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* •

« »■.• . s..

.i :■

NEW CHURCI
ON MATRIMONY

msSERTAllON

$tilimiU4.>d to the Faculty of Sacred Scicnci^n at tt&

Catholic. L'nivecsity of America io |>artial

fulfUlmeDl of rctjiiireineiUa for the

Dodoratc in r.umni Ijiw,

BS THE

, jOsCpb J. c. PETROvrrs, j.c.l., s.t.d.^

OF THE DIOCESE OF HARiUSBURG

raiLADELPiriA

JOHN JOSEPH ^rrV^:Y

copywoht, 1919
John Joseph McVet

iv Introdiiction.

The principles directly or indirectly connected with it
are many, their application is very consequential.
Some of the 133 canons, within whose compass the
main discipline of the Church on this subject (exclusive
of some specific dispensations, and matrimonial trials)
is comprised, embody a discipline entirely new, others
again either implicitly or explicitly modify or abrogate
the former law. To explain the canons mentioned
above all the available sources on which the author
could draw were limited to the former discipline of the
Church as reflected in the Corpus luris, in the numer-
ous decisions of the various Sacred Congregations, in
the works of accepted and approved authors, and to
the mere wording in which the matrimonial legislation
is couched. This limitation is due to the fact that the
present law is of very recent origin, the interpretations
thus far suggested fragmentary, hastily compiled and
necessarily inadequate, and the times unfavorable to
serious and extensive research, to publication, and to
the procuring of works, if there be any, on the subject
treated in this book. These facts will explain why the
author was not in a position to advance authorities for
some of his statements regarding certain opinions he
has espoused in the interpretation of canons containing
a law either entirely new or modified when compared
with the former discipline. Though the author guarded
his statements as much as possible, the seeming ob-
scurity and indefiniteness prevailing in some canons
constrain him to say that some of his opinions in this,
what may be styled a pioneer-work, are only tentative
and provisional.

These facts, when viewed cumulatively, the author
hopes, will constitute a sufficient ground for asking in-
dulgence and leniency on the part of those whose
critical acumen is better equipped than his own to dis-
cern any flaws or incorrect statements which might

Introduction. v

have crept into his work for want of more adequate
comprehension of the law each canon is intended to
enforce.

As time advances, whatever inaccuracies may be con-
tained in this work the author hopes to correct after
the meaning of certain canons has been clarified, either
by authentic decisions emanating from the ^'Com-
tpiissio'' or by interpretations advanced by canonists
whose opinions are of weight. In the meantime, the
author hopes that his work will be of some assistance to
the shepherds of souls who, owing to their many-sided
duties, cannot spare the time consumed in research
such as is required of one who wishes to give a fairly
comprehensive interpretation of the scope of each
canon legislating on matrimony.

In conclusion the author wishes to retract any and
all statements which are not strictly in accord with the
law contained in the New Code. He submits all his
opinions to the decision of the Church and will welcome
aU criticism.

Author.

Catholic University op America, WAsmNGTON, D. C.
On Ascension Day, May 29, 1919.

TABLE OF CONTENTS.

CHAPTER I.
Preuminart Notions of Marriage.

PAGE

I. Marriage in General 1

II. Marriage as a Mere Natural Contract 2

III. Marriage as a Contract and Sacrament 5

IV. Ends of Marriage 14

Y. Different Kinds of Marriage 24

VI. The Jurisdiction of the Church Over Marriage 30

CHAPTER IT.
Espousals.

I. Nature of Espousals and Requirements for Their

Vaudity 34

II. Obligation Arising from the Espousals 36

CHAPTER III.
Transactions Preceding the Celebration of Marriage.

I. Examination of the Parties 41

II. Proclamation of Banns 48

III. Dispensation from the Proclamation of Banns 53

CHAPTER IV.
Matrimonial Impediments.

I. General Notions about Marriage Impediments 67

II. Different Kinds of Impediments 71

III. Right to Legislate in Marriage 76

rv. Dispensation from Matrimonial Impediments 80

V. The Power of the Bishops and Priests over Matri-
monial Impediments 84

CHAPTER V.
Impedient Impediments.
luPEDiMENT OF Simple Vows 109

lUPKUlMENT OP AUOPTION 112

Impediment op Mixed Rislkiion 113

1. Nature op the Impediubnt 113

2. Dispensation fkou the Impediment 115

3. Injunctions Re;lative to Uixed Marriages 119

Impediment of Unwortiiiness 124

VII.
VIII.

CHAPTER VI.

DlRIMKNT ImPEDIMENTB.

Impediment op Aoe , 129

Impediment op Impotenct 131

Impkuiment op Lioamf.n 137

Impediment of Disparity of Worship 140

1. History and Nature of the Impediment 140

2. Catholic Baptism 144

3. Doubtful Baptism 153

4. Dispensation from the Impediment 166

IS. Injunctions Relative to Mixed ItfARRiAQES 179

6. Ec«3.esiasticai. Penalty 185

7. Civil Legislation 187

Impediment op Holy Orders 188

Impediment op Solemn Religious Profession 194

Impeiiimunt dp Abduction 199

Impediment of Crime 206

Impediment of Consanguinity 222

1. Preliminary NorioN.-i about Consanguinity 222

2. History and Nature of the Impediment 224

3. Mode op Computation 228

4. Motives op this Impediment 233

5. Dispensation prom the Impediment 241

6. Ecclesiastical PENAt;rY and Exposure of the

Impediment 248

7. Civil Lboiblation 251

Impediment op Affinity 2.t4

1. General Notions About Aphnity 2-54

2. History and Nature op the Impediment 25fi

3. Derivative Fmice of the Impediment 261

Contents. ix

PAOB

4. Dispensation from the Impediment 264

5. Penai/ty Attached to this Impediment 267

6. Civil Legislation 270

XI. Impediment op Public Propriety 272

XII. Impediment op Spiritual Relationship 278

XIII. Impediment of Legal Relationship. 285

CHAPTER VII.
Matrimonial Consent.

I. Matrimonial Consent in Qeneral 292

II. Causes Militating Against Matrimonial Consent. . . 294

A. On the Part op the Intellect :

1. Want of Discretion. 295

2. Error 297

B. On the Part of the Will :

1. Simulation 303

2. Coercion and Fear 306

3. Condition 314

III. Manifestation of Consent 322

CHAPTER VIII.
The Form to be Observed in the Celebration of Marriage.

I. About the Form of Marriage in General 327

II. The Form of Marriage in the Present Legislation. . 329

1. Qualifications of the Witnesses, the Pastor

AND the Ordinary of the Place Relative to
Valid Assistance at Marriages 329

2. Authorization to Assist at Marriages 338

3. Requirements for Licit Assistance at Marriage. 342

4. Causes Justifying the Non-Observance of the

Forfxjoing Law 353

5. Persons Affected by the Catholic Form of Mar-

riage 357

6. Rites to be Obser\'*ed in the Celebration of Mar-

riage 361

7. Registration of Marriage 365

CHAPTER IX.
Marriage of Conscience 368

X Contents.

CHAPTER X.
Time and Place of Marriage.

PAGE

I. The Time op Marriage 371

II. The Place op Marriage 374

CHAPTER XL
The Epfects of Marriage.

I. The Matrimonial Bond 377

II. Effects op Marriage as to the Consorts and Their

Children 378

CHAPTER XII.
The Separation op Consorts.

I. Dissolution op the Bond:

1. Absolute Indissolubiuty 386

2. Relative Indissolubility 390

A. Reugious Profession 391

B. Papal Dispensation 392

C. Pauline Privilege 395

II. Separation from Bed, Board and Dwelling 416

CHAPTER XIII.
The Validation of Marriage.

I. Simple Validation 424

1. Marriage Invalid on Account of Impediment 424

2. Marriage Invalid for Want op Consent 427

3. Marriage Invalid for Want op Proper Form 429

II. Sanatio in Radice 430

1. The Nature of a Sanatio in Radice 430

2. Condition Under Which a Sanatio in Radice is

Granted 432

CHAPTER XIV.

About Second Nuptials 440

Index 443

BiBLIOCiRAPHY 453

TiTULi 459

ERRATA.

Page 6, line 16, **reeeption'' should read ''making/'
Page 6, line 26, **anathemizes'' should read "anathema-
tizes/'

Page 8, line 16, **is a source'' should read *'is the source."
Page 9, line 19, ** sacrament of marriage" should read
'* sacrament of matrimony."

Page 10, line 8, **anathemizes" should read '* anathema-
tizes."

Page 14, line 8, **in the performance in" should read '*in
the performance of."

Page 23, line 22, ** intimated" should read '* intimidated. "
Page 25, line 6, **it sway" should read **its way."
Page 31, line 32, *'to the mere civil effects" should read
* ' over the mere civil effects. ' '

Page 34, line 7, "Bishop" should read "Ordinary."
Page 35, line 16, "texts" should read "text."
Page 40, line 19, "certain subject" should read "certain
subjects."

Page 50, line 19, "sixteenth" should read "fourteenth."
Page 50, line 20, "fourteenth" should read "twelfth."
Page 63, line 18, "hope" should read "fear."
Page 73, line 11, "Gieran" should read "Gearin."
Page 80, line 11, "grades" should read "grade."
Page 86, line 28, "Gieran" should read "Gearin."
Page 117, line 1, "diffamation" should read "defamation." »
Paire 122, line 21, "Romal Missal" should read "Roman
Missal."

Page 123, line 15, "scandale reinofo" should read *'scan-
ddlo remoto."

Page 162, line 9. "baptists" should read "Baptists."
Page 169, line 31, "diffamation" should read "defama-
tion."

Page 175, line 16, "unforseen" should read "unforeseen."
Page 196, line 13, "anathemizes" should read "anathema-
tizes."

Page 222, line 1, "burden to repair" should read "burden
of repairing."

Page 225, line 10, "desirous to establish" should read "de-
sirous of establishing."

he New Church Law on Matrimony.

CHAPTER I.

Pkeuwinary Notions of Marriaoe.
(Canons 10I2-101C.)

/. Marriage in General.

1. The word matrimony is a compound derived from
two Latin words, namely, matris munium, meaning the
ofRce of the mother. The burdens inherent in gestation,
thfc paiu acfpnipanying parturition and thi' numerous
anxieties subsequent to chilil-birlli, lifiiig Indicative of
the most intimate relatiuusliiii b>'twci'n inntlier and
child, are generally adduced as the reason why the
word mother in preference to that of father has been
embodied in the name of this sacrament.'

2. Matrimony may he considered as a mere contract
ur as a contract elevated to the dignity of a sacrament.
It is a mere contract between two unliaptized persons.
It bw.*omes a contract invested with sacramental dig-
nity between two baptized persons.' The former does
not differ from the latter essentially. The sacrament
of matrimony is a contract retaining all the character-

' "Cam puer adhuc iafans exUtnt, propter quod mngis loatpmo indiget
•uImIio, qtuin paterno, libique (matri) ante partum onerogua, doloioBua in
partu, post partum laboriosua fuissc nnaratur ac ei hoc Ifgitima coni-
qoptlo maris M fominae mngia matrimonium quarii putriuionuim nuncii-
palur. (DEca. Obbgoiui IX, Lib. III. til. XXXI II: T>r convrrsione. in-
fdflium. rap. 11.)

■Coo, iKB. Tak., {"an. 1012, $1.

2 The New Church Law on Matrimony.

istics it enjoys by virtue of natural law, and becoming
supernaturalized by sanctifying grace, this grace be-
ing calculated not only to perfect the union of the
Christian couple but also to promote the end of this
union in a special manner. Since, however, by virtue
of the supervening grace, there is an accidental differ-
ence between the natural contract and the matrimonial
contract, it will be necessary to treat them individu-
ally.

//. Marriage as a Mere Natural Contract.

(Canon 1012.)

3. Marriage may be taken in a twofold sense, viz.,
marriage in fieri, and marriage in facto esse. The
former is a contract in which a qualified man and
woman mutually oblige themselves to an indissoluble
union in which by mutual consent each becomes a
partial co-principle in the procreation of offspring.
The indissoluble union, or the marriage bond thus aris-
ing, is called marriage in facto esse.

4. The leading modern theologians as well as those
of the past are practically unanimous in teaching that
marriage is a real bi-lateral contract imposing an obli-
gation on the contracting parties by virtue of commu-
tative justice.* This needs no proof. It is obvious
that the parties concerned form the material object of
the contract, while its formal object is the particular
mode of life arising therefrom. In this mode of life
the contracting parties mutually oblige themselves not
only to render those things and to perform those
duties which are essential to the very nature of such
special contract, but also to abstain from everything
incompatible with its nature.

• For the adversaries of this opinion see Wernz, De matrimonio, n. 30.
Borne, 1904.

Prdiminary 'Notions of Marriage. 3

5. It must l)p borne in mind that marriage, aside
from its sacramental dignity, is, by its very nature,
something holy.* Therefore, the contract from which
it springs is of a superior order,' ami, in a certam
sense, may be qualified as religious."

6. Hence it differs from other contracts in several
respects. Its material object in the New Law must be
only one man and one woman. Other contracts may
he valid even by virtue of unilateral obligation, aris-
ing on the part of only one of the contracting parties.
The distinctive characteristic of the matrimonial con-
tract is that it binds either both parties or neither one
of tbem.' Neither the civil authority, nor the contract-
ing parties themselves possess as much right over the
matrimonial contract as is ceded to them over mere
civil contracts. Finally, the duration and the firmness
of the matrimonial contract do not depend on ihe con-
tracting parties, for, even in the case of only a ratified
marriage, the contract is not rescindable at their will.
This difference between the matrimonial contract and
otiier contracts is founded on the religious character
of tho former, which, even among the nnbaptized, in
a vide sense. sjTnbolizes the sacred and indissoluble
union existing between Christ and His Church."

7. Since marriage is a real bilateral contract, in
order that it may be valid, it must possess all the es-
s«-ntial characteristics requisite for a binding contract,
ri^., it must be entered into with a tme, free, mutual,
simultaneous, and externally expressed consent by two
qaalilied individuals. This qualification presupposes a
physical aptitude for the act of procreation, freedom

•••Sit SQA vi. mia notura, sua ii]Mjnte sacrum" {Encvcl, "Arcativm"
LtmU XIII Aria, vol. It, p, 23).

*Oxsj>«uu, Df Matrimonio, n. 202. Pnrw, 1891.
■WttMS, op. eit., n. 37.

■8. Thomjls. 8«ppl. III"'. p„ <]. XLVII, a. 4, c.
*Gt%. n. 23, 24.

4 The Xeic Church Laic on Matrimony.

from diriment impediment prohibitive by natural or
divine law, and a sufficient foreknowledge of the future
responsibilities. It also implies a mutual willingness
to comply with those essentials which constitute the
primary and the secondary end of marriage. The
contracting parties must conform to the ci\nl law reg-
ulating such contracts, and introduced by the legiti-
mate authority to which they are subject.

8. The essence of the marriage in fieri consists in the
manifestation of mutual consent to the matrimonial
bond. This implies a mutual exclusive and perpetual
right which each of the contracting parties yields over
the body of the other for the purpose of procreation
and education of children. The essence of the mar-
riage in facto esse consists in the conjugal union {lig-
amen).^ The actual consunmiatioii of marriage, and
conununity of shelter, of table and bed, pertain only
to the integrity of the matrimonial contract, not to its
essence.^^

9. A question may now arise as to the legitimate
authority over the matrimonial contracts of unbap-
tized persons. It is manifest that an infidel, not being
a subject of the Catholic Church, can only indirectly
b(» aflFect(»d by Canon Law, viz,, when he enters into
marriage with a baptized person, regardless of
whether the baptism was administered in the Catholic
Church or outside of it. It cannot be presunK^l, how-
ever, that so sacred an institution as marriage was
left to the whims and caprices of individuals. It is
certain that in the Old Covenant marriage was regu-
lated by civil authority, whose duty it is to safeguard
the interests and welfare of society. These considera-
tions lead one to infer that the legitimately constituted

•Oasparri, op. cit,, nn. 206, 207.

'• Wernz. op. <m7.. n. 36; SrHMAi.zimi'BER, Dc matrimonio, tit. I, sec.
II, n. 256; Gasp.\rri, op, cit.t n. 859.

Preliminari) Notions iif Marriage. 5

civil authority may rightly exercise the function of
Ifuardian over the matriuiouial eoiitraots of infidels,
this pennission lieing granted to it not by virtue of
natural law, but by virtue of transferred right. This
opinion is confirnied by the principle that things of
natural iaw ouglit to l)e interpreted by positive law,"

10. We are confronted here with a much mooted
question whose settlement was effected by the new
legislation. Tlie Roman Curia always aeted on the
opinion just mentioned, and it may rightly be called
the more common opinion of the leading canonists and
theologians.'^ Consequently, two unbaptixed persons
who are subject to the laws of two different stales can-
not coutract a valid marriage, if either of them is dis-
(lualilied by a diriment impediment of liis state." In
oa*e a dispenyation is granted in behalf of the Catholic
party, hut the unbaptized party labors under a diri-
ment impediment imposed by the civil law, the mar-
riage is null. This conclusion is drawn from the nature
of the matrimonial oontraet, for who.se validity the
abs^dute competency of liotli parties is required. When
the CImrch grants a dispensation it is to be presumed
that tlie contemplated marriage will be contracted with
a person who does not labor under an impediment.
The canonical dispensation does not render competent
the aiiliajitized party whom the civil law disqualifies
Tor a just reason."

///. Marriage as a Contract and Sacrament.
(Canon 1012.)

11. llatrimony is a sacrament conferring a special \

" D'AWKWAUt, Summa Theol. Uoralit, vol. Ill, n. 425, Romae, 1«B2.
"WlKMS, op. cil.. nn. 80, SI; Cod. luR. Can., Ciin. U1.16, 4.1.
" Woxi. op. i-lt., n. 4(1.
"QABTAlaU. op. cil., u. SS7.

. i

I I

.i.l

6 The New Church Law on Matrimony.

supernatural grace to enable two united Christians to
discharge faithfully their conjugal obligations. This
supernatural assistance is not confined to the duties
which the contracting parties owe to each other. It
extends over the whole sphere of the primary and sec-
ondary ends of marriage, including the procreation
and the mental, physical and moral training of their
children.

