De matrimonio, n. 718.

²³⁸ Among the propositions qualified by the Holy Office under Innocent X, this is found under n. 13: "The Supreme Pontiff can dispense so that even a consummated matrimony may be dissolved with regard to the bond because of the wife's adultery, to which the definition of matrimony is not opposed." All the Qualifiers were of the opinion that this proposition was rash and scandalous; four added that it was proximate to error; two, erroneous; and three, heretical (Analecta ecclesiastica IV [1896], 187). The Fathers of Trent in the earlier drafting of this canon simply taught that consummated matrimony is altogether indissoluble; but at the request of the Venetian legates the drafting was changed, lest the contrary practice of the Greeks be held condemned. Besides the Council of Trent, several other Councils maintained the same doctrine concerning the complete indissolubility of consummated Christian matrimony, for example, the Council of Elvira in 305, canons 8 and 9; the Fourth African Council (407), which in canon 6 employs almost the same words as the Council of Trent; the Second Council of Milevis, c. 17 (c. 5, C. 32, q. 7); and the Council of Florence (Decree for the Armenians). Moreover, the Supreme Pontiffs several times issued decrees concerning the complete indissolubility of consummated Christian matrimony, for example, Leo I, Zacharias, Alexander III, Innocent III, Leo XIII, and others.

²³⁹ Cf. Van de Burgt-Schaepman, Tract. de matrimonio, I, n. 21.

²⁴⁰ Matt. 19:9. Cf. also Matt. 5:32; Luke 16:18; Mark 10:11; 1 Cor. 7:10; Rom. 7:2 f.

²⁴¹ Diverse explanations of this text devised by theologians may be seen among the dogmatic theologians, for example, in R. Fei, O.P., Dogm., V, n. 187.

²⁴² IV, dist. 35, q. 1, a. 5, ad 4.

²⁴³ Denz., n. 702.

²⁴⁴ De adulterinis coniugiis, l. 1, c. 9, n. 10 (Migne, Patr. lat., 40, 457). In this entire little work St. Augustine most ingeniously explains both the texts of Sacred Scripture and Catholic doctrine.

²⁴⁵ 1 Cor. 7:10.

²⁴⁶ C. 16, C. 32, q. 7.

²⁴⁷ Besides Freisen, already cited, the history of the indissolubility of matrimony is well narrated by Fahrner, Gesch. der Ehescheidung im kan. Recht (1903); A. Cígoi, O.S.B., Die Unauflöslichkeit der christlichen Ehe und die Ehescheidung (1895).

²⁴⁸ Encyclical Arcanum.

663. Certain examples of the dissolution of consummated matrimony are indeed objected. Thus, for example, the Councils of Verberie (Verberie; 758) and Compiègne (Compiègne; 757) grant the dissolution of matrimony for several causes.²⁴⁹ Thus Celestine III (1191-1198) permitted the dissolution of the bond of a consummated matrimony when an apostate husband abandoned his wife, unduly extending the Pauline privilege to this case.²⁵⁰ Innocent III seems to allude to this opinion of Celestine, saying: "although a certain predecessor of ours seems to have thought otherwise."²⁵¹

But the principal difficulty arises from the response given by Gregory II to St. Boniface in 726: "As to what you have proposed, that if a woman, stricken by infirmity, should not be able to render the debt to her husband, what should her spouse do? It would be good if he should remain thus, so as to devote himself to continence; but because this belongs to great men, he who cannot contain himself should rather marry; nevertheless, he should not withdraw the help of support from her whom infirmity hinders and not a detestable fault excludes."²⁵²

Although one should not immediately say with Gratian: "That statement of Gregory is found to be altogether contrary to the sacred canons, indeed to evangelical and apostolic doctrine," nevertheless this text has always been the cross of jurists. The genuineness of the text being admitted, two probable explanations are given, namely: a) Gregory II speaks of ratified and non-consummated matrimony; b) that infirmity is nothing other than antecedent impotence, which certainly invalidates any matrimony.²⁵³

As regards the particular Councils, it can be conceded that they erred. As regards Celestine III, his opinion is not so clear. But even granting that Celestine erred in a particular case, nothing can thence be deduced either against the infallibility of the Supreme Pontiff or against the complete indissolubility of consummated Christian matrimony, and all the less because Celestine III himself strenuously defended the indissolubility of Christian matrimony against Philip II, King of France.

²⁴⁹ Cf. Fahrner, Gesch. der Ehescheidung im kan. Recht, 74 ff.

²⁵⁰ Cf. ibid., 164.

²⁵¹ C. 7, X 4, 19.

²⁵² C. 18, C. 32, q. 7.

²⁵³ Cf. Freisen, Gesch. des kan. Eherechtes, 331; Fahrner, loc. cit., 63.

664. Scholion. On the intimate reason for the indissolubility of consummated Christian matrimony. If anyone inquires into the ultimate and adequate reason for this perfect indissolubility of consummated matrimony, certainly the natural law alone cannot be assigned; for in the Old Law marriages of this kind were lawfully dissolved by a "bill of divorce," and in the New Law they can sometimes be dissolved by force of the Pauline privilege (concerning which below); but in neither case can it be said that the natural law itself (at least according to its primary principles) is violated. Nor can this perfect indissolubility be derived solely from the character of the sacrament which belongs to Christian matrimony; for ratified matrimony also is a true sacrament, yet it can nevertheless be dissolved with regard to the bond both by pontifical dispensation and by religious profession.²⁵⁴

Since these things are so, it is better and truer to say that the consummated matrimony of Christians is altogether indissoluble from the positive will of God manifested in the Gospel,²⁵⁵ and that this indissolubility is most fitting both to the natural law and to the character of the sacrament.²⁵⁶ Indeed, Pius IX in the Syllabus proscribed proposition 67: "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."²⁵⁷

But this proposition seems to be understood thus: 1. Civil authority cannot sanction divorce properly so called, that is, the dissolution of matrimony with regard to the bond; 2. the indissolubility of matrimony, especially consummated matrimony, rests upon the secondary natural law, because matrimony by its very nature requires the good education of offspring, the mutual love of the spouses, perpetual mutual services, and is instituted to restrain and satisfy carnal concupiscence in a lawful manner. All these things can scarcely, indeed hardly at all, be obtained if the dissolution of matrimony is permitted, as perpetual experience testifies. Therefore the dissolution of consummated matrimony is opposed to the secondary natural law.

But since (absolutely speaking) the procreation of offspring and their education, and all the other things, can be had even when matrimony has been dissolved, divorce with regard to the bond is not opposed to the primary principles of the natural law; as appears also from the fact that God never dispenses in the primary principles of the natural law. But as is evident from the things said above, God both in the Old and in the New Law sometimes dispenses in the bond of consummated matrimony.

²⁵⁴ Cf. below, n. 681.

²⁵⁵ Matt. 5:32; Luke 16:18.

²⁵⁶ Cf. Wernz-Vidal, Ius can., V, n. 623; Billuart, De matrimonio, diss. 5, a. 2; cf. also the Instruction of the Holy Office, July 6, 1817 (Collect. de Prop. Fide, n. 725). St. Thomas teaches concerning this matter: "Inseparability belongs to matrimony insofar as it is the sign of the perpetual conjunction of Christ and the Church, and insofar as it is ordained to the good of offspring as an office of nature. But because the separation of matrimony is more directly opposed to the signification of the sacrament than to the good of offspring, to which it is opposed consequently, the inseparability of matrimony is understood more in the good of the sacrament than in the good of offspring, although it can be understood in both; and insofar as it pertains to the good of offspring, it will be of the law of nature, but not insofar as it pertains to the good of the sacrament" (Suppl., q. 67, a. 1, ad 2).

²⁵⁷ Denz., n. 1767.

665. Proposition 1. "A non-consummated matrimony between baptized persons, or between a baptized party and a non-baptized party, is dissolved with regard to the bond:

a) by the law itself through solemn religious profession;

b) by a dispensation of the Supreme Pontiff, provided that a just cause is present and both parties request it, or at least one of them, even if the other is unwilling."²⁵⁸

The first part of the proposition is defined by the Council of Trent:²⁵⁹ "If anyone says that a ratified, non-consummated matrimony is not dissolved by the solemn religious profession of one of the spouses, let him be anathema."

It is said: through solemn religious profession. Therefore matrimony is dissolved neither by entrance into religion, nor by simple profession,²⁶⁰ nor by a solemnized vow of chastity in the subdiaconate. Solemn profession is found in several ancient religious orders of men, for example, the Benedictines, Dominicans, Franciscans, and so forth; but indeed only in a few religious orders of women, for example, the Poor Clares, Dominican nuns of the Second Order, and so forth. Hence in practice it must be seen whether there is a profession which is recognized by the Church as solemn.

Since, however, according to the current discipline of the Church solemn vows are ordinarily not emitted until at least four years after entrance into religion, it follows that the spouse remaining in the world would have to wait for at least four years before being able to enter new nuptials. But because this is sometimes hard, when the case occurs permission is to be sought from the Holy See for solemn vows to be emitted immediately after the novitiate. Solemn profession does not dissolve a ratified matrimony unless it is joined with a vow of perfect chastity. Hence if in some military orders a solemn profession was indeed emitted, but with conjugal chastity only, or with a prohibition against proceeding to second nuptials, such a solemn profession did not dissolve a ratified matrimony.²⁶¹

A vow, as they say, solemnized in the reception of the subdiaconate likewise does not dissolve a preceding ratified matrimony (although it invalidates a subsequent matrimony, as will be said below). Concerning this matter John XXII²⁶² decreed: "Desiring to put an end to the ancient contention ... by the present edict we declare that, although a vow solemnized through the reception of sacred order, as regards impeding a matrimony to be contracted and invalidating it if contracted afterward, must be accounted efficacious according to the statutes of the canons, nevertheless, for dissolving one previously contracted, even if it has not been consummated through carnal intercourse, since we find this decreed neither by divine law nor by the sacred canons, it is to be accounted invalid."

²⁵⁸ Thus the Code of Canon Law, c. 1119.

²⁵⁹ Sess. 24, can. 6, De matrimonio (Denz., n. 976).

²⁶⁰ A simple vow of chastity or simple profession (even that of the Jesuits) does not dissolve a ratified matrimony. Thus Pius IX expressly decreed on January 25, 1861, saying: "A ratified and non-consummated matrimony is dissolved only by solemn profession of vows, but not by profession of simple vows." A few authors, for example, Pontius, Leurenius, Bouix, and Perrone (who, however, later corrected this error), falsely attributed the same force of dissolving matrimony to simple vows emitted in the Society of Jesus after two years from entrance.

²⁶¹ Cf. Feije, loc. cit., n. 515.

²⁶² Extravag., c. un., tit. 6, De voto.

666. By what law solemn religious profession dissolves a ratified matrimony is much disputed among authors. A few, for example, Habert and Collet, teach that this effect arises from natural law, that is, from the very nature of solemn profession; very many, for example, Suarez, Layman, Schmalzgrueber, Pirhing, Leitner, Gasparri, Wernz, De Smet, and others,²⁶³ teach that it arises from ecclesiastical law alone; almost all Thomists and several outsiders, for example, Valentia, Sanchez, and Benedict XIV,²⁶⁴ derive this effect from positive divine law. The reason for this last opinion is manifold:

a) "Before carnal intercourse there is only a spiritual bond between the spouses; but afterward there is also a carnal bond between them; and therefore, just as after carnal intercourse matrimony is dissolved by carnal death, so before carnal intercourse it is dissolved through entrance into religion; because religion is a certain spiritual death, by which someone, dying to the world, lives to God." Thus St. Thomas.²⁶⁵ This comparison of profession with spiritual death occurs very frequently among the ancient authors.

b) Ratified matrimony, as a true sacrament, is indissoluble by divine law. Therefore it cannot be dissolved except through something which has the same sanction. Since, therefore, it is of faith that solemn religious profession dissolves a ratified matrimony, it is more fittingly said that this effect was granted to it also by divine law. This is confirmed: If solemn religious profession did not dissolve by divine law, but only by ecclesiastical law, then some Pope could decree that this effect should no longer belong to it.²⁶⁶ But this seems impossible because of the definition of the Council of Trent brought forward above, which is a dogmatic and not merely a disciplinary definition, as is now most commonly admitted.²⁶⁷

From c. 7, X 3, 31, theologians and canonists deduced that a two-month period was granted to spouses, within which they could deliberate upon entering religion, and therefore that they were not bound to render the conjugal debt.²⁶⁸ The Code of Canon Law is altogether silent concerning this two-month period; therefore, according to the current discipline, a spouse is bound immediately after matrimony has been duly contracted to render the conjugal debt to the other party reasonably requesting it.²⁶⁹

Moreover, in our times it can scarcely ever happen that someone lawfully enters matrimony with the intention of entering religion within two months; because the civil laws existing almost everywhere and prescribing civil matrimony do not permit divorce because of mere entrance into religion, and consequently grave inconveniences could easily arise for the party left in the world if someone first contracted matrimony and then shortly afterward entered religion. Moreover, according to the current discipline, no married person can be validly admitted to the novitiate without previous permission of the Holy See.²⁷⁰

²⁶³ Fahrner, Gesch. der Ehescheidung im kan. Recht, 292 ff., clearly sets forth the diverse opinions of the diverse authors.

²⁶⁴ Quaest. can. et mor., q. 546, n. 35.

²⁶⁵ Suppl., q. 61, a. 2.

²⁶⁶ Wernz-Vidal (Ius can., V, n. 626, note 47) attempts to prove that the Supreme Pontiff can truly remove this effect from solemn profession, citing a fact known to all: in France, Belgium, and other regions nuns no longer emit solemn profession. Therefore the Pope removed solemn profession in some orders, and a fortiori he can remove from solemn profession the force of dissolving a ratified matrimony. No one fails to see how weak this argument is. It is freely conceded that the Pope can suppress solemn profession in some orders, indeed can suppress some entire order, as, for example, Clement XIV did concerning the Society of Jesus; but it by no means follows from this that the Pope can indeed leave a truly solemn profession to some order and nevertheless remove from that profession the effect of dissolving a ratified matrimony. This is also evident from the following example: someone can extinguish a light entirely; but while the light exists, he cannot prevent the light from producing the effect of illuminating. Still weaker is the argument repeated a hundred times: the solemnity of a vow is from the institution of the Church, as Boniface VIII testifies; therefore the Church can freely change, indeed abolish, this solemnity. The response is: Certainly accidental solemnity is from the institution of the Church, but by no means essential solemnity. We have written at greater length concerning this matter in Commersches Jahrbuch, XXII, 55 ff.

²⁶⁷ Cf. Billot, De eccl. sacr., II, thesis 45, p. 415.

²⁶⁸ Cf. St. Thomas, Suppl., q. 62, a. 2, ad 2.

²⁶⁹ The Code of Canon Law, c. 1111, decrees concerning this matter: "Each spouse has from the very beginning of matrimony an equal right and duty as regards the acts proper to conjugal life."

²⁷⁰ Code of Canon Law, c. 542, n. 1.

667. You will ask: 1. If carnal intercourse was had between the betrothed before matrimony, but not yet after matrimony was duly contracted, does the privilege of dissolving the bond of the contracted matrimony through solemn profession remain? Affirmatively. The reason is that such a matrimony is truly ratified only and not consummated. This opinion seems to be placed beyond all doubt after Leo XIII (in 1892) abolished presumed matrimony, which was judged to be present when the betrothed, with marital affection, completed carnal intercourse.²⁷¹

2. Can solemn religious profession dissolve the bond of a matrimony which was indeed consummated in infidelity, but after the conversion of one or both spouses remained without carnal intercourse? Theoretically speaking, the affirmative opinion is truer and more ancient. St. Bonaventure²⁷² already taught it, and Dominic Soto,²⁷³ Sanchez,²⁷⁴ and others follow him. The reason is that the ratified matrimony of Christians, as a sacrament, constitutes a stronger bond than a consummated legitimate matrimony; which is plainly evident from the fact that, by the Pauline privilege, a subsequent ratified matrimony dissolves a preceding consummated legitimate matrimony. Now solemn religious profession dissolves the ratified matrimony of Christians. Therefore, a fortiori, it dissolves a consummated legitimate matrimony, according to the maxim of Roman Law: "If I conquer him who conquers you, much more do I conquer you."²⁷⁵

In practice, however, since a matter of great moment is involved and the proposed opinion is not certain, the Holy See is to be approached, which, according to the things said above, can dissolve the bond in marriages of this kind.²⁷⁶ It is certain that the bond of such a matrimony is not dissolved by the reception of sacred orders.

²⁷¹ Cf. Wernz-Vidal, Ius can., V, n. 628.

²⁷² In IV, dist. 39, a. 2, q. 2 (Ad Aquas Claras, 1899, IV, 839 f.).

²⁷³ In IV, dist. 39, q. un., a. 4.

²⁷⁴ De matrimonii sacramento, l. 7, disp. 76, nn. 8-10, where he says that this opinion is altogether to be held.

²⁷⁵ L. 14, § 3, D. 44, 3.

²⁷⁶ Cf. Fahrner, Gesch. der Ehescheidung, 313 f.

668. The second part of the proposition is indeed not of faith, but today it is so certain that it would be rash to deny it, and therefore it is deservedly called "Catholic doctrine."²⁷⁷ For the Holy See, already from the times of Martin V, has constantly and frequently dissolved non-consummated marriages if a grave cause was present. But it is impious to assert that the Holy See constantly errs in so grave a matter, namely, by using a power which it does not have.²⁷⁸

For obtaining this dispensation, two things are required: 1. a just cause; for divine law is involved, in which the Supreme Pontiff cannot dispense without a just cause; 2. a petition by at least one of the spouses, since the matrimony cannot be dissolved if both spouses are unwilling.

Certain older authors of great name denied such power to the Supreme Pontiff, since the practice of the Roman Curia at that time was not so certain. It must also be admitted that the intrinsic reasons brought forward by some authors for the dispensing faculty of the Supreme Pontiff are not very convincing; and consequently, before the practice of the Roman Curia in this matter was constant and known to all, the diversity of opinions is easily understood. For the argument often brought forward for this faculty of dispensing, taken from the words of Christ to Peter, "Whatsoever thou shalt loose upon earth, it shall be loosed also in heaven," truly proves too much and consequently proves nothing; for there is no reason why from the same text a faculty of dissolving even a consummated matrimony could not be inferred, which faculty nevertheless no one concedes to the Supreme Pontiff.

We have already admonished above that the indissolubility of matrimony cannot be derived either solely from the nature of the contract or solely from the aspect of the sacrament, but from the positive will of God. Moreover, it seems certain that a ratified matrimony of Christians is not of less dignity and efficacy, both by reason of the contract and by reason of the sacrament, than a consummated matrimony, because the copular theory is to be rejected, as was said above. But if the Supreme Pontiffs nevertheless very frequently dissolved ratified matrimony and never the consummated matrimony of Christians, this manner of acting and faculty seems to be derived from the positive will of Christ, who will be with His Church even to the consummation of the world and does not permit her to err in a matter which so intimately touches the morals of the entire Christian people.²⁷⁹

The power of the Supreme Pontiff being admitted, it is remarkable into how diverse opinions theologians and canonists go in explaining the intrinsic nature of this power. Some will that it be an act of judgment declaring the nullity of the matrimony; some call it a dispensation properly so called, others one broadly so called; finally, some will that it be only a declaration of divine law. Moreover, all these appear to be sufficiently useless disputes. It must, however, be committed to memory that the Supreme Pontiff cannot even validly dissolve a ratified matrimony without grave cause. For divine law is involved, in which the Pope cannot arbitrarily dispense.

²⁷⁷ Sacred Congregation of the Sacraments, May 7, 1923 (Acta Ap. Sed. XV, 389).

²⁷⁸ Benedict XIV (Quaest. can., q. 279) says: "No question can any longer be raised concerning the power of the Supreme Pontiff in that which pertains to dispensing over a ratified and non-consummated matrimony, since today the affirmative opinion is common among theologians and canonists and received in practice, as is notorious."

²⁷⁹ Among canonists, Alanus (at the beginning of the thirteenth century), in the apparatus to Compilation I, seems to have been the first who expressly taught that the Pope can dissolve the bond of a ratified matrimony. Vincentius Hispanus, Hostiensis, and Johannes Andreae follow him (cf. Fahrner, loc. cit., p. 208 f.). Among theologians, Cajetan (Opusc. 28) seems to have been the first explicit assertor of this doctrine. Certainly St. Antoninus (Summa theol., p. 3, tit. 1, c. 21), who himself saw dispensations of this kind granted by Martin V and Eugene IV, holds this power of the Supreme Pontiff as probable, but speaks very hesitantly. Theologians of the thirteenth century denied this power of the Supreme Pontiff, for example, St. Bonaventure, Scotus, and Paludanus, whom several others later follow, for example, Francis de Vitoria, Dominic Soto, Peter Soto, Sylvius, Tournely, Drouven, Billuart, Reiffenstuel, and others. But already Thomas Sanchez, who treats this question very well (De matrimonii sacramento, l. 2, disp. 14-16), cited fifty authors for the opinion teaching that the power of dispensing in a ratified and non-consummated matrimony belongs to the Supreme Pontiff.

669. Scholion. On the manner of petitioning for a dispensation over a non-consummated matrimony. When there is question of a dispensation to be petitioned over a non-consummated matrimony, it is customary to proceed in the following manner: The spouse who petitions for the dissolution of the non-consummated matrimony is to present his petition to the bishop (through the pastor), with an accurate statement of the fact and of the motives for the dispensation to be petitioned. After the bishop has extrajudicially²⁸⁰ investigated all things to be known or necessary to know, he sends the received petition to the Sacred Congregation of the Sacraments. (The bishops of missions, however, must send the petition to the Sacred Congregation for the Propagation of the Faith.)