12. It is certain that the matrimonial contract be-
tween two baptized persons is invested with the dig-
nity of a sacrament.*'* The Sacred Scriptures, together
with tradition containing the practically unanimous
teaching handed down by the Fathers of the Church,
furnish the dogmatic theologian wdth ample evidence
to convince any unbiased inquirer on this point. The
valid reception of a marriage contract between Chris-
tians necessitates the simultaneous reception of the
sacrament of matrimony; the contract being insep-
arably united with the sacrament. This proposition
can be proved, w^hether it is viewed dogmatically or
historically. The various texts taken from the Holy
Scripture,'® the testimony of the Fathers,*^ the defini-
tions of various Coimcils,*^ the testimony of ancient
Rituals,'® and iconographic documents '^ have finally
culminated in the first canon formulated bv the Coun-
cil of Trent which anathemizes those who assert that
.^Hittnmony is not one of the seven sacraments insti-
tuted by Christ to give a special grace.-'

Cod. Iur, Can., Can. 1012.

'• Matt. XIX, 6 ; Eph. V, 26-32.

" See text cited by De Smet, op. cit., n. 99.

'•//. Lateran Council (1139), Mansi, vol. 21, col. 532; CouncU of
Verona (1184), loc. cit., vol. 22, col. 477; Council of Florence (1438),
i loc. cit.y vol. 31a, col. 1058.

'•MARTfeNE, De Antiquis Ecc. Ritihus, lib. I, p. II, p. 614; Rotomagi,
1700.

*• Mabtiony. Dictionnaire . . . , art., Mariage Chritien, p. 446.

** Sessio XXIV, de sacramento matrimonii, can. I.

Preliminary Notions of Marriage. 7

13. Pope Pins LX eoiideiniied the proposition which
holds that the sacrament nf matrimony can be disso-
ciated from tlie contract.'- and Leo XIII declares the
two inseparable.'' Therefore, the niatrinionial con-
tract of unbaptized persons is a natural contract; tiiat
of baptized persons supernatural. It is not the nature
but only the order of the contract that undergoes a
ohaiige by virtue of the sacramental grace." The dis-
tinction between the sacrament and the matrimonial
contract haw a foundation in re, but in se the two can-
not be disunited. To the Church alone has been com-
mitted the administration of sacred things. Tbere-
fore. the opinion which e.stablishes an ontological dis-
tinction between the sacrament and tlie matrimonial
contract (in one and the same union) the latter to be
n^pilatcd by the state and the former by the Church,
mast be stigmatized as heretioa!.'"

14. St. Thomas concludes that the sacramental grace
of matrimony is a necessary postulate of tlie principle
that whenever God bestows on a man the right to use
a certain thing, He sitnultane(msly gives him a special
help for the exercise of that right. In matrimony man
by divine institution receives the right of ow^lership
over the body of his consort with a view to the procrea-
tion {which implies also the education) of children.
Consequently, he receives also a particular grace with-
out which such a duty cannot he adequately dis-
charged."

IB. Furthermore, since there are different degrees
of perfection in the physical life as well as in the
uptritnal life, provision must be made for both. PVom
this prlneiple St. Thomas establishe.** a proof in favor

■PzMSixfln, Enrh.. n. 1766.

"Leiniit X/ll Aeta, vol. II, p. 25; Ekcyc. "Armnum nh-im."
•Twarti of Trml. BtrBaio X.XIV. Porlrinii de n/irr. matrimonii.
•For rhe refutation of Ihiw i-rrora h.t Db Kmet. '<p. rit., n. 103.
"8t- Thomas. Suppl. III". i<.. •]. XLII, n. Ill, p.

8 The New Church Law on Matrimony.

of the sacramental character of the marriage contract
by an argument adduced on the ground of congruity.
The sacrament of matrimony, he says, is calculated to
perfect the spiritual life of man in a manner analogous
to that in which it perfects him in the physical life.
The natural propagation of species is effected by
matrimony both in the spiritual and in the physical
life, since it is not only a sacrament but also an office
of nature."

16. There being only a conceptional distinction be-
tween the matrimonial contract and the sacrament,
Christians who enter into a marriage contract thereby
{eo ipso) receive the sacrament, while those who would
expressly exclude the sacrament would fail to make
even a valid contract.

17. Baptism is a source from which springs the
sacramental character of the marriage contract. There-
fore, the valid marriage contract of two unbaptized
persons becomes a sacrament the moment they are
baptized. The grace of this sacrament is not divided
into two parts and thus conferred on the two contract-
ing parties. As they are considered two in one flesh,
so the two derive benefit from one sacrament, whose
undivided supernatural grace penetrates into all the
avenues of their conjugal life. We do not subscribe
to the opinion which admits the reception of the sacra-
ment of matrimony by the baptized party though the
other consort may be an infidel. The new legislation
does not favor such a one-sided reception of the sacra-
ment.^* In such case the realization of the sacramental
grace is prevented, because one of the contracting
parties, not being baptized, does not possess the right
to receive it. If this inference were incorrect, then
the bond of matrimony would be much stronger on the

** 8t. Thomas, p. Ill, q. LXV, a. I, c.
"Cod. Iur. Can., Can. 1012.

Preliminary Notit

of Ma.

mage.

side of the baptized party than on tho otlicr side, an
affirmation which involves a contradict ion." This
statement is further corroborated by the fact that tlie
sacrament of matrimony, after the marriage ban once
l)een ooiisaniniate<l. is absohitely indissoluble. But if
one of two infidel consorts becomes converted, even if
the marriage is Hnhsequently ronsumniated, tlie con-
jugal bond may still be dissolved, by Pauline privilcgi',
pro%-ided the iufidel party refuses to cohabit peace-
ably.'"

18. The ministers of the sacrament of niatritnony
are tlie two contracting parties. They receive the
tsacnunent provided they are both baptised. The in-
competency incurred by one of the parties on account
nf infidelity is not removed even by a dispensaticm of
disparity of worship. Such dispensation does indeed
permit the Catholic party to contract marriage with an
infidel, but it cannot qualify the latter to administer
to himself the sacrament of marriage. An infidel is
not under the jurisdiction of tlie Church. He lacks
that distinguishing, indelible character which paves
the way for the reception of other sacraments. This
rharacter is communicated only by the sacrament of
Baptism, which the (,'ouncil of Florence (1438) desig-
nates as "vitae .spirit ualis iamm."^^

19. The precept concerning procreation regards the
(•uminumty a.s such, not every individual without ex-
ception." Its principal end is the general good of the
race as a whole, not the itidindual good as a part. The
design of nature is promoted sufficiently, as long as
there arc enough indi\iduals who of their own volition
undertake the office of perpetuating mankind. There-

•WiMMS. op. M., n. 44.
■Coo, !i't. CkV., Cdii. 1124.

"Eir«KKn-S JV, Bulla "VrulUitv »<■-,•■ MaVsI, vol, ;il->. rul. |(156.
"ST. TnOMAe, It'll", q. a,, n. II, arl 2.

10 The Xeiv Church Law on Matrimony.

fore, celibacy and virginity are not in conflict with the
demands of the natural law. St. Thomas with an argu-
ment from analogy- endeavors to prove their permissi-
bilitv. But he does not content himself with merelv
reconciling them with natural law, he goes further
when he points out the particular benefit accruing from
them to mankind.*' The Sacred Scripture exalts them
as a higher calling '* and the Council of Trent anathe-
mizes those who contradict the teaching of St. Paul on
this question.*'

20. Right to marriage is founded on natural law.
Xo authority, civil or religious, may deprive man abso-
lutely of this right, unless that same natural law dis-
qualifies him. The denial of such a right does not
militate against impediments established by legitimate
human or civil authority. Such authority, as a rule,
does not go any further than to declare one incompe-
tent on the grounds of natural law, or to forbid his
marriage with a determined person, or to invalidate it
for reasons suggested by the welfare of society.

21. The same contracting parties are the active and
the passive subjects of the sacrament of matrimony.
As active agents they are the ministers of the sacra-
ment, and they are free to enter into a matrimonial
contract, provided there is no obstacle between them
interfering w^th its lawfulness or validity. As passive
agents they become the recipients of the sacramental
grace, if they are baptized ; provided their contract is
not invalidated by an impediment arising from natural,
divine, or canon law.

22. The contracting parties do not necessarily have
to present themselves before the parish priest in order
to enter into a matrimonial contract. The present

" Lor. cit.. q. CLII, a. II, ad 1.
"/ Cor. VII. 8, 32, 34, 38.

Sessio XXIV, De Sacramento matr., Can. X.

Preliminary yotions of Marriage.

legislation gives an express approval to the old custom
of contracting marriages by proxy, or by procurator "
or interpreter.^' The same explicit approval is not
given to marriages to be contracted by means of a let-
ti?r. It may be legitimately inferred, therefore, that
tliis very ancient custom " is not to be retained. The
new legislation prescribes certain conditions in order
that the marriage contracted by proxy or procurator
niay be accepted as valid even in the eyes of the
Church.

23. In order that a proxy may validly contract mar-
riage in the name of another, not only lus integrity hut

I also the authenticity of the mandate must he unques-
tioned." The person represented as well as the second
party to the contract must be determined. The docu-
ment must he signed by the autliorizer (mandarm) and
countersigned by either the parish priest or the Ordi-
nary of tlie place in M'hich the commission is given ; or
by a priest delegated by either of them, or, as a mini-
mum re(juirement, by two reliable witnesses. If the
mandans does not know how to write, this fact is to be

j noted iu the authorizing document, and the signature
of additional witness is required. Failure to comply
with this proviso wouhl invalidate the whole tran.sac-
tion."

24. If the mandans revoked his authorization or be-
came demented before the proxy contracted the con-
templated marriage tn his name, the marriage is in-
valid thongh neither the procurator nor the other con-

i tracttiig party was aware of the revocation of the au-
I thorization or of the mental derangement of the man-

-CtoB. lUK. Can., Can. 10S9; Con., 1091;
oMTBtt. op. eit.. tit. I, nn. 251 ff.
"Oobl Iub. C*n., Cm. lOBO.
" 8cHMAi.zi}iii;BBiK, op. cit., loc. cit., nn. 2!>-
Cot. IcB- CiX., Can. lUBl.

, }1: SCHM

H "Cot. itn- Cix., c

^ -Oil. rir.. Can. 108

12 The New Church Law on Matrimony.

dans. For the validity of the marriage it is required
that the procurator should himself execute the com-
mission entrusted to his care.** Therefore he has no
power to subdelegate. In the past vdth the explicit
permission of the mandans the procurator was allowed
to acquit himself of the task committed to him, sive per
se, sive per alium. It would seem that the tenor of this
canon does not deprive the mandans of the faculty to
invest his representative with the right of subdelega-
tion in case the latter cannot execute the mandate in
person. Such authorization cannot be presumed on
the part of the proxy; it must be given expressly by
the mandans. The procurator who is positively au-
thorized to select another in case of inability to fulfill
the undertaken mission, becomes only a conditional
procurator, if he has actually transferred his task to
another. The title of procuratorship in that case is
transmitted to the one who is appointed by means of
subdelegation. The subdelegated procurator is not
permitted to choose a substitute in his own place with-
out the explicit consent of the mandans. It is prefer-
able that the proxy should be of the same sex as the
person represented.

25. If the consent of the person represented {man^
dans) virtually continued at the time his proxy con-
tracted a marriage in his name, then the contract was
valid as soon as the other party to the contract gave
the proper consent.*- The subsequent ratification of
the marriage is only an accidental ceremony allowed
by the Church for the display of greater solemnity.

26. A marriage by proxy should not be permitted
without a justifying cause. If time permits, the assist-
ance of the parish priest at such marriages should be

*' Op. cit., Can. 1089, $4.
Gasparri, op. cit., nn. 834-839.

preliminary S'oliotis of Mnrrioffe.

prpwdvd by tlif asking of piTiiiissioii from (he Ordi-
nary."

Marriag"' I>y proxy or by iiiterprt'tpr is a real sacra-
ment. If tlip mandnns speciJied certain eoiiditions and
instrueted the procurator that their fulfilhnenf is a con-
ditio sine, qva turn, the contract is null and void unless
they are verifipd,*' The procurator, being only a repre-
sentative, newl not be in the state of grace, but the
party represented by him should be free from mortal
sin at the time the contract is made."

27. The form of the sacrament of matrimony is the
inutiwl acceptance by tlie contracting parties of the
IranstVr of o\niership over tlieir respective bodies. >
This mutual acceptance, or form of the sacrament, in-
dicates the matter of the same sacrament, namely, the
iimhial transfer of such a\\^le^ship expressed by the
contracting parties in some sensible way.

The intimate connection existing between the matri-
monial contract and the sacrament, requires that the
contracting parties be also the ministers of the sacra-
ment. They produce the sacrament, whether tliey are
aware of it or not, as long as they mean to do what the
Church does or wliat Christ intended. Consequently,
the office of the priest, though liis presence may be a
conditio sine qua non of validity, is only that of an
authorized witness.

Moat of the effects of tlie marriage c<nitract are
the same, whether it is made by baptized or unbaji-
tiied persons. The former, however, in addition to the
general effects, participate in those superadded effects
which are produced by virtue of the sacramental grace.
By the effects in a cuomlative sense, we understand
the rights, the duties and the privileges to which the

"Cob. lv%. Cam.. Can. 1091.
-VCOMZ. op. eit., nn. R32, 83^.
•■OAsrABU. op. eit., n. 740.

14 The New Church Law on Matrimony.

consent {sacramentum tantum) gives rise for the wel-
fare of the consorts, of the offspring and of society.

From the consent or sensible sign springs the con-
jugal bond {res et sacramentum) which gives the right
to the husband and wife to become one conunon prin-
ciple in the procreation and rearing of children. An-
other effect is the sacramental grace communicated to
the baptized consorts as an aid in the performance in
their onerous duties.

Some of these effects are so intrinsically connected
with the matrimonial contract that they are inseparable
from its essence, namely, the unity and indissolubility
of the marriage tie, the legitimacy of the children, etc.
Other effects may be separable from it, like cohabita-
tion under one roof.**^ The effects may be extrinsic,'
affecting the contract merely accidentally, as, for in-
stance, the matrimonial impediments. The effects may
be supernatural or natural.

IV. Ends of Marriage.
(Canons 1013 and 1014.)

29. The Codex of Pius X declares*^ that the pri-
mary end of marriage consists in the procreation and
education of children, its secondary end in mutual
help and in remedy for concupiscence. The essential
characteristics of matrimony are unity and indissolu-
bility, which to a Christian marriage communicate a
special stability by reason of the sacrament. The fol-
lowing pages will be devoted to the explanation of these
propositions.

30. Nature demands the continuance of the human
race. It is extremely doubtful whether unlimited, un-
controlled promiscuity would sufficiently promote this

** Wernz, op. cit., n. 50.
" Cod. Iub. Can., Can. 1013.

Preliminary Notions of Marriage.

*?mi of nature. C'ronin " adduces several reasons in
Uis attempt to prove that it would fail to do so. It is
a. well-kiiowii and long-t'Stablished conclusion of science
and ("Xporienee that promiscuity leads to a pathological
eundition very favoraliU? to in I'ec nudity. Kven if one
could grant that promiscuity would promote tliis end of
nature, it would do so only in a very imperfect way, to
say the most.

But it should be noted tliat the welfare of mankind
at large demands not a promiscuous procreation, but
the generation of such offspring as will prove useful
members of society. For this purpose and for the
proper rearing of children, the fanuly is indispens-
able." Hence marriage by its very nature is calculated
to promote the welfare of humanity.

31. The foregoing statements make us acquainted
with the four purpo.ses wliieh constitute the objective
ends of marriage, in contradistinction to the motives
or subjective accidental ends which very frequently
actuate the contracting parties.

32. Procreation of children is properly designated
&* the principal part of the primary end of marriage.
This conclusion is drawn from nature's scheme brouglit
into play by means of the difference in the sexes, the
natural issue of whose union is the child. But the
nature of the bom offspring, its helplessness, its ex-
alted destiny (heir (»f heaven) are so intimately inter-
woven with its procreation, that the child's edneation,
which is the secondary part of the primary end, can-
not be separated from its generation. Hence the two,
viz., the procreation and the education of the offspring,
ma.st unitedly be regarded as tlie primary end nf mar-
riage.

33. From this primary end naturally flows, as being

York, 1917.

16 The New Church Law on Matrimony.

implicitly contained therein, the principal part of the
secondary end, namely, the mutual help and support of
the contracting parties. In other words it consists * * in
the mutual supplying of those things in which the sexes
naturally supplement each other, both in the physical
and psychical side of their respective natures. ' ' ^^

34. The principal and the secondary part of the
primary end as well as the principal part of the sec-
ondary end of marriage would have been obtained,
even if the state of innocence had not been discon-
tinued.** This is proved from the circumstances relat-
ing to the creation of man." After the fall of man the
subordinate part of the secondary end of marriage
became a relative neeessitv. This doctrine finds its
succinct exposition in the teaching of St. Paul.*^'

35. From these various ends of marriage, when
viewed cumulatively in all their relations, as a natural
consequence flow the characteristics of the conjugal
bond, namely, its unity and indissolubility. The nu-
merous extensive treatises of the theologians defend
absolutely the teaching of the Church on this point. A
few concise statements will suflficiently serve our pres-
ent purpose.

36. The unity of marriage forbids the simultaneous
possession of more than one wife or of more than one
husband. This prohibition is founded partly on the
Christian religion, partly on nature, whether we con-
sider the simultaneous possession of more than one
wife (polygyny), or of more than one husband (poly-
andry).

That polyandry is directly opposed to divine and
natural law as well as to all social order is so obvious

••Cronin, op. cit„ vol. II. p. 391.
•' Gasparri, op. cit., n. 208.
''Gen. I. 2S: IT, 18.
" / Cor, Vll.

Preliminftrii Notions of Marriage.

that it 1

needs no prooi. It is opposed to the divnie
law; hence it has never been permitted. It erosses
the purposes of natural law, because it places an ob-
stacle in the way of the realization of the primary end
of marriage, and whatever thwarts the design of
nature must nee<bj militate against the social order.
The first proposition is self-evident. The Old Cove-
nant fails to record a single instance of legitimatized
polyandrj\ That the polyandric marriage frustrates
the scheme of nature is an incontrovertible I'aet, in
itself sufficient to prove the second proposition. The
plurality of husband.'^ comes in conflict with the prin-
Hpal part of the primary end of marriage, namely, the
propagation of the human race, because it is a positive
hindrance, and places an unwarrantable limitatir)n on
the birth of children. Furthermore, it formally en-
fcmrages a union which presupposes a waste antago-
nizing the scheme of nature, and in which the means,
namely, the pleasure, is obtained, while the end,
namely, procreation of children, is not realized. Nor
can the subordinate part of the primary end of mar-
riage, namely, the rearing of children according to the
nKiuirements of natural law, properly thrive in so de-
grading a uniim. It advocates the most unnatural
inequality, because the man possesses less than the
\i*oman. In such a family there is no real head, and
a child of such a union does not know his father. These
and many other circumstances relieve the husband of
his individual natural obligation."

37. MTiile it is generally admitted that monogyny,
Ihp possession of one wife, is the ideal marriage union,
it most be said that polygyny, unlike polyandry, is not
at variance with all the principles of natural law. It
cannot be intrinsically evil, for on such supposition

"Wf. TnouAS. Svppl. Ill"

. LXV, a. ni, (

The New Church Law on Matrimony.

God c,nul<l not have permitted it. A polygj-nous union
does not interfere with the principal primary end of
marriage, and even the subordinate primary end,
namely, the education of children, may be attained by-
it. But, because this latter end can he reached ouly as
far as the mere essentials are concerned, it is safe to
conclude that the polygynous union is not altogether
in consonance with the primarj' end of marriage, and
that it is absolutely opposed to the secondary end of
marriage.

38. This statement concerning the principal primary
end needs no explanation. In defense of the assertion
made as regards the secondary end of marriage, the
following arguments could be advanced. The success
to be achieved in the attainment of the subordinate
primary end of marriage depends to a great extent on
the reaJization of its secondary end. But the condi-
tions which obtain in a polygynous union are far from
favoring the secondary end of marriage; consequently
its subordinate primary end is attained only in a very
ijiiperfect way. There can be no harmony, happiness
or nmtual support in a union in which so pronounced
an inequality reigns as that existing between the hus-
band and his wives. The peace of each wife is dis-
turbed by the well-founded fear of being displaced at
any moment. Love, if it exists at all on the part of
the wife, becomes a source of wounds to her sensibili-
ties, while the affection of the husband is reduced al-
most to a mere animal passion. Add to all tliis the
jealousy, the inevitable bane deteriorating such unions,
and it is easy to see how the stability of such a family
is undermined, and an atmosphere created, which,
besides being unconducive to the proper rearing of the
child, is obnoxious to the welfare of human society.
Finally, a polygj-nous union militates absolutely

tely^lj

Preliminary Notions of Marriage.

against the subordinate secondary end of marriage,
whose object is a remedy for concupiseenye.

39. From the foregoing reasoning it is clear that
polyandry can in no way be reconciled with natural
law, and that polygyny is permissible, pro^nded it is
not explicitly forbidden by any law, and is practiced
for an honest end with the express or tacit consent of
the first legitimate wife." This is the reason why the
Creator in no obscure way expressed His preference
of the ideal union of one man with one woman. Though
this original design of the Maker in certain instances
was permitted to undergo a change on account of the
hardness of the hearts of men," it has been restored in
the New Law to its pristine ideality. Hence, polygyny
can no longer be tolerated in the face of positive divine
law.

40. This evangelical divine law affects all who live
in the Christian era, irrespective of whether they are
baptized or not, though it binds Christians in particu-
lar. Christ espoused Himself to only one Spouse,
namely, the Church. To symbolize this mystical union,
He prescribed monogyny and monandry. He raised
matrimony to the dignity of a sacrament whose char-
acteristics, namely, unity and indj-ssolubility, have not
only a special binding force but also a sacred signiii-
cance.

The unity of marriage has already been discussed
suffieieiitly. The following pages ivitl present a brief
snmmary of the most important proofs advanced in
favor of the indissolubility of the marriage bond.

41. This characteristic of the marriage tie is in a
certain sense founded on the requirements of natural
law. Since indissolubility is not an indispensable
requisite for the attainment of the primary end of

iitkinu, vol. II, p. 35; LeocJii, 1861,

20 The New Church Law on Matrimony.

marriage, an absolute indissolubility cannot be attrib-
uted to a nier^ matrimonial contract on the ground of
the primary precepts of natural law." If the contrary
of this opinion were true, the Church would be con-
victed of an unpardonable interference with the im-
mutable laws of nature, for, by virtue of the Pauline
privilege, she at times dissolves the matrimonial bond
contracted in infidelity. Notwithstanding this fact, it
may be maintained that both the secondary precepts
of natural law and the perfect attainment of the pri-
mary end of marriage, plead gravely in behalf of the
indissolubility of the marriage tie as a relative neces-
sity.

42. The end intended by nature is not only the birth
of the child but also its physical and moral training,
to be imparted by both father and motlier, two factors
which must combine with the \dew of making the edu-
cation complete. Therefore their combined co-opera-
tion is required during the whole period of tutelage,
which lasts until the age when the child can safely ])(»
declared self-relying.'® But in the meantime other
children are likelv to be born of the same union, who
will stand in need of the same parental solicitude for
the same space of time.'° Follo^nng this process to its
final analysis, we conclude that, as a general rule, the
parents ^nll not have satisfied the primary require-
ments of marriage until they have reached their declin-
ing years, when, more than at any other time, they arc*
in need of each other's help and companionship. In
favor of the indissolubility of the marriage tie as
foimded on natural law, St. Thomas adduces other
argiunents from analogy to nature.'^

*' Perrone, op, cit., vol. Ill, p. 106.
"St. Thomas. SuppL Illae, p., q. LXVIII. a. II. ad. 1.
•Meyer, Institutions Juris Xaturalis, n. 408; Friburgi Brisgoviae,
1885.
••5. Contra Gentiles, III, 122.

Prelimituiri/ Notions of Marriage.

43. No one would deny that the secondary end of
marriage, namely, the good of the contracting parties,
is best promoted in a union whieli is indissoluble. The
natural duty to support the wife devolves on tlie hus-
band for the various services she renders him. In tliis
elaim she is upheld by conmuitative justiee." Further-
more, the nature of the marital love, of the friendship
and daily relationship, is such that it presupposes a
lasting union, whose severance by divorce brings in its
vake many sad consequences not only to the contract-
ing parties and the unfortunate offspring, but to
human society as well."" These reasons prove suf-
ficiently that the indissolubility of the marriage tie is
not only in perfect harmony with the ends of marriage,
but also a relative necessity of the secondary end as
well as for the perfect attainment of the priman,' end.

44. This relative indissolubility, founded on natural
law, becomes absolute in case of a consummated Chris-
tian marriage. It is the sacramental character of the
contract which communicates this stability to a Chris-
tian onion,"'' because there is nothing on this earth tliat
ean mirror with a more perfect resemblance tlie aliso-
lateiy inseparable union existing between Christ and
His Spouse. This indissolubility must lie sustained
even against those who maintain that the matrimonial
bond may be severed in case of adultery.*' The teach-
ing of the Church on tliis point has been ably defended
by many theologians."

45. The Church, being tlie divinely commissioned
guardian of the Christian matrimonial contract, has

" CiONix, lip. eit., vol. n. p. 433.

"Mmm, np. ftf., TOl. H, n. 101.

•aiB, IvB. C*K.. Can. 1013, ^2.

"l'«.vc. Ttn., a-Bsio XXIV, De taer. matr.. Can, VIII.

"PouidJiE, op. 4H(., vol. Ill, pp. 137 ff, ; Palmieu. Dr Matrimonio,
pp. 175 ff., Romne. ISKO; Carbide. De Malrimnnw, vol. I, pp. 25 ff.,
Pwimia. )M.S7; HoRb, Or MalTitnnnw. pp. ii ff., Monafhii, IRfil ; De
Shbt, "/I. eil., uii. 179 ff.

22 The New Church Laiv on Matrimony.

canonized the principle that in case of doubt, the prp-
smnption is in favor of the validity of marriage. It
must, therefore, always be considered valid until the
contrary is proved." This principle, liowever, is not
to be emphasized to the detriment of the canonized
axiom that in doubtful matters it is the privilege of
the faith to be favored by the law.*'

Therefore, whatever may be the nature of such ex-
isting doubt, matrimony must always be considered
valid until its invalidity is proved beyond question.
This principle binds m the external as well as in the
internal foi-uni, and it has a particular force when it i^
to be applied to a marriage contract invested with the
dignity of a sacrament.

46. Tlie Congregation of the Holy Office laid great
stress on this principle in its instruction sent to the
Vicar Apostolic of Central Oceania on December 18,
18712." The missionaries, as appears from the way
marriages were contracted in those parts, adopted the
principle that in case of doubt the marriage is to be
pronounced invalid. The Holy Office not only discoun-
tenanced such practice, but ordered that it be discon-
tinued and be replaced by the long-adopted principle
which holds that in case of doubt the rendered decision
nmst always favor the validity of the marriage in
question. The Sacred Congregations have always
abided by this principle, and hail it incorporated in the
new Code, because it holds good for all contracts and
because their experience has taught them that the
course advocated by it is the safest to follow,"

47. This principle loses its force in a particular
ease, namely, when the nullity of a doubtful marriage

"Cod. Iur. Can,, Can. 1014.
"Op. «(., Can. 1127.
"New COLLKCTANEA, Vol. n, n. 1392.
"Cod. liTR. Can,. Can. 1014.

Preliminttry Notions of Marriage.

■would benefit the faith. Benedict XTV qualifies this
conclusion as the constant rule to be followed," and
the new legislation adopts it in the same sense." This
principle was applied by the Sacred Congregation of
tliP Holy Office in settling the doubt proposed by a
Canadian Bishop. The decision declares that an in-
fwlel who practices polygyny and whose present mar-
riag«^ is doubtful, need not. on becoming a convert, re-
tain bis first wife, though she is regarded as the only
legitimate one while he remains in infidelity; he may
marry one of his other wives, provided she embraces
the true faith."

48. The more common opinion extends this principle
ftven tn marriages contracted through doubtful fear.
In case the doubt is dubium duhio facti (when there is
doubt as to whether the marriage has actually been
t'ontraete<l through fear) then, in our opinion, the
1014th canon is to be applied, and the marriage is to be
considered valid. Should one be confronted with a
ease in which fear really existed but it is doubtful
whether it was sufficiently grave to invalidate the mar-
riage, then, according to some authors, the intimated
party should not he deprived of the chance of being
benefited by the doubt." The more probable opinion,
however, would even then pronounce in favor of the
validity of marriage. Tlie decision would be the same
if a marriage was properly contracted (the dispensa-
tion from the impediment of disparity of worship hav-
ing been obtained) between a baptized and an unbap-
tizMl person, but subsequently a doubt would arise as
to its validity on account of fear to which the baptized

:Ea>iCTra XIV, Bull. Bom. Coni., toI. Ill, p. I, Episl. "Pmbp (c,"
13; Collect..

'• Con. llTL Can.. Can. 1I2T.

"•/«•(. S. C. S. Ogieii (Ad Kp. 3. Albert!) dee. IS;
n. 1427.

■* SCBUALZGktBKR. 0/1. fit., )>. I, tit. I, n. 40],

I'ke New Church Law on Matrhnuny.

party was subjectpil. Al] the foregoing statements ari'
based on the new law whose tenor is that marriage
should be regarded valid until the contrary is proved,
regardless of whether it was contracted by two bap-
tized persons, or by a baptized and an unbaptized indi-
vidual, or by two infidels. The only possible exception
in the application of this general principle would be
the last case mentioned, when, namely, two infidels be-
come united in marriage one of whom suffered from
doubtful fear. As long as both remain in infidelity
their marriage must be regarded as valid. But .should
one of them become a convert, especially if it were the
party who was subject to fear, then the question of
their marriage should be settled in a way favorable to
faith. If the converted party should wish to marry a
Catholic, he may be permitted to do so. This conclu-
sion is drawn from the fact that in such a case the
declaration of nullity as regards his former marriage
(which he contracted in infidelity, but whose validity is
questioned on account of the impediment of fear)
would favor the faith. In such doubtful matters the
Holy See should always be consulted.

v. Different Kinds of Marriage.
{Canon 1015.)
49. Matrimony between two baptized persons is
called ratified {ratmn) before its consummation, It is
called ratified and consummated (ratum et cnnsum-
matum) subsequently to a conjugal act by which the
contracting parties become one flesh, and whose nature
is such that it is sufficient in itself to promote the end
for which marriage was instituted. Once a marriage
has been contracted, imless the contrary is proved, its
consummation is always presumed subsequently to the
conjugal act. Marriage contracted by unbaptJzed j

Preliminari/ NuUons of Marriatje. 25

sons is called legitimate. An invalid marriage is
called putative, if contracted in good faith by at least
oiip of the contracting parties. It remains putativn
until both parties hecome certain of its invalidity.'"

60. A marriage is valid and licit if neither a diri-
nieut nor impedient impediment stands in it sway.
This kind of marriage is sometimes called true mar-
riage. If it is contracted by baptized persona it is
(•ailed ratified (ralmn) before its consummation; rati-
fied and consummated {ratuni et consummdtum) after
it has been consummated. The term ratnm. is to be ex-
tended also to a marriage contracted with a dispensa-
tion from the impediment of di^jmrity of worship," and
also to that entered into by infidels who subsequently
become converts, for in this latter ease, their marriagr>
Butumatically becomes a sacrament; consequently,-
after its consummation, it is absolutely indissoluble.

51. The marriage of baptized persons is called
ratified, not only because it is considered as such in
the eyes of both (Jod and the Church, but also on ac-
I'ount of the special stability imparted to it by virtue
of the sacramental grat-e. The Council of Trent uses
the same term {ratum — ratified) in connection with
marriages which were contracted illicitly but validly,
as for instance, clandestine marriages (without con-
pent of parents)."

52. The term legitimate, even before the time r)f
Benedict XIV, was reserved, though not exclusively,
for marriages contracted by infidels." Needless to say
that it may be applied also to the marriages of the
faithful; hut to be more correct, we must use it in its
aecepted traditional meaning, which is retained even

"nm*. InB. Can., Can. 1015.

■Pi ftHtr. o/i. eit., n, »1.

" /V Cf/ormaftmlfl MalT., 80». XXIV", eay. T.

-Biyoicr XIV, He Sanodo, VIU, XII, ii. 5,

The New Church Law on Matrimony.

by the new legislation. Therefore, a marriage con-
tracted by two infidels is legitimate (valid), provided
no diriment impediment of divine, natural, or positive
law. or of civil law, interferes with its validity. Such
a marriage is called legitimate before its consumma-
tion; legitimate and consummated after the conjugal
act whose nature is described below,

53. It will suffice to state here that consummation is
always presumed unless the contrary is provotL Rati-
fied marriages and legitimate marriages are considered
consiunmated, if the conjugal act, whether voluntary
or involuntary, was in itself sufficient for generation,
irrespective of whether conception results from it or
not; in other words, si vir membra virili vas ■mrilieris
penetravit, et (rupto hymene, si adsit), semen in vagi-
nam deposuit. This conclusion is drawn from the
Causa Parisien. The Sacred Congregation of the
Council gave the following reply to a proposed doubt:
"VI. Matrimonium cetisendum esse tnntum rahim et
. non consummatum, quoties hymen, qui vaginam
claudit, sit intacttts; quia ex integritate hymenis, vir-
ginitas inviolata deducitur." "

Formerly there was a controversy whether a mar-
riage could be consummated by moans of artificial
fecundation, namely, by an onanistic or imnatural act
which results in the effusion of semen virile, which
semen would subsequently be transmitted in vaginam
mvlicris by means of a syringe. Some authors
espoused the affirmative side and thus serious ground
WHS afforded for controversy. The Sacred Congrega-
tion of the Holy Office having been consulted wlietlier
a recourse to artificial fecundation could be had, re-
sponded on March 24, 1897 : "Non licet." The answer,
as is evident, brands such an act as illicit but it fails

p Si'dit, vol. SXVir. pp. 331-3.13,

[ laiis I

Preliminary Notions of Marriage. 27

to 8i?ttU' Uio question wlicthcr artificial fecumlalion
t'uuld be iiiBtrumcntal in consummating a marriage.
The new law, it we are not mistaken, settles the ques-
lion when it says tliat only a comugalis actus quo
coniuges fiunt una caro can consummate marriage.
Thi»n>fore the union of tlie two bodies by which is im-
pliinl llie effusio semints virilis muat result from tlie
eonjugnl act itself, which is not the ease when the
seincn virile causes fecundation by means of an arti-
ficial contrivance.

54. Tlie putative marriage is an invalid contract in
which the pseudo-married parties are publicly reputed
as husband and wife, and at least one of them believes
they are lawfully wedded. As long as the good faith
of at least one of the persons concerned perseveres, the
putative marriage, according to a long estalilished
canonical rule, has all the effects of lawful wedlock, one
of whieh is the legitimacy of the offspring.""

56. There are other kinds of marriage besides those
already enumerated here. These are presumptive,
rlandestino, public, attempted, and morganatic mar-
riages, and, finally, marriage of conscience. A few
words about each of these will suffice.

56. Presumptive marriage is not a marriage in the
strict sense. It is a union wliose existence the law pre-
sumes with an incontrovertible presumption (prae-
SHmptione inris el de iure), on account of a circum-
stance implying marital consent on the part of the man
and the woman. Such a marriage used to arise, for
instance, from free carnal intercourse between two
betrothed persons, and also between two persons who
through defect of age were not qualified to marry.
Free carnal intercourse between them, after they
reached the age of puberty, used to be interpreted as

-C. 13. X. qui filii f

< Ugit>

28 The New Church fjaw on Matrimony.

ratifying and renewing the consent formally invalid on
account of the impediment of age. The Tridentine
decree and the decree ''Ne tenter e" have abrogated
this form of marriage.