Upon receiving this extrajudicial information, the Sacred Congregation is accustomed to delegate the bishop or an investigating judge to make the processual informations. How these processual informations are to be made is indicated in the Decree concerning processes in causes of dispensation over a ratified, non-consummated matrimony issued by the Sacred Congregation of the Sacraments on May 7, 1923,²⁸¹ for example, concerning the defender of the bond, bodily inspection, testimony of the seventh hand, and so forth.

The object of this information is twofold: the verification of the motives for dispensation and the proof of the non-consummation of the matrimony. To verify the motives for dispensation is not so difficult; on the contrary, it is sometimes most difficult to prove with certainty the non-consummation of the matrimony. A dispensation is never granted unless it is morally certain that the matrimony has not been consummated.

Canonists are accustomed to distinguish three cases: 1. non-consummation of a matrimony "constrained by time," that is, if the spouses, after the matrimony was celebrated, never cohabited or remained secretly in the same place; 2. non-consummation of a matrimony "with intercourse not attempted," that is, when the spouses indeed cohabited in the same house, but never attempted to use matrimony; 3. non-consummation of a matrimony "with intercourse attempted," that is, if the spouses also attempted to use matrimony, but were unable to complete this, for example, because of impotence. The fact of the non-consummation of the matrimony is to be proved by sworn witnesses and by indications not doubtful, for example, by bodily inspection.

An example of non-consummation "constrained by time" is furnished by the Nicosian cause of January 19, 1889, where the husband's mother, immediately when the spouses went out from the church after the matrimony had been celebrated, carried the husband off by force; nor did the spouses ever meet afterward.²⁸² An example of non-consummation "with intercourse not attempted" is furnished by the Leopolitan cause, which had been dismissed three times and obtained the requested dispensation only on the fourth occasion. Behold the summary of the case: A certain count married a countess who was already pregnant from an illicit love; for a sufficiently long time the spouses cohabited, but both the husband and the wife swore that they had never consummated the matrimony. At length they obtained a dispensation over the ratified and non-consummated matrimony.²⁸³ An example of the third case, namely, non-consummation of a matrimony "with intercourse attempted," is furnished by all cases in which a matrimony is dissolved because of the impediment of impotence.²⁸⁴

After the bishop has completed all the informations and sent them to the Sacred Congregation of the Sacraments, the Most Eminent Cardinals of this Congregation, after hearing the opinions of the consultors, decree whether the dispensation over the ratified matrimony is to be recommended to the Most Holy Father or not. If they decree affirmatively, the secretary of the Congregation proposes the case to the Supreme Pontiff, who is then accustomed to grant the requested dispensation. From all these things it is evident how great is the diligence employed by the Roman Curia before it dissolves the bond of a ratified and non-consummated matrimony.

²⁸⁰ Cf. the Code of Canon Law, c. 1963. If the bishop wished to proceed judicially without a special delegation of the Holy See, the whole process would be null (cf. the Piscian cause, November 24, 1906, in Analecta ecclesiastica XIV [1906], 441). According to the present practice, the prior judicial inquiry concerning the fact of non-consummation pertains to a single investigating judge, to whom the Sacred Congregation of the Sacraments has committed this inquiry. Code of Canon Law, c. 1966.

²⁸¹ Acta Ap. Sed. XV, 389 ff.

²⁸² Cf. Leitner, Lehrb. des kirchl. Eherechtes, 592.

²⁸³ Cf. Analecta ecclesiastica IV (1896), 264.

²⁸⁴ See the two cases related in Analecta ecclesiastica III (1895), 159-160.

670. Proposition 2. The matrimony of unbelievers, even when consummated, can be dissolved with regard to the bond according to the Pauline privilege in favor of the faith.²⁸⁵

Proof from Sacred Scripture. After St. Paul the Apostle inculcated the indissolubility of matrimony, he says these things: "For to the rest I speak, not the Lord: If any brother hath a wife that believeth not, and she consent to dwell with him, let him not put her away. And if any woman hath a husband that believeth not, and he consent to dwell with her, let her not put away her husband.... But if the unbeliever depart, let him depart; for a brother or sister is not under servitude in such cases; but God hath called us in peace."²⁸⁶

Innocent III²⁸⁷ authentically declared this text, teaching: "For if one of the unbelieving spouses is converted to the Catholic faith, while the other wills to cohabit with him either in no way, or not without blasphemy of the divine name, or in order to draw him into mortal sin: the one who is abandoned will pass to second vows, if he wills; and in this case we understand what the Apostle says: If the unbeliever depart, let him depart; for a brother or sister is not under servitude in such cases, and also the canon in which it is said: 'An insult to the Creator dissolves the law of matrimony with respect to him who is abandoned.'"

This authentic declaration of the text of the Apostle has been reduced to practice very frequently by the Roman Pontiffs from the times of Innocent III onward, so that no doubt can exist that the matrimony of unbelievers is dissolved with regard to the bond if the conditions stated by the Apostle Paul are present. More probably this dissolution arises from divine law itself. Therefore the Holy Office, on July 11, 1866, calls this privilege one granted by Christ in favor of the faith and promulgated through the Apostle Paul.²⁸⁸

²⁸⁵ Code of Canon Law, c. 1120.

²⁸⁶ 1 Cor. 7:12-15. In the Greek text there is: τοῖς δὲ λοιποῖς, that is, "but to the rest," which words are to be referred to what follows and not to what precedes.

²⁸⁷ C. 7, X 4, 19. Before the times of Innocent III the interpretation of this text was by no means concordant. Cf. Fahrner, Gesch. der Ehescheidung, 146 ff.

²⁸⁸ Collect. de Prop. Fide, I, n. 1297; cf. Wernz-Vidal, Ius can., V, n. 631, note 56.

671. Conditions required for the Pauline privilege: A legitimate and consummated matrimony contracted by two unbelieving spouses is dissolved with regard to the bond:

1. if either party is validly baptized (whether in the Catholic Church or in any sect), and

2. if the party persisting in unbelief either a) departs or refuses to cohabit peaceably with the baptized party, or b) does not will to cohabit without insult to the Creator, for example, if that party attempts to draw the baptized party into mortal sin. In these cases the matrimony contracted in unbelief is not indeed dissolved by baptism itself, but when the baptized party validly contracts a new matrimony.²⁸⁹ The individual conditions of the Pauline privilege are to be explained more fully.

It is said first: if either party is baptized.

It is therefore supposed that a valid matrimony was contracted before baptism. Hence, if a case occurs, it must first be seen whether some diriment impediment from natural, divine, or civil law perhaps stood in the way of the matrimony entered in paganism. It is evident of itself that the Pauline privilege has no place and is not necessary if the matrimony contracted was null. Since a positive doubt concerning the validity of a matrimony contracted by pagans occurs very frequently, a diligent examination and inquiry must first be made by the Ordinary.²⁹⁰ But if the validity remains doubtful, one must stand for the favor of the faith, so that the converted party may be able to enter new nuptials.²⁹¹

²⁸⁹ Code of Canon Law, c. 1126.

²⁹⁰ Holy Office, December 9, 1874.

²⁹¹ Holy Office, May 19, 1892, and April 19, 1899; Code of Canon Law, c. 1127.

672. The Pauline privilege cannot be employed:

a) if both unbelieving spouses receive baptism together, as the Holy Office expressly declared on July 11, 1866.²⁹² For through their baptism the matrimony becomes a sacrament.

b) for catechumens not yet baptized, as the Holy Office expressly declared on March 13, 1901.

c) if, by a pontifical dispensation over disparity of cult, the Catholic party contracted matrimony with a non-baptized party who now has departed or no longer wills to cohabit without insult to the Creator. Thus the Code of Canon Law, c. 1120, § 2, decrees. It is evident of itself that in this case separation with regard to bed and habitation is lawful.²⁹³ But if a person born and baptized in a non-Catholic sect contracted matrimony with a non-baptized person, such a matrimony can be dissolved with regard to the bond (at least through a dispensation of the Holy See),²⁹⁴ after the baptized person has embraced the true faith.

d) If one of the faithful spouses passes over to heresy or to the error of paganism. This is now certain from repeated declarations of the Holy See. Celestine III seems to have thought the contrary, as was said above; but Innocent III already sanctioned the present doctrine.²⁹⁵

It is said second: is baptized in the Catholic Church or in any sect.

Certainly Innocent III, in his authentic interpretation of the Pauline privilege, speaks of Catholic baptism, and the privilege was not granted in favor of heresy, but of the true faith; nevertheless, since every valid baptism renders the baptized man a member of the true Church, almost all authors, for example, Feije, Scherer, Palmieri, Braun, Tarquini, Christian Pesch, Billot, Lehmkuhl, Gasparri, Wernz, De Smet, and others, teach that the privilege was granted in favor of any valid baptism. To this day, however, the Church has defined nothing expressly concerning this question.

It is said third: if the party persisting in unbelief either departs or refuses to cohabit peaceably with the baptized party, or does not will to cohabit without insult to the Creator.

The departure of the unbelieving party is therefore required; this departure can be either physical or moral. The unbelieving party physically departs if that party leaves the conjugal home and does not return. Moral departure is present in two cases: 1. if the unbelieving party causes quarrels and disputes or other harms; 2. when the unbelieving party attempts to draw the converted party into something gravely unlawful, for example, into apostasy, adultery, or the education of the offspring in unbelief. This moral departure renders conjugal life impossible, so that separation of the spouses is morally necessary because of the malice of the unbelieving party.

The physical departure of the unbelieving party need not necessarily be culpable, but simple absence suffices, provided, however, that the baptized party did not maliciously cause this absence, and indeed after baptism. The following case is worthy of note: A certain pagan sold his own wife into slavery, or his wife was taken away from him by force. Afterward he is baptized and desires to enter new nuptials. The wife who was sold indeed would will to cohabit with him, but he is unable to redeem her. It was asked whether in this case the baptized man could enter new nuptials. The Holy Office, on July 8, 1891, responded: "Insofar as he sold his wife before baptism, affirmatively."²⁹⁶ From this response it plainly appears that a malicious physical departure of the unbelieving party is not required. It suffices that the baptized party cannot cohabit peaceably with the unbelieving party. But that there may truly be certainty concerning this departure, there is altogether required:

²⁹² Collect. de Prop. Fide, n. 1295.

²⁹³ Cf. Holy Office, August 5, 1759 (Collect. de Prop. Fide, n. 421).

²⁹⁴ Decree of the Holy Office, November 5, 1924.

²⁹⁵ C. 7, X 4, 19.

²⁹⁶ Collect. de Prop. Fide, n. 1760.

673. An interpellation, which is accustomed to contain two questions, namely:

1. whether the unbelieving party is also willing to be converted and to receive baptism;

2. if the response is negative, whether that party at least wills to cohabit peaceably without insult to the Creator.²⁹⁷

The first question is the principal one; hence, "if it should ever happen that a polygamist converted to the faith, after an interpellation has been made according to apostolic sanctions, has lived conjugally under hope of conversion with his first wife (since she alone was and is his legitimate wife), who meanwhile delays conversion and the reception of baptism for a longer time, it will be lawful for the bishop, after the truth of the matter has been well weighed, to declare that the faithful and baptized spouse is free to pass to other vows, yet with a faithful person."²⁹⁸

Concerning this interpellation, the following things are to be noted:

a) Regularly it is to be made in at least a summary and extrajudicial form by the authority of the Ordinary of the baptized party; nevertheless, it suffices if it was made otherwise, even privately, provided that it is established by a written document or by the attestation of two witnesses that it was actually made.²⁹⁹

b) It is altogether necessary; indeed several authors, for example, Feije,³⁰⁰ Leitner,³⁰¹ and Wernz-Vidal,³⁰² teach that it is necessary by divine law; the response of the Holy Office of June 12, 1859, favors this opinion, decreeing: "The fellow slave in question, if he has not been legitimately dispensed by the Apostolic See, is bound by divine precept to make the present interpellation to the other spouse."³⁰³

Nevertheless, saving a better opinion, it is not yet permissible to conclude from this: therefore, if this interpellation was omitted without a previous pontifical dispensation, the matrimony afterward contracted by the baptized party is null; for neither by St. Paul nor by the Supreme Pontiffs is this interpellation certainly prescribed under penalty of the nullity of the subsequent matrimony. For what is necessarily required from the words of St. Paul is the "departure of the unbelieving party"; but it is not determined how this departure must be established. Therefore, given the true departure of the unbelieving party, the matrimony of the baptized party afterward following does not seem to be invalid, as not being contrary to the Pauline privilege.

If perhaps in a particular case the matrimony was celebrated with the prescribed interpellation omitted, it seems that the rule established by the Sacred Congregation for the Propagation of the Faith on June 20, 1883, § 45, is to be observed (even after the Code, c. 1121, § 1): "But insofar as neither the interpellation nor a dispensation from it preceded, the first matrimony will indeed stand in the way of the second, but the Ordinary must suspend judgment and remit the case with all its circumstances to the Holy See, which will indicate to the Ordinary himself what is to be done."

c) No one can dispense from making this interpellation by his own authority except the Supreme Pontiff,³⁰⁴ who has already done this several times, for example, St. Pius V by the Decree Romani Pontificis of August 2, 1571; Gregory XIII by the Letters Quoniam saepe contigit of January 25, 1583; Benedict XIV by the Letters In suprema of January 16, 1745.

Among the faculties which are customarily granted to apostolic vicars, it is read: "Of dispensing from the interpellation of spouses left in unbelief, provided that, after all diligences have first been employed, even through public newspapers, to discover the place where the unbelieving spouse dwells, and these have come to nothing, it is established at least summarily and extrajudicially that the said absent spouse cannot lawfully be admonished, or, having been admonished, did not signify his will within the time fixed in the admonition."³⁰⁵

²⁹⁷ Code of Canon Law, c. 1121, § 1.

²⁹⁸ Holy Office, July 4, 1855 (Collect. de Prop. Fide, n. 1113).

²⁹⁹ Instruction of the Holy Office, September 16, 1824, to the Archbishop of Quebec; Code of Canon Law, c. 1122.

³⁰⁰ De imped. et dispens. matrim., n. 487.

³⁰¹ Lehrb. des kirchl. Eherechtes, 604.

³⁰² Ius can., V, n. 632.

³⁰³ The Holy Office said the same on September 16, 1824, dub. 3 (Collect. de Prop. Fide, n. 784).

³⁰⁴ Code of Canon Law, c. 1121, § 2.

³⁰⁵ Formula III of the Congregation for the Propagation of the Faith. Indeed, this faculty now seems to have been granted by common law, namely, by the Code of Canon Law, c. 1125, to all Ordinaries under the same circumstances and conditions.

674. It is said fourth: the first matrimony is not dissolved through baptism, but when the baptized party validly enters a new matrimony.³⁰⁶

For Innocent III says: "Through baptism marriages are not dissolved, but crimes are forgiven."³⁰⁷ Consequently, baptism is indeed the foundation and beginning of the Pauline privilege, but the completed effect is had through the subsequent matrimony of the baptized party.

Note. 1. The privilege of St. Paul is not lost even if the baptized party, after baptism, renewed marital consent or used matrimony with the unbelieving party.³⁰⁸ The Pauline privilege ceases, however, if the unbelieving party also receives baptism before the new matrimony of the baptized party.

2. "In a doubtful matter the privilege of faith enjoys the favor of law." Thus the Code of Canon Law, c. 1127. Therefore, if a doubt occurs whether in some case a matrimony can be dissolved by the Pauline privilege, for example, the matrimony of a Protestant with a Jew, the presumption stands not for the validity but for the dissolution of the matrimony.

³⁰⁶ Code of Canon Law, c. 1126.

³⁰⁷ C. 8, X 4, 19; cf. Code of Canon Law, c. 1126.

³⁰⁸ Code of Canon Law, c. 1124.

675. The following practical cases are easily resolved from the things said thus far.

1. The baptized party chooses to lead a celibate life; but the unbelieving party contracts a new matrimony. This matrimony is null, because the first matrimony has not yet been dissolved and the privilege was granted for the baptized party, not for the unbelieving party;³⁰⁹ for it is a favor of the faith.

2. After conversion, the baptized party lives maritally with the unbelieving party. After several years have elapsed, the unbelieving party takes other women as wives and does not will to dismiss them. The baptized party can depart and enter new nuptials, although perhaps unable to take along and educate the offspring begotten in the matrimony. The reason is that the Pauline privilege has not been extinguished.³¹⁰

3. An unbelieving husband casts his baptized wife out of the home, contracts a new matrimony, and generates offspring. After some time he also is converted to the faith and is baptized. He is bound to dismiss the second wife unless the first wife who was cast out has in the meantime contracted another valid matrimony. The reason is that not the unbelieving but the faithful party became free, and the second matrimony of the unbelieving party is invalid. Certainly in practice it must be seen whether the first matrimony was certainly valid.

4. Two unbelievers, after contracting a legitimate matrimony and then dissolving it, pass to other nuptials. Each is afterward converted to the faith. Neither can remain in the second matrimony, at least if they received baptism together at nearly the same time. The reason is that the first matrimony was valid and legitimate and could not be dissolved by their own will and authority, nor was it in reality dissolved by the second nuptials, since these were not legitimate.

5. The baptized party, after the prescribed interpellations have been made, enters a new matrimony. Now the unbelieving party also can enter a new matrimony. The reason is that, although the privilege was given in favor of the baptized party, nevertheless it indirectly also redounds to the favor of the unbelieving party; and because the first matrimony has been duly dissolved by the baptized party, the unbelieving party also becomes free. Thus holds the common opinion.

6. One unbelieving spouse commits adultery, and for this reason is cast out by the other party; after some years that spouse is baptized, and asks the other party whether he or she now wills to cohabit peaceably, but suffers a refusal. That spouse can enter new nuptials.³¹¹ The reason is that the adultery committed is washed away by baptism, and the unbelieving party unreasonably repudiates the baptized party.

7. One unbelieving spouse is baptized, cohabits peaceably for some time with the unbelieving party, but afterward commits adultery and for this reason is cast out by the unbelieving party. Nevertheless, the baptized party cannot enter new nuptials, at least by force of the Pauline privilege. The reason is that the unbelieving party justly cast out the baptized party as an adulterer, nor is this crime of adultery destroyed through a subsequent baptism, since it was perpetrated after conversion.³¹²

8. The unbelieving party indeed consents to cohabit without insult to the Creator, but does not permit the offspring born or to be born to be instructed in the Christian religion. The baptized party can pass to other nuptials with a Catholic person; for the refusal of the education of the offspring in the Catholic religion is equivalent to an insult to the Creator.³¹³

9. An unbelieving woman who successively has several husbands is baptized. Her first legitimate husband no longer wills to cohabit with her; but the last husband indeed consents to cohabit peaceably, yet does not will to be converted. The woman must separate herself from the last man; or, if this is very hard, she must seek a dispensation over the impediment of disparity of cult in order to contract a true matrimony.³¹⁴

³⁰⁹ Cf. Sacred Congregation of the Council, March 29, 1727 (Gasparri, loc. cit., n. 1086).

³¹⁰ Cf. Holy Office, August 5, 1759, and July 11, 1886, ad 4; Code of Canon Law, c. 1124.

³¹¹ Thus the Sacred Congregation for the Propagation of the Faith, January 30, 1807 (Collect. de Prop. Fide, n. 690).

³¹² Thus the Sacred Congregation for the Propagation of the Faith, January 30, 1807 (ibid.). Cf. Holy Office, July 11, 1866 (ibid., n. 1295); Code of Canon Law, c. 1123.

³¹³ Thus the Holy Office, December 14, 1848 (ibid., n. 1036).

³¹⁴ Collect. de Prop. Fide, n. 1048.

676. Scholion. On dispensation over the bond of a matrimony which was consummated in unbelief. Authors ask here whether the Pope can dispense in the bond of a consummated matrimony of unbelievers if either one or both spouses have been baptized. In this matter certain things are certain, and certain things are not placed beyond every doubt:

1. It is certain that the Supreme Pontiff possesses no authority over marriages of this kind if neither spouse has received baptism. For the Church does not have jurisdiction over the non-baptized.

2. It is certain that the Supreme Pontiff is unable to dissolve the bond of a legitimate matrimony which, through the baptism of both spouses, was made ratified and, through intercourse following after the baptism of both, was also made consummated. The reason is that such a matrimony has become a consummated matrimony of Christians. Now the Pope cannot dissolve the bond of a consummated matrimony of Christians, as was proved above.

3. It is certain that the Supreme Pontiff can dissolve the bond of such a legitimate matrimony if either spouse has been baptized and the matrimony was never consummated, that is, neither before nor after baptism. For the Pope can dissolve the bond of a ratified and non-consummated matrimony of Christians, as was proved above. Therefore it is more certain that he can dissolve the bond of some non-consummated matrimony in which only one party is Christian and which more probably is not a sacrament.

4. It is more probable that the Supreme Pontiff can dissolve the bond of a legitimate matrimony which was consummated after the baptism of either spouse. Thus holds the more common opinion among modern authors.³¹⁵ The reason for this opinion is twofold: one intrinsic, the other extrinsic. The intrinsic reason is that only the bond of a ratified and consummated Christian matrimony is indissoluble. But such a matrimony is not ratified and consummated (unless carnal intercourse took place after the baptism of both spouses). The extrinsic reason, however, is that the Supreme Pontiffs several times dissolved the bond of such marriages in which the conditions of the Pauline privilege were altogether lacking.

Thus, for example, St. Pius V³¹⁶ permitted, "by his own motion and from certain knowledge and the fullness of apostolic power," that unbelieving Indians having several wives, after receiving baptism, could live in matrimony with whichever of those wives was baptized with them. Now here no mention is made of the departure of the unbelieving party, which nevertheless is a condition without which the Pauline privilege cannot be applied.