57. Clandestine marriage, in the accepted sense of
that term, is one contracted without the prescribed
form of the Church. This form was the Tridentine
form in the past. At the present time it is the form
prescribed by the law of the new Code. It is called
clandestine because it is entered into in secret, namely,
without the presence of the parish priest and two wit-
nesses.

58. Public marriage is one contracted publicly in
conformity witli the valid form of the Church. It pre-
supposes the publication of the banns, or a dispensa-
tion from them for a legitimate reason.

59. Attempted marriage is a form of invalid mar-
riage. It is called attempted, because, though both
contracting parties are aware of the diriment impedi-
ment prohibiting their marriage, or of the lack of
proper form,' they go through the ceremony with a
pretense of contracting marriage.

60. Morganatic marriage is a union contracted be-
tween a man of royal birth and a woman not of his
station of life, with tlie understanding that the wife
and the future children will be satisfied with only a
stipulated portion of the paternal inheritance. This
inheritance involves the rank of the husband, his titles,
dignity and offices, and his other ancestral possessions.
Since the objective matter constituting this contract
limits itself to mere civil effects, the Church not only
accepts such a marriage but lends her aid to its
solemnization. Such marriages originated in Austria
and Germany, and are confined almost exclusively to
those coimtries.

preliminary Notions nf Marriaijc.

2!)

61. Marriage of poiiseiciief ie a union (lontractfd by
mennti of the proper form, nmufly, in presence of tlio
Ordinary or tin.- parish priest and two witnesses. It
is ealleti marriage of consoiont'e or Beeret, because
secrecy is to he observed on the part of all those wlio
witness it- The cause of tliis secrecy is the presump-
tion that an exposure of the marriage would bring
with it very grave injury and inconvenience to the con-
tracting parties. It is precisely for this reason, and in
ordpr to keep the marriage from the public that the
customary ante-miptial proclamations are dispensed
with." The new legislation makes a special provision
in favor of such a marriage and declares that only a
very grave and urgent reason can justify it.*- The
observance of its secrecy is imposed on the Ordinary
and his successors as well as on the assisting priest
and the two witnesses. Not even one of the contract-
ing parties may divulge the secret without the consent
of the other." The obligation of secrecy ceases on the
part of the Ordinary when a scandal or a grave injury
desecraling the sanctity of the sacrament of matri-
mony is feared from its observance. He is free to
make the marriage public by way nf punishment ini-
posiHl on the parties for the neglect of their ilutieo.
Thp new legislation states precisely the nature of this

'gU*ct. It consists in their failure to haptixe their

iffspring, or to apprise the Ordinary of the child's

IP name, when they had him baptized under an as-

im?d name. Apprising the Ordinary in this way i.s a

inty with which they are expected to comply within

lirtv^ days after the baptism has taken place. A
«inilar penalty may be imposed on them if they omit

'SatU I'fibu," nov, :;", 1741, }5; Bull. Ham.

Oti-t. liBtai. XIV, '
^•Ciml^ vol. 1.

"'".Vmiui ex graviMtima
■f malrimonUtm co**fv'-nti
"Cob. Il'«. C*N., Can. 1108.

(l.toD. IDB. (.

30 The New Church Law on Matrimony.

the Christian education of the child born of such
union.®*

62. Exceptional circumstances which may justify
the contracting of such a marriage may arise in the
case of an army officer who is barred from marriage
except on the supposition that his future wife com-
mands a dowry whose minimum is stipulated by the
civil law. The same may be said of persons who for
reasons of conscience are united in marriage but liable
to civil penalty if their marriage be made public. A
royal person who after the death of his first wife
wishes to marry again for reasons of conscience, may
also be permitted to have recourse to such marriage,
provided a sufficiently grave reason makes it impera-
tive to keep the second marriage secret.*'

63. A marriage thus contracted and the names of
the children born of such union should not be inscribed
in the usual matrimonial and baptismal registers. A
special record of them should be kept in the secret
archives of the Diocesan Curia.** The law of the new
Code insists that the Bishops should make provision
for such a separate chest, whose exclusive purpose
should be the preserving and keeping under lock and
kev of documents of this character.

TV. The Jurisdiction of the Church over Marriage.

(Canon 1016.)

64. All baptized persons belong to the jurisdiction
of the Church. This principle finds its confirmation
in the New Codex, in which the following canon is
formulated : The marriage of baptized persons is regu-
lated not only by divine but also by canon law, the

••Cod. IiR. Cak., Can. 1106.

••De Smkt., op. cit., n. 94.

••Cod. lUR. Can., Can. 379; seo this work, n. 526 ff.

Preliminary N'otions of Marriage.

competence of the civil autliority to the mere civil
fffects of such marriage being granted. This fantm
is the natural sequel of the teaeliiiig of the Church up-
holding the sacramental character of all marriage con-
tracts, wliether the contracting parties profess Catho-
licity or not, provided thoy are validly baptized. A
sacrod thijig must be regulated by a society whii^h is
especially ironstituted and autliorizcd for that purpose.

65. Though all canonists admit this extensive juris-
diL'tiou of the Cliureh, some (even of great reno^ii) "
have combated the opinion that the Church has actu-
ally made use of this right and always intends to bind
with canonical impediments even those baptized out-
Ride the true fold. This canon settles tlie question once
and for all. Thus has triumphed the more common
opinion of the canonists of all ages, in whi^li the
modern are unanimous;" it was the only opinion eoii-
sisteiit with the teaching of the Church, Hence no
law, no custom can introduce an indiscriminate exemp-
tion of heretics, scliismatics, apostates or the excom-
municated from canonical impediments." The numer-
ous decisions of the Sacred Congregations plainly
indicate that this has always been the practice of the
Church. Therefore, unless an express exemption is
given in favor of those who were not baptized in the
Catholic Church, tliey are to be considered as bound
by the canonical impediments. Their ignorance ex-
cuses them from sin; it may also endow their mar-
riage with a putative validity, but it fails to render it
valid in case of a diriment ecclesiastical impediment.

66. Canon lOlG expressly admits the competence of
the civil forum to the mere civil efFocts of marriage
even when it is contracted by Christians. Tlie civil

"SrBMAMMKt'BEK, op. t

■Oon. Irs, C.Kfi., Can. 8
•■WniNX, op. eit., a. 60.

1. 378 H.

32 The New Church Law on Matrimony.

authority has the right to regulate these effects by
legislation conducive to the welfare of the contracting
parties and the conununity at large. It may enforce
this regulation even by the infliction of punishment,
but it cannot assume the right of denying capriciously
those civil effects, which naturally flow from the mar-
riage contract, and to which the parties concerned hav^
a just claim.

67. Christians who validly and licitly contract mar-
riage according to divine and canon law, should not,
on the ground that they violated some civil law, be de-
prived of the natural beneficial civil effects, for in-
stance, the acknowledgment of the legitimacy of their
union and of the child born in such a wedlock. If the
state refuses to attribute such civil effects to a mar-
riage contracted validly and licitly according to the
law of the Church, unless certain conditions are ful-
filled beforehand, such prohibition is not to be placed
on equal footing with an impediment. If the condition
prescribed by civil law can be complied with without
sin, the welfare of the future child demands a submis-
sion to it. But if, on the other hand, the spiritual
welfare of the parties demands that they should get
married, a condition specified by the ci\nl law and vio-
lating the freedom of conscience may be ignored.^^

68. To deny to a marriage the natural c\v\\ effects
wliich are inseparable from the essence of the con-
tract, would be equivalent to inflicting very grave
punishment. But, since the civil authority has no com-
petence over the validity of the Christian marriage
contracts, it transgresses the legitimate limits of its
jurisdiction when it imposes. a penalty wliich results
in depriving Christians of the natural civil effects of
tlieir valid marriage.

** Feije, De impedimentis et dispensationihus matrimoniaUbus, nn. 71,
72; Lovanii, 1874.

Preliminary Notions of Marriage. 33

69. The civil authority is within its riglits in pro-
scribing the civil registration of marriages validly
^3ontracted before the Church. Failure to comply with
<his regulation within the specified time can be a just
<?ause for even a severe penalty. This penalty, how-
ever, may not be so severe as to deprive the marriage
contract of its validity for the time intervening be-
tween its actual celebration and its registration,*^^
though to such an unreported and unregistered mar-
riage may justly be denied some civil effects. Caspar ri
goes so far as to advance the opinion of an extremist,
maintaining that a Christian who fails to have his
valid marriage recorded in the civil register will justly
be looked upon by the state as not being married,
and consequently may be deprived of all the civil
effects of the marriage.^^

*' Wkrnz, op. eit., n. 83.
"GASPARRiy op. cit, n. 280.

CHAPTER 11.

Espousals.
(Canons 1017 and 1018.)

/. Nature of the Espousals and Requirements for their

Validity.

70. The new law modifies fundamentally the old dis-
cipline concerning espousals. The following is the
translation of the canon which treats of this subject.
The espousals, or the promise of marriage, whether
unilateral or bilateral, are invalid in both forums, un-
less they were contracted in writing, signed by the
parties and also by the parish priest or the Bishop' of
the place or by at least two witnesses. In case either
party or both the parties know not how to write or are
physically unable to write, for the validity it is re-
quired that this fact be noted in the document and that
an additional witness be selected who with the parish
priest or with the Ordinary of the place or with the
two witnesses of whom mention lias been made, must
sign the document. But the promise of marriage,
thought it may be valid and no just cause may excuse
one from its fulfillment, does not confer the right to a
juridical action to compel the celebration of marriage ;
the right to such action is admitted only for the pur-
pose of recovering damages, if any are due.*

71. This canon contains the latest development in
the espousals, and in substance retains the form

* Cod. Ivr. Can.. Can. 1017.

Espnusalb'.

■val

Mini

liillierto prescribed by the decree "Ne temere" for a
"valid bftrothiiK^nt. A radical fhange has beeii intro-
duced ill the scope of the matriiuoiiiat promise. The
decree "Ne temere" made no provision for a unilateral
raiiatrimotiial promise; tlii' iifw legislation places botli
the unilateral and the bilateral promise in the same
category, prescribing tlie same re([uirements for both,
■ 72. The parish priest is an aiitliorized witness of the

^L engagemtiit. He takes the place of two witnesses in
^B all engagements made within the precinet.s of his
^K parish, but outside its limits he constitutes only one
^BvitQPss. The same is to be said of a Bishop with re-
^B'gard to his diocese.

^B 73. Concprning the signing of the document contain-
er iog the engagement, the words, vel neqneat have been
^P added to the texts of the decree "Ne temere." They
" have been placed after the words, scrlbere nesdat.
' Thus the present text makes a pro\ision for any in-
ability to sign one's name, whether it results from
illiteracy, or from an accidental cause. In order that
the document may be valid this inability must be dis-
tinctly stated, and an additional witness should testify
^_ to it by means of his signature.

^B 74. It is a disputed question whether an eiigage-
^^pnent is valid, if made by persons who are Inborins
^Hjnnder impedimenta from which they cannot be freed
^Hwithout a dispensation, Tlie more conmion opinion
^Bdoes not admit the validity of sueli engagements since
^"it is presupposed that the parties make an illicit
promise. Therefore, engagements contracted by a
Catholic and a non-Catholic without the dispensation
I the impediment of mixed religion are generally
(lidered invalid,' Since tlie importance of the
wpousals lias diminished considerably, it is of little

■B- CoIUct.. n. 18116.

36 The New Church Law on Matrimony.

con sequence to note that the reasonable, serious objec-
tions of parents may invalidate them.

75. An engagement may be validly entered into even
by proxy or procurator, provided there is a sufficient
cause to justify a recourse to so extraordinary a meas-
ure.^ This custom, having been in vogue for many
centuries, retains its force until it is expressly abro-
gated.

//. Obligation Arising from the Espousals.

76. In the past the betrothal carried w ith it a grave
obligation to marry. This was imposed by commuta-
tive justice on both contracting parties, if the contract
was bilateral; and on cme party, if it was unilateral.
The marriage was to be contracted in due time, as
specified by the contract, unless a legitimate cause
excused its postponement. The obligation to enter into
marriage could be forced even with censures and other
ecclesiastical punishments/ especially if such promise
had been made under oath.*

77. Even a juridical action could be instituted in the
past before the ecclesiastical tribunal, if one of th«
contractins: parties declined to abide by the promise
made.' Of all these stringent measures only one has
been retained, namely, the right to institute juridical
proceedings to recover damages justly due.^ In this
respect tlie Church has practically canonized the
ci\dl law, which permits the violation of the promise
thus given.

78. The new discipline abrogates the right which in

' Ferreres, Los Ksponsaivs y el MatrimoniOf n. 203; Madrid, 1909.

• Gasparri, op. cit,, nn. 62 ff.

*C. X. Dr Sp- nsalibus rt matrimoniis, IV, 1.

• Dens, Tractaitts dr Si>onMtUbus ct Motrimonio, n. 7, p. 18.
H\>D. Ii'R, Can., Can. 1017, J3,

Espousals.

the past was generally attributed to the parties mak-
ing an engagement, namely, iu^i ad rem (not in re) or
the right to their respective bodies in matrimony. This
abrogation favors the opinion of those who maintained
tiiat a sin committed by one of the contraetuig parties
with a third person, does not contain an additional
guilt (against justice) of such magnitude that a special
mention must be made of it in the tribunal of penance.
Tiie absence of legal obligation on the part of the be-
trothed to give their respective bodies to each other by
means of matrimony, deprives the espousals of the
force of an impedient impediment, if the parties wish
to contract marriage with some one else. The espousals
no longer possess the force of a diriment impediment
of pablic honesty: hence one contracting party may
freely enter into marriage witli any blood-relative of
the other. Even if an illicit intercourse has taken
place between two espoused parties the impediment of
affinity will no longer prevent them from marrying any
of the blood-relatives of the other party. In tlie new
legislation the impediment of affinity arises solely from
a valid marriage, wjiether ratified or consummated,"
and the impediment of public propriety from an invalid
marriage, whether consummated or not. and from pub-
lic or notorious concubinage." A more comprehensive
treatment of these two impediments will be submitted
later.

79. Formerly the obligation to marry the person
with whom the engagement was made, was urged svh
graft on the ground of natural law.'" Such an obliga-
tion is no longer imposed, The new legislation accepts
the discipline of those civil codes which enforce the
reparation of the damages suffered hy tln' innocent

•Ooo, lUK. C*V., Can. 97.
*0p. HI., Cftli. 1078.
-GuirAMKl, lip. ot., n. 62.

38 The New Church Law on Matrimony.

party, but do not legally compel the fulfilling of the
promise of marriage.'*

From this it follows that a subsequent engagement is
not invalidated on account of a former unbroken be-
trothal. The new legislation does not attribute a
superadded force to an engagement made firmer and
more solenm by virtue of an oath taken. The person
rescinding such an engagement without cause would
sin against religion, but not against justice. The en-
gagement dissolved tlirough a just cause frees one even
from the sin against religion, for ordinarily an oath
is considered only as an accessory to espousals." The
same is to be said in case a betrothal confirmed by oath
is broken bv mutual consent.

80. Thus the whole ecclesiastical discipline concern-
ing the espousals has been considerably simplified.
The few principles here considered should be used as
a guide in all other questions concerning the mutual
consent and the violation of the given promise. The
present canonical discipline disposes easily of the com-
plicated cases of the past, even of those whose solution
was rendered more difficult on account of some super-
vening causes which, had they been foreknowTi, would
have deterred the grieved party from entering into an
engagement. Nor should a difficulty arise in the solu-
tion of the case in which one of the parties wishes to
embrace a more perfect state, for no one would ques-
tion the permissibility of breaking such contracts in
the given or a similar instance, which presupposes the
presence of a just cause.

81. We are not to infer that the pledge given in an
engagement entails no responsibility whatsoever, and

'* A siiiiiplo of such civil codes is the Italian Tode in which we read:
"La proinessii scambiovole di futuro niatrinionio non produi^ obligazione
lejfalc di contrarlo, n^ di esejjuiiv cii^ cho si fosse couvenuto pel caso di
non adenipinicnto dolla niodcsima.*'

'• Gasparri, op. cit., n. 7C.

Espousals.

may be broken without any further conspquoncps, at
the whim and fanry of either flontracting party. It is
tme that to thp party injuri^tl is dpiiied the right to a
juridical prorcsn institute*! before an epelcsiastiral
(xmrl in order to eompel tliP offender to make good his
promise. But it must be borne in mind that tht same
eourt upholds the riglit of tlie injured party to recover
damngeK. This duty of reparation devolves on the
party who rescinds the engagement without just cause.
The presence of a just cause frees one from the ohliga-
tion of satisfying the other party for tlie damages sus-
tainwl. Freedom from sucli obligation is limited to
those damages wliieh are the direct resultants of tlie
promise. Any other injury directly caused through
some other action must bo repaired, though the legal
obligation to marry is absent. Thus, for instance, dam-
ages resulting from an illicit intercourse extorted by
forre or a promise of marriage and subsequent to a
valid engagement, must be repaired by the guilty
party, even if he had a cause justifying the dissolutioji
of the eiigageuient. In such hypotliesis the offender
should be urged witli pressing importunity to protect
the honor of the injured party by marrying lier. If all
effortK made by ecclesiastical authority in this direc-
tion should fail, the innocent party shoidd be advised
to have recourse to the civil law in order to recover
damage.".'" It nnist be noted that the offender is bound
in conscience to make some reparation, It is left to
Hje discretion and prudent judgment of the confessor
to determine in the infernal forum the extent of the
gnilt and the con.sequent obligation. The culpability
of the guilty party in such a case would be greater or
less according as there was or was not a justifying
cau&e for the breaking of the engagement.

" QAtTAMU, op. eit., n. J f 3.