Gregory XIII,³¹⁷ attending to the fact that "marriages contracted between unbelievers are indeed judged true, yet not so ratified that, when necessity urges, they cannot be dissolved," granted missionaries the faculty of dispensing so that any unbelieving spouse, after receiving baptism, "while the unbelieving spouse survives and without that spouse's consent being required or a response being awaited, may contract marriages with any faithful person, even of another rite, and solemnize them in the face of the Church, and, after they have subsequently been consummated by carnal intercourse, may lawfully remain in them as long as he lives, provided that it is established, even summarily and extrajudicially, that the absent spouse, as stated above, cannot lawfully be admonished, or, having been admonished, did not signify his will within the time fixed in the same admonition. And we decree that these marriages, even if it should afterward become known that the prior unbelieving spouses, being justly impeded, could not declare their will and had even been converted to the faith at the time the second matrimony was contracted, nevertheless ought never to be rescinded, but will be valid and firm, and the offspring to be received therefrom legitimate."

It seems clearer than light that Gregory XIII here proceeded beyond the limits of the Pauline privilege, since he dissolves marriages contracted in unbelief even if perhaps both spouses had already been baptized at the time of the new matrimony.

According to the current practice of the Roman Curia, missionaries are granted the faculty "of dispensing with pagans and unbelievers having several wives, so that after conversion and baptism they can retain whichever [wife] among them they prefer, if she also becomes faithful, unless the first should will to be converted."³¹⁸ This faculty cannot be explained from the Pauline privilege, because the departure of the unbelieving party, which St. Paul requires as prior before he permits a new matrimony to be contracted, is altogether lacking. The same seems to follow from several particular decisions of the Holy Office,³¹⁹ and now it has been established generally by the Code of Canon Law, c. 1125, for all regions, if the same circumstances are present.

³¹⁵ This opinion is held by Gasparri, De matrimonio, II, n. 1108; Billot, De eccl. sacr., II, thesis 44; Scherer, Kirchenr., II, n. 590; Fahrner, Gesch. der Ehescheidung im kan. Recht, 281; Vlaming, Prael. de iure matrim., 3rd ed., II, n. 604; Wernz-Vidal, Ius can., V, n. 636; and among the ancients, St. Antoninus, S. theol., P. 3, tit. 1, c. 6; Navarrus, Cons. et Resp., III, tit. 33, cons. 2; Thomas Sanchez, De matrim. sacr., l. 2, disp. 17; Laymann, Theol. mor., l. 5, tr. 10, part 2, c. 3; the Salamancans, Cursus Theol. mor., tr. 9, c. 4, p. 2, n. 34; Pirhing, in tit. 1, sect. 5; and others. Indeed Lehmkuhl, Theol. mor., II, n. 929, confidently says: "Every reasonable doubt concerning that power seems to be removed, so that it can be said with certainty: The Roman Pontiff, by reason of his supreme power, can for a grave reason dissolve the bond of a matrimony which was indeed consummated in unbelief, but was not consummated after one or both spouses were baptized." Nevertheless, there are some who reject this opinion, for example, Benedict XIV, De syn. dioec., l. 6, c. 4, n. 3, and l. 13, c. 21, n. 4; De Angelis, Prael., l. 4, tit. 19; Feije, De imped. et dispens. matrim., n. 486; Leitner, Lehrb. des kirchl. Eherechtes, 610. The reason which Benedict XIV (Prosper Lambertini) brings forward for his opinion is this: a consummated matrimony signifies the union of Christ with the Church, while a ratified matrimony indicates the union of Christ with a sanctified soul. But just as the union of Christ with the Church is indissoluble, while the union with the soul is dissoluble, so every consummated matrimony is indissoluble, while a ratified matrimony is dissoluble. It is easily understood that this argument is weak.

³¹⁶ Constitution Romani Pontifices, August 2, 1571.

³¹⁷ Constitution Populis ac nationibus, January 25, 1585.

³¹⁸ Thus in Formula I, n. 11.

³¹⁹ Cf. Gasparri, loc. cit., II, n. 1084 ff., and the case narrated by Benedict XIV (Quaest. can., Florentine cause, 1726), which was afterward decided by the Sacred Congregation against the opinion of Prosper Lambertini, then secretary of that Congregation. Cf. Lehmkuhl, Theol. mor., II, n. 931.

7. • "The essential properties of matrimony are unity and indissolubility, which in Christian matrimony obtain a peculiar firmness by reason of the sacrament" (can. 1013, § 2).

8. • I. The unity of matrimony consists in this, that one man is joined to one woman. It excludes both polyandry, i.e., the simultaneous plurality of husbands, and polygamy, namely, the simultaneous plurality of wives, but by no means second or further marriages after the death of the spouse.

II. Simultaneous polyandry is plainly condemned by the natural law, since it is directly contrary to the primary end of matrimony, namely, the generation and education of offspring. For experience teaches that women habitually known by several men are rarely fruitful, and moreover polyandry, by rendering paternity uncertain, would deprive the offspring of the care and assistance of the father.

III. Polygamy is not thus opposed to the natural law, since one man suffices for making several women fruitful and for caring for the education of the offspring received from them. And in fact God granted the patriarchs permission to use polygamy. Nevertheless a plurality of wives does not sufficiently provide for the good of peace among spouses, nor does it preserve the equal right of man and woman in the asking of the conjugal debt. And therefore theologians say that polygamy is opposed to the secondary natural law, whose office is to prescribe those things which are necessary not for simply being, but for being well and better.

Christ restored the matrimonial institution to its first purity and unity, and thereafter it is licit for no man, even a gentile, to have several wives at the same time; and, if such marriages are attempted, they are plainly invalid.

9. • Notion.

I) a) Indissolubility is the property of matrimony by which the matrimonial bond is not dissolved, except by the death of either spouse.

b) That property belongs to every matrimony, both natural and Christian, with a certain qualification, however, as we shall say at once.

c) The Mosaic law admitted a bill of repudiation, by which the matrimonial bond was dissolved and power was given to the repudiated wife of entering a new marriage. But here also the Savior restored for all men the first indissolubility of matrimony.

10. • II) In what sense matrimony is indissoluble.

a) "Valid matrimony that is ratified and consummated can be dissolved by no human power and by no cause, except death" (can. 1118).

This doctrine is certain by faith, since the Council of Trent defined thus: "If anyone says that the Church errs when she has taught and teaches, according to evangelical and apostolic doctrine (Mark 10; 1 Cor. 7), that because of adultery by one of the spouses the bond of matrimony cannot be dissolved, and that neither party, nor even the innocent party who gave no cause for the adultery, can, while the other spouse is living, contract another matrimony, and that he commits adultery who, after dismissing the adulteress, marries another, and she who, after dismissing the adulterer, marries another: let him be anathema."¹

¹ Sess. XXIV, De sacramento matrimonii, can. 7. Denzinger-Bannwart, n. 977.

This alone was the reason why the Fathers abstained from directly defining as a dogma of faith that doctrine concerning the absolute indissolubility of matrimony ratified and consummated, lest they offend the Greek schismatics, who follow the contrary practice and admit the dissolution of the bond because of adultery by one of the spouses.

11. • b) "Matrimony not consummated between baptized persons or between a baptized party and a non-baptized party is dissolved both by the law itself through solemn religious profession, and by dispensation granted by the Apostolic See for a just cause, at the request of both parties or of either party, even if the other is unwilling" (can. 1119).

Therefore matrimony ratified and not consummated can be dissolved in two ways:

1°) By the law itself through solemn religious profession of either spouse. For thus speaks the Council of Trent: "If anyone says that matrimony ratified but not consummated is not dissolved by the solemn religious profession of either spouse: let him be anathema."²

² Ibid., can. 6. Denz.-Bannwart, n. 976.

Solemn profession has place only in Orders strictly so called, but not in religious Congregations. In France, Belgium, and Holland very few monasteries of women pronounce solemn vows.

2°) Through dispensation granted by the Supreme Pontiff. The practice of the Church from the time of Martin V has rendered that right of the Pontiff so certain that it cannot be denied without the note of temerity.

12. • c) "Legitimate matrimony between non-baptized persons, although consummated, is dissolved in favor of the faith by the Pauline privilege" (can. 1120, § 1).

1. The Pauline privilege is so called because it is drawn from the words of the Apostle, 1 Cor. 7:12-15: "For to the rest I speak, not the Lord: If any brother has an unbelieving wife, and she consents to dwell with him, let him not put her away; and if any woman has an unbelieving husband, and he consents to dwell with her, let her not put away her husband.... But if the unbeliever departs, let him depart; for the brother or sister is not subject to servitude in such things; but God has called us in peace."

2. After Innocent III, who first gave the authentic interpretation of the words of the Apostle, the Church understands this privilege thus: if one of the spouses is converted to the faith and receives baptism, while the other perseveres in his unbelief, the converted party has the right of entering a new matrimony with one of the faithful, provided that there are grave reasons for departure indicated by law, and that, in addition, the due interrogation of the unbelieving party by the faithful party has preceded.

13. • 3. Concerning this privilege the following things are to be carefully noted:

1°) "It does not obtain in matrimony entered between a baptized party and a non-baptized party with dispensation from the impediment of disparity of cult" (can. 1120, § 2).

2°) A threefold case gives place to entering new nuptials:

a) if the unbelieving party departs, even inculpably.

b) if he refuses to cohabit peacefully with the converted party.

c) if he does not consent to cohabit except with dishonor to the Creator, e.g., by retaining concubines, by tempting the spouse to grave sins, etc.

3°) There is no place for the privilege if the converted party "after baptism himself gave the non-baptized party a just cause for departing" (can. 1123).

4°) "§ 1. Before the converted and baptized spouse validly contracts a new matrimony, he must... interrogate the non-baptized party:

1. whether she too wishes to be converted and receive baptism;

2. whether at least she wishes to cohabit peacefully with him without dishonor to the Creator.

§ 2. These interrogations must always be made, unless the Apostolic See has declared otherwise" (can. 1121).

5°) "§ 1. The interrogations are regularly to be made at least in summary and extrajudicial form, by the authority of the Ordinary of the converted spouse; by which Ordinary there are also to be granted to the unbelieving spouse, if indeed she has asked for them, delays for deliberation, with this warning, however, that if the delays pass uselessly, the response is presumed negative.

§ 2. Interrogations made even privately by the converted party himself are valid, indeed are licit, if the form prescribed above cannot be observed; nevertheless in this case, for the external forum, they must be established by at least two witnesses or by another legitimate mode of proof" (can. 1122).

6°) The aforesaid interrogation is indeed altogether necessary, except in the case of a dispensation granted by the Roman Pontiff alone or by his delegate. But it is not altogether established that a matrimony celebrated without the due interrogation or its dispensation is null, if otherwise there is proof of the true departure of the unbelieving party.³

³ Dom. Prummer, O.P., Manuale Theologiae Moralis, t. III, second and third edition, p. 469.

7°) "The faithful spouse, although after receiving baptism he has again lived matrimonially with the unbelieving party, nevertheless does not lose the right of celebrating new nuptials with a Catholic person, and therefore can use this right, if the unbelieving spouse, having changed will, afterward departs without just cause, or no longer cohabits peacefully without dishonor to the Creator" (can. 1124).

8°) "The bond of the former marriage, contracted in unbelief, is dissolved only then when the faithful party has actually entered validly into new nuptials" (can. 1126).

9°) "In a doubtful matter the privilege of the faith enjoys the favor of law" (can. 1127).

10°) Against a few, it seems certain that the Pauline privilege also benefits those who, having been converted from unbelief, are validly baptized in a non-Catholic sect.

14. • d) Whether the Supreme Pontiff is able to dispense concerning matrimony contracted in unbelief when one or both parties are converted to the faith?

809. There are two essential properties of matrimony: unity and indissolubility (can. 1013, § 2). - They are properties, because they follow naturally from the nature of marriage, and indeed essential properties, because they necessarily belong to perfect matrimony as it exists in the evangelical law; nevertheless they do not pertain to the very essence of the thing in such a way that without them any character whatever of marriage could no longer be conceived, which character is placed in the stable and permanent union of man and woman in order to the procreation and education of offspring: for a permanent union can exist, although it be toward several or can sometimes be dissolved.

S. Th., Suppl. q. 65, 66 and 63; C. Gent. IV, 124.

810. State of the question. - The unity of matrimony consists in the conjugal union of one man to one woman; whence it is called monogamy. Polygamy is opposed to it, both improperly so called or successive, when one man successively takes several wives, or conversely; and properly so called and simultaneous, when it happens at the same time. This therefore is twofold: polyandry, or the marital conjunction of one wife with several men at the same time; and polygyny, or the conjunction of one man at the same time with several wives.

A. Simultaneous polygyny, before Christ, flourished among most peoples, and now still exists among certain unbelievers, as among Mohammedans, especially the richer, who can support several women. Polyandry existed only rarely or exceptionally among certain tribes, especially where there are fewer women than men. Sometimes, when a woman had married the firstborn, his younger brothers approached her successively according to certain predefined rules or customs; sometimes two or three men married one wife or even lived together with her: thus on account of poverty, or for security while, being absent successively, they returned to the same woman. Yet these cases were exceptional, so that among those tribes monogamy for the most part prevailed.¹

¹ Cf. Westermarck, op. cit., c. 20-22.

But in the Christian law, only monogamy is legitimate. Nevertheless Luther taught that polygyny, even under the new law, is licit, and permitted Philip of Hesse to have another wife. The Anabaptists propagated the same error, and for a long time the Mormons also. Conversely, Calvin contended that polygamy even under the Old Law had been illicit, and he held the ancient patriarchs who had married several wives at the same time guilty of adultery. To refute this, certain Catholics spoke more benignly, saying that polygyny is not opposed to natural law, nor before the evangelical law was it prohibited by divine law.

B. Successive polygamy, with the dissolution of the preceding marriage posited, is not against the natural or divine law.

Nevertheless the Montanists, to whom Tertullian and the Novatians adhered, condemned second and further nuptials as illicit by divine law; several Fathers held them as hateful and spoke more harshly about them. And among the Greeks, from the tenth century, by ecclesiastical law, fourth nuptials are held invalid.

811. Thesis I. Simultaneous polygamy is repugnant to natural law, and indeed in such a way that polyandry is opposed to the primary precepts of the natural law, but polygyny to the secondary precepts.

It is declared by St. Thomas, q. 65, a. 1:

"Everything which renders an action unfitting to the end which nature intends from some work is said to be against the law of nature. But an action can be unfitting to an end, either principal or secondary; and... this... in two ways. In one way from something which wholly impedes the end... In another way from something which makes difficult, or less fitting, arrival at the principal or secondary end... If therefore an action is unfitting to the end, as though wholly prohibiting the principal end, it is directly prohibited by the law of nature by the first precepts of the law of nature, which are in practical matters as the common conceptions of the mind in speculative matters. But if it is incompetent to the secondary end in whatever way, or even to the principal end as making arrival at it difficult or less suitable, it is prohibited not indeed by the first precepts of the law of nature, but by the second, which are derived from the first, just as in speculative matters conclusions have their faith from principles known through themselves..."

It is proved. A. First part: Polyandry is repugnant to the first precepts of the natural law. For it is opposed: a) to the procreation of offspring; although it does not render this absolutely impossible, nevertheless it impedes it much, since the fecundity of the woman from commerce with several men is greatly diminished, so that she even for the most part becomes sterile, as is clear from experience in prostitutes; b) to the good education of offspring, which it impedes, because it renders the father uncertain, and therefore his obligation of educating the children uncertain; c) moreover to the subjection by which it is necessary that the woman be naturally subject to the man.

Whence St. Thomas: "For one man to have several wives is not against the first precepts of the law of nature... but for one wife to have several husbands is against the first precepts of the law of nature, because through this, as to one thing, the good of offspring, which is the principal end of matrimony, is wholly taken away, and, as to another thing, impeded. For in the good of offspring not only procreation is understood, but also education. For the procreation itself of offspring, although it is not wholly taken away, because it can happen after a first impregnation that the woman be again impregnated, ... nevertheless it is much impeded... But education is wholly taken away, because from this, that one woman would have several husbands, there would follow uncertainty of the offspring with respect to the father, whose care is necessary in educating. And therefore by no law or custom has it been permitted for one woman to marry several men, as conversely" (ad 8).

Polyandry is also repugnant to the secondary precepts, as will be clear from the other part.

B. Second part: Polygyny is repugnant not indeed to the first, but to the secondary precepts of the law of nature.

1° It is not repugnant to the first precepts, because it does not impede the primary end of matrimony, since one man suffices for fecundating several women and for educating the children born therefrom.

2° It is repugnant to the secondary precepts:

a) Because it greatly impedes the secondary end: mutual consolation and assistance and love, since one man generally cannot satisfy several women according to desire, whence peace is easily disturbed and quarrels arise: both if he loves all equally, on account of jealousy by which each one strives to draw the affection of the man to herself; and if he loves unequally, on account of envy and enmity stirred up in them; and because the communication of several in the same beloved thing is accustomed to cause jealousy and quarrels.

Indeed: 1. Perfect conjugal love tends toward total donation; but total donation is only between two, otherwise there will not be true equality of what is given and accepted: for since the wife totally hands over her body and her whole individual life, natural equity demands that the man also totally hand over himself and his own.

2. Conjugal love is of the greatest friendship. But intimate and perfect friendship intends exclusive love.

3. Friendship, just as also the dignity of the wife, demands that she be of equal condition with the man; but plurality of wives reduces them to an inferior condition.

b) Because it impedes also the other secondary end: the calming of concupiscence, for plurality of wives is rather an incitement of concupiscence for the man, and an insufficient remedy for the women, since one cannot satisfy several wives.

c) Because it renders the attainment of the principal end difficult and harms the education of offspring, since it disturbs peace, renders cohabitation arduous, and impedes the complete union of souls which is suitable for the perfect education of children; nor will it rarely have to be feared lest the husband, being chiefly intent on the children of the preferred wife, neglect the others.

It is confirmed from this, that the number of men and women is approximately equal; whence nature itself indicates monogamy.

Let St. Thomas be heard, in the corpus:

"Matrimony has for its principal end the procreation and education of offspring... and thus the good of matrimony is assigned as offspring. But for its secondary end... in men alone it has the communication of works which are necessary in life... and according to this they owe fidelity to one another, which is one of the goods of matrimony. It has further another end (from positive ordination)... namely, the signification of Christ and the Church, and thus the good of matrimony is called sacrament... Therefore plurality of wives neither wholly takes away, nor in any way impedes, the first end of matrimony, since one man suffices for fecundating several wives and educating the children born from them. But the secondary end, although it does not wholly take it away, nevertheless it greatly impedes, because peace cannot easily exist in a family where several wives are joined to one man, since one man cannot suffice to satisfy several wives according to desire, and also because the communication of several in one office causes strife, as potters quarrel with one another, and similarly several wives of one man. But the third end it wholly takes away, because as Christ is one, so also the Church is one. And therefore it is clear from what has been said that plurality of wives in one way is against the law of nature, and in another way not."

"For matrimony does not require that the man render the debt to the wife asking at any time whatever, as to that for which matrimony is principally instituted, namely, for the good of offspring, but as much as suffices for impregnation. But matrimony does require this, insofar as it was instituted as a remedy (which is its secondary end), that the debt be rendered at any time whatever to one asking. And thus it is clear that one receiving several wives does not obligate himself to the impossible, considered as to the principal end of matrimony, and therefore plurality of wives is not against the first precepts of the law of nature" (ad 7).

But how plurality of wives is opposed to the secondary precepts is more declared in Summa contra Gentiles IV, 124:

"Friendship consists in a certain equality. Therefore it is not lawful for the woman to have several husbands, because this is against the certitude of offspring; but it would be lawful for the man to have several wives if the friendship of the wife to the husband were not liberal, but as it were servile; and this is also proved by experience: because among men having several wives, the wives are held as handmaids.

"Besides, intense friendship is not had toward many... If therefore the wife has only one husband, but the husband has several wives, friendship will not be equal on each side. Therefore it will not be a liberal friendship, but in some way servile.

"Further, as has been said, matrimony among men must be ordered according to that which is suitable to good morals. But it is against good morals that one have several wives, because from this follows discord in the domestic family, as is clear by experience. Therefore it is not fitting that one man have several wives."

812. Thesis II. By divine law the unity of matrimony is established, and although in the Old Testament polygyny was conceded for a certain time, nevertheless in the evangelical law unity in every way is urged, just as in the state of innocence. - It is of faith from the Council of Trent, sess. 24, can. 2, that in Christian matrimony unity is required from divine law; the rest is certain.

It is proved: 1° From the Scriptures, Mt. XIX, 3 sq.: Have you not read that he who made man made them male and female? And he said: For this cause a man shall leave his father and mother and shall cleave to his wife, and they shall be two in one flesh. Therefore now they are not two, but one flesh. What therefore God has joined, let not man separate.

Here three things must be noted: a) that the unity of matrimony pertains to the primitive institution, which is from God creating man; b) that it is required from the nature of the thing, namely, that two only be in one flesh; whence Innocent III: "He did not say three or more, but two; nor did he say: he shall cleave to wives, but to his wife"; c) that Christ from the cited words concludes to the law of unity to be observed in matrimony: Therefore now they are not two, but one flesh, and to its firmness, so that thereafter the unity which is established by God cannot be dissolved by man: What therefore God has joined, let not man separate. Thus, the Council of Trent, sess. 24, notes, he taught unity more openly and recalled matrimony to its primitive institution.

From these things he then concludes, XIX, 9 (Mk. X, 11; Lk. XVI, 18): I say to you that whoever shall dismiss his wife and shall marry another commits adultery; therefore a fortiori, he who, while retaining the former, marries another, commits adultery. For he who marries another commits adultery for this reason, that the former does not cease to be his wife; but when she has not been dismissed, a fortiori she remains his wife; therefore union with another is true adultery.

2° From the perpetual doctrine and practice of the Church, so constant that no testimony can be produced on the contrary, that there is no Christian people which has not reproved polygamy, nor has an attempt been made by the powerful of marrying another wife without the Pontiffs protesting.

The doctrine is clear from Athenagoras, Leg. pro Chr. 33; Theophilus of Antioch, Ad Autol. III, 5; Minucius Felix, Oct. 31; Clement of Alexandria, Strom. III, 12; Ambrose, De Abraham I, 7; Nicholas I, resp. ad Bulg. 51; Innocent III, ad ep. Tiber.; the Second Council of Lyons in the profession of faith; the Council of Trent, sess. 24; Instr. S. O., March 28, 1860, and June 20, 1866.

3° From theological reason: Christian matrimony, according to the Apostle to the Ephesians V, 32, is a representative sign of the union of Christ and the Church. But it would not represent this union unless it were the union of one man to one woman, just as the union of Christ is to one Church. Therefore.

In the Old Law, nevertheless, plurality of wives was conceded, as is clear from the examples of the saints, who would not have married several wives unless they had judged this licit; nor are they reproved in this by the Scriptures; indeed, these suppose that liceity, for example, Deut. XXI, 15; XXV, 5; Gen. XXI, 12, and the common opinion of the Fathers understood it thus. Nor does it stand in the way that secondary wives are for the most part called concubines: they are not called this because they are illegitimate, but because they were admitted only for lying together, not for community of goods, nor their children to the inheritance of the father.

When the concession was made cannot be accurately determined; several think a little after the flood, when, on account of the small number of men, the people of God had to be multiplied. The concession was made directly to the Hebrews through internal inspiration; only indirectly to others. It was not mere toleration, but positive permission, as is also asserted in the documents; indeed Pius XI says: the primeval law God relaxed for a time, but the evangelical law abrogated every dispensation.

Nor does the fact that that law is natural stand in the way. For as we explained (I, n. 258-259), the natural law, as to the most universal principles or as to those things which are essentially good or evil, cannot at all be changed or abrogated; as to those things which are only regularly good or evil, in the primary precepts it cannot be abrogated by God except at most exceptionally in a particular case, but in the secondary precepts for a time even commonly and for all on account of a greater good. Whence St. Thomas, q. 65, a. 2:

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

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."

We now approach the more inward questions which are concerned with the properties of marriage. These are unity and indissolubility. We shall pursue one by one the matters which pertain to each.

Simultaneous polyandry is unlawful and invalid by the law of nature. Successive polyandry and polygamy is lawful and of itself honorable.

I. Polyandry is the conjunction of one woman with several men. It is simultaneous or successive. We teach that simultaneous polyandry is unlawful and invalid by natural law itself (concerning successive polyandry we shall speak on the following page). For that conjunction which positively excludes all the ends of marriage cannot be marriage; but such is simultaneous polyandry. Indeed, the first end is the procreation and education of offspring, and thus the good of marriage is offspring; the other end is the restraining of the concupiscence of each spouse, and thus the other good of marriage is the remedy of concupiscence; likewise the end is domestic society, which can be understood under the good of marriage which is fidelity; and besides, from divine institution there is the signification of the union of Christ with the Church; and thus, with the remedy of concupiscence included, the fourth good of marriage is sacrament (cf. Th. II). But the first end is excluded. And first indeed, although not altogether and always, insofar as a woman mingled with several men and using them in turn is, by the physical law of nature, generally infertile: "Several women can be made fruitful by one man; but one woman cannot by several: this is the force of the principles," says Augustine, de Bono coniugali, n. 20. Therefore the power over her body which a woman would hand over to several men, insofar as she hands it over to several, would of itself tend to this, that the woman should become infertile, and that the men should have a right to an act of itself impeditory of generation; but this directly conflicts with that power in whose mutual handing over and acceptance marriage is contained, for it is a power for an act whose primary end is the procreation of offspring. Then, moreover, from that power over her body handed over by the woman to several men, it comes about that the men have a right to that by which the father of the offspring is rendered uncertain, and by which therefore the offspring cannot be educated by the father. They have a right, I say, whatever may be the case about use; for marriage consists in a right. But that is of itself altogether repugnant to the end of marriage, which is the education of offspring. And so through this union the primary end of the use of marriage is excluded, and indeed positively, since the conjunction itself of itself is repugnant to that end.

Nor can a woman subject to several men satisfy all when they ask, so as to avoid their incontinence; nor can she be subject to several men enjoying equal right and independent of one another, and render the fidelity due: therefore this other good, which is the remedy of concupiscence, is at least very greatly impeded. But there can be no peace in a family in which there are several heads; for the woman, who is subject, cannot recall the men to unity. "For by a hidden law of nature those things which rule love singularity. But things subject are subject not only singly to single things, but, if natural or social reason admits it, even several to one, not without fittingness," Augustine, l. c. Wherefore this other end also is wholly taken away. But the union of Christ with the Church, which is of one with one, that is, of one head fitting one body to itself, so that it is one because the head is one, can in no way be represented by the union of several with one, that is, of several heads with one body. But that is repugnant to positive divine law. Therefore there is no marriage of this sort.

Therefore this conjunction is so contrary to the law of nature, and also to divine law, that not only is the marriage unlawful, but it is also invalid by that same law.

II. But what we say concerning invalidation must be explained a little; for the natural law seems indeed to have the force of prohibiting; yet it does not immediately appear how it is able also to invalidate. Certainly the law of nature prohibits homicide, and nevertheless a prohibited action, if it is done, is not invalid; moreover, as Suarez objects to himself (de Legibus l. 2, c. 12, n. 2), the efficacy of the law of nature is the same in all things, and it does not have special words by which it prohibits, so that on account of the diversity of those words we should say that sometimes it invalidates and not always, as can be said in positive law. Nevertheless, that there are certain things which the law of nature not only prohibits but also invalidates is easily agreed among all doctors, and this has the sense of the Church; for in this way, for example, a marriage between mother and son is judged null by the law of nature, and a contract entered upon through grave fraud is null, etc. It remains, therefore, that it be seen whether there are rules, and what they are, according to which it must be judged that something is not only prohibited by the natural law, but also invalidated.

And first it must be presupposed that the invalidation of an act has place not in the physical order but in the moral order. For the invalidation of an act comes back to this, that although the act (whether prohibited or otherwise) is done, nevertheless nothing is done, that is, it does not obtain its effect, just as if it had not been done; this cannot happen in the physical order, as is clear in the cited example of homicide, but it can have place in the moral order, when rights and obligations are at issue. For the effect which would be either of an acquired right or of an obligation undertaken, as in contracts, when an invalidating law intervenes, is null, although the interior and exterior action is done integrally, with the full will of acquiring the right or of binding oneself.

Now Suarez, l. c., nn. 4 seq., proposes chiefly two rules for discerning when acts are invalid by the law of nature. The former is: "when the act is prohibited by the law of nature because of a defect of power or because of the incapacity of the matter." And he gives an example in the donation of the same thing after a prior valid donation and the thing handed over; for power is lacking; and also in a contract entered upon through fraud touching the substance of the thing; for consent extorted by fraud is incapable of begetting an obligation. The other rule is: "when the act is prohibited on account of the indecency or turpitude found in its matter, and the same indecency or turpitude endures in the effect itself, or after the act has been posited." It is necessary that the same indecency persevere, and not cease or be diminished by the force of another law. He gives an example in marriage between blood-relatives in the first degree, where that natural indecency which makes such a marriage prohibited endures perpetually, if such a marriage endures.

Now opposition to the principal end of marriage is the greatest indecency and turpitude; but polyandry has such an opposition, and this same opposition endures if the marriage endures: therefore even the perseverance of this marriage is prohibited by the law of nature, which is the same as for the act to be invalidated: therefore.

You will say: by the law of nature marriage after a vow, even a simple vow, of chastity is prohibited, and its indecency remains, and yet it is not invalidated. Suarez answers in the same place, n. 6, that that vow has not taken away, but has bound, the power which a man has over his body, and that marriage contracted against it, insofar as it is an actual handing over, has a greater efficacy than a promise has, and can also have an honorable use, at least by rendering the debt; and therefore it can rightly be valid. Perhaps it is permitted to answer more simply that a vow of chastity is not properly repugnant to marriage, but to its use, and therefore there is no reason why by the law of nature marriage after a vow should be invalidated.

III. Polygamy is the conjunction of a man with several wives: one kind is simultaneous, another successive. Concerning this latter we speak first; and because the same reason holds in both, we also speak concerning successive polyandry. The question is whether to marry a second time and thereafter is lawful by divine law, so that successive unions are true nuptials by divine law and honorable of themselves. But it is necessary that they be true marriage just as the former one, if by divine law it is lawful to marry again, that is, to repeat nuptials, namely that which was previously done, which was true marriage. And so that successive polygamy and polyandry are lawful is clear from the words of Paul, 1 Cor. VII. 8: But I say to the unmarried and to widows: it is good for them if they so remain, even as I. But if they do not contain themselves, let them marry; for it is better to marry than to burn. And v. 39: A woman is bound by law so long as her husband lives; but if her husband has fallen asleep, she is freed; let her marry whom she wills, only in the Lord. It is clear, first, that the Apostle counsels widows to marry, and therefore to enter a new marriage, if they cannot contain themselves; because, namely, marriage is also a remedy of concupiscence. It is clear, secondly, in the other testimony, that the Apostle simply gives the woman whose husband has died the power of passing to second nuptials, and requires only this, that she marry in the Lord (cf. Augustine, de Adult. Coniug. c. 25). Moreover, what the Apostle counsels for an honorable end is certainly lawful by divine law; and that is likewise lawful which the Apostle grants as placed in our power, and which can be done in the Lord; but what the Apostle counsels is marriage, which cannot be among Christians unless divine law consents. Now, thirdly, the words of the Apostle are universal: I say to widows, the woman whose husband has fallen asleep, which are true both of widows for the first time and for the second time and thereafter. Therefore the following marital unions are both true nuptials and all of themselves lawful. "For who am I," says Augustine, de Bono Viduitatis, n. 15, "that I should think something must be defined which I do not see that even the Apostle defined? For he says: A woman is bound by law as long as her husband lives. He did not say: the first, or the second, or the third, or the fourth; but, as long as her husband lives; but if her husband has died, she is freed; let her marry whom she wills ... what can be added to or taken away from this sentence, so far as this matter is concerned, I do not know." But what the Apostle says concerning women belongs also to men by an equal reason; therefore successive polygamy and polyandry, both the first time and in other following instances, is certainly lawful.

Note that the first testimony of the Apostle is wrongly brought forward by Tournely (q. V. a. 1) to prove that the Church never recommended second and further nuptials. For in fact the Apostle does recommend them there, not indeed of themselves, but by reason of avoiding fornication; for this is the sense of those words: if they do not contain themselves, let them marry, for it is better to marry than to burn.

This is the doctrine of the Church. In the Profession of Faith prescribed by Innocent III to the Waldensians, you have these words: "We also believe and confess that a man with his wife can be saved, nor do we condemn second and further marriages." Eugene IV solemnly declared this in the decree for the Jacobites (Labbaeus, Tom. 18, col. 12, 19): "Since some are said to reject fourth nuptials as condemned, lest that be thought to be sin where there is none, since according to the Apostle, when the husband has died, the woman is loosed from his law and has the faculty of marrying whom she wills in the Lord, and he does not distinguish whether the first or second or third has died, we declare that not only second, but also third and fourth and further nuptials, if some canonical impediment does not stand in the way, can be contracted lawfully. Yet we say that those persons are more commendable if, abstaining further from conjugal union, they remain in chastity; because just as we judge virginity to be preferred to widowhood, so chaste widowhood is to be preferred to nuptials in praise and merit."

IV. Thus antiquity taught. And indeed, as to second nuptials simply, Epiphanius, Haer. 59, and Augustine, de Haeresibus, refer it among the heresies of Montanus and Novatian that they condemned second nuptials; but the Synod of Nicaea openly approved them. Indeed, the ecclesiastical law itself promulgated by the Apostle, which rejects digamists from sacred orders, supposes that it is lawful for Christians to enter upon second nuptials, just as Epiphanius rightly observed, n. 4, that the Novatians erred because "they judge that those things which, on account of the singular dignity of that function, have been attributed especially to the priesthood, pertain commonly to all." Therefore the doctrine of the Church in this matter is evident. Nor should the sayings of certain ancients move us, who, in order to commend the honorable character of Christians before the heathen, proclaim that which was proper to them, namely, that they were content with single nuptials, which could frequently be seen among Christians. "Everyone either remains as he was born, or in single nuptials," says Athenagoras, Legat., n. 33. And Theophilus of Antioch, L. 3: "Among Christians," he says, "monogamy is observed"; and Minucius in the Octavius: "we experience the desire of procreating either once or not at all." Cf. Cotelerius's note to c. 4, Mandate 1, book 2 of Hermas.

V. But as regards nuptials repeated more often, one may first bring forward the general sentence of Hermas, l. c., n. 4, teaching that "if the husband or wife of someone has departed (from this life, coll. n. 1), and one of those persons has married, he who marries does not sin; but if he has remained by himself, he will acquire great honor for himself before the Lord." Then Jerome, that greatest preacher of virginity, says, Epist. 30 to Pammachius: "I now proclaim with free voice that bigamy is not condemned in the Church, indeed not even trigamy, and that it is lawful to marry a fifth and sixth and beyond, in the same way as to marry a second husband. But just as these nuptials are not condemned, so neither are they proclaimed. They are consolations of misery, not praises of continence. All things are lawful, but not all things are expedient. I do not condemn bigamists, indeed not even trigamists, and, if it can be said, octogamists." So Augustine, de Bono Viduitatis, n. 5: "Concerning third and fourth and still more numerous nuptials, men are accustomed to raise a question. Whence, that I may answer briefly, I do not dare to condemn any nuptials, nor to take away from them the modesty of their number." And Epiphanius, Haer. LIX, n. 6: "For as the first wife was appointed by God, so the later one was granted to the weakness of men; but if he desires another besides, his weakness in this respect is tolerated." Fulgentius, de Fide ad Petrum, n. 43: "If it has happened to anyone first to be deprived of marriage, if he wishes to enter upon second or even third nuptials, he will have no sin from them, if he has kept them chastely." Cf. also the second Epistle of Clement to James, n. 7, and Hom. 3, n. 68.

VI. But in order that a certain disagreement which seems to have existed among the Fathers may be understood, a distinction must be made between the nuptials themselves and the affection which the one who seeks second and further nuptials bears, or is presumed to bear. Namely, he who enters second nuptials, and especially he who enters further nuptials, generally seems to pursue too much the pleasure of the flesh and to labor under an impotent lust. I say generally; for what if, after first nuptials have been contracted, the spouse should die shortly thereafter? What if no offspring has been had or none survives? Moreover that condition of the man indeed is not praiseworthy; yet nevertheless, by that very fact, it is honorable to enter nuptials, because they are a remedy of concupiscence. Therefore several Greek Fathers, considering further nuptials under that respect, that is, directing their mind to the affection of the contracting parties poured out toward lust and judging this not sufficiently congruent with Christian sanctity, repeatedly rush vehemently upon those nuptials, especially after second nuptials, so that they seem to reprove the nuptials themselves. Hence it is that Nazianzen, who in Orat. 39, in ss. Lumina, n. 18, approves second nuptials, in Orat. 37 on Matt. XIX, 1-17, n. 8, says that third nuptials are iniquitous and calls those who enter fourth nuptials swinish; then Basil, in the first Canonical Epistle to Amphilochius, can. 4, calls third nuptials constrained or moderated fornication, and in can. 80, Epist. 3, says that polygamy seems to him a sin greater than fornication. Already the author of the Apostolic Constitutions (a Greek man, l. III, c. 2) had taught that "third nuptials show intemperance, and that any marriage after third nuptials is manifest fornication and indubitable wantonness." From this it came about that in the Greek Church, which in this matter was more severe than is fitting, it subjected trigamists and indeed even bigamists themselves to penance, though those thus joined were not separated; which is an indication that those nuptials were held to have been valid and also lawful, although less honorable and therefore deserving of some compensation. Notice that those who exceeded the measure of bigamy were called polygamists by the Greeks. Cf. Basil in the cited places and Balsamon in the same place. Moreover concerning trigamists Basil says in the same place, can. 4: "By custom we have received a segregation of five years for trigamists, not from the canons, but from the usage of those who preceded." Therefore he says: "That they ought not altogether to be driven away from the Church, but to be deemed worthy of hearing (it was a grade of penitents) for two or three years, and after this to permit them indeed to stand together, but to abstain from the communion of the good, and so, after they have shown some fruit of penance, to restore them to the place of communion," no mention of separation having been made. But in canon 50, which is the last of the second canonical Epistle, the same says: "There is no law of trigamy. Wherefore according to law a third marriage is not contracted.

And indeed we consider such things as defilements of the Church; nevertheless we do not subject them to public condemnations, because they are more eligible than loose fornication." Balsamon and Zonaras think that for trigamy not to be publicly condemned is the same as not to be dissolved; the Maurist editors with Aristenus judge otherwise, for they judge it to be the same as not being placed in the place of the prostrate or penitents, by comparison with can. 1 of the same Basil. But whatever may be the case concerning this question, it is certain that trigamists were not held as fornicators by Basil in this canon. But in the third canonical Epistle, can. 80, he established something else concerning trigamists and those following: "Polygamy (namely trigamy and thenceforth) the Fathers passed over in silence, as beastly and altogether foreign to the race of men. This seems to us to be a sin greater than fornication; wherefore it is fitting that they be subjected to the canons, so that, after they have wept for a year and have been prostrate for three years, they may thus be received." Moral malice, namely, is supposed and reproved in the affection, which is judged greater than some act of fornication; but in reality there is still no certain mention of nullity and separation. Basil followed the ancient Greek canons. Indeed, in can. 1 of the Council of Laodicea, second nuptials are called legitimate; nevertheless the spouses are ordered to pray and fast for a certain time. Likewise in the Council of Ancyra, can. 19, some penance constituted for digamists is supposed. The same also is established concerning digamists and polygamists in cann. 3 and 7 of the Council of Neocaesarea. Cf. Arcudius, de Concordia, L. VII, c. 28.

VII. Yet the Greek Church easily advanced so far that in the tenth century it was wholly unwilling to tolerate fourth nuptials and forbade them under penalty of excommunication, wishing them themselves to be invalid, though not with all Greeks consenting, nor was this decree ever received as certain and immutable. Basil the Macedonian had already prohibited fourth nuptials by imperial authority as invalid by the law of God (Novel: that it is not lawful to enter fourth nuptials), abrogating the law of Justinian, who had permitted them according to his clemency. But his son Leo, surnamed the Wise, not content with these things, also prohibited third nuptials, yet for others, not for himself, who, after his third wife had died, since he lacked offspring, took a fourth. Thence in the year 906 arose a scandal and schism in the Greek Church, chiefly through the work of Nicholas Mysticus, Patriarch of Constantinople, which was finally removed by the Tome or Decree of union, first indeed issued in the Synod under the same Patriarch and under Constantine, the son of Leo, in the year 920, and afterwards, when all fully consented, published and accepted under Constantine and Basil in the year 996. That decree established that third nuptials indeed should be permitted under certain conditions; but fourth should be altogether prohibited, those contracting them being excluded from ecclesiastical communion so long as they remained in such a conjugal union, from which it is understood that the nuptials were held to have been null and invalid. Several letters of Nicholas Mysticus, Patriarch of Constantinople, report the same sense; he, having reproved the fourth nuptials of Leo, had stirred up that storm and therefore had been driven into exile; afterwards, however, he was restored, and under him the decree of union was composed. But although in his earlier epistles to the Roman Pontiffs he represents fourth nuptials as null by force of divine law, nevertheless in later letters to John X he signifies clearly enough that he judges that those nuptials can be entered upon by dispensation of the Church (read his letters edited by Angelo Mai in Migne, P. G. Tom. CXI). From this certain persons gather not ineptly that the reprobation of fourth nuptials among the Greeks rested upon custom and upon an ecclesiastical law invalidating these nuptials.

Therefore, lest you think that this persuasion concerning the nullity and malice of fourth nuptials from divine law had adhered to the Greeks, notice what John Veccus, Patriarch of Constantinople, with his Synod, professed in letters given to the Roman Pontiff John XXI in the year 1277. For after he had narrated that the union of the Greek Church with the Roman, begun under Gregory X, had at last been completed in the Council of Lyons, he immediately issued a profession of faith especially concerning the procession of the Holy Spirit and the primacy of the Roman See, and concerning the seven sacraments; among these he has this: "we receive marriage, concerning which the Roman Church herself holds that neither one man is permitted likewise to have several wives nor one woman several husbands at the same time; but when the law has been dissolved by the death of either spouse, it says that second and third and thereafter nuptials, legitimately made successively, are lawful." Comparing this profession of Veccus with the profession issued by Emperor Michael Palaeologus in the Council of Lyons ("second," he says, "and third successive nuptials the Roman Church says are lawful"), Joseph Simon Assemanus suspects that something has fallen out from this by which other nuptials besides third nuptials were affirmed to be lawful. For this is the doctrine of the Roman Church, which the emperor says he reports and follows.

VIII. Certainly the Roman Church never approved the doctrine of the Greeks in this matter, although formerly, when that decree of union was made, it tolerated that practice for the good of peace. For both the Roman Pontiff Sergius III, at the request of Leo the Wise, had approved his fourth nuptials; and Innocent IV, before the Council of Lyons, in letters to the Bishop of Tusculum, his legate in the Kingdom of Cyprus, orders the Greeks to hold this concerning nuptials: "Because, according to the Apostle, when the husband has died the woman has a free faculty, let the Greeks not in any way reprehend or condemn second and third and even further nuptials, but rather approve them among persons who otherwise can lawfully be joined to one another in marriage." Thus also Eugene IV established, as we have seen, with whom Benedict XIV agrees in the Constitution Etsi pastoralis given for the Italo-Greeks. Cf. the cited Assemanus, Bibliotheca Iuris Orientalis, Lib. I, c. 13.