40 The Neiv Church Law on Matrimony.

82. The follo\sdng canon (1018) admonishes the pas-
tors to instruct their flock prudently in the sacrament
of matrimony and in its impediments. The purpose of
this canon is not to point out a new obligation imposed
on the pastors by the Codex of Pius X. The encyclicals
of Gregory XVI,^* Pius IX,'» Leo XIII,^« and the in-
structions of the Holy Office ^^ make use of strong lan-
guage in order to bring the pastors to the realization
of the same duty. The word prudenter cannot be suf-
ficiently emphasized in this connection. The instruc-
tion of the pastor should be acconunodated to the cir-
cumstances, disposition and intellectual attainments of
his hearers. His prudence will dictate what subjects
should be touched extensively and what should be
treated briefly; his discretion will aid him to decide
what should be left unexplained. While he is expected
to present a succinct, yet fairly thorough exposition of
the new canonical discipline on matrimony, the instruc-
tion on certain subject ought to be reserved for indi-
vidual explanation when the parties bring to his notice
their intention to marry.

'*"5wmwio iugitcr/* 27 mail 1832; lift. ap. **Quas vcstro," 30 apr. 1841.

'* Kp. ** Verbis exprimcre'* 15 aug. 1859.

'*'* Arcanum,** 10 febr. 1880.

"Instr. (pro Vic. Ap. ad Gallas), 20 iun., 1866, ad 25; instr. (ad
Archicp. CorcjTen.), 3 ian. 1871, n. 7; instr. (ad Kp. 8. Albcrti), 9 dec.
1874, n. 1.

CHAPTER m.

Transactions Preceding the Celebration of
Marriage.

/. Exam'mntion of the Parties.
(Canon 1019— Canon 1021.)

83. Before a niaiTiagc is celebrated it must be
manifest that no obstacle is in the way of the valid
ami licit administration of the sacrament.' This pre-
liupposes an investigation involving a shorter or longer
period of time. In danger of death, if no other proofs
are a%'ailable, it suffices, unless there are indications to
the wintrary, that the contracting parties give a sworn
statement testifying to their baptism and freedom
from impediment.' Such a statement made in periciilo
mortis serves instead of the preliminaries to mar-
riage, as, for example, proclamation of banns, exami-
nation of witnesses, etc. The purpose of this special
provision is to facilitate the contracting of marriage
nnder circumstances which do not permit the enforce-
ment of the ecclesiastical discipline prescribed for
I non-urgent cases. Penculum mortis here must not be
l-eonfounded with articulus mortis. A soldier about to
[Trage war, or a person about to undergo a major op-
leration is in pericido mortis, but not in artictdo mortlf,
l-and this canon is applicable to their case. For
larftru/u.« mortis, which is equivalent to urgens pericu-

■OoD. Tim. Tan., Can. 1010, $1.
•Op. ril„ Cbo. 1019, ^2.

The New Church Law on Matrimony.

lum inortis, a special provision is made in canon 1043.'

84, The "contrary indications" to wliicli this canon
refpFs are circumstances calculated to show that thp
parties are either unbaptized or labor under an im-
pediment. These indications must always have some
probaljility in their favor. Thus, for instance, should
both parties be well known in the locality in which the
marriage is to take place, the fact of their hlood-rela-
tionship or of tlieir affinity would in all pr(ibal)ility
come to the knowledge of the pastor. Should the indi-
cations show that one of the parties is not liaptized,
after a short instruction baptism should be adminis-
tered if the party so desires, and the pastor eouM
proceed with the marriage. If, however, the infidel
party declines to be baptized, or an impediment is de-
tected from which the pastor has no power to dispense,
he is not permitted to proceed any further until the
necessary dispensation has been obtained.

85. The pastor to whom tlic la«' concedes the rijjht
to assist at the marriage, must investigate diligently
at an opportune time before marriage Mhether there
is an obstacle to its celebration. The nature of the
investigation to be performed is clearly described in
the new discipline. Ho should cautiously inquire froiu
both tlie man and the woman, together and separately,
whether they are laboring under an impediment and
whether they, especially the woman, consent to thf
marriage freely. He should, furthermore, ascertain
whether they are sufficiently instructed in Christian
Doctrine. This latter precaution may be omitted oidy
when their fitness in this regard is apparent. It de-
volves on the Ordinary to prescribe uniform rules by
which the pastors should be guided in the course of
this investigation.*

dtmtnartes to Marnage.

86. According to the decree "Ne temere" the

parochus who is autliorized to assist at marriages is
Hit' pastor of llio place wliere tlie marriage is to be
("tiiitracttKl. The same holds good also as regards the
Hiakiiig of tliese imiuiries. The law obliges the pastor
^vho is to witm-ss the marriage to investigate diligently
*« to whether there is any impediment between the

Krties, interfering with the validity or licituess of
i prospective contract.' Formerly this duty dc-
IvtHl on the pastor who was the parochus proprius of
the parties by virtue nf domicile or quasi-domicile.
87. The former discipline required also that each
^of the e^jntracting parties should produce two wit-
^Mesi^s (unU'ss the same two were willing to testify in
^^Bvor of both) whose duty it was to prove that the
^Hgitit ractiiig parties were free to marry," The (."odcx
^Htati^H expreiiisly that this discipline is still to be re-
^mined. but it is prescribed only for eases when there
^BtB a doubt in the mind of the pastor as to the absence
of all impediments. A recourse to this mode of pro-
eednre is the most practical way to settle sueli a doubt,
^tich witnesses should be known to the one who is
Uhorized to take their deposition, and they should
referably be the fatlier, mother, sister, brother, or
iier relatives by blood or by marriage, of the parties
I qutwtion."

188. The "opportune time" to which this canon
pfers is any time preceding the publication of the
The lempus nppnrttmnm ends at the moment
■ banns are first amiounced.

^C 3, X, <(r clandettina ttrspunsatUmr. IV, 3; Benedictus XIV, i/ona.
rmamdU." nov. lT-)4, $9; S. C. C, Jtomana et oliarum, I febr.
i ad Xt; BiTCja.R Rom., lit. VII, c, I, dr nu-ramento inalrimi'uii.

piMlt. «. V. Inq. nil Ep. aritt
"Cnm aliaf," 21 Bua. 1670;
^OtarAni, ap. HI., n. 120.

■., 29 nug. 1830,

44 The New Church Law on Matrimony.

89. The obligation to make this prescribed invest^^
gation is a grave one, as is manifest from the word^^
of the Lateran Council and of Benedict XIV.* Gas —
parri thinks that it is incumbent on the pastor to make?
it even if he should have a moral certainty as to the
absence of all impediments.* While, on the one hand,
such a moral certainty on the part of the pastor is
generally a practical impossibility, it is hard to see,
on the other hand, why the pastor should be obliged to
enter into such inquiries if he knows beforehand that
his investigation will not disclose anything militating
against the contemplated marriage.

90. The pastor should not, without sufficient reason,
delegate another to perform this task in his name.
His inquiry should first be directed towards the public
impediments, namely, ligamen, consanguinity, affinity,
spiritual relationship, public honesty, etc. Then he
ought to question separately and prudently, with great
caution, both the prospective husband and the wife as
to w^hether they consent freely to the marriage, and
whether they are laboring under an occult impediment
like that of vow, crime, etc. The parties are obliged
sub gravi to reveal all impediments, even if these
should incriminate them or redound to their dishonor.***
In case it is difficult or inadvisable to interview the
bride separately, as it happens in some localities, the
presence of an elderly woman, who is obliged to
secrecy, may be tolerated. She should be a friend or
a relative of the bride, but not her mother.

91. Needless to sav that the man and the woman
about to be married must both present themselves per-

•Webne, op. eit., n. 130; Bangek, op, rif., II, $1.

• Op, cit,, n. 142.

'•Bkntoict XIV, const. "Ximiam licentiam:' 23 maii, 1743, $10;
GaspaRRI, op. cit., n. 140; SrAxnxi, op. cit.. Ill, n. 1038; Wkrnz, op. cit,,
n. 130.

Preliminaries tu Marriage.

'^nally before the pastor. A local custom by virtuf^ of

*hich the prospective husband and the mother of the

f prospective wife l)otake themselves to the pastor for

f Uie purpose of submitting to the necessary inquiries,

Oinnot be tolerated."

92. As regards ijistruction in Christian Doctrine it

might to be borne in mind that no person should be

/xTiiiitted to contract marriage unless he is sufficiently

faiiiilinr with the rudiments of faith. He ought to be

able to recite the "Our Father," "Hail Mary,"

■'Apostles' Creed," "Commandments of God and of

• Church," "Acts of faith, hope, charity and contri-

He should, furthermore, be familiar with all

wse religious truths which are necessary necessitate

tedii." Ignorance of truths necessary necessitate

haecepti does not bar one from marriage. In these

latters the authors generally advise the pastor to

Blow some indulgence and leniency towards persons

' mind is very unreceptive and unretentivc. Such

»«Uviduals should not he prevented from marrying as

lig as they have a fairly correct understandinj? of

||p leading truths of the Catholic Church." This

rineiple may be safely followed in practice notwith-

uiding the stress the Codex of Pius X lays on the

: that the contracting parties must be sufficiently

tstructed. The possession of this necessary knowl-

• is not to he presumed; it must be tested.'* The

Mstor is dispensed from the obligation of questioti-

■ the parties in Christian Doctrine only when the

" Oastami, op. cit., n. 143.
"VTnvt, op. eit., n. 131.

•tut Bh-kkb, op. rit.. p. 2.'>R: BcNEOiCT XIV, De sjinoSn. lib. Till,
L XIV, B. Ssq; Dr Swet, op. c<t., n. 331; Gaspabri, op. rit., n, 484.
C. H, IT, 29, X, de tpoM. et malr. IV, 1; c. 3, X, dt ciandest.
Hjualimte, TV. 3; Bbsecict XTV, ep. encyc. "EUi minime," 7 Tebr.
|r42: 8, f. 8. Off, (Kcntufkv), S maii 1821; S. I'opnit.. 5 sept. 1899;
rrAl.1 BOMANVU, tit. VII.'c. 1, dc lorr. matT.. n. 1, 10,

46 The New Church Law on Matrimony.

character of the persons makes such an inquiry en-
tirely unnecessary.*'*

93. On account of the delicacy of the matter which
forms the subject of this inquiry the Codex advises
the Ordinaries to compose a uniform formula which
would serve as a guide for all the pastors of their re-
spective diocesesJ® This ought to be committed to
print, and it should contain in carefully chosen lan-
guage the questions the pastor ought to ask on such
occasions.

94. Unless the baptism was administered within
the territorial limits of a pastor he must demand a
baptismal certificate from both parties or only from
the Catholic party if the marriage is to be contracted
with a dispensation from the impediment of disparity
of worship. Catholics who failed to receive the sacra-
ment of Confirmation should receive it before they
are permitted to enter into marriage. Nothing but a
grave inconvenience can excuse them at that time from
complying with this law.*^

95. As regards the securing of the 1)aptismal cer-
tificate the new law makes no innovation. In the case
of a mixed marriage, one nmst determine whether the
impediment is simple mixed ri^ligion, or disparity of
worship. In the first instance the pastor should de-
mand the baptismal certificate of the Catholic party
as well as that of the baptized non-Catholic party.
In the second instance he should require a baptismal
certificate from the Catholic party only.** The bap-
tismal certificate of the non-Catholic party must be
demanded in every case, unless the pastor has per-
sonal access to the register recording his baptism. If

»»roD. luR. Can., Can. 1020, ^2.

'•S. Pornit., 5 sopt. 1R09.

"Con. li'R. Can., Can. 1021.

'•S. C. dc Sacranicntis, instr. 6 mart. 1911, n. 1.

PreUminar'te^ to Marriage. 47

it i» impossible to secure the baptismal wrtifniato
be<?ause the books were either lost or destroyed by
lire, Un- testimony of a witness wlio is above all sus-
picion (si nemini fiat prachidichnn) will suffice. IF
llif party was baptized as an adult, his sworn state-
ment testifying to liis reception of the sacrament of
Hnptitiui will also be surticient.'" It" the doubt cannot
be solved in any uthi^r way, tlw principle of presuinii-
tion should be applied.'"

96. It is important that the contracting parties
i<hoiiId have benefited by tlie sacrament of Confirma-
tion before they are i>ermitted to administer to tliem-
j«'l\'es the sacrament of Matrimony, Insistence on this
dfinand is in perfect accord willi the discipline cd" the
fornuT legisiaticui.'' The obligation to receive this
sacrament rests with the parties; the determination
whether tlie hicommudum is suflieiently grave or not,
rests with the pasttir. If if is urgent that the pnrtiea
should be married; if they are poor and reside at a
louK distance from the seat of the diocese and the
Bishop will not administer the sacrament of Confirma-
tion in their locality for some time to come; if the
BtHhop is far from liis diocese and they cannot wait
ontil his return: if the unconlinned party is prevented
by sirkness from undertaking a journey to the episeo-
piU city in order t<» present himself before the Bishop
for ciinfirmalion ; if some urgent circumstance hinders
the unconfirmed! party from leaving his liome just at
liial lime; these and many other reasons would cer-

Ilainly constitute a grove inronimoihim for the parties.
If hi tlie estimation of the pastor the inconvenience to
ilhe parties is grave, he may proceed to marry them,

"PoB, Iim. r»s.. Can. 77fl.
■8w UiIb work. n. 238,

"fui»(-, Kp. 8ii-il. (iBUfl), iini] fi'iir. j.tox: rirnn. (IfiSSj in Cnllect.
La<.. U VI, rol. !i^3, nnd t. V, ml. 174.

The New Church Law on Matrimony.

but must see to it that tliey receive the sacrament of
Confirmatiou at the earliest opportunity. Should the
incommodum not seem grave and the parties decline
to comply with this law, the pastor cannot admit them
to the sacrament of Matrimony unless lie first consults
the Ordinary.

//. Proclamation of Banns.
(Canon 1022— Canon 1025.)

97. The announcement of the banns must be made
publicly -'' by the proper pastor of the contracting par-
ties,-' If a party, after having reached the age of
puberty, has resided elsewhere for six months the pas-
tor should make tliia f:iet knowu to the Ordinary. To
ascertain the free state of such an individual the
Bishop may prescribe that proclamation of the baims
be made at that place, or, should it be deemed prefer-
able, may institute a juridical proceeding." If there
should be some suspicion as regards the presence of
an impediment, the pastor should consult the Ordinary,
even if such party's stay outside the parish limits was
of a shorter duration than six months. Under such
circumstances the Bishop should not permit the mar-
riage to take place until this suspicion is removed by
means of the provision suggested above."

98. Though the pastor may have omitted nothing
in the conscientious examination to which the contract-
ing parties are to be subjected, such examination can-
not preclude the possibility of the presence of an
impedient or diriment impediment which the persona
either knowingly "withheld, or which, being nnknov n to

■Cod. Iub. Can., Can. 1032.
■Op. rit.. Can. 1023, SI.
■ Op. eil., Can, 1023. S2,
" Op. cit.. Can. 1023, J3.

Preliminaries to Marriage. 49

tlioin, did not come to light. It was this possibility
that induced De Soliaco, Bishop of Paris, to issue a
decree In 1198, prescribing three public announcements
tif all future marriages,-" This local law was after-
wards adopted by some provident Bishops as a matter
of safeguard, and subsequently extended to the uni-
v«?rsal Churcli by tlie Fourth Lateran Council pre-
serihmg one public proclamation of every marriage."'
It remainiHl for the Council of Trent to cast this law
I in its final shape by amplifying it and expressing It
Lmore clearly."

Both the old and the new legislation insist that

I'tbe proclamation of the banns must be made by the

■"proper pastor of the contracting parties."' He is

■obliged sub gravi to comply with this law even if he

lahould have moral certainty as to tlie absence of all

'mpediments.*" By the expression parochus proprtus

W'thf law means the pastor one acquires by means of a

domicile or quasi-doiuicile." The parochus proprtus

lof the vagi is that pastor in whose parish they tarry

jhtc et nunc." The same is to be said of those who

quired only a diocesan domicile or quasi-domieile,"

t both parties belong to the same parish without hav-

t acquired a domicile or quasi-domicile in another,

he proclamation is to be restricted to this particular

arish. If they belong to two distinct parishes, the

"Benedict XIV, const. "Faaeia oftAinc," 19 mart. 1758; Wernz, op.
B\t., u. 136; Oaspakiu, op. cxt., n. 149.

" Cone. Lot. in cap. Ill, De clandeat. de»ponmtiuat,

" Cone. Trid., vesa. XXIV, cap. I, De reform, matrimonii.

»Besh)IOt XIV, ep. encycl. "Solu t'obis," 17 nov. 1741; pp. encycl.
"Paueii abMnc," 19 mart. 1768; 8. C. 8. Off., inatr. (ad Ep. Orient.),
22 Mg, 1890, n. 3; Ritdale Bom., tit, VII, cap. I, de tacramentu
matrim., n. 7, «,

"Oaspawu, op. Ht., D. 142; We»nz, op, cit., n. 138; De Smet, op ci(.,
a. 30.

"Con. Iftt. Can,, Can. 94, }1; S. C. ck Saeranifnlia, fiomona el

-UOD. iUa. UAN., L^n. H

H "O;!. ctl., Can. 94, f3.

50 The New Church Law on Matrimony.

other condition remaining the same, the proclamation
is to be made in both. If either or both contracting
parties have several domiciles or quasi-domiciles, ac-
cording to the letter of the law, proclamation should be
made in all, for, in that case all those pastors are
considered their parochi proprii. The banns of vagi
should be announced in the parish in which they reside
at the time. If the party gave up his domicile or
quasi-domicile, and established a residence in the
parish in which he wishes to contract marriage, then
the second and the third paragraph of this canon find
their application.^* Since the Codex fails to say that
by means of one month's residence one acquires para-
chum proprium, the natural inference should be that
though such a pastor, by virtue of a right expressly
conceded to him, may marry people having such resi-
dence, he is not supposed to announce their baims.

100. The male child attains the age of puberty as
soon as he has completed his sixteenth year and the
female child after the completion of her fourteenth
year." If after the attainment of the age of puberty
either one or both contracting parties resided outside
the parish for at least six months, the pastor who is to
assist at the marriage must apprise the Ordinary of
that fact. The Bishop, should he deem it necessary,
may order the proclamation of the banns to be made
at that place. Or, if instead of such proclamation he
should prefer a juridical process, he is free to institute
one. In that case he should examine at least two wit-
nesses who wore acquainted with the party in question
in the place in which he spent six months. The duty
of such witnesses will be to furnish proofs whereby
the freedom of the party to marry is established. If

»*De Becker, op, cit,, p. 234; Gaspar&i, op, ci7., n. 163; Wernz, op.
cit., n. 139; De Smet, op. cit., n. 36.
"Cod. Iur. Can., Can. 88, ^2.