Nevertheless the Church does not impart a blessing to the nuptials of bigamists, especially if even the woman alone is bigamous (c. Cappellanum 1 and c. Vir autem 3, de Secundis Nuptiis; cf. the Roman Ritual on the Sacrament of Matrimony; also canon 7 of the Synod of Neocaesarea), which blessing is customarily given within the celebration of Mass at first nuptials; because although, considered in themselves, they are a perfect sacrament, nevertheless, considered in order to the first nuptials, they have something of a defect of sacrament, because they do not have the full signification, since, the prior nuptials having been posited, there does not perfectly exist the union of one with one, as St. Thomas says, q. LXIII, c. 2; for this reason, that one is found to have adhered to several in fact, although successively; and this defect of the signification of the sacrament is the cause of irregularity.

Certain Latins, that is, Spaniards, seem to have enacted a severe law, when in the Council of Toledo, in the year 683, they prohibited the widow left by the King from marrying another, ordering her to be handed over immediately to a monastery of virgins; but this was established to avoid disturbances of the Kingdom, to which law the royal wives, when they entered marriage, subjected themselves spontaneously. The same custom seems to have prevailed among the Hebrews, as the learned judge. Cf. 3 Kings II. 13-25.

IX. From the things said it is clear that second and further nuptials are lawful by divine law and therefore are honorable; for what the Apostle grants, what he counsels, what the Church forbids to be condemned and teaches to be lawful and says to be less commendable only in comparison with a greater good, that is honorable of itself.

But the reason is evident: for when the spouse has died, the surviving spouse is of his or her own right and fit for marriage no less than before; the end of marriage likewise can be intended and obtained; and the remedy which it furnishes for concupiscence can itself alone be a reason why it is again entered. Nor should you say that this argument is called a sophism by Chrysostom (in Serm. ad iuniorem viduam de non iterando con-

iugio, n. 2). For the holy Doctor does not reprove this very thing which we infer, but that argument by which certain persons, from the fact that it is honorable to marry the first time, inferred that it is likewise honorable to do this a second, third, and thereafter, indeed that the one who uses marriage more frequently is to be praised by a stronger right, as if the state of marriage surpassed widowhood. For the rest, the same Doctor, at the beginning of this sermon, after he had said that second nuptials are lawful, but nevertheless that one marriage far surpasses repeated marriages, had admonished that in this comparison, when we say that one thing surpasses another, no one should think that this very thing which we say holds the lower place is a vice.

Simultaneous polygamy is unlawful by divine law and invalid for Christians.

I. Now concerning simultaneous polygamy. Moreover, this is the doctrine of the Council of Trent, can. 2: If anyone shall say that it is lawful for Christians to have several wives at the same time, and that this is prohibited by no divine law, let him be anathema. And among the diriment impediments of marriage is the impediment of bond. Moreover, that the law is divine, and that it effects no marriage with another woman or another spouse while the prior spouse is living, is proved first from the words of Christ, Matt. XIX. 9: Whoever shall put away his wife, except for fornication, and shall marry another, commits adultery; and he who shall marry her who has been put away commits adultery. These words of Christ Innocent III explains thus, c. Gaudemus, de Divortiis: "If therefore, once a wife has been put away, another cannot be married by right, still more while she herself is retained; through which it clearly appears that plurality in either sex, since they are not judged by unequal standards, is to be reproved with regard to marriage." This principle must be held in the matter of marriage, which Innocent here reports, namely that the man and the wife are equal, not indeed in all things (cf. Thomas, q. LXIV, a. 5; q. LXII, a. 4), but with regard to power over the body of the other and the obligation corresponding to it, according to the words of Paul: the woman does not have power over her own body, but the man; likewise the man does not have power over his own body, but the woman, 1 Cor. VII. 4. And so, that we may return to the text of Matthew, lest we anticipate questions not necessary here, we note that a multiple interpretation of those words except for fornication has been devised: that is, unless it be a fornicatory union, not a true conjugal union; or unless on account of the adultery of the wife, with which posited it is lawful to dissolve the marriage; or unless on account of the adultery of the wife, on account of which at least it is lawful for the man to separate himself from the wife. Which of these is the true interpretation and consonant with the tradition of the Church we shall dispute afterwards. For now let it suffice to note that, with the first interpretation admitted, any bringing in of another woman in addition, even when the former one has been put away, is called adultery; but with the other interpretation admitted, to that extent adultery would not be had, insofar as the prior union had been dissolved, and thus there would be no place for polygamy; but with the third interpretation admitted, we can reason concerning the bond of marriage according to the sentence of Christ just as if those words did not exist, which is also valid in the first interpretation. Therefore Christ teaches that he who, having put away his wife, marries another, not only acts badly, but also acts invalidly; for he commits adultery. But adultery is not marriage; namely, the prior bond remains, which impedes a bond with another; otherwise it would not be adultery. But if he commits adultery who, the former wife having been put away, from whom separation can at times be lawful on account of some causes, marries another, therefore he will commit adultery, and much more, who, retaining the former wife, brings in another besides. But if that conjunction is adultery, then there is no conjugal bond, which is impeded only by the prior bond remaining. And indeed, if polygamy were lawful and valid, he who, having put away one, marries another could not be said to commit adultery; for the right which he previously had of marrying another would still remain; whence there would be no adultery. Wherefore by the law of Christ there is altogether no second marriage.

II. Paul teaches the same thing, from whom we receive these two things: a) 1 Cor. VII. 4: The woman does not have power over her own body, but the man; and likewise the man does not have power over his own body, but the woman: namely that the power of each over the other is equal, and that each enjoys an equal right, as Innocent III in the chapter cited above admonished and Augustine declared, L. XXII, contra Faustum, c. 31: "For who does not know that a wife ought to serve her husband as lord? But as to the members of the body, by which sex itself is distinguished, the Apostle says: Likewise also the man does not have power over his own body but the woman; so that, although in the other acts pertaining to human peace the woman owes service to the man, in this matter, by which each sex is discerned by the lot of the flesh and is concerned in carnal commingling, the man over the wife and the wife over the man have in themselves a like power." Nazianzen teaches the same thing in the cited Orat. 37.

b) Ibid. 10, 11: But to those who are joined in marriage I command, not I, but the Lord: that the wife not depart from the man (μὴ χωρισθῆναι); but if she has departed, that she remain unmarried or be reconciled to her husband. And let not the man put away his wife. But Χωρισθῆναι, as is customary, has the active signification of departing; for the discourse is about the passive separation of the woman in the last words. And so divine law commands that the wife not depart from the man, and if she departs, that she remain unmarried and be joined to no one, unless she wishes again to return to the man. The discourse here is about a wife who of her own accord separates herself from the man; for one of this sort is properly she who departs. But she who is cast out by the man is called dismissed in the Scriptures, and besides the discourse concerning a woman dismissed by the man is in what follows.

Moreover, this woman who departs from the man is she who has a just cause of departing, for example on account of the fault of the man. This is proved evidently. For if she departed without cause, Paul would not permit her the option either of remaining unmarried or of reconciling herself with the man, but would command her to be reconciled and to return to the man; for it is the law of the Lord, as the same Apostle says, that the wife not depart from the man, and since the man has power over the wife, he cannot without injustice be deprived of his right without cause. Therefore the discourse is about a woman who justly departs from the man. But no option of any other thing is left to her except these two: either let her remain unmarried, or let her be reconciled to the man. Other nuptials are altogether interdicted: let her remain unmarried. But the Apostle testifies that this is of divine law: I command, not I, but the Lord. Wherefore the woman, if she separates herself even justly from the man, must by divine law remain unmarried, that is, not marrying another. But the same must also be said of the man, that he must remain unmarried, that is, not marry another wife, if he separates himself from his wife. This indeed is clear both from what follows: And let not the man put away his wife, which words, immediately joined to the preceding, seem in a more contracted discourse to command the man that same thing which was commanded to the woman; and it is also clear from that principle established earlier, that there is an equal right and equal obligation of one to the other as regards power over the body. Therefore he also, even if he justly dismisses his wife, must by divine law marry no other; much less, therefore, must he do this when no reason for separation exists. And so a man can never marry another wife while the former is living. Moreover, a woman (Rom. VII. 3), while the man lives, shall be called an adulteress if she has been with another man: therefore divine law, prohibiting second nuptials for the woman while the former man exists, so prohibits them as to invalidate them; for an adulterous conjunction is no marriage, and therefore God does not join what man would wish to join. Therefore the man will be an adulterer if he has been with another wife, and this other conjunction, while the former exists, is invalid.

Besides, when Paul makes mention of a man and wife, he always speaks of each in the singular: 1 Cor. VII. 2: let each man have his own wife, and let each woman have her own husband; 39: A woman is bound by law so long as her husband lives; but if her husband has fallen asleep, she is freed; Eph. V. 23: The man is the head of the woman, as Christ is the head

of the Church; 28: he who loves his own wife loves himself; 33: Let each one love his wife as himself, but let the wife fear her husband.

III. It is established secondly from Tradition, whose witnesses are Tertullian, in Apolog., n. 15, saying: "A Christian is born a male for his wife alone." Clement of Alexandria, Strom. l. III: "But the same man and Lord (Christ) no longer grants polygamy. For then (in the Old Law) God required that, when the people had to be increased and multiplied. But He introduces monogamy on account of the procreation of children and the care of the house to be borne, for which the woman was given as a helper." Ambrose, de Abraham l. 1, c. 7: "It is not lawful for you, while your wife is living, to marry a wife. For even to seek another, when you have your own, is a crime of adultery." Augustine, de Nupt. et Concup. l. I, c. 10: "This is preserved in Christ and in the Church, that the living one with the living one be separated by no divorce forever. The observance of this sacrament is so great ... in the Church of Christ ... that although women marry or wives are married for the sake of procreating children, it is not lawful to leave a sterile spouse so that another fertile one may be married. But if anyone has done this, not by the law of this world, where, with repudiation intervening, it is conceded without crime to join other marriages with others ... but by the law of the Gospel, he is guilty of adultery, as also she is if she has married another. And the rights of nuptials once entered upon remain between the living to such a degree that those who have been separated from each other are rather spouses between themselves than with those others to whom they have adhered. For with others they would not be adulterers unless they remained spouses with respect to one another." The Second Council of Milevis, can. 17: "It pleased us that, according to evangelical and apostolic discipline, no one dismissed by his wife, nor one dismissed by her husband, be joined to another, but that they so remain, or be reconciled to one another. But if they have contemned this, let them be reduced to penance." Therefore you have from the Fathers that second nuptials while the prior spouse is living are both prohibited by God and are adulteries, and therefore are no matrimonial conjunctions. The Roman Pontiffs teach the same thing: Innocent I, Epist. 4 to Exsuperius: "Those who, while the wife is living, although the conjugal union seems to have been dissociated, have hastened to another coupling, cannot be seen not to be adulterers." Nicholas I, to the responses of the Bulgarians, c. 51: "Neither does the very origin of the human condition admit having two wives at one time, nor does any law of Christians permit it." Cf. also in the Decretals the Title de Sponsa duorum.

IV. Nor in all antiquity is any document to be found by which simultaneous polygamy was not only approved, but even permitted.

For this question must be distinguished from that one, whether on account of the adultery of the wife it is lawful to dissolve the conjugal union. Nor ought we to be troubled by the edict of the elder Emperor Valentinian, which Socrates reports, Hist. L. IV, c. 31, because it is not credible. For that abhorred the usage and law of Rome. Cf. the treatise of Barnabas Brissonius, de Iure connubiorum, in the Thesaurus Antiquitatum Romanarum of Joannes Georgius Graevius, Tom. VIII. There is reported there the saying of Plutarch (in the Comparison of Demetrius and Antony, n. 3), that "Antony had two wives at the same time, which no one of the Romans before had dared." But the same Brissonius disputes thus: "But whether a concubine (who nevertheless would be a true wife, although in second place) could be joined to a wife by Quiritary law, I know is doubted. Certainly Justinian writes that neither the ancient laws nor his own concede this (therefore Valentinian did not concede it), l. ult. c. Communia, de Manumissionibus. Ulpian also says, l. ult. at the end, ff. de Divortiis, that if a patron who had married a freedwoman had brought a concubine to her, from this the conjecture was to be taken that he did not wish to have her as married; since a concubine could not be had together with a wife. The constitution of Constantine the Great prohibited the very same thing, l. unica c. de Concubinis: 'Let license be granted to no one, while marriage stands, to have a concubine with himself.' Wherefore Gellius shows that she who was joined and accustomed with him in whose hand and mancipium another was by reason of marriage was held shameful by the law of Numa (N. A. l. 4, c. 3), and he reports in the same place that these women who mingled their body with him who had a wife were called concubines." Read the refutation of Socrates in Baronius at the year 370, who notes that Valerian and Gallienus had already prohibited having two wives (l. 18. C. ad legem Iuliam, de Adulteriis), and Diocletian and Maximian (l. 2. C. de Incestis Nuptiis), and then Theodosius the Great had prohibited the same thing to the Jews (l. 7. C. de Iudaeis).

V. But what of the response of Gregory II to Boniface (epist. Desiderabilem): "For as to what you proposed, that if a woman, seized by infirmity (another reading: corrupted), should not be able to render the debt to the man, what shall her spouse do? It would be good if he so remained, so that he might be free for abstinence. But because this belongs to the great, let him who cannot contain himself rather marry; nevertheless let him not withdraw the works of support from her whom infirmity impedes and not detestable fault excludes." Sebastian Berardi (Gratiani Canones genuini, Tom. II, p. 2, c. 68) judges that Gregory was treating of marriages contracted by Germans before baptism in unbelief, which, as he himself believes, even after baptism do not become ratified, and that he answered, with the law of the Gospel set aside, according to the norm of natural honesty, which of itself did not prohibit that. This latter point indeed we cannot approve, since at the beginning of the epistle Gregory affirms that he will respond to Boniface's questions not from himself but "by His grace who opens the mouth of the mute and makes the tongues of infants eloquent," and that he will hand down "the doctrine of apostolic strength." Besides, we judge (cf. Appendix after Th. XI) that a marriage contracted in unbelief becomes ratified when baptism has been received. Nor did it befit the Apostolic See, questioned according to the prerogative of its magisterium, to respond according to the opinion of men, not according to the sentence of Christ. What then? Since we lack the epistle of Boniface asking the question, it is not permitted to bring forward an evident declaration of the matter. But from elsewhere the certain opinion of Gregory II is established: namely, that simultaneous polygamy is unlawful (in the Instruction given to his Legates in Bavaria); moreover, the Roman Church has always reproved the dissolution of a consummated marriage, as his successors bear witness. Therefore we answer that probably the matter concerned a marriage not yet consummated, which therefore was either null from impotence, as Celestine III seems to interpret this response of Gregory, c. Laudabilem, De Frigidis, or, since it was only ratified, the Roman Pontiff dissolved it by his power, and so permitted the man to enter other nuptials by right, yet advising him to take care of the one left behind, who was being separated without fault.

Finally, it is permitted to add that, if it had once been believed that simultaneous polygamy was lawful, no reason would appear why a certain aversion and sure horror would have occupied many persons toward successive polygamy. This fact, namely, supposes that it was believed that one should be joined simultaneously only to one.

VI. It is established thirdly from the thing signified. For marriage is a sign of the union of Christ with the Church, so that the man ought to love his wife and adhere to her, just as Christ loved the Church and adhered to her; but Christ transferred His whole love to one Church, so that one should adhere to one; therefore in this way also the Christian man ought to love his wife so that he does not divide marital affection among several wives, but that one be joined to one. Namely, the likeness between Christian marriage and the conjugal union of Christ with the Church consists not only in this, that a man and a woman are united into one and become one flesh or one principle of generation, but also in the manner in which the man adheres to the wife, loving her as Christ loves the Church. But Christ so loved her that He loved her as one. This reason holds for any marriage, because this signification was instituted from the beginning. Cf. those things which we shall say in the following Thesis. But because actual signification is from the institution of God, nothing prevents God at some time, before the completed union of Christ with the Church through the incarnation, from having dispensed from the law of simultaneous monogamy, as we shall see hereafter.

VII. From the doctrine of Scripture and the Fathers you have that second simultaneous nuptials are condemned and declared invalid even in the hypothesis of separation or divorce; indeed these are chiefly and directly reproved, whence we have gathered that all are simply proscribed. Therefore those second nuptials which Christians contract after a divorce made by civil law, while the prior spouse is still living, are shameful concubinages.

Finally, with regard had to the primitive divine institution, by it a norm and example of monogamy was certainly prescribed beforehand, and its congruity was signified; indeed it also seems that there a law of the same was enacted for all future marriages, although afterwards for some time there was a dispensation from that law by God.

§ 2. The essential properties of marriage are unity and indissolubility, which in Christian marriage obtain a peculiar firmness by reason of the sacrament (Can. 1013).

The unity of Marriage is placed in this, that Marriage is the conjunction of one man with one woman. Moreover,

1°. It is certain that polyandry conflicts with the natural law, because it is opposed to the principal ends of Marriage, namely the generation of offspring and their good education.

2°. It is certain that simultaneous polygamy is prohibited in every case, at least by the positive divine law of the New Law, as is established from Luke xvi, 18: "Everyone who puts away his wife and marries another commits adultery." It is likewise established from the Council of Trent, sess. 24, can. 2.

3°. It is certain that second and further nuptials are licit both for the man and for the woman, even under the Evangelical law. It is established from the authority and practice of the Church, and also from sacred Scripture, I Cor. vii, 39: "A woman is bound to the law for as long a time as her husband lives; but if her husband has slept, she is freed: let her marry whom she wishes, only in the Lord." - Cf. De Augustinis, Thes. 7, p. 254. Although chaste widowhood is more honorable, nevertheless second and further nuptials are valid and licit, with the prescription of Can. 1069, § 2, remaining firm (Can. 1142).

I say 1°. Marriage is indissoluble, that is, once Marriage has been contracted, divorce as regards the bond cannot take place. It is established 1°. from the words of Christ, Matt. xix, 6: "And so now they are not two, but one flesh. What therefore God has joined together, let man not separate." It is established 2°. from the Council of Trent, sess. 24, can. 5. - It is established 3°. from prop. 67 of the Syllabus, which has itself thus: "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." - Wherefore the Third Plenary Council of Baltimore established: "that the penalty of excommunication ... reserved to the Ordinary is incurred by the very fact by those who, after they have obtained civil divorce, shall have dared to attempt Marriage." - Cf. Third Plenary Council of Baltimore, n. 124.

I say 2°. A valid marriage, ratified and consummated, can be dissolved by no human power and by no cause except death (Can. 1118).

Nevertheless a threefold case is to be excepted, as follows:

1°. A ratified and non-consummated Marriage of Christians can be dissolved, for a grave cause, through dispensation of the Pope, by power divinely granted to him. This is clear from the fact that the Supreme Pontiffs have already used this power many times, as St. Gregory VII, Paul III, etc. Indeed, this faculty is to be extended also to Marriages consummated in infidelity, if the spouses after Baptism, by which properly the Marriage becomes ratified, have not consummated it again. - Cf. Perrone, de Matrimonio Christiano, vol. 3, sect. 2, cap. 6, art. 4; S. Alphonsus, nn. 956 and 959; Baller. note (b), p. 728.

2°. A ratified and non-consummated Marriage can be dissolved through the solemn religious profession of one of the spouses, and this by a special privilege granted by Christ and declared by the Church. For thus the Council of Trent has it, sess. 24, can. 6: "If anyone shall say that a ratified non-consummated Marriage is not dissolved through the solemn profession of Religion of one of the spouses, let him be anathema." The things which are said here under nn. 1° and 2° are clear also from Canon 1119:

A non-consummated marriage between baptized persons, or between a baptized party and a non-baptized party, is dissolved both by the law itself through solemn religious profession, and through dispensation granted by the Apostolic See for a just cause, with each party requesting or either party, even if the other is unwilling (Can. 1119).¹

3°. § 1. A legitimate marriage between non-baptized persons, although consummated, is dissolved in favor of the faith by the Pauline privilege (Can. 1120), when either of the spouses is converted through Baptism to the Christian faith, and the other refuses to cohabit peacefully with him or does not cohabit except with injury to the Creator and contempt of the Christian religion, or applies an effort to draw the faithful party into mortal sin. This divine concession is drawn from the words of the Apostle, I Cor. vii, 12, where it is said: "If any brother has an unbelieving wife and she consents to dwell with him, let him not put her away ...; but if the unbeliever departs, let him depart; for a brother or sister is not subject to servitude in such cases: but God has called us in peace." Innocent III explains the same more fully in cap. Quanto 7, de divortiis. - Cf. Third Plenary Council of Baltimore, n. 128; S. Alphonsus, n. 956; Lehmkuhl, nn. 721 and following; Acta S. Sedis, vol. 22, p. 745 and following; Amer. Eccl. Rev., vol. 4, p. 1 and following, and vol. 16, p. 328 and following.

¹ Cf. Addenda, p. 1130, n. 90.

Question 1. Once a marriage has validly been contracted by dispensation between an unbeliever and a Catholic, can this latter use the Pauline privilege if the unbelieving party afterward departs or is unwilling to cohabit without injury to the Creator?

Resp. § 2. This privilege does not obtain in a marriage between a baptized party and a non-baptized party entered with dispensation from the impediment of disparity of cult (Can. 1120).

Question 2. To whom, and under what conditions, is it licit to use the privilege?

Resp. It is clear 1°. that this privilege belongs only to the true and legitimate husband with respect to a true and legitimate wife, and vice versa; it is clear 2°. that the converted spouse cannot enjoy this privilege except after Baptism has been received and after an interpellation has been duly made to the other spouse concerning embracing the evangelical truth and promising peaceful cohabitation; it is clear 3°. that there can be no place for this privilege if both spouses are converted to the faith at the same time.

§ 1. Before the converted and baptized spouse validly contracts a new marriage, with the prescription of Can. 1125 preserved, he must interpellate the non-baptized party:

1°. Whether that party also wishes to be converted and receive Baptism;

2°. Whether at least that party wishes to cohabit peacefully with him without contumely of the Creator.

§ 2. These interpellations must always be made, unless the Apostolic See has declared otherwise (Can. 1121).

Question 3. How must these interpellations be made?

Resp. § 1. Interpellations are to be made regularly, at least in summary and extrajudicial form, by the authority of the Ordinary of the converted spouse; by this Ordinary, delays for deliberating are also to be granted to the unbelieving spouse, if indeed that spouse has sought them, with this one nevertheless admonished that, once the delays have passed uselessly, the response will be presumed negative.

§ 2. Interpellations even made privately by the converted party himself are valid; indeed they are also licit if the form prescribed above cannot be observed. Nevertheless, in this case, for the external forum, the fact of them must be established by at least two witnesses or by another legitimate mode of proof (Can. 1122).

Question 4. When at last does the baptized party have the right of contracting new nuptials?

Resp. If the interpellations were omitted by declaration of the Apostolic See, or if the unbeliever has responded negatively to the same expressly or tacitly, the baptized party has the right of contracting new nuptials with a Catholic person, unless that party after Baptism has given to the non-baptized party a just cause for departing (Can. 1123).¹

¹ Cf. Addenda, p. 1131, n. 91.

Question 5. Is the Pauline privilege valid also in the case in which, after the conversion of one, the unbelieving party consents to cohabit peacefully, and then, with counsel changed, tempts the faithful one or departs?

Resp. The faithful spouse, although after receiving Baptism he again has lived matrimonially with the unbelieving party, nevertheless does not lose the right of celebrating new nuptials with a Catholic person; and therefore he can use this right if the unbelieving spouse, with will changed, later departs without just cause, or now no longer cohabits peacefully without contumely of the Creator (Can. 1124).

Question 6. What must be said of a marriage entered after dispensation from interpellation when it becomes known that the unbelieving spouse could not declare his will and had been converted to the faith?

Resp. It is valid. This has been declared very many times. S. Off., 4 Feb. 1891; Gregory XIII, 25 Jan. 1585.

Those things which regard marriage in the constitutions of Paul III, Altitudo, 1 June 1537; of S. Pius V, Romani Pontificis, 2 Aug. 1571; of Gregory XIII, Populis, 25 Jan. 1585, and which were written for particular places, are extended also to other regions in the same circumstances (Can. 1125).¹

¹ Cf. Addenda, p. 1131, n. 92.

Question 7. What is the force of that dispensation in that case, if the second marriage is valid?

Resp. Its force is to dissolve the bond of a ratified and non-consummated marriage of the faithful. For the co-parties of the first wedlock, at the time of the contract of the second marriage, were both baptized. Therefore, at the moment of Baptism received by each, that first wedlock became a ratified marriage; and since after the Baptism of each it had not been consummated, it was had as ratified and non-consummated. But the Supreme Pontiff can dissolve a marriage ratified and non-consummated. Therefore.

Question 8. Immediately after the Baptism of one and the departure of the other party, is the Marriage dissolved?

Resp. Negatively. According to the same divine privilege, the spouse converted to the faith, at the very point of conversion, is not understood to be loosed from the bond of the marriage contracted with an unbeliever still surviving; but then, if the unbelieving spouse refuses, he acquires the right of passing to other nuptials, nevertheless with a faithful spouse. S. Off., 11 July 1866. - Cp. Si quis, 28, q. 2; and Cp. Gaudemus, 8, De Divortiis: Crimes are loosed in Baptism, not marriages.

Question 9. Is the prior marriage dissolved by the very fact that the converted person has betaken himself to second nuptials?

Resp. The bond of the prior wedlock, contracted in infidelity, is dissolved only then when the faithful party has in fact validly entered new nuptials (Can. 1126).

Question 10. Can an unbelieving spouse validly enter a new Marriage, if after his departure the party converted to the faith has emitted religious profession, or received sacred Orders, or made a simple vow of chastity?

Resp. He can indeed in the case of religious profession, if the Marriage was not consummated after the reception of Baptism, because then it is dissolved by force of the other privilege declared by the Council of Trent, sess. 24, can. 6. - Not likewise in the case of reception of sacred Orders, or emission of a simple vow of chastity, because then the first matrimonial bond remains entire. But if the unbelieving spouse is converted, cohabitation is certainly not permitted to him if the co-party has received sacred Orders, and according to some also in the case of a simple vow of chastity, because the state assumed is incompossible with conjugal life. - Cf. Baller. note (c), p. 734.

Question 11. Is the Pauline privilege valid also in the case in which conversion is made through reception of Baptism in some non-Catholic sect?

Resp. Many think that then also it is valid, if nevertheless the other conditions are not lacking, because then too the substance of conversion is verified, namely reception of valid Baptism, as is supposed. - Cf. Baller. note (a), p. 736, at the end.

Question 12. How manyfold is the object concerning which interpellation is to be made?

Resp. As is established from what has been said, that object is twofold, unless an apostolic dispensation is given. Cf. S. Off., 20 June 1886; S. C. de Prop. F., 17 Jan. 1836; S. Off., 8 June 1836.

Question 13. What kind of departure suffices for the Pauline Privilege to enter?

Resp. The physical or moral departure of the unbelieving party itself suffices; nor is it required that the physical departure have been malicious.

"Since the favor of the faith fights on the side of the converted spouse, he can use it from whatever cause, provided it is just, namely if he has not given to the other spouse a just and reasonable motive for departing, yet in such a way that only then is the yoke of the matrimonial bond with the unbeliever understood to be loosed, when the converted spouse (the other refusing after interpellation to be converted) passes to other vows with a faithful person."

And therefore it has place when the unbeliever departs from hatred of the faith or on account of discords or on account of another cause diverse from the faith (S. Off., 5 Aug. 1759), even when the unbeliever refuses to live with the faithful one without contumely of the Creator, or attempts to draw the faithful one to sin or to infidelity, or refuses to desist from concubinage. It enters also if the unbelieving party wishes to be converted, but in no way consents to live with the faithful one, provided the unbelieving party remains in infidelity; it enters if the unbelieving party cannot cohabit with the faithful one, because, for example, by force she has been taken away from the man so that there is no hope of recovering her, or if she wishes to be converted and indeed would wish to cohabit with him, but can neither practice the religion nor cohabit. It enters, I say, provided this party remains in infidelity. S. Off., 8 July 1891. Besides, dispensation from interpellation has not once only been given on account of the insanity of the unbelieving party herself, who could not be interpellated. Therefore physical departure, malicious or not malicious, and moral departure suffice for the privilege to enter.

Question 14. Was this interpellation also before the New Code necessary for the validity of the marriage of the faithful one who wished to use the privilege?

Resp. Affirmatively; there are so many cases in which marriages have been declared null which had been entered without interpellation, that the negative opinion must be held simply as not safe.

Such responses are: A neophyte had contracted wedlock with a Christian woman, saying nothing about the wedlock contracted in infidelity. What must be thought of the marriage of the said man with the Christian girl, contracted without interpellation and dispensation? Resp. From the things brought forward, the first marriage subsists. S. Off., 20 June 1858; S. Off., 17 Jan. 1900; 5 Aug. 1795. In a similar manner, in the Korean persecution it sometimes happened "that in the use of the privilege of faith the unbelieving spouse, converted and baptized, omitted interpellation toward the spouse remaining in infidelity, although in many cases this interpellation was perhaps necessary or at least of doubtful obligation." (Thus in the supplicatory petition.) It was answered: "But as regards marriages contracted without the interpellation of the unbelieving spouse having preceded in the accustomed manner, or a dispensation from it having been obtained, let the Apostolic Vicar, from the faculty which is granted to him, dispense from the interpellation to be made, and altogether procure that consent be renewed; but in those cases in which he judges that this renewal cannot be made for now, let him be silent, if the putative spouses are in good faith."

S. C. de Prop. F., 5 March 1816. Whether, for the effect of dissolving marriage according to the privilege in favor of the faith granted by Christ the Lord and promulgated by the Apostle, the interpellation of the party persevering in infidelity is of divine law, and therefore so necessary that, if it is neglected, no place at all is had for dissolving the marriage; or whether it pertains only to judicial form, and is not required except so that the dissolution be made licitly, especially when otherwise it is established by morally certain indications that the other spouse wishes neither to embrace the faith nor to cohabit without contumely of the Creator? R. to 1. "There is no place for the dissolution of a marriage contracted in infidelity, unless interpellation has first been made, or unless, from legitimate causes, an Apostolic dispensation concerning the interpellation has been obtained."

Question 15. What are the causes on account of which the Holy See dispenses from interpellation?

Resp. A twofold case, ordinary and extraordinary, must be considered in the faculty of dispensing from interpellation. The ordinary case occurs then, namely, when all diligences have first been employed, even through public newspapers, for finding the place where the unbelieving spouse dwells, and these have fallen into vain result, and it is established at least summarily and extrajudicially that the absent spouse cannot legitimately be admonished or, having been admonished, has not signified his will within the time fixed beforehand. The other occurs when the unbelieving spouse can indeed be approached, but he cannot be interpellated concerning the co-party having become Christian without evident danger of grave damage to be brought upon that co-party or upon Christians; S. Off., 29 Nov. 1882; or if it is seriously doubted whether the neophyte truly took any of his women as wife. 8 June 1836.

Question 16. What must be said if the faithful party gave the cause of departure?

Resp. If the faithful party after conversion should furnish to the unbelieving party a just and reasonable cause of departing, say, through adultery, the privilege of faith would not remain entire. It is otherwise if the cause occurred before baptism, because this sacrament blots out the crime. Instr. S. C. de Prop. F., 30 Jan. 1807; S. O., 19 April 1899. - Cf. D'Annibale, vol. 3, n. 475.

Question 17. When is the interpellation to be made?

Resp. This interpellation is to be made after baptism, unless the Supreme Pontiff himself has otherwise granted the power of interpellating the unbelieving party before baptism. Indeed, the S. Off., 15 June 1850, affirms that it is of divine law, resolving a case in which an unbelieving woman responded that she wished to be converted and cohabit but was detained by a second husband or by a creditor who did not permit her to leave. Question: whether in this case the converted man can pass to other nuptials? "Affirmatively, namely, that the converted man concerning whom it is a question, if he has not legitimately been dispensed by the Apostolic See, is bound by divine precept to make in the present case an interpellation once to the other spouse; but he can do so several times from mere charity. But once this divinely enjoined condition has been fulfilled by the converted man, if the pagan wife has not returned to him within some just and reasonable space of time, the aforesaid converted man can licitly and validly enter other nuptials with a Christian woman, however, provided the man is not the cause of the impediment by which the woman is detained." Thus the S. Off.

1°. Practically in every case either interpellation is to be made, or pontifical dispensation from interpellation is to be obtained.

2°. But it is to be noted that second nuptials to be entered after interpellation or dispensation must be entered only with a faithful person, without permission of the Apostolic See.

3°. Neither divorce nor a second civil marriage exempts anyone from the obligation of making interpellation.

4°. But insofar as neither interpellation nor dispensation from the same has preceded, the first marriage will obstruct the second; but the Ordinary ought to suspend judgment and remit the case with all its circumstances to the Holy See, which will indicate to the Ordinary himself what must be done. S. C. de Prop. F., Instruction on ecclesiastical judgments concerning matrimonial causes, given in the year 1883.

In a doubtful matter the privilege of faith enjoys the favor of law (Can. 1127).¹

¹ Cf. Addenda, p. 1134, n. 93.

I say. Spouses must preserve the communion of conjugal life, unless a just cause excuses them (Can. 1128), on account of which divorce from bed or habitation can take place, while nevertheless the conjugal bond remains, so that neither party can enter another Marriage before the death of the other. The first is drawn from the definition itself of Marriage. The other is established by the Council of Trent, sess. 24, can. 8: "If anyone shall say that the Church errs when, on account of many causes, she decrees that separation between spouses, as regards bed or as regards habitation, can take place for a determinate or indeterminate time, let him be anathema." But the causes rendering a divorce of this kind honorable are: mutual consent, grave danger of soul or body, and adultery of either party; which causes you will understand thus for practice.

1°. Mutual consent: namely, each spouse together can renounce his proper right as regards the bed, whether for a time or in perpetuity, provided danger of incontinence is absent. Likewise they can be separated also as regards habitation, whether for a time on account of affairs, or in perpetuity on account of desire for a more perfect life, for example, for entering Religion or receiving sacred Orders. - Cf. Baller. note (b), p. 741.

2°. § 1. On account of the adultery of a spouse, the other spouse, with the bond remaining, has the right of dissolving, even in perpetuity, the communion of life, unless he has consented to the crime, or has given cause for it, or has expressly or tacitly condoned it, or has also himself committed the same crime.

§ 2. Tacit condonation is had if the innocent spouse, after he has been made more certain concerning the crime of adultery, has freely lived with the other spouse with marital affection; but it is presumed unless within six months he has expelled or deserted the adulterous spouse, or has made a legitimate accusation (Can. 1129).

The innocent spouse, whether he has legitimately departed by sentence of the judge or by his own authority, is never bound by any obligation to admit again the adulterous spouse to the companionship of life; but he can admit or recall the same, unless from his consent that one has assumed a state contrary to marriage (Can. 1130).

It is clear from the words of Christ, Matt. v, 32: "He who puts away his wife, except for the cause of fornication, makes her commit adultery, etc." But if this is licit for the man, by the same reason it must also be licit for the wife.

It is helpful to notice that, according to the common opinion of doctors, here under the name of adultery there is understood any division of flesh, even that which is had through sodomy and bestiality. - Cf. S. Alphonsus, n. 962.

3°. § 1. If the other spouse has given his name to a non-Catholic sect; if he has educated the offspring non-Catholically; if he leads a criminal and ignominious life; if he brings about grave danger, whether of soul or of body, for the other; if by cruelties he renders common life too difficult, these and other things of this kind are so many legitimate causes of departing for the other spouse, by authority of the Ordinary of the place, and even by his own authority, if they are certainly established and there is danger in delay.

§ 2. In all these cases, when the cause of separation ceases, the custom of life is to be restored; but if the separation has been pronounced by the Ordinary for a determinate or indeterminate time, the innocent spouse is not bound to this unless by decree of the Ordinary or when the time has passed (Can. 1131).

Question. Is the man, once the adultery of his wife is known, bound to put her away?

Resp. It is certain that he is not bound by reason of the adultery, because divorce was conceded in favor of the innocent one, not for his punishment. Nevertheless the man can sometimes be bound to put away the adulterous wife by reason of fraternal correction or of avoiding scandal; but that case is rare, both because other means can be employed for correcting the wife or avoiding scandal, and because grave scandal to be feared from separation can excuse. From another side, the wife cast out would be exposed to greater danger, at least for the most part. - Cf. S. Alphonsus, n. 963.

Here it must be carefully noted that the confessor in this matter needs great prudence. Wherefore he should rarely permit divorce from bed made by private authority, and still more rarely if the crime is occult, even if it is certain. Let him beware besides lest he believe too easily the complaints of wives against husbands; and let him take pains to restrain them and turn them away from divorce insofar as it can be done. Cf. S. Alphonsus, n. 969.

It must also be noted that it is by no means licit for spouses to seek civil separation from bed and board without having consulted ecclesiastical authority. For thus speak the Fathers of the Third Plenary Council of Baltimore, n. 126: "We command all those who are joined in marriage not to approach civil tribunals to obtain separation from bed and board, without ecclesiastical authority having been consulted. But if anyone should attempt it, let him know that he incurs grave guilt and is to be punished according to the judgment of the Bishop."

Once separation has been instituted, the children are to be educated with the innocent spouse, and if one of the spouses is non-Catholic, with the Catholic spouse, unless in each case the Ordinary, for the good of the children themselves, with their Catholic education always preserved, has decreed otherwise (Can. 1132).

I. Three are the properties, or goods, of matrimony, namely fidelity, offspring, and the sacrament. Fidelity is here taken for that faithfulness by which promises are fulfilled, and it is a part of justice. Spouses violate fidelity if they know another man or another woman. Offspring is the end of matrimony. The sacrament signifies and confirms indissolubility. In fidelity therefore the conjunction of one with one is understood.

II. To the oneness of matrimony there is opposed simultaneous polygamy, or a plurality of wives. It is agreed among all that the polygamy by which one woman should marry several men is against natural right, both primary and secondary. It is disputed only concerning the polygamy by which one man takes several wives, whether it be adverse to natural and divine right.

III. The common opinion of theologians is that polygamy is adverse to natural right. It is nevertheless to be adverted that natural right is of one kind invariable and immutable, of which sort are the first universal principles which regard the primeval end of nature. In these no dispensation, no interpretation falls. For the things which are forbidden by this right are intrinsically evil. Another is natural right obnoxious to variation by reason of times and circumstances. This variety God alone, the founder of the right of universal nature, and its most wise comprehender and moderator, knows. Therefore he alone can dispense, or rather interpret and declare, when and how man is obnoxious to this right.

IV. Hence you have how God in the old law dispensed with the holy Patriarchs that they should have several wives at once. The name of wife nevertheless is taken in two ways in holy Scripture: 1. In its proper signification, under which comes the first wife led in with solemn rite, who was named mother of the family, was endowed with special honour, and whose sons succeeded to the paternal inheritance; 2. In the broader signification, according as they were second wives, who lacked the aforesaid privileges, and were called also concubines.

V. Christ the Lord in the New Testament took away this privilege of having several wives, as the perpetual and universal tradition of the Church teaches, and Trent defined, session 24, canon 2.

VI. The Montanists, to whom Tertullian accedes, condemned successive polygamy, or second nuptials. Catholics and the Church have never forbidden second or further nuptials. In the first centuries of the Church nevertheless the Greek Church subjected bigamists and trigamists to severe penances.

I. QUESTION I. Whether the matrimonial bond be indissoluble? ANSWER. All Catholics affirm it. Theologians with St. Thomas, Suppl., q. 67, art. 1, repeat its firmness and perpetuity from natural right itself. This natural perpetuity God confirmed by his own divine right, Matthew 19: Therefore now they are not two, but one flesh. … What therefore God hath joined together, let no man put asunder.

II. QUESTION II. What is to be said of the matrimony of unbelievers? ANSWER. That a true and legitimate matrimony, as it is a natural and civil contract, is contracted among unbelievers is certain. When both spouses are converted to the faith, their matrimony is not dissolved, as all theologians teach. If an unbelieving husband in the first centuries of the Church embraced the faith of Christ, and the unbelieving wife was willing to dwell peaceably, such cohabitation was lawful, as is had from 1 Corinthians 7. Theologians dispute whether at present this cohabitation of a believing husband with an unbelieving wife be lawful, who desires to dwell with her husband without contumely to the Creator. The more common opinion affirms it, since there exists no law which forbids such cohabitation. An opposite custom nevertheless obtains, by force of which such cohabitation is unlawful, unless the wife's conversion be prudently hoped for.

III. When one of the spouses is converted to the faith, the other persisting in unbelief, if the offspring be capable of guile, it enjoys its own liberty. If it be destitute of the use of reason, it ought to follow the parent converted to the faith of Christ. In doubt whether the offspring be endowed with the use of reason, judgment is to be made in favour of Religion.

IV. QUESTION III. If an unbelieving spouse consent to dwell peaceably with the believing spouse, can the believing spouse take another? ANSWER. Bellarmine affirms it; others deny it; others distinguish. St. Augustine, Book 1 On Adulterous Marriages, chapter 25, absolutely denies it. Similarly Innocent III, chapter Laudabilem, defends the negative opinion. But if the unbelieving spouse be unwilling to cohabit peaceably without contumely to the Creator, then the believing spouse, he being deserted, can enter upon another marriage, as St. Thomas expressly teaches, Suppl., q. 59, art. 5.

V. When one of the unbelievers is converted to the faith, the matrimony is not dissolved by Baptism, but by the subsequent nuptials. Wherefore if the unbelieving party, obstinate before the matrimony of the other spouse, and the believing party celebrated contrary nuptials, these would be null; and if these spouses were converted to the faith, they would have to be separated. Since the privilege of dissolving the conjugal bond has been granted by Christ in favour of the faith only, not of unbelief, as is had in chapter Quanto on Divorces. Similarly if a believer after admonishing the unbelieving spouse obstinate in unbelief contract matrimony, and then this second be dissolved by the death of the spouse, then that believer would not be bound to return to the former unbelieving spouse, even if he were converted to the faith. Since, the former matrimony having been lawfully dissolved, the believer became altogether free; and so he is not bound to return to the former converted spouse in the case of the death of the second wife.

VI. QUESTION IV. Whether the matrimony of the Jews became null through a bill of divorce? ANSWER. Some affirm it, others deny it. Christ the Lord, Matthew 19, says that Moses permitted the bill of divorce for the hardness of the Jews' heart. Therefore repudiation was not lawful. Therefore the matrimonial bond was not dissolved. And this negative opinion Sts. Jerome, Augustine, Chrysostom, Isidore, and Theophylact perspicuously teach. And this opinion St. Thomas calls the more common. But it is not of such moment that it ought to be discussed longer.