Preliminaries lo Marriage.

both the man and the woman were absent from their
parish for that lengrth of time, each of them should
prodm-e two witnesses, unless, in ease they resided in
the same locality, the same two witnesses are qualilied
tu testify for both. The same is to be done for every
six months that were spent in the territory of different
parishes. The Bishop may have recourse to any other
measure which in his estimalion would serve tiie pur-
pose of ascertaining the free state of the contracting
parties." Shotdd a suspicion arise that the party con-
iraetwd an impediment while residing in a place for
even a shorter time than specified above, the Bishop
should not permit the contemplated marriage until
snch a suspicion has heen removed. This is to be ac-
complished by having recourse to the same proct
which is prescribed for those who resided outside their
parish for six monflis. Thfi Ordinary is empowered
dispense from the law pr(Miiulj,'ated in the two fore-
ling paragraphs if lie has a well-founded probability
t tlip parties did not contntct an impediment during
th«"ir absence from their parish.

lOL The publications are to bo made in the Chnrcli.

Since this duty of making the publications devolves on

th^ proper pastor, the natural inference is that they

shoald not be made in a public chapel, unless it serves

at tlie time the purpose of the parochial church and the

parochial Mass is celebrated in it." We must bear in

mind that the main purpose of this law of ]>ublisliing

^Oie banns in the parisli church i.s not to empliasize tin-

^Blare of publication so much rs the presence of a large

^Hsthering of people whom the (Mnirch wishes to ap-

^Hriw officially of the marriage about to lie contracted.

^ntt was for this reason that St. Alphonsus attributed

P -Bi

parii
■bidi

" BeKia>UT XIV, f7>, "Paufit ahbinc," tf
■It., 21 mtig. I67it; innlr. (ad Eji. OHi-nlt
•• Wmxi, op. fil., n. 13» ; 8. C. C, 1 iul.

mnrt. 175H; 8. V. £
22 mii;. ISBtl u. U,
1724.

52 The New Church Law on Matrimony.

to this law so extensive an interpretation.^' It seems
probable, he says, that without mortal sin, and if
there is a reason, even without any sin whatsoever,
one may announce the banns of marriage even outside
the church when a large concourse of people convenes
for a sacred purpose, like a procession, a sermon, etc.
Therefore it is legitimate to conclude that this law
may be modified in certain instances at the discretion
of the Bishop. A decree of the Sacred Congregation
of the Council, dated July 1, 1724, gives an express
permission to announce the banns even in a church in
which the parishioners convene only on extraordinary
occasions for the celebration of the divine mysteries.

102. Another important factor relative to banns is
the time regulating their proclamation. On three con-
secutive Sundays or holydays of obligation, one an-
nouncement is to be made. An interruption is not only
to be tolerated but commended, should the three days
follow one immediately after another. Such a precau-
tion would pro\Hde more time for the detection of an
impediment, if there should be any.''

103. Formerly the canonists adhered to the opinion
that no announcement of banns is permissible on sup-
pressed feasts except with the consent of the Ordi-
nary.*^ It would seem that the spirit pervading the
new legislation on this point would permit the pastor
to proclaim the banns of marriage even without con-
sulting the Ordinary, pro^4ded there is a concourse of
people present at the Mass celebrated on a suppressed
feast.

104. The proclamation of banns must take place

» Theologui Moralis. lib. VT. n. 992.

"Gasparri, op, cit., n. 165; Wernz. op, cit„ n. 138; De Becker, op.
cit., p. 233.

••Gasparri, op, rif., n. 166; Wernz, op, c%i„ n. 138; De Smet, op. rt/.,
n. 38; Feije, op. cit., n. 247; i^yiUHfikt Dioccesana Albanensis, pars U,
art., X, n. 9, Dc nuitrimonui.

k'eliminaries to Marria

tlnring Mass or during some other divinu servUfc, pro-
nied in thu latter instance there is present a large
gattierbig." The words "aut inter alia divina officia"

j are to be interpreted in a broad sense. Under such
ft'nioes one may include Vespers, Benediction of the

[ BieswHi Sacrament, an amiounced sermon, a special

[ flovcna or procession.

///. Dispetijiotion from the Proclamation of Banns.
(Canon 1026— Canon 1034.)

105. N'either apparent uselcssness nor moral cer-
lainlr as to the absence of an impediment, nor publi-
cation made by civil authonty can release the pastor
■Irom the obligation of proclaiming the banns of mar-
" ige for this law is not based on the presumption of
t but on umversal danger. He may lay it aside in
ixed marriages " (in wliieh case the proclamation is
Ibrbidden), in cases of urgent necessity when the mar-
e camito be delayed until a dispensation is obtained
from the Ordinary," and in marriages of princes by
rirtue of univiTsal custom." There are other instances
in which the parties may be dispensed from having
eir banns announct-d. The Council of Trent reserves
t the Bishop and to his delegates the right to decide
"lellier thy ea.sc under consideration warrants a dis-
nsation or not.'"' To dispense from all publications
; causa would be exposing oneself to the danger of
jartal sin." This statement is not to be applied to a

•B. C. C, 25 oct. 1580; Rituale Rouanum, til. VH, *-. I, dr larra-
HI* m^lrimanii. n. 7, 12, 13.
*OOBi. ICK. Can.. Can. 1026; s<¥ this work, n. 108.
'Op. rtt.. Cat. 1019 and 1043; mo this work, u. H3 ff. and n. 151 a.
"StAKtwl. Ill, n. »1)7; GASPAEUtI, op. fit., n. IS'l; Db Smbt. op. rit..
I 4t: WBtKX, op. at., B. 138 note 17; Bassibev, De la CUindcst., n.

■. I.

184; Besedict XIV, n

The New Church Law on Matrimony.

hypotlietical case when the Bishop has a moral cer-
tainty that the parties do not labor under an im-
pediment.*' If there is a well -founded suspicion of
the presence of an imiwdiment tlic Hishop sliould not
dispense from all three pulilicatiuns. In the abs<»iicf'
of such a suspicion, according to the common opinion
of the canonists, he should never deny a dispensation.
if its granting would he the occasion of signal spiritual
or temporal good and its refusal the source of notable
spiritual or temporal evil." Tlie gravity of the cause
is the deterniiuaiif of the numlier of publications from
which till' Bii^hop may dispense. D'Aimibale puts it
in very concise language: "Caeterum Ordinnriutt non
permiltilur dLspensure pro libtto, sed ab una ex iusta
cnusa, a duabus e.r gravi, ab omnibus ex urgentissima
causa." *°

106. The Ordinary would have a sufficient cause for
dispensing from one or more publications of the banns
in the following instances: If on account of disparity
of age the sacrament woidd be exposed to ridicule and
the contracting parties to public derision ; if the
proclamation would prove an occasion of scandal or
infamy for the parties wlio are wrongly reputed as
united in marriage; if there is a question of a mar-
riage of conscience; if one or l)oth contracting parties
must needs embark on a long journey and, without
grave spiritual or material detriment, their marriage
cannot be postponed; in periculo mortis, as already
explained;*" if it is feared that by delaj-ing the mar-

"Bt. Ai,phonsus, op. eit., lib. VI, n, 1006; Scavihi, op, 6it., m, ■-
905; OlOVlNE, op. eit., S35fl.

"HiNOHiz. op. fit.. III. rX; Schmai.zokObeb, op. eU., IV, III, u.
23 aq.j OloviKB, op. eit., ^358: ST. Alphomsus. op. eit., VI, n. 1005;
YoDBi, op. rit., e. I, art. I, iS; Oaspabki, up. eit., a. 1S6; Werni,
op. ci(., n. 142.

-Op. eit.. vol. Ill, n. WS, nole 7; Benedict XIV, conat.

licentiam." 18 mail. 1743, $5, 10, 11.

"See thia work, n. 83 ff. and n. 151 ff.

Preliminaries to Marriage. 55

riage one of Ihe parties will cliaiige his mind and matri-
mony ie the only moans whorohy thp n-pnfalioii of the
othpr party can he f^ai'cgnardpd : if tlirro is sulTicii'nt
frround to fear ttiat tlif marriage will lie prevniti-d hy
some ^v\\ machinatioiip,'" The pastor wlio asks for a
di5p<'nsiation from \\\c banns shonld facUitatp tlio tank
of tliP Bishop hy rpiideriiiff him morally certain that
the parties are free to marry,

l&i. Tlie Ordinary, instead of the foref^oing form
nf proflairiiinjr the banns, may use another. He may
post pnblicly, for eight consecutive days, the names of
the contracting parties at tho door of the parochial
church or of any other church, taking care that this
period will include two holydays of obligation."- The
priTogative contained in this canon is not altogether
Dew. Some very large parishes enjoywl tlie sauK-
privilege for many years before the present legislation
extended it to the universal Church. The Bishop
alone has the right to benefit his diocese liy preserihing
for it this law. The names of the contracting parties
nrnst be placed conspiciioiisly at the <lnor of the chnrch.
As a matter of advi,sability the pastor who intends to
niake use of this privilege liahitually. should reserve
a determined place at the door for this purpose, to
which he should rail the attention of the cotigrcgation.
o of the eight days during which the names are to

iiiiain at the door nuist he hulydays of obligation, as.

If inntanee, two Sundays, or a Sunday and a holyday
obligation. It would seem that even a suppressed
holyday of obligation should suffice for this purpose.

108. Marriages to be contracted with a dispensa-

f'on from the impediment of disparity of worship or
r Kiixed religion should not be announced unless the

whirl

^Keiiia
^■pr ii
Hif ol

I •■ a4iir«RBr. op. rif.. n. IRflr Wkrxk, op. r».,

ML. K. U.

|*Gim. IvK. Cax., Cm. 10^.?,

; De 8met, 1

The New Church Laiv on Matrimony.

judgment of the Ordinary, scandal having been re-
moved, directs otherwise. Should the proclamation be
made, the apostolic dispensation must first be obtained
and no mention is to be made of the religion of the
non-Catholic party." If the Ordinary thinks the proc-
lamation of banns in mixed marriages expedient, this
eanon must be followed to the very letter. The banns
of such marriages must be published either viva vuce,
as was customary in the former discipline, or by plac-
ing the names of the contracting parties at the door of
the church, if the parish enjoys that privilege.

109, Any impediments of which the faithful liavp
knowledge must be revealed to the pastor or the Ordi-
nary of the place before the celebration of marriage."

The impediments must be manifested whether diri-
ment or impedtent, public or occult. The ordinary
secrecy imposed by natural law, even if confirmed by
oath, does not free one from this grave obligation."
Secretum cotnmissum, aui grave damnum, aut pericu-
lum damni gravis turn privati ipsius revelantis, turn
propinquorum, turn societatis justifies one in keeping
silent."' Knowledge acquired under the seal of confes-
sion or occasione confessionis is not subject to mani-
festation."

110. The duty to reveal matrimonial impediments
is founded on natural and divine law, and the purpose
of this ecclesiastical law is merely to emphasize, ex-
plain and enforce it. At the base of this obligation are
charity towards one's neighbor and consideration for
the general welfare of society. An occult impediment

"Cod. Il-r. Can., Can, 1026; 8. C. S. Off., lilt. (A<i Vic. Ap. Mvi-
BUrien.), 28 nov. 1862; li(t. * iul. 1874.

"Cod. Iur. Can., Can. 1027.

" Oaspabsi, op. cit., n. 177; Wer\z, op. cit., n. 143; De Smbt, op. eO.,
n, 44; Fbijb, op. eit., n. 281).

"C, 7, X, (Je cog. spirit. IV, 11; c 27, X, de upon*. IV, 1; o. 6, gyH
mnfrtraoniom aei-tiaarf poMunf, irf contra illud trittifieiiTi, IV, 8.

" SiHMAJ.EGRi'BEK, h. f., n. 51 Bn. ; GAsrAnRr. op. cit., o. 174.

preliminaries to Marriage.

for which dispensation has been obtained pro foro con-
scienliae need not be revealed," unless there is danger
of scandal, in which case a dispensation should be re-
reived also pro foro externo before the marriage is
contracted.

111. The proper Ordinary of the place at his own
discretion is authorized to dispense for legitimate rea-
son t'ven from those publications which would have to
be made in another diocese. If there are several
proper Ordinaries (he right to dispense is ceded to the
one in whose diocese the marriage is actually to be con-
tracted. If the marriage is celebrated outside the
proper diocese, any proper Ordinary has the power to
dispense."

The words of this canon "loci Ordirmrius proprius"
refer to the Ordinary in whose diocese the contracting
parties have acquired a domicile or a quaBi-domicile.""
If both of them have their domicile or quasi-domieile
iu the dioeese within whose territory they intend to
coutroet marriage, their Bishop has the power to dis-
pense from publications which would have to be made
in another diocese," if, for instance, the parties in
question spent at least six months in the latter after
their attainment of the age of puberty." If the con-
tracting parties acquired a domicile or a quasi-dnmicile
in several dioceses and in one of them they intend to
eontract marriage, then only that Ordinary has the
right to dispense from the proclamation of banns in
whose diocese the marriage is actually solenmized.
Should the marriage be contracted in a diocese in
wliich they do not po.ssess a domicile or quasi-domieile,

■Wnwi, o/i. eil., n. 144; Qaspahsi, op. fit., n. 17S.

•COD. Itm. Can., Csn. 1028.

"Op. fit,. Can. 94.

*■ BKKB>H-r XIV, ep. enrvtl. "Satu Fobit," 17 n<iv. 1T41, }5; 8. C, 8.
Off. (qa"bM), 14 ion. 1703; 8. C. ile Prop. Fide, inatr. (ud An-hiep.
Vir. Ap. Indiar, Orient.). S wpt. lSfii>, n. 5f>.

■•CoBMill Cod. Iva. Can,. Can. 1023, Jja anj 3.

58 The New Church Law on Matrimony.

then any of the foregoing different proper OrdinariPS,
whom thp parties acquired hy virtue of their several
domiciles or qiiasi-doinioiles, may grant the dispensa-
tion. In the ease of vagi only the Ordinorius loci, in
whose diocese the marriage is contracted, has the
power to grant such a dispensation.

112. The Codex states unequivocally that an indi-
vidual can aciiuire a proper pastor or Ordinary in no
other way than I)y means of a domicile or (piasi-domi-
cile. A person who merely to satisfy Ihe letter of the
law takes up his abode for a month in a strange parish
in order to lie qualified thereby to contract marriage
in it licitly," does not by that very fact necessarily lose
his domicile or quasi-domicile nor can he be forced to
acquire a new one. Perhaps it is for this reason that
the Codex disKjualifieH the pastor or the Ordinary in
whose parish or diocese such a residence has been
established, from thereby becoming the parochus or
(lie Ordinnriiis proprius prntiiim.'" The natural infer-
ence is that the (Vdinavy cannot dispen.se the parties
(who established only one month's residence bi some
parish of liis diocese) from proclamation of banns to be
made in the diocese in which they formerly resided.

113. If another pastor made the investigation or
announci'd the banns, the result nmst immediately be
connnunicated by means of an authentic document to _
the pastor M'ho is to assist at the marriage.*' Th(i
pastors who are not to assist at the marriage but an
connected with it either because they were called upon!
to make the investigation or to announce the banns,
must send testimonial letters to the pastor who is to
solenmize it. In this document they should apprise .
him of the result of their inquiry. They !

-Op. .

N.. Can. 1097. Jl, I

.JIT* ^-Tjniuin n^^ii lot ^^^_

Preliminartes to Marriage. f)9

o state clearly whether their investigation rcvuak'd
he presence ur the abseiiee of an impediment or a
wspicioii thereof. The Christian namo and the sur-
name of the contracting parties, the name of their
mrt-'iits and of tlmir domicile should be distinctly
itatetl in the document imparting the foregoing in-
ormation. In addition to this, the foregoing doeu-
nent must also state the name of the church and the
lay un which the proclamation of the banns was made
Tor the last time. If a dispensation was given from
publication this fact sliould also be noted. The
late and the name of tlie place should never be omitted
and the doeument sliould bear tlie signature of the
pastor. It' the marriage is to be celebrated in another
diocese it should be countersigned liy the Ordinary and
'brought to the notice of the Bishop in whose diocese
the marriage is to be solemnized. The last two pro-
visions may be disregarded if custom lias established

contrary practice.

114. The pastor should not assist at the marriage
unless, besides having made tlie investigation and an-
nounced tlie banns, he has .secured all the necessary
documents, and three days have elapsed stnoe the last
publication or a reasonable cause excuses from such
delay. If the marriage is not solemnized within six
months, the proclamation of the banns must be re-
peated, uidess the Ordinary decides otherwise.""

The first part of the foregoing canon retains the
former discipline," but the prescription of a three days'
delay is an innovation. In the past marriages did not
have to be deferred for any prescribed time, but it was
generally agreed that a delay of twenty-four hours
Kufficed after the last publication of the banns. The
pastor is the authorized judge in deciding whether this

60 The New Church Law on Matrimony.

law is to be observed in particular instances. He has
the right to dispense himself from retarding the mar-
riage in the presence of a reasonable cause. The term
' * rationabUis, ' ' together with the fact that the decision
is left to the judgment of the pastor, intimates that
even a slight cause would be sufficient.

The other new regulation introduced by this canon
is the repetition of the proclamation of banns in case
the marriage was not contracted within six months.
These six months begin to run with the fourth day fol-
lowing the publication of the banns for the last time,
for the parties had no right to be married before that.
To the Ordinary of the place is reserved the right to
dispense from the renewal of the proclamation of
banns if in his judgment there is a sufficient reason to
put aside this law.*®

115. Some questions might arise as to the procla-
mation of banns when there is a doubt as to the pres-
ence of an impediment. To provide for such contin-
gencies the Codex of Pius X legislates specifically by
prescribing the following course: In order to remove
the doubt the pastor should give the matter a more
thorough investigation l)y examining two witnesses
and, if necessary, the contracting parties themselves,
provided there is no question of an impediment whose
revelation would bring infamy to the latter. The
proclamations should be started or finished according
as the doubt arose before thev were commenced or
subsequently, but before their completion. The pastor
should not assist at the marriage >\nthout consulting
the Ordinary if in his judgment the doubt is not re-
moved. Should the presence of an impediment be
ascertained, its nature will determine the course the
pastor is to pursue in the announcement of the banns.

••S. C. S. Off., instr. (ad Ep. Oriont.). 22 aup. 1S90, n. 6; Ritualk
Rov.. tit. VII, i\ I, de sacramt'nto matrimonii, n. 11.

preliminaries fa Marriage.

aShouM the dt'ti'cted impediiiu'iit he occult the pastor
is to start or, if already started, coniplete thp procln-
nation of the banns and lay tlie matter before the
£ishop of the place or before the Saered Peniteiitiaria,
Buppressing the names. If the impediment is public
SUid not discovered before the proclamation of the
banns began, the pastor should not proceed any further
until the impediment is removed, though he may have
■certainty that a dispensation was obtained from it but
vnly for tlie internal forum. Should the impediment
,*be detected after the first or the second publication tlic
pastor is to complete the publication of the banns, and
refer the matter to the Ordinary."" Finally, if neither
a certain nor a doubtful impediment is discovered, the
pastor, having finislied the publications, should permit
the parties to enter into marriage.'"

116. The doubt of which this canon speaks must be
I positive, not a negative doubt, dnhinm facti, not
duhium hiris, for in the latter instance the laws would
not urge." In the matter of matrimonial impediments
dubium diibio iuris is a doubt in which it is questioned
whether a certain circumstance constitutes an obstacle
disqualifying a person from contracting marriage
validly or licltly. In the case of dubinm dubio facti it
is certain that this circumstance does constitute an
impediment, but a doubt arises as to its presence in
the case under consideration. Only in this latter in-
stance is the pastor hound in conscience to settle the
doubt. Should this doubt continue even after the
proclamation of the banns, the pastor before permit-
ting the parties to enter into marriage must inform the
lucal Bishop of this fact."

"Bknboict XIV, ep. pdcvpI. "Wimiam iitrntinm." 18 maii, 1743, jto.
"(Tod. 1v\. CiN.. Can. 1031; Bee this work, n. 87,
" Op. fU., Can. 15.

"8. C. 8. Off., in^tr, 21 SUR. IflTO; 24 fobr. 1S47; ioBtr. {ad Ep. 8.
Arbcrii), 9 dec. 1874; iimtr. (ad Ep. Oricnl.), 22 aug. 1880,

The Neiv Church Laiv on Matrimony.

117. The witnessps of wliidi this canon speaks need
not have other qualilieatioTig than reliability and trust-
worthiness, they may be Catholics or non-Catholics,
even infidels, men or women. Any impediment that
can be proved in the external forum is regarded as
public, otherwise it is occult." If the pastor is aware
of the fact that a dispensation has been obtained pro
foro interna from a public impediment, it is legitimate
to presume that such an impediment has already been
lifted, and ho may act on it also pro foro extcrno, salvo
scandalo. It is necessary to have recourse to the
Ordinary in all cases of doubt, even if one might run
the risk of sinning by excess, for the pastor may admit
the parties to marriage only when he has ascertained
the absence of all impediments or at least has received
a dispensation ad cautelain from those that are
doubtful.'*

118. Except in ease of necessity the pastor should
not assist at the marriage of the vatfi of wliom mention
is made in canon 91, unless the matter is first laid be-
fore the Bishop or a priest delegated by him."

The legislation embodied in this canon is the same
as that enforced hy the Council of Trent.'" In large
dioceses it is advisable on the part of the Bishop tn
authorize certain priests, preferably deans, located in
different parts of the diocese, to whom the pastors can
have recourse whenever they have occasion to witness
the marriages of vngiJ'' If a vagus wishes to marry
one who has a domicile or a quasi-domicile the proper

"Cod. Iur. Can,, Can. 1037; spp this work, n. 1B7 and 1*18.
"Benedict XIV, ep. rnrvcl. "Hatix Vnhis," 17 nnv, 1741; Rituai.b
Rom. lit. VII, c. T, dt mcramnUo mntr. n. S; c. -1. Bitus cHebnwdi

"Cod. Iur. Can,, Con. 1

. V, }4; KiTUALE Rom.,

Preliminaries to Marriage.

Course would dictate that the pastor of the latter
should assist at the marriage. Thus, for instance, if
the bride is a raga and the bndegroom a vagus, any
pastor with the permission of his Ordinary may assist
at the marriage, but if tlie bride should liave a domicile
«jr a quasi-domieile, and the bridegroom is a vagus, the
pastor of the former may witness the marriage without
ooiisulting the Ordinary. The Tridentine decree did
uot mean to affect individuals who are movientanee
vagi, wlio, nainely, liave abandoned their former domi-
cile or quasi-domicile but have failed as yet to acquire
a new one.'" Tlie present law- being the same, the
majority of recent canonists distinguish between nio-
vientanee vagi and hahilundler vagi. Wouters,'" Leit-
ner "" and a few uf less note include both these classes
mider this law. If a delay would prove an occasion of
scandal, of serious financial loss, or of a well-grounded
hope that the parties will attempt marriage by a min-
ister or a civil magistrate, or will live in concubinage,
then the pastor, facing a case of necessity, may sol-
emnize the marriage of vagi even witliout having
previous recourse to the Ordinary, but he must first
endeavor to the best of his ability to ascertain their
free state.

119. The pastor should not neglect to direct an in-
struction to the parties, accommodated to their condi-
tion in life, in which he will point out the sanctity of
the sacrament of nmtrimony, the mutual obligations of
the consorts, and the duty of parents toward their off-
spring. He sliould urge them fervently to approacli
the tribunal of penance with sincerity, and the table of

"WMxe, op. at., n. ITS; Qasparri, op. cU.. n. 146; Tie Bmkt. op. rit.,
«. 79: 8*K0BK, op. cit.. Ill, XXV, n. 2; St. ALPHnNsrs. op. rit., VI,
k. 1080: FKXHnKS, Lnx. Eipotuuilfs y el liatrmanio. n. 254, 2T1, 499.

" Cammentarius in ittcrelum "Sr triaere'' p. CA. AniBteludami, 191IJ.

" Uir r^'tabuNp*- Hiuf Kbrirhlietiunffiforin nach dem Debrele "Ne
Itmett," p. 42. Efgeosburg, 1910.

The New Church Law on Matrimony.

the Lord with piety.*' This iiistriit-tioTi should not be
omitted uiih?ss thv case is extremely iirji^ent. If it is
not possible to impart it outside the tribunal of pen-
ance, it ought to be given during confession. The
pastor should dwell on the holiness, dignity and im-
portance of the sacrament, and on the piety with which
it should be received. He must inculcate and explain
the obligations of husband and wife, their mutual love,
fidelity, trust, the protection of the wiff by the husband
and lier submission to him, the honesty of the conjugal
act, and the sinfulness of all actioTis tending to race-
suicide. He must emphasize, furthermore, the duty of
the parent toward the child, the latter 's right to bap-
tism as soon as possible, to Christian education from
his tender years and to parental solicitude as regards
his material wants/^

120. Confession is not to he regarded as a conditio
sine qua non, not even if one or both of the contracting
parties should be in the state of mortal sin. The pastor
should do hij utmost to deter such a party from so
grave a sin, and should endeavor to prevail on him by
pointing out the manifold necessary sacramental
graces of which he deliberately deprives himself. If
he fails in this attempt he should induce the person in
question to make at least an act of perfect contrition.
The state of mortal sin results in a sacrilegious recep-
tion of the sacrament, but it does not interfere with its
validity.

If, however, the party is a public sinner, or is bound
by a public censure, unless he first confesses his sins
and reconciles himself with the Church, the pastor
without grave cause is not permitted to witness his

" Cod, Irs. Can,, Can. 1033.

"Cone. Trident., geuio SIV, de reform. •
(Kentucky), 9 mail, 1821; (Vic. Ap. Snnd'
Uogvntma, 2% nug. ISSS; RiTy.\i.B Rou., til;.

a. 17; Oasparbi,

(rim., c, Ij 8. C. 8. Off.
■.). 11 det. 1850, ad lM;
II, c, I, de tarr. matrim..

Preliminaries to Mnrriage.

(;.)

iiarriage. If possible the Ordinary should Ix' t-on-
lIlt^^d altout tlip grave cause in thf case under eonsid-
ratioii." Should a public sinner confess his stiis to

another priest, the pastor should demand a testimonial

to that effect.

121. The pastor should exhort the children who are
still minors, not to enter into marriage without the
knowledge of their parents, or against their will when
they hav<> a reasonable objection. Should the children
disregard his counsel he is not to assist at their mar-
riage unless he first consults tlie Ordinary of the
place.**

The chihlren to whom this canon refers arc thos»*
who have not a* yet completed their twenty-first year."
For the validity of the marriage it is re(|uired that the
hoy shouhl have completed his sixteenth and (lie girl
htT fourteenth year." Formerly the reasonable dis-
*&\i of the parents was generally regarded as an im-
pniient impediment,

122. The right to marriage has always lieen con-
sidered one of tliose rights which the minor was not
supposed to exercise without the consent of Mis parents.
Among the Hebrews and the Greeks it was generally
the pareTits who selected a suitahle consort for tlieir
i-hildren, regardless of whether the child was a minor
or a major." A similar practice prevailed among the
Romans and in their law the consent of the parents
wa.s essential. Only in certain exceptional instances
wa.*! the marriage considered valid without it." Tho
Germanic law prescribed the c<msent of the parents as

■Ooo. ICTl C*x.. Can. 1068.
-Op. eU., Can. 1034.
" Op. <4I.. l%n. 88.
-Op, rt(„ Can. imiT.

- B(Mttl€-r XIV, fiinM. ■■Pimlr'-pw mi-itne." ffhr. 2S, 1747; 8. Ambk.,
». 13, V. XXXII, q. 2.
-L. 1». 10, IBD. Oe rit« nii/.t,. XXII, 2; L. 18, 25 C. ile nupliin, V, 4.

The New Church Law on Matt

imonif.

a necessary requisite fur the marriage of a minor."
It cannot be proved that the Roman law was trans-
planted into the Churoh in all its rigor, namely, as in-
validating marriages contracted without the consent of
the parents. Though from an examination of the early
laws this contention cannot be vindicated conclusively,
yet no doubt can be entertained on the question since
the twelfth century, owing to the apodictio proofs in
which the Decretals abound."" By way of explanation
it may be added that if, on the one liand, the Church
laid such emphasis on the consent of the parents to
protect their rights, on the other hand, it did not fail to
safeguard the rights of the offspring by forbidding
the parents to force their child to a marriage against
his will.

123. The want of parental consent no longer con-
stitutes an impediment, though the licitness or the
illieitness of the assistance of the pastor is conditioned
on it. To barken to the parents in a matter of such
importance is a precept imposed on the children by
virtue of natural law. Tlie pastor may assist at the
marriage without consulting the Ordinary if, in his
estimation, the objection of the parents raised against
the contemplated marriage is unreasonable." The
right to object is reserved to tiie parents alone and it is
not to be extended to the tutor in the event of the
parents' demise. If one parent assents and the other
dissents the pastor is free to act. Among such reason-
able causes could be enumerated disgrace, dissension
or grave damage to the family from such a union.

"•SciiULTE, Handbuch dm htthnlisplu-n Ehcrcrhln. ^SI. GLi'sen,
1855; Mov, Das Eherecht der Oiruittii in der morgenlajuiachcn and
abendlandiavhen Kirche, p. 31R ff. BegciiBbure. 1R33.

1. g; -

"C. 2, C. XXVII, q. 2; Bknkdict XIV De aynoAo. vol. I, Lib. IX,
c. XI, n. 3, Pbtr. Lombardi, Bent., lib, IV, dial. XXVIII.

CHAPTER rv.

Matrimonial Impediments.

I. General Notinns about Matrimonial impediments.

124. Though for ahout oIpvi'Ii centuries the word
" imped imentum'' was unknown in tho vofabulary of
the canonical discipline of the Church,' the canons of
the Councils held as early as the sixth century give an
unmistakable expression to the idea conveyed by It.'
(iratian ' and Peter Lombard employ various terms to
express the notion connoted by the word "impedi-
ment." but the word itself never occurred to them. It
is rightly associated wifli the name of Bernardus
Papiensis (1139) for, to all appearances, it was he who
used it for the first time,' in the list in which he enum-
erated the fourteen causes which "impede" matri-
mony.' Alexander III about half a century later hor-
rnwed this term as a vehicle of expression ' in connec-

'VtLiJCs, L'rmpf'cAffmrnt fir mariufiP. Sa nulu-n jvriduittc d'aprfs
Viitloirr. In the Cauonigle Ointfmporain, 1003, p. 421.

■5yii»diM Aoaihmeit (506). ean. LXt; Mansi. op, cit.. vnl, VIII, col.
3.15. Conf. Aurflianfiue (511), i-an. XIII; Mansi. vol. VIII, col. 353.
Bftiadwi EpanneiuiM (SIT), can. XXX; Mahbi, vol. VIII, col. 562.
Cwr. Frrmrrvnuie (753, 756), can. I; M&nsi, vol. XII, col. 5S6.

■C. «. 8, C. XXX, q. 5.

* Wnxi, op. cit., o. 217; ViLLiES, loe. «(., p. 422; Esmein, op. eit.,
wl I, p. 205.

•■'Sniil antFtn quae, (naUimoamm impcdiunl, XIV: Votnm. ordo, ha-
fcitna. diapar rultiw, error personoe, eoaditio, ligatio, enormita* delicti,
tnpooibililBS Fooundi, rooi^lio, piitilioae hoaeataltB iiistitia, tempua
ferianun H tnt^Tdirlum ErrlcMiac'' {Summa Rexka&d. Pap.; IV, I. $6,
p. 2S1. BatiaboQ, 1861 ; cf. Summa de matrimonin, p. 228; ib., Wernz,
B. 117, font-note, 22).

*C 4, X, Tui elerici vel vovcnia malrinuinivm contrahen poMiMl,

68 The New Church Law on Matrimony.

tion with the impedient impediment arising from a
simple vow. The word w^as subsequently accepted by
the majority of theologians ^ and received official recog-
nition by the Council of Trent.*

125. The references already cited testify to the pro-
nounced lack of uniformity disclosed by the authentic
sources containing an account of the pre-medieval
canonical discipline as to the number and force of
matrimonial impediments. The fact that the early
theologians placed indiscriminately in one and the
same list the impedient and the diriment impediments
without taking heed to point out the particular force
of each, contributed not a little to the then prevailing
perplexity whose most regrettable feature lay in the
fact that some impediments were regarded as diriment
in certain localities and as impedient in others. Thus,
for example, the impediment of Holy Orders was not
looked upon as a diriment impediment for the uni-
versal Church until the First Lateran Council ex-
pressly ruled so.

The Council of Trent failed to remove this dis-
agreement existing among the theologians, for even
the more modern authors differ when engaged in the
determination of the number of matrimonial impedi-
ments.®

126. The rule of Innocent III as regards lawfulness
to marry ^" has been practically incorporated into the
Codex of Pius X. All persons may marry except those
who are forbidden bv law.^^ Such has alwavs been the
discipline of the Church as defended against Marcion-

'C. 1, de cogruitionc spirituali, IV, 3, in VI°; C. un. de voto et voti
rcdrmptione, tit. VI, in Extravag. Joan. XXIT.

" Sossio XXIV, J)c Sacramento matrimonii, can. Ill ; and De re-
formatione matrimonii.^ cap. III.

• I)E Smet, op. cit.^ n. 235; Wernz, Joe cit.^ Notae Historicae, II.

'*C. 23, X, dc sponsalihu^ et matrimoniiSf IV, 1.

^' Cod. Iur. Can., Can. 1035.

Muirinwnial hnpetiinwnli^ in Gent-rnl.

(iJ)

ism and Maniehaeism." The law wliidi stamls in the
"Vay of iiiarriagf may be either divine or human. The
former may be eithpr natural or positive. The latter
may be either ecclesiastieal or civil arcordiug as it
proe«*(NlB from a eompeteut eeeh'siastical or civil
autliority."

127. Tlif inipedimeiitfl of divine law, whether nat-
ural or positive, affect all persons regardless of creed.
The ijupedinients of civil law bind the infidels, while
those of ecclesiastical law affect only such persons ap
an* brought under the immediate jurisdiction of the
Church by means of baptism. Therefore, the lawful-
iieSK or validity of marriage contracted between two
unbaptized persons depends on the divine and the civil
law. The lawfulness or validity of marriage entered
into by two baptized persons nnist be judged according
to the positive divine and ecclesiastical law. The com-
petence of the civil law in this last instance cannot go
itfyoml the civil effects of such marriage.

128. A marriage forbidden by law may be illicit or
invalid. Tiie invalidating clause must be olivious, it
iiiay not be presumed.'* Owing to the principle laid
duMTi in the foregoing paragraph a marriage between
two iiitidels, though only illicit by virtue of the divine
Uw, may be invalid by the force of the civil law. Tn
the ttaiite way a marriage may be invalid owing to
m-lesiastical law, though by virtue of divine law it
laay be only illicit if contracted between two baptized
persons, or between a baptized and an unbaptized
pereon.

■C. 2, X. dr Mniugio lepniaonm. IV, 8; C. 1. de oniuyio aerwrvm.
- - - - ■ fi^i (i„ (•^,„^. Lugilunen. II) a Mieluielo Patarntng.,

IV. »': Prof,

Qtfgono X oblata _. .w. ..

' W^KK. op, fit., n. 215: OAapjtBRi. op. cit., n. 243.

••Or rtgula luru, fep. U\1V, in VI° : SANtHK/.. lih. VII. Oisp. IT,
and Amp. Ull. n. .-i; Be.vkdjitus .\IV, Of Synodu. lib. Xlt, L'ap. I, n. 3.

. VII. nisp. IT,

The New Church Late on Matrimony.