VII. QUESTION V. Whether the matrimony of Christians be dissolved through adultery? ANSWER. All Catholics deny it. And this truth is openly delivered in the Gospel, Luke 16, where these things are had: Every one that putteth away his wife, and marrieth another, committeth adultery: and he that marrieth her that is put away from her husband, committeth adultery. Which words are so to be disposed that they may more easily be understood: Whosoever shall put away his wife (which is not lawful save for fornication) and shall marry another, committeth adultery. Fornication makes the dismissal lawful, but by no means the celebration of a new marriage. The last words of the Evangelist declare the matter perspicuously: He that marrieth her that is put away, committeth adultery. A wife could not be put away save for fornication, as all confess. He therefore who marries her that is put away for the cause of fornication commits adultery. Therefore the conjugal bond is not dissolved. There is added the perpetual tradition of the Church.

VIII. QUESTION VI. Is the ratified and unconsummated matrimony of Christians dissolved by solemn profession in an approved Religion? ANSWER. All Catholics affirm it, and this truth was defined in the Council of Trent, session 24, canon 6, in these words: If anyone shall say that matrimony ratified and not consummated is not dissolved by the solemn religious profession of one of the spouses, let him be anathema. This definition of the Council rests upon the universal and perpetual tradition of the Church.

IX. Whether the Pontiff can dispense from the bond of a ratified matrimony, theologians dispute on either side. This is agreed among all, that most grave causes must urge, and that only for the greater utility and decorum of the Church can Pontiffs dispense from the aforesaid bond.

X. QUESTION VII. Whether the ratified and consummated matrimony of Christians be dissolved by entrance into Religion? ANSWER. The negative opinion is common and true. Since the Church has declared that only ratified matrimony is dissolved by monastic profession. If one of the spouses perpetrate adultery, the innocent spouse can enter Religion or vow perpetual chastity, because on account of the crime of adultery he has a right of perpetual divorce. One spouse nevertheless, with the other spouse's consent, can enter and profess a Religion; the consenting spouse nevertheless, remaining in the world, ought, if he be old, to emit a vow of chastity; if young, to enter Religion, as is established in chapter Cum sis. A husband, his wife being unwilling, whether before or after the matrimony consummated, cannot be initiated in sacred Orders. If, his wife being unwilling, he should receive sacred Orders, he could render but not ask the debt. With his wife consenting, a husband can become a priest, provided the wife herself profess an approved Religion, as is established in chapter Sane on the conversion of spouses.

XI. They dispute when a matrimony is to be called consummated. Some say it is the penetration of the woman's vessel without effusion of seed; but the more probable and more common opinion requires the emission of seed into the woman's vessel. Copulation had before matrimony does not suffice for the consummation of matrimony: for matrimony is perfected not through fornication, but through matrimonial copulation.

XII. QUESTION VIII. What is divorce, and whether the right to it be equal in each spouse? ANSWER. Divorce is that separation from bed, in which it is distinguished from repudiation, which brings in the dissolution of the bond. That divorce is lawful for the cause of adultery all affirm. In each spouse the right to divorce is equal, because in those things which pertain to the bed the rights of each spouse are equal. The innocent spouse, divorce being made, can either vow chastity or enter Religion, the guilty spouse being unwilling. But the guilty spouse can neither vow chastity nor enter Religion, so long as the innocent spouse retains the right of recalling him. If nevertheless the innocent spouse do not contradict, the change of state made by the guilty spouse is valid. If by the judge's sentence the guilty woman be thrust into a monastery, a biennium is granted to the innocent party to deliberate whether he will recall her. Within this biennium the woman's profession is null; the biennium having elapsed, it is held valid.

XIII. QUESTION IX. In what cases is divorce lawful among Christians? ANSWER. It is lawful: 1. From the consent of each spouse, out of a study of a holier life; 2. For the cause of adultery; 3. Immoderate savagery, if it be public and manifest, is a just cause of divorce; if occult, the judge's sentence is to be awaited; from bed nevertheless one can separate oneself, but not depart from the house; 4. If a danger of subversion threaten one spouse from the cohabitation, divorce is not only lawful but necessary; 5. If the other spouse have fallen away from the faith.

XIV. QUESTION X. What are the cases in which on account of fornication divorce is not lawful? ANSWER. Seven. 1. A husband cannot be separated from a fornicating wife, if he himself be similarly a fornicator. 2. If he himself have prostituted his wife. 3. If the wife, probably believing her absent husband dead, have married another. 4. If she have been secretly known by another entering the bed under the appearance of her husband. 5. If she have been oppressed by force. 6. If the husband, conscious of the adultery, have known his wife carnally. 7. If, matrimony having been contracted in unbelief, the man gave a bill of divorce, and the wife married another. If nevertheless both be converted to the faith, the man is bound to receive her.

XV. The will alone of committing adultery does not suffice for divorce; nay, neither do touches and kisses. Very many dispute whether carnal copulation without effusion of seed be a just cause of divorce. Some deny it; but the contrary opinion is common and true. The crime of sodomy is a sufficient cause of divorce. A secretly adulterous spouse cannot seek divorce from a publicly adulterous spouse. For he who is secretly an adulterer is guilty, not innocent. Therefore he cannot seek divorce. An innocent spouse morally certain concerning the other spouse's adultery can by right deny the debt before the judge's sentence; he cannot nevertheless depart from the adulterous spouse, the judge's sentence not being awaited. An innocent spouse is bound to make divorce from an adulterous wife, unless she repent, as holy Scripture teaches, Proverbs 18: He that keepeth an adulteress is foolish and wicked. A wife nevertheless is not bound to depart, because she cannot hinder her husband, nor coerce him, as a husband can his wife. It is disputed which spouse sins more gravely. If unchastity be regarded, adultery is more grave in a man than in a woman, says St. Augustine, Book 2 On Adulterous Marriages, chapter 8. If injustice be considered, an adulterous wife sins more wickedly on account of the uncertainty of offspring, whence grave absurdities follow.

1. Both man and woman are by nature incapable of a second marriage, while their former marriage endures. No woman can have two husbands at the same time, which is polyandry; and no man can have two wives at the same time, which is polygamy. The second marriage attempted is not only illicit, but invalid: it is no contract, no marriage at all, and all cohabitation with the second partner is sheer adultery. This is a great deal more than saying that polyandry and polygamy are unlawful.

2. That is by nature no marriage, which is inconsistent with the natural ends of marriage, offspring and mutual faith. But polyandry is thus inconsistent with the good of offspring, and polygamy with mutual faith. It is not meant that polyandry makes the birth of children impossible. But nature is solicitous, not for the mere birth, but for the rearing and good estate of the child born. Now a child born fatherless is in an ill plight for its future education. Posthumous children in lawful wedlock are born fatherless: that is a calamity: but what shall we think of an institution which makes that calamity to the child sure always to occur? Such an institution is polyandry. For in it no man can ever know his own child, except by likeness, and likeness in a baby face is largely as you choose to fancy it. Again, is the polyandrous wife to be, or not to be, the head of the family? If not, the family—for it ought to be one family, where there is one mother—will have as many heads as she has husbands, a pretty specimen of a house divided against itself. If she is to be the head, that is a perversion of the natural order of predominance between the sexes. In any case, polyandry is little better than promiscuity: it is fatal to the family and, fatal to the race; and children born of it are born out of marriage.

3. Against polygamy the case in natural law is not quite so strong as against polyandry. Still it is a strong case enough in the interest of the wife. The words spoken by the bride to the bridegroom in the marriage rite of ancient Rome, Ubi tu Caius, ego Caia, "Where you are master, I am mistress," declare the relation of mutual faith as it should be, namely, a relation of equality, with some advantage, preference, and pre-eminence allowed to the husband, yet not so great advantage as to leave him free where she is straitly bound, and reduce her to the servile level of one in a row of minions to his passion and sharers of his divided affections. Polygamy in all ages has meant the lowering of womankind:

He will hold thee—
Something better than his dog, a little dearer than his horse

At its strongest, the love of man for woman, where polygamy obtains, is a flame of passion, that quickly spends itself on one object, and then passes to another; not a rational, enduring, human affection. It is also a fact, that the increase of the race is not greater in polygamy than in monogamy. Thus, as a practice that runs strongly counter to one of the great purposes of marriage, and is, to say the least, no help to the other, and carries with it the humiliation of the female sex, polygamy is justly argued to be abhorrent to nature.

4. It is beside the purpose of this work to enter into the questions of morality that arise out of Holy Scripture, considered as an inspired record of the actions of the Saints. But the polygamy of the patriarchs of old so readily occurs to mind, that it is worth while to mention four conceivable explanations, if only to indicate which is and which is not reconcilable with our philosophy. The first explanation would be, that polygamy is not against the natural law, but only against the positive divine law, which was derogated from in this instance. We have made it out to be against the natural law. The second explanation would be that God gave the patriarchs a dispensation, strictly so called, from this point of the natural law. We have maintained that God cannot, strictly speaking, dispense from one jot or tittle of natural law. (Ethics, c. viii., s. iii., nn. 1-3, p. 147.)¹⁹ A third explanation would be founded on the words of St. Paul to the Athenians (Acts xvii. 30), about "God overlooking the times of this ignorance." This would suppose that mankind, beginning in monogamy, from passion and ignorance lapsed quickly into polygamy: that the patriarchs in good faith conformed to the practice of their time; and that God, in their case as with the rest of mankind, awaited His own destined hour for the light of better knowledge to break upon the earth. A fourth explanation would be this. God by His supreme dominion can dissolve any marriage. By the same dominative power He can infringe and partially make void any marriage contract without entirely undoing it. The marriage contract, existing in its fulness and integrity, is a bar to any second similar contract, as we have proved. But what, on this theory, the Lord God did with the marriages of the patriarchs was this: He partially unravelled and undid the contract, so as to leave room for a second contract, and a third, each having the bare essentials of a marriage, but none of them the full integrity.

But, for the author's final view, see Appendix.

Readings.—Contra Gent., iii., 124; Suarez, De Legibus, II., xv., 28. ¹⁹ Dispensatio is the Latin for [Greek: oikonomia], and in this case means an "economy" of law, in the sense that God did not press the marriage law beyond the capacity of the subject (Matt. xix. 7,8). See my Newman Index, s.v. Economy. The schoolmen missed this meaning, and took dispensatio in the canonical sense.

1. This section is pointed not so much against a separation—which may take place by mutual consent, or without that, by grievous infidelity or cruelty of one party—as against a divorce a vinculo, which is a dissolution of a marriage in the lifetime of the parties, enabling each of them validly and lawfully to contract with some other. The unity of marriage is more essential than its indissolubility. Nature is more against polygamy than against divorce. Even Henry VIII. stuck at polygamy. In the present arrangement, a divorce a vinculo is obtainable in three cases. First, when of two unbaptized persons, man and wife, the one is converted, and the unconverted party refuses to live peaceably in wedlock, the convert may marry again, and thereupon also the other party. So the Church understands St. Paul, I Cor. vii. 13, 15. Again, the Pope can grant a divorce a vinculo in the marriage of baptized persons before cohabitation. Such a marriage in that stage is also dissolved by the profession of one of the parties in a religious order. Beyond these three cases, the Catholic Church allows neither the lawfulness nor the validity of any divorce a vinculo by whomsoever given to whatsoever parties.

2. It is ours to investigate the lie of the law of nature, having due regard to the points marked, antecedently to our search, by the definition of infallible authority. Nothing can be done in the Church against the law of nature: since therefore divorce a vinculo is sometimes recognized in the Church, it may be contended that marriage is not by nature absolutely indissoluble. On the other hand, it is a proposition censured by Pius IX. in the Syllabus, n. 67: "By the law of nature the bond of marriage is not indissoluble." Thus it appears we must teach that marriage is naturally indissoluble, still not absolutely so, just as a safe is justly advertised as fire-proof, when it will resist any conflagration that is likely to occur, though it would be consumed in a blast-furnace or in a volcano. So marriage is indissoluble, if it holds good for all ordinary contingencies, for all difficulties that may be fairly reckoned with and regarded as not quite improbable, for every posture of affairs that the contracting parties before their union need at all consider. Or, if the three cases of divorce actually allowed are to be traced to the dominative power of God (Ethics, c. vii., n. 2, p. 129), we may teach that marriage is by nature absolutely indissoluble, and that divorce is as much against the law of nature as the killing of an innocent man, excepting in the case of God's dominion being employed to quash the contract or the right to life. But against this latter view is to be set the consideration, that God is manifestly averse to using His dominative power to overturn natural ordinances. He does not hand the innocent over to death except in the due course of physical nature: why then should He ever put forth His power against the marriage-tie, unless it be that nature herself in certain cases postulates its severance? But if such is ever nature's petition, the universal and unconditional permanence of the marriage-tie cannot be a requisition of nature, nor is divorce absolutely excluded by natural law.

3. Thomas Sanchez, than whom there is no greater authority on this subject, records his opinion that "a certain inseparability is of the nature of marriage," but that "absolute indissolubility does not attach to marriage by the law of nature." He adds: "if we consider marriage as it is an office of nature for the propagation of the race, it is hard to render a reason why for the wife's barrenness the husband should not be allowed to put her away, or marry another." (De Matrimonio, I. ii., d. 13, n. 7.) We proceed to prove that "a certain inseparability is of the nature of marriage," so that marriage may truly be said to be indissoluble by the law of nature. Whether this natural indissolubility is absolute, and holds for every conceivable contingency, the student must judge by the proofs.

4. If a divorce a vinculo were a visible object on the matrimonial horizon, the parties would be strongly encouraged thereby to form illicit connections, in the expectation of shortly having any one of them they chose ratified and sanctified by marriage. Marriage would be entered upon lightly, as a thing easily done and readily undone, a state of things not very far in advance of promiscuity. Between married persons little wounds would fester, trifling sores would be angered into ulcers: any petty strife might lead to a fresh contract, made in haste and repented of with speed: then fond, vain regrets for the former partnership. Affinity would be a loose bond of friendship between families; and after divorce it would turn to enmity. The fair but weaker sex would suffer the more by this as by all other matrimonial perversions: for the man has not so much difficulty in lighting upon another love, but the woman—she illustrates the Greek proverb of a fallen estate:

Mighty was Miletus in the bygone days of yore.

The divorced wife offers fewer attractions than the widow.

5. It is well to bear in mind that, at least by the positive ordinance of God in the present order of His Providence, the marriage of baptized persons, after cohabitation, is absolutely indissoluble; and no marriage can be dissolved except in the three cases specified. (n. 1.)

Readings.—Leo XIII., Encyclical on Christian Marriage, Arcanum divina sapientia; St. Thomas, Contra Gent., iii, 123.

Applied correction from Woywod's opening insert: CASE XIX must be placed in the time before the "Ne temere" decree came into force, viz., 19 April, 1908. As regards the statement on page 80 about the marriage contracted against the bona essentialia of marriage the New Code in Canon 1086 says very plainly: "If one or both parties by a positive act of the will exclude marriage itself or all right to the conjugal relations or any of the essential qualities of the marriage (which are its unity, indissolubility and the primary purpose of marriage) the marriage is invalid."

Titus, without the least scruple of conscience, has changed his religion a number of times, for the sake of worldly gain. At present, however, he is back in the Catholic Church, and to all appearances, for good. It happens now that he ruins a poor Catholic girl, and she becomes a mother. She insists on his marrying her. He agrees, but on one condition only, namely, that they both go over to Calvinism first, and as members of the church of Calvin, get married. For, says Titus, in case this marriage turns out a failure, and we should wish to have it dissolved, we can get a divorce very easily in the Calvinistic church. And so it happens. They both become Calvinists, and as members of the Calvinistic church are married by the preacher. But the marriage turns out badly. Titus abuses the wife, until at last she is compelled to seek a divorce in the civil courts. The divorce is granted and the woman leaves Titus for good.

She remains single for some time, and then falls in love with a Catholic man, whom she finally marries before a civil magistrate. Some time after this she goes to the priest and begs to be received back into the Catholic Church, and to have this, her second marriage, made or declared valid by the Church.

The question is, What is to be done under the circumstances?

Answer.—In order that Lucy's second marriage, i. e., with the Catholic man, be a possibly valid marriage at all, before God and the Church, it must be proven that Lucy's first marriage, i. e., Calvinistic marriage with Titus, was invalid from its very inception. For if the first marriage was at any time valid and consummated, then it can not be dissolved, quoad vinculum, by any power on earth.

However, there are good grounds for suspecting that Lucy's first marriage, that is, her Calvinistic marriage with Titus, was invalid from the very start. The view non-Catholics take of marriage, namely, that for specified reasons it may be dissolved, quoad vinculum, does not necessarily render the marriage of non-Catholics invalid. For their prime purpose is to contract a real and true marriage. Their belief that marriage is dissoluble is only a concomitant error. But when the main purpose of the contracting parties is to contract a dissoluble marriage, then the marriage rights themselves, which constitute the subject matter of the marriage contract, and which are mutually transferred in marriage, are materially and substantially vitiated and destroyed. There is a real and substantial defect present in the contract, a so-called shameful condition which reaches into the substance of Marriage (Lehmkuhl, II., n. 688).

According to the Canon Law, the shameful conditions contrary to the substance of marriage, when incorporated into an agreement, render the marriage null and void. In like manner, the Instruction issued under Gregory XVI. to the bishops of Hungary, April 30, 1841, on mixed marriages, holds indeed for the validity, generally, of such marriages, notwithstanding the false opinion of Protestants on the dissolubility of marriage; still this same Instruction calls attention to the fact that the Congr. of the Holy Office, October 2, 1680, to the question: “Whether a marriage contracted between a Catholic woman and a schismatic with the intention of violating or dissolving the marriage is valid,” gave the following answer: “If these things were incorporated into the agreement, or if the marriages were contracted under that condition, they are null; otherwise, they are valid” (Denziger, Enchiridion, n. 1485).

In the case before us there is no question of a mixed marriage. But the grounds for its eventual invalidity are not to be sought for in its character of mixed marriage, as such, but in the false view of non-Catholics concerning the object and conditions of the marriage consent, which false view of Protestants may easily enter into and affect substantially the object and conditions of the marriage consent.

This was true in the case of Titus. He stated expressly that he wished to contract a dissoluble marriage. It was for this express purpose that he joined the Calvinistic church—that his marriage might be more easily dissolved in case he should, in the future, desire its annulment. There is no room, therefore, to doubt the invalidity of the marriage between Titus and Lucy. And consequently there is no room for questioning Lucy's ability to contract a valid marriage with the Catholic man and to be received back into the Church. As marriages of baptized persons before a civil magistrate, though mortally sinful, are nevertheless valid in most places, where the Tridentine Decree, "Tametsi," has not been published, this second marriage of Lucy to a Catholic, before a civil magistrate, was a true marriage before God and conscience, although mortally sinful, provided only Lucy and the Catholic man intended, at the time, to enter into a true and valid marriage contract, binding before God and in conscience. But the whole case should be brought before the Ordinary of the Diocese, who will name the conditions on which Lucy will be reconciled with the Church.

But if Lucy's marriage with the Catholic man before the magistrate was not looked upon by them as a real marriage, but only as a civil ceremony, prescribed by law, as happens in some countries, then, of course, Lucy's marriage to the Catholic, before the magistrate, was no marriage. The pastor should not lend his countenance to it, nor bless it, before he has laid the whole matter before the bishop. It is the bishop's office to determine the invalidity of Lucy's first marriage, with Titus, because that marriage had all the appearances of a valid contract "in foro externo" and before the public. Only after competent Church authority shall have declared it invalid can Lucy proceed to a second marriage. It will be necessary, however, to produce satisfactory proof of Titus' intention, when he married Lucy, of forming a dissoluble union only.

Case submitted:

A certain unbaptized lady was married to an unbaptized man. They separated before the civil court. The lady got married again, and wished to join the Catholic Church with her husband. Not having been informed about her former marriage to the infidel, and finding them sincere and well disposed, I baptized them and married them.

I did it because, 1, they live in the mountains, among the Mor mons, and everything was prepared when I arrived there; 2, because I thought that she had the privilege by the "Casus Apostoli," although "interpellatio non facta fuit." Our bishop says that he doubts whether in his faculties he has the power to dispense in the "interpellatio partis infidelis." Do you know whether the Holy Father gives this power to the bishops in this country? Some say that they have the power.

It would be too bad, not only for that couple, but for numerous relatives, who desire to enter the true Church. In case the "interpellatio" is necessary "quoad validitatem," must I procure a dispensation "in radice"?

Solution:

The case here submitted gives rise to the following questions:

1. Is the "interpellatio partis infidelis" required "ad validitatem" or only "ad licitatem novi matrimonii"?

2. Have the bishops of the United States faculties to dispense "a facienda interpellatione"?

3. What ought the priest to have done as soon as he learned of the first marriage?

4. What is to be done now?

1. Is the interpellation required for the validity of the new marriage, or only for its licitness?

Answer.—The theologians are not agreed as to whether the interpellation of the unbaptized party is required for the validity of the new marriage, or only to make it licit. The greater number favor the opinion that the interpellation is of divine command—juris divini —and that its omission, without Papal dispensation, makes the new marriage invalid. Card. D'Annibale (l. III. n. 476) says to the question “whether interpellation is necessary by divine law? The far more common opinion answers affirmatively.”

The theologians who hold that the interpellation is required for the licitness only of the new marriage, contend that the validity of the new marriage, contracted without the interpellation and without a Papal dispensation, will depend, "ex jure divino," on the willingness or unwillingness of the unbaptized party to be converted or to cohabit in peace, etc. The new marriage of the baptized party will be valid or invalid, according as the subsequent investigation shall prove that the unbaptized party to the first marriage was willing or unwilling to be baptized or to dwell with the Catholic party without sin, etc.

These theologians hold that the interpellation is a “a means of ascertaining whether the Pauline case is in fact verified, just as an inquiry into the death of a spouse is required for the lawful celebration of a new marriage, but its omission does not cause the new marriage to be null and void.”

Thus Ballerini-Palmieri (VI. n. 619), “But I do not know why, in our case also, one should not reason in the same way (as in the case of establishing the fact of the husband’s or wife’s death before contracting a new alliance), namely, that he who contracts a new marriage without the unbelieving party having been interrogated certainly sins, but contracts validly if the unbelieving party was unwilling either to cohabit or to be converted, and invalidly if that party consented to conversion or cohabitation.” Indeed, there are some theologians who argue that the omission of the interpellation would not even render the new marriage illicit, if the unwillingness of the unbaptized party to be converted had been proven for certain in some other way. But whatever may be said of the probability of these opinions which deny the need of interpellating "quoad validitatem novi matrimonii," it must be admitted that the greater number of theologians hold that the interpellations are "juris divini," and their omission, without Papal dispensation, renders the new marriage invalid. Moreover, innumerable decrees and answers of the Holy See prove beyond doubt that it is never licit to omit the interpellation without the permission of competent authority.

In the year 1884, the Bishop of Portland consulted the S. Congr. de Prop. Fide on the following question: “Whether, where the dissolution of a marriage contracted in unbelief is in question... and where the unbelieving party, released from her husband by legal divorce, has proceeded to another marriage, interpellation would be altogether necessary, even with the following very great inconveniences, namely: 1, the unbelieving woman regards the interpellation as injurious to herself; 2, her new husband hears the interpellation with indignation, and if the interpellation is made orally, the messenger will sometimes discharge his office not without danger; 3, where the man or woman released by divorce has already passed to another, as they say, marriage, he or she could not return to the former spouse: for the civil law stands in the way.”

To this question the S. Congr. de Prop. Fide replied as follows: “According to the intention. The intention is that neither divorce nor a second civil marriage is sufficient to exempt a party from the obligation of interpellation. But insofar as it is established at least summarily and extrajudicially that interpellation will be either impossible or useless, the Bishop shall use the faculty of dispensing, if he possesses it; if not, petition must be made to His Holiness for the faculty for ten cases. His Holiness approved and granted the faculty.” (G. P. F. 1360). Feije (Disp. n. 493) says: If the baptized party contract a new marriage, without interpellating, and without procuring a dispensation from the interpellations, then the baptized party sins grievously. The validity, however, of the marriage, in the opinion of many theologians, will depend on the subsequent consent or refusal of the unbaptized party to be converted and to cohabit peaceably, etc. This opinion, however, continues Feije, does not agree with the decisions of the S. Congr. de Prop. Fide (March 5, 1816), which Congregation has declared, in some particular cases, a marriage invalid which was contracted without first interpellating or procuring a Papal dispensation.

Little, if anything, can be concluded from the rulings of the S. Congregations concerning the necessity of interpellating on pain of invalidating the new marriage. The decisions of the Sacred Congregations refer to particular cases, and they purposely refrain from using terms that might be construed as settling a general point in dispute among the theologians. Thus the Propaganda was asked, March 5, 1816, “whether interpellation is of divine law and therefore so necessary that, if it is neglected, there is plainly no possibility of dissolving the marriage,” and returned this answer, “that it did not wish to answer this petition expressly,” etc.

There is no foundation for the categorical statement that "outside of the case of a Papal dispensation, the interpellation is always required, jure divino, and that on pain of invalidity of a new marriage" (Smith, Marriage Process, n. 305).

Since theoretically, therefore, theologians are not agreed as to the nature of the need of interpellating, practically the interpellations are always to be made, or a Papal dispensation from them must be procured, because any other course would leave the subsequent marriage a doubtful contract, and jeopardize the validity of the sacrament.

Second Question.—Have the bishops of the United States faculties to dispense from the interpellations? They have no general faculties. Some individual bishops may have faculties to dispense from the interpellations for a certain number of cases, but there are no general faculties given to all our bishops as a body. Smith (Mar. Proc. n. 302) says: "Bishops in the United States have no such Papal delegation, at least generally speaking, and consequently recourse is to be had to Rome in each case with us, as is also plainly intimated by the S. Congr. de Prop. Fide, Instr. Causae Mat. sect. 45, The words of the “Instruction” (Append. III of the Plenary Council of Baltimore) are as follows: “If a marriage happens with a Catholic party after the reception of baptism, it must be ascertained whether a canonical interpellation of the spouse who still remained unbelieving preceded it, or at least whether dispensation from that interpellation was granted by lawful authority. Insofar as it is established that the interpellation was made or that a dispensation from it was granted, the first marriage can no longer constitute a bond invalidating the second union; but insofar as neither interpellation nor its dispensation preceded, the first marriage will indeed stand in the way of the second, but the Ordinary must suspend judgment and refer the case, with all its circumstances, to the Holy See, which will indicate to the Ordinary what is to be done.” Putzer (Comment. in Facult Apost. n. 130) says: "An hac facultate etiam nostri Episcopi (U. S. A.) gaudeant, publice non constat."

Among the faculties granted by the Holy See to the bishops of the United States is this one: “To dispense with pagans and unbelievers having several wives, so that after conversion and baptism they may retain whichever one of them they prefer, if she also becomes a believer, unless the first wife wishes to be converted.”

Our bishops, therefore, may dispense from the second of the two interpellations, namely, whether the unbaptized party will cohabit in peace, etc., but not from the first interpellation, namely, whether the unbaptized party is willing to receive baptism.

Third Question.—What ought the priest to have done as soon as he learned of the first marriage? In the first place he might have prudently suspected the possibility, if not the probability, of some such previous marriage and divorce under the circumstances, since such things are so common in the United States, and elicited the information in time to make the interpellations or to procure a dispensation from the proper authorities. Of course, this was impossible at the moment when the priest did, as a matter of fact, learn of the previous marriage and divorce. The parties live far away in the mountains. They are living together in good faith as husband and wife. They are to be baptized and then married. Everything is ready. The only practicable course open to the priest would seem to be to leave them in good faith and marry them and then procure a dispensation from the interpellations and have them renew their consent.

There is ample reason, under the circumstances, to petition the Holy See for a dispensation. The second husband is a Catholic now, and the parties are in good faith, and there is no hope of the wife ever returning to the first husband, from whom she is legally divorced and who is unbaptized.

The effect of this Papal dispensation from the interpellations is “so that the marriage of the newly converted party with another believer may be valid and enjoy complete firmness, even if it should afterward be established that the unbelieving spouse was well disposed at the moment when the dispensation was given, indeed, even if it should be proved that at that very moment the party who was believed to be unbelieving had already been baptized” (De Becker, de Mat. p. 456).

Fourth Question.—What is to be done now? Leave the parties in good faith and procure a dispensation from the interpellations and then make them renew their consent. In this case, according to a recent reply of the Congr. of the Holy Office, there is no "sanatio in radice," “in this case there is no place for a dispensation in radice,” etc. (Jan. 17, 1900). Consequently, after procuring the dispensation, the parties must be married over again, that is, renew their consent in the presence of the parish priest and two witnesses.

The Congregation of the Inquisition has given a dispensation from the interpellation demanded for the Pauline privilege, in connection with an interesting case proposed by an American bishop. The case is as follows: George, now fifty years old, and living in the diocese of the petitioning bishop, married Bertha, both being unbaptized; as a result of this marriage they had four children, who are still living. Eight years later Bertha showed many indications of insanity, so that it became impossible to live with her, and she was committed to an asylum for the insane.

Six years afterward, as there was no hope of her recovering sanity, George obtained a decree from the civil courts adjudging his marriage null and void from the beginning on the grounds of the woman's insanity, which several physicians testified was caused by a hurt which she had received when only ten years of age.

George, still unbaptized, then married Caroline, a baptized non- Catholic. He is still living with her; they have had several children, of whom one is living. The insanity of Bertha has gone so far that she does not recognize her own daughter, and imagines that she herself is Queen Elizabeth.

We do not assert that socialism aims at the legal prohibition of marriage or at the compulsory dissolution of the family. Kautsky feigns great indignation at imputations of this sort made against social democracy. “It is a most palpable falsification,’ he says, “to impute to us any such intentions; only a fool can imagine that a family is created or abolished by a legislative enactment.”¹ It has become a real mania with socialist writers to wax wroth at objections which no one thinks of raising. All we maintain is that the dissolution of the family is the necessary consequence of socialist principles and demands. The proof for our assertion is not far to fetch.

¹ Das Erfurter Programm, etc., p. 146.

The destruction of the marriage bond involves the destruction of the family. Marriage is the root and foundation of the entire family. Socialism, however, by its theories of equality loosens the marriage tie, and introduces instead some amorous relation based on mere whims and passing inclinations. The truth of this statement is vouched for by the express testimony of prominent socialists. Already Marx has pointed out that modern industry, by assigning an important part in socially organized production to women, young persons, and children, and thereby removing them from the sphere of domestic life, is creating the economic basis for “a higher form of the family and of the relation of the sexes.” And he adds that it is rather silly to consider the Christian Germanic form of marriage or any other form as absolute and unchangeable.²

² Capital, vol. I. p. 455.

What are we to understand by the higher form of sexual relations? The Erfurt platform calls for the “abolition of all laws which subordinate woman to man in public and private life.” This demand implies at least the destruction of the unity of the family, which necessarily postulates one supreme head. Who is to decide the dispute, if man and wife disagree as to their dwelling-place and similar affairs? But to make us understand more fully what is meant by that higher form of marriage, it will suffice to hear the evidence of a leader, who may be said to represent the almost universal sentiment. Bebel writes of the position of woman in the socialist state as follows:

“In the choice of the object of her love she [woman] is no less free than man: she loves, and is loved, and enters into the marriage alliance with no other regard than that of preference. This alliance is a private agreement, without the intervention of any [public] functionary, just as marriage was a private concern till late in the Middle Ages.”¹ . . . Man should be free to dispose of the strongest instinct of his nature as of every other natural instinct. The gratification of the sexual instinct is not a whit less the personal affair of every individual than is the satisfaction of any other natural appetite. Therefore no one is obliged to render an account of such gratification; nor is any uncalledfor intermeddler permitted to interfere in this matter. Prudence, education, and independence will facilitate and direct the proper choice. If disagreement, disappointment, or disaffection should arise, morality [!] demands a disruption of the unnatural and, consequently, immoral alliance.”²

¹ This is a mistake. The Church never looked upon marriage as a purely private concern, beyond the limit of her jurisdiction. According to Catholic doctrine, marriage is a sacrament instituted by Christ and entrusted to the care of the Church. Therefore marriage laws and marriage impediments were promulgated. Moreover, every marriage not celebrated according to the ecclesiastical rite (in facie ecclesiæ) was declared illicit. If, nevertheless, up to the Council of Trent clandestine marriages were acknowledged as valid (that is to say, if there existed no other impediments), this was done to prevent greater evils. But also, then, the contracting parties were bound forever. What is there in common in this institution with the promiscuity of sexual intercourse advocated by Bebel, who permits the utmost freedom of tying or untying the marital bond without the least interference from any one?

² Die Frau, p. 342. Similar ideas are propounded by Engels in his Origin of the Family, by Stern and Liebknecht. Among American socialists these views on marriage have been popularized by Edward Carpenter's Love's Coming-of-Age. According to Carpenter, marriage relations are raised to a much higher plane by a continual change of partners “until a permanent mate and equal is found.” A man of ordinary common sense, however, will characterize such proceedings as rank promiscuity.

Here we have unvarnished “free-love.” What remains of the bond of marriage if the parties, following every whim and transient disaffection, are free to separate and to enter upon another alliance? However, we do not mean to confine ourselves to such explicit teaching of socialists. We shall endeavor to show that socialism of its very nature demolishes the family, which is the foundation of the social order.

In the first place the atheistic and materialistic tenets of socialism are incompatible with the unity and indissolubility of marriage. If man has no higher aim than to revel in earthly enjoyment, how can he be induced to bear the yoke of indissoluble monogamy? Is he to be tied for life to a partner whom he no longer loves, who is perhaps subject to loathsome diseases, who is guilty of adultery or other crimes? If even many defenders of the existing social order look upon divorce as excusable in many cases, how can socialists, with their striving after enjoyment, be brought to respect the sacredness of the marriage bond? An indissoluble marriage contract is incompatible with Epicurean principles.

The basis upon which the indissolubility of marriage, and consequently the stability of the family, chiefly rests is the education of the children. It is chiefly for this purpose that the lifelong union of man and wife is necessary; for such a lifelong union is generally required for the suitable education of their offspring. Therefore whoever wrests the education of their children from the hands of parents, and makes it a function of the state, thereby undermines the lowest foundation of the family. But socialism puts education and instruction altogether into the hands of the commonwealth. The Gotha platform demands: “Universal and equal education of the people by the state.’ This demand is re-stated somewhat obscurely by the Erfurt platform: “Compulsory attendance at the public schools. Instruction, use of all means of instruction, and board free of charge in all public elementary schools and in the higher institutions of learning for such pupils of both sexes as, on account of their talents, are judged fit for higher studies,” whilst the American Socialist Party platform advocates “education of all children up to the age of eighteen years, and state and municipal aid for books, clothing, and food.”

On this point we may yet insert the words of one of the great apostles of socialism.

“Every child that comes into the world, whether male or female, is a welcome addition to society; for society beholds in every child the continuation of itself and its own further development; it, therefore, perceives from the very outset the duty, according to its power, to provide for the new-born child. And, first of all, the mother who gives birth to and nurses the child is the object of the state’s concern. Comfortable lodging, pleasant surroundings, and accommodations of all kinds suited to this stage of motherhood, careful treatment of herself and of her offspring, are the first requisite. It is self-evident that the mother must be left to nurse the child, as long as this is possible and necessary... .

“When the child waxes stronger his equals await him for common amusement, under public direction. Here again all things are supplied which, according to the perfection of human knowledge and wisdom, for the time being, tend toward the development of soul and body. Then comes the kindergarten with its playrooms; and, at a later period, the child is playfully introduced into the elements of knowledge and human activity. Mental and bodily labor, gymnastic exercises, free movement on the playground and in the gymnasium, on the ice field and in the natatorium; marching, fencing, and other exercises for both sexes, shall succeed and relieve and supplement one another in due order. The introduction to the various kinds of useful labor—to manufacture, gardening, farming, and to the entire mechanism of production—follows in due succession. But the intellectual development, in the meantime, on the various fields of science, is not to be neglected. Corresponding to the high grade of social culture shall be the outfit of the lecture-halls, the educational appliances, and the means of instruction. All means of education and instruction, clothing and food, supplied by the community, will be such as to give no pupil an advantage over another. The number and the ability of the teaching body will be in proportion to the demands.

“Such will be the education of both sexes—equal and common —for the separation of the sexes can be justified only in those cases in which the distinction of sex makes it an imperative duty. And this system of education, strictly organized, under efficient control, continued to that stage of life when society shall declare its youth to be of age, will eminently qualify both sexes for all rights and duties which society grants or imposes on its fullgrown members. Thus society can rest satisfied that it has educated members that are perfectly developed in every direction.”¹

¹ Die Frau, pp. 322-324, 328.

This is one of the midsummer night’s dreams in which Bebel’s “Frau” delights to revel. How grossly immoral such dreams are needs hardly to be stated. The usurpation of education by the state, however, is quite logical according to the principles of socialism. If socialism is to effect absolute equality in the conditions of life, it must first of all remove the universal source of social inequality, i.e., unequal education; and this can be done only by making education a social concern. Such a regulation would, of course, not hinder mothers from suckling their own children and nursing them to a certain age. But mothers and children would be placed under the supervision of the body social; for there would be no servants in those days: physicians, surgeons, midwives, etc., would be in the service of the body politic; those able to work would have to contribute their share to the social production, while the care of those unable to work would devolve upon the community. The care and treatment of mothers in confinement and of their children would, of course, be the concern of the state. For if the care of the children were left to the parents, it might happen that childless husbands and wives who have never been prevented from work would attain to a much higher income than others who would have to provide for the support of a numerous family, and would thus be prevented from taking an active part in production. And if the father or mother should fall sick it might easily happen that an entire family would be exposed to starvation, while another would enjoy all comforts. And how could a mother, without the aid of servants, bring up and educate a large family, say of ten or twelve children? If, therefore, education were left to the parents themselves it would be the duty of the community at least to give an additional allowance from the public produce for their support, and to make provision for them in case of sickness. In brief, parents would have to be relieved by the state of the burden of supporting their children.

Therefore both the nourishment and the education of the children in the socialist state would be a public affair, and would be directed and controlled by the entire body social. Thus the chief duty of parents, for the sake of which marriage has been instituted as an indissoluble union, would cease to exist; for a life-long union and co-operation on the part of parents is not required for the mere propagation of children. And even though in the socialist state the indissolubility of marriage might be sanctioned by law, yet the integrity of the family would receive the death-blow. That which binds husband and wife most closely is not only the actual existence of offspring, but, above all, the consciousness that upon their united efforts and care depends the weal or woe of their children. Parents have to provide for the support and the development of their children; upon their care, in the first place, depend the life, the future position, the social standing, the honor, and the eternal welfare of their children. This consciousness urges them on to untiring activity. What they have been able to accumulate by their toil falls to the advantage of their offspring, in whom they, as it were, continue to live, and who naturally inherit the fruits of their cares and toils.

On the other hand, the consciousness that they owe to their parents, not only their life itself, but also their preservation, education, and position in society—in short, all they possess—binds the children in intimate love to their parents. They know that their own fortune is closely linked together with that of their parents. Hence there exists between them mutual sympathy in joys and sorrows. In socialism all this would cease to exist; for the entire social body would form but one family. What would become of parental authority if children knew that the state provided for their sustenance, or, at least, remunerated parents for the care bestowed upon them? Would not such a system greatly promote rash marriages and facilitate divorces, particularly as in the socialist state marriage would be a purely private concern?

203. The two chief properties of marriage are unity and indissolubility. One man and one woman are joined in wedlock, promising, as the old formula correctly expresses it, to take each other as husband and wife, "for better, for worse, for richer, for poorer, in sickness and health, till death do us part." To the unity of marriage are opposed polyandry, or plurality of husbands, and polygamy, or the plurality of wives. To indissolubility is opposed divorce.

204. Polyandry is destructive of the very idea of order in domestic society, because, if man is to retain his natural headship of the family, it would give several heads to the same family. Besides, polyandry defeats both the primary and the secondary ends of marriage. Even if in this condition of affairs children were born, it would be very difficult, if not impossible, to tell who was the father of each particular child, so that the education of such practically fatherless offspring would be incomplete and neglected. And can we imagine that domestic peace and love could find place in such a household? Consequently, polyandry is entirely opposed to the natural law.

205. Polygamy, though it does not make the generation and education of the children impossible, is directly opposed to the secondary end of marriage, for it is the unfailing cause of jealousy, strife and domestic unhappiness; it degrades woman from her true rank to the condition of slavery. Hence, polygamy is a violation of the natural law, though not to so great an extent as polyandry. History shows that polygamous nations have advanced very slowly, if at all, in civilization, and that amongst them the increase of population has not equaled that of monogamous nations.

To the objection that God permitted polygamy to the patriarchs of old, we answer that God never approved the practice. He tolerated it for a period, until, in the fullness of time, His holy will was more luminously declared, and the original unity of marriage was re-established. Even if God did allow plurality of wives in past ages, it does not follow that the practice may be adopted without His special dispensation. He alone controls the rights of all parties, and He alone could prevent the evils that must result naturally from a polygamous union.

206. Indissolubility is the second property of marriage, that is, the marriage contract is of such a nature, that, once entered upon, it continues in force until the death of one of the contracting parties. A lasting union it was meant to be from the beginning: "Wherefore a man shall leave his father and mother and shall cleave to his wife" (Gen. ii. 24). This property is violated by divorce, which consists in annulling or breaking the marriage contract, so that each of the contracting parties may marry again during the lifetime of the other.

Divorce is opposed to one of the primary objects of marriage, namely, the proper education of the children. The latter have a natural right to the support, the supervision, the good example, the abiding love of both their parents, to whom, in return, they owe lasting reverence, love, and gratitude. Yet these duties, which are established by the natural law, divorce makes impossible of fulfillment. It turns the mutual love of husband and wife into mutual hatred; the children cannot cling to both parents, and thence results a house divided against itself, a byword of disgrace.

Moreover, if divorce were foreseen as possible, how easily would mutual distrust be aroused, to be followed by domestic discord. "If," says the Rev. Joseph Rickaby, S. J. (Moral Philosophy, p. 276), "a divorce a vinculo were a visible object on the matrimonial horizon, the parties would be strongly encouraged thereby to form illicit connections, in their expectation of having any one of them ratified and sanctified by marriage. Marriage would be entered upon lightly, as a thing easily to be done and readily undone, a state of things not very far in advance of promiscuity."

207. It is sometimes objected that the unnatural conduct of one of the contracting parties may make the continuation of family life a moral impossibility, and that in this case divorce is the less of two evils. Such a state of affairs may indeed render it impossible for the parties in question to live together; nevertheless divorce is not therefore admissible. An escape from the difficulty may be had, without violation of law or of right, by a temporary separation, a toro, "from bed and board," as the arrangement is termed, which may be indefinitely prolonged according to need. Yet this measure differs from a separation a vinculo, or the annulment of the marriage contract. Among baptized Christians, for whom marriage is a sacrament figuring the spotless and irrevocable espousals of the Son of God with His Church, every valid marriage that has been consummated is absolutely incapable of annulment: "What God has joined together, let no man put asunder" (Matt. xix. 6).

208. Marriage is, therefore, by its nature, a bond that can be loosened only by death. It may be asked whether divorce is essentially wrong, i. e., whether it is so opposed to the natural law as to be inadmissible under any conditions. We know that in the time of the Old Testament, God allowed or tolerated it for some special cases in the midst of general corruption. But toleration of a measure is immensely different from approval of the same. Besides, it is one thing for God, the Sovereign Master and Guardian of rights, to dispense from a law, and quite another thing for the civil authorities to grant a similar dispensation in a matter that does not come within their jurisdiction. The civil powers do not create the family, nor can they without injustice bring about its destruction.