129. Every marriage is licit and valid unless its
lawfulness ur validity is prevKuted by an impediment
of divine or hmuan origin. No absolute uniformity
prevails as to the definition of a matrimonial impedi-
ment. The majority of authors maintain that it is a
circumstance establislied by law rendering the matri-
monial contract either illicit or invalid.'" A matri-
monial impediment, therefore, is the presence of a
specified cause which under certain conditions or cir-
cumstances, by virtue of divine or human law, affects
the lawfulness or the validity of a marriage contract.
This definition contains all the factors connected with
an impediment. It must be borne in mind that the
sacrament of matrimony is affected by an impediment
only indirectly. Directly it aims at the contract whose
validity or invalidity determines the reception or non-
reception of the sacrament between two baptized per-
sona. The new discipline has abolished some impedi-
ments, while others it has modified. The impedielit
impediments are four:

1. Simple vows (votum simplex) : '"

2. Legal relationship {cognatio legalls) in conform-
ity witli the civil law of the country; "

3. Mixed religion (midla religio); '^ ■

4. Unworthiness (indit/nitas).'^ H

130. The diriment impediments are thirteen : f
1. Want of required age [aetas) ; '"

"Oaspabri, 071. tit., n. 247; Webne, op. cit., n. 215; D'AnH[ba.LS, op.
eit., vol. ITI, n. 428; Db Smett, op. ril.. a. 234; Keineb, Gmndriai dsi
kalholUfhen Eherechta, p, 54. Munstrr i. W. 1905.

The Codei of Piua X 1
following canons:
"Can. 1058.
"Can. 1059.
"Can. lOfiO-Can. 1064.
» Can. 1065 and 1060.
■Can. 1067.

s of the imprdimenta

Matrimonial Impediments in General.

2. Impotency (impotcntia);-'

3. Undissolved marriagp bond (Uganicn) ; "

4. Disparity of worship (disparitas cultus) ; "

5. Holy Orders {ordo) ; ■'
G. Religious profession (professto religwsa) ;

7. Abduction (raptus);^'

8. Crime {crim,en) ; "

9. Consanguinity [consanguinitas) ;"^
10, Affinity (affinitas);^'
U. Public decency {publica knnestas) ; ™

12. Spiritual relationship {cognatio spirHvalis);"

13. Legal relationship (cognatio legnlis); in con-
formity Tsith the civil law of the country."

//. Different Kinds of Impediments.
(Canon 1036— Canon 1037.)

13L There are different kinds of inipedinients of
ffhieh the new Code of Canon Law makes mention.

L An impedient and a diriment impediment. The
inipedient impediment implies a grave prohibition to
nmtract marriage. If, however, notwithstanding such
prohibition the marriage should be contracted its
validity is sustained by the Church." A diriment im-
fiediment in addition to the grave prohibition contains
also an invalidating force " in rase a marriage should
be attempted notwithstanding the presence of such an
obstacle." Since the individuality of the matrimonial
wiitract presupposes the competence of both parties,
the contract would be respectively illicit or invalid

■Cm. lOflS.

"Can. J073.

"Om. 108B.

-Can. 1074.

*Cm. 1070 uid lOTI.

"Can. 1075.

-Can. 1078.

"Can. 1076.

72 The New Church Law on Matrimony.

according as one of the persons should be bound by
an impedient or diriment impediment.'* This last
principle, formerly controverted but at present em-
bodied in the new legislation, finds its practical appli-
cation in marriages contracted with a dispensation
from the impediment of disparity of worship. Thus,
for instance, some states of North America, whose
statutes prohibit miscegenation, establish a civil diri-
ment impediment of marriage between a white person
and a negro or an Indian or a Mongolian." If a
Catholic of the white race should attempt to marry an
infidel belonging to any of the above mentioned races
in a place where the latter has his domicile and where
miscegenation is a grave statutory offence nullifying
marriage, the Church would not uphold the validity of
such contract by the mere fact that it was entered into
according to the due form and with the necessary dis-
pensation. The same is true in case a Catholic of the
colored race should wish to marrv an infidel of the
white race under the same circumstances. An ecclesi-
astical dispensation from the impediment of disparity
of worship gives permission to the Catholic to contract
marriage with a competent infidel, but it does not mean
to remove the civil impediment under which the latter
may be laboring. The invalidity of the aforesaid mar-
riage would not result from the impediment of dis-
parity of worship, which according to the present dis-
cipline does not arise between a baptized non-Catholic
and an infidel. It would be occasioned bv the civil diri-
ment impediment intending to prevent the amalgama-
tion of races.

132. II. An impediment may be public or occult.

••Cod. Iur. Can'., ran. 1036, $3.

" Kkrzfs. The Tmw of Marrutpc and Divorce, $26, p. 18. Boston,
1906.
"Cod. IiR. Can., Can. 1037.

Matiimiinial Impediment^- In General. 73

It is regarded public when it can he proved in the
eitprnal forurn ; otherwise it is considered oecult."
With the adoption of this eaiion many of the insur-
niouiitaUlp difficulties arising in the past wilt be elinii-
nnti'd. In the former discipline tlie impediments of enn-
sanCTiinity, of affinity arising from matrimonial carnal
intt^n'ourse, of spiritual ami legal relationship, of Holy
'Wers and of disparity of worship wore considered
puhlic ex natnra sua. The otliers were either public
■■•impliciter, or occult simplicifer, or omnino occult.
liiprau thinks that impediments public by their very
iialare will not be regarded as occult by the present
IcjiiKlation even if they could not be proved by the
fxl^-nial foruju.'" Our opinion is just the contrary. It
ii prwisely with that end in view that the canon em-
ploys the word "cen.ietnr" m preference to the word
To decide whether an impediment is puhlic or
iMcult, namely, whether it can or cannot be proved in
fxternal forum, one must possess probatinnem
wm. prnbntin fiemi-plena does not suffice. To ex-
■iplify this canon : If after a diligent inquiry it is con-
iBilwl tliat the impediment of consanguinity existing
I two parties cannot he proved in the external
brum, tJien it must be treated as an occult impedi-
Vnt, for instance, if only one of the contracting par-
Sknows of the blood-relationship. Therefore in this
"Wp as well as in any other where an occult impedi-
ment is involved the dispensation is to be asked from
'be internal forum, the external forum being mostly
W public impediments. On the other hand, if the im-
I*iiment of crime utroque coniuge vel alterufrn ma-
<^mHte can be proved in the external forum, then if
"nist be regarded as public. Thus, for example, per-

'A C. C. Mnhiltiri-n. wii rinwpolm., S iul., 10 »opt. 1881,
^'Thr mrw Canon Iaiw in ilx practical atpecU. la the Amrrican Kb-

74 The New Church Law on Matrimmuj.

Bons guilty of such a crime take up an abode in a dis-
tant country where their crime is unknowii, but it is
known in the place in which they resided formerly.

The other kinds of impediments of which the new
legislati<m makes no explicit mention but implicitly
approves the old division, are the following:

133. Ill, According as the impediment oriKinates
from divine law (positive or natural) or from human
law (ecclesiastical or civil) it is called an impedunent
of natural or of divine positive law; of ecclesiastical or
of civil law. The determination to which of the above-
named categories of law any particular impediment
belongs, must be left to that part of this work in which
such impediment is treated individually.

134. rV. Impediments may be absolute or relative.
The former may render the marriage either illicit or
null as regards any person whatsoever, for instance,
the impediment of simple vow, or of Holy Orders.
The latter prohibits marriage with certain determined
persons, for example, the impediment of consanguinity,
affinity, spiritual relationship, crime, and disparity of
worship.

135. V. Impediments may he certain or doubtful.
The difference between the two is apparent. The doubt
may arise either from fact or from law, or from both
combined. The impediment is doubtful duhio facti,
when it is beyond doubt that a certain fact gives rise
to an impediment, but it is not certain that this fact
actually exists in the ease under consideration. All
impediment is doubtful dubio iuris when the fact is
self-evident, but it is questioned whether it constitutes
an impediment. When both these kinds of doubts are
present in one and the same case then the impediment
is dnbium dtibio iurif; aimul et facti. Example for tbe
first : It is certain that the impediment of consanguinity

MalrimoniaJ Impedimenls in General. 75

exists between those related in tlie tliird degree. It is
doubtful, however, whetlier Joseph and Agnes are thus
ri^lated. In all such instances the Ordinaries may dis-
peiiiHt, provided tlie nature of tho doubt is such that if
the thing doubted should prove to be a fact the Holy
S«' would dispense from the existing impetUiiiciit.
Kxaiiiple for the second: It is certain that Charles
adopt^ Cecilia, hut it is doubtful whether the adoption
was such as to constitute an impediment, In all such
rnsps the itnpediment may be ignored." The same is
lit he said as regards the tliird kind of doubt.

136. VI. An impe<iinient may he perpetual or tem-
porary. The chiration of the first is indefinite, that of
th(* !«?cond, temporary. Consanguinity would be an ex-
ample of the former; the impediment of age of the
latter.

137. VII. An impediment may be dispensable or

I on-dispensable, according as a dispensation can or
Biinot be obtained from it.
138. \^II. An impediment may he antecedent or
nbiu^uent (supervenient). The first exists prior to
it' matrimonial contract, for instance, the impediment
r consanguinity; the latter takes rise posterior to a
valid marriage, for example, affinity.

139. IX. Impediments may be occult or public by
their very nature. Tlie first are constituted principally
to promote jirivate well-being. Therefore, if a juridi-
cal process should l)e starte<l against the validity of a
marriage owing to the presence of an impediment of
tbv privati' rigjat. the actors in such a case would, as a
be the contracting parties themselves. Such an
ipcdiment is, for instance, occult impotency. The
[pediments of public right are introduced for the
welfare of the eonirounity: consequently, the light to
w the nullity of a marriage contracted with sneh

76 The New Church Law on Matrimony,

an impediment is not reserved to the parties in ques-
tion. It belongs ex officio to the judge or promotor
matrimonii, and it may be used by any person whom
the ecclesiastical law qualifies as legitimate actor.

All persons may contract marriage unless forbidden
by law/- The right to marriage is founded on natural
law.'^ Human authority may not forbid marriage ab-
solutely, though it may relatively in certain instances
and as regards certain persons who become dis-
qualified by natural or ecclesiastical law, or by a just
human law, or by virtue of an obligation freely as-
sumed. The attitude of the Church on this point is
best evidenced by the condemnation which it hurled
against the erroneous doctrines of the Marcionites,
Alanichaeans and Eucratites as regards marriage.

Under the present order of things no individual is
obliged to contract marriage except accidentally,
namely, when the public good or his honor demands it.
The direct connnands ^'crescite et multiplicamini et
replete terram" ^* was intended directly only for our
first parents. Their descendants were to comply with
it only collectively, namely, mankind as such, not indi-
viduals as such. Therefore celibacy is permissible as
long as there are enough individuals complying with
the foregoing precept. If celibacy were against natural
law St. Paul would not have encouraged the unmarried
of his audience to remain immarried, saying *' it is good
for them if thev so continue." *^

III. Right to Legislate in Marriage.
(Canon 1038— Canon 1041.)
140. Only to the supreme ecclesiastical authority

« Cod. Iur. Can., Can. 1035.
" St. Thomas, suppl. Illae p., q. XLI, a. I.
** Gen. T, 28.
I Cor. VII, 8.

Matn

,nnial Impediments in General.

belongs tlip righf to declare peremptorily under what
eircumstaiices the divine law impedes marriage. The
samp Hceiesiastical autliority, by virtue of privative
juriwliclioii is empowered also to introduee diriment or
impodient impediments by means of universal or par-
licnlar law."
This canon has already been explained." By the
I word!'"Riiprenie ecclesiastieal authority" is meant the
^Uomau Pontiff or the eollege of Bishops eonvened at
^BUH'umeniejil council. The Church by virtue of divine
^flight may decide what diriment or impcdieut iuipedi-
"uiPQts flow from the divine law as a natural conse-
quence," Such declaration hinds iioth baptized per-
wns and infidels. Because this canon mentions only
divine law, »me is not to infer that the Church re-
iiwincps its claim to the riglit of making a similar
I ffeolaralion also with regard to natural law. The most
^KteDTBl conclusion the wording of this canon would
^Mimuit 18 that tlu- Church refrains from claiming that
^pAi^has the e.vchisive right to declare under what cir-
I otnidtaiires the natural law prohibits or invalidates
niarria^'. Her exclusive right to such a declaration
pannot he questioned when only baptized persons are
wiiMTiK-d. and should she make such a pronouncement
" would bind the unbaptized also. The canon means
'" intimate that since the unbaptized are under the
juriudiction of the civil power, the civil law may go
fipfi CO far as to interpret for them what impediments
oWijrf by \"irtue of natural law.

141. The supreme ecclesiastieal authority has also
the exclusive right to establish impe<limcnts whereby
arriages contracted by baptized persons are rendered

^Coo. tvm. C*M., Cm. 1038.
fB<» thia work, n. 64 ff,

►e. C. 8. Off., iiuttr. (ntt Ep. Genpvi-n.}, 3 s-pt. 1772; inatr, (ad
Mt MiMloa. Miirt>ni>-ii<^, ct.-.). 6 iul. 1S17.

The

■ Chinch Law on Malrimony,

illicit or invalid.'" Tho word "privative" means to "
exclude two things, namfly, the civil powpr and the
power of the local Bishops (tho lattrr by reservation). '
In former discipline tin' < tnlinaries wen; within their
rights when they estalili.slicd impodiments of marriage '
for their own diocese. Not only their direct precept i
but even their indirect sanction, such as a taw originat-
ing from custom presupposes, sufficed formerly to in-
troduce an impediment. The new law suppresses this
once admitted right of the Bishops and reserves to tlie
supreme ecclesiastical autliority all right to legislate
for baptized persons in matters concerning matri-
monial impediments.

142. In certain peculiar cases tlie local Ordinaries
may forbid marriage for a time, but only for a just
cause and while such a cause is present, to individuals
actually residing in their diocese and to their subjects
living outside its limits. Only the Apostolic See can
add an invalidating clause to such an episcopal pro-
hibition.""

The Ordinaries have not been deprived of all their
power as regards matrimonial impediments. They
still retain the right to establish a temporary impedi-
ent impediment, in the sense of barring from marriage,
for a time, certain individuals in particular instances.
Such a penalty may be meted out only for a just cause
and the prohibition must be removed as soon as the
cause ceases." Should the parties contract marriage
before the cessation of the cause and the removal of
the episcopal prohibition their act would be illicit but
valid. If for a grave reason the Bishop should deem it

-Con. Trid., hpss. XXIV, de aarram. mntrim., ran. 3, 4, fl; BBSfHWCT
XIV, "SingiUari." 9 fobr. 174ft, 42, 16. 17; Pius VI, cnnst. "4w-
lorrm fidfi," 28 auj;. 1794. prop. 59, fiO, Bvnodi Pistorien. damn.; Leo
XIII. ep. Pttnvp. "Arfanum." 10 fpbr. 1"""

-Cod. Irti.'CAN., Can. 1039.

'■ 8. C. <:., Florentina, 17 folir. Ifi29, ad 1, 2.

Malrimunud Impediments in General.

advisable to forbid the marriage absolutely, a clausula
irrilnns should be asked from the Holy See."

143. Only the Roman Pontiff may abrogate the im-

pedient and diriment impediments of ecclesiastical law ;

nor may any one dispense from them unless such a

powtr has been ceded to him either by conunon law or

by reason of a special indult granted by the iloly See."

j Tlip Roman Pontiff, being the supreme legislator

and the fomitain-head of all power enjoyed by those

I who are in possession of ecclesiastical Jurisdiction, can

I n-Krrve to himself all legislative, judicial and coercive

' jHiwiT as regards matrimonial impediments. Such

rcsiTvation was actually effected by the new law as a

safeguard fur the welfare of the Clmrch and of society.

The foregoing canon furnishes an ideal case for the

application of the prima regula luris: "Omnis res per

I liuancumque caustis nascitur, per easdem dissolvitur."

k^f right of tlie Holy See to sueh a reservation was

^Btays admitted by the leading canonists, nor was it

^P»er questioned that the same supreme authority alone

^oisy antliorize another to dispense in its name from a

nmtriinonial impediment."

IW. The canon referring to custom emphasizes
■'lilimore this absolute control which the Holy See has
over marriage impediments. Custom introducing a
lev impediment or one contrary to those already ex-
isting is reprobated." Formerly Canon Law accepted
varioas impediments originating in custom, but it was
always maintained that no custom or hmnan law can
abrogate an impediment of divine law. In the future

'8. C. C Raniai? (Arrhiep. Chiovien.), IS wpt., 2 dec. 1628; 24 mart.,
» apr. 1«29.

'Coo. iL-m. C».v., C?iin. 1040.

"WaxE. op. fit., a. g;i ; Oaspabri. op. cit., a. 30S; DE 8MBT, op. Ht.,
■. 215; Bkkidict XIV, ep. encyci., "Uagnae Habit." 29 iun. 1748; Piua
YJ. »Mul.. "Juffnrrm fidei." 28 aug, 1749; prop. 59, 80; 8. V. de Pcojj.
Fide. (S. P. pro ein-Tunkb. Occident.), * iul. 18U1.

-Cot. lUE. C*s-., Cast. 1041,

80 The New Church Law on Matrimony^

it will be well nigh impossible for custom to establish a
universal impediment, not only on account of the
reprobation expressed above, but mostly on account of
the difficulty which will be experienced in getting the
consent of the supreme ecclesiastical legislator. It can-
not be presumed that in our times a universal custom,
before attaining the force of law, would fail to come to
the notice of the Holy See, which would either approve
it expressly or reprobate it.

145. The new legislation discriminates between im-
pediments of minor grades and those of major grades.
Under the former are classified the following :

1. Collateral consanguinity in the third degree.

2. Collateral affinity in the second degree.

3. Public propriety in the second degree.

4. Spiritual relationship.

5. Crime arising from adultery combined with a
promise to marry, or with an attempt to contract even
a civil marriage.*^*

All the other impediments belong to the class of the
major grade." An extensive and individual treatment
of these impediments will be presented later. The
foregoing differentiation finds its practical application
in the dispensations to which the attention of the
reader is called in the pages that follow.

IV. Dispensation from Matrimonial Impediments.

(Canon 1043— Canon 1057.)

146. Dispensation is a relaxation of the law in some
particular instances. Only the author of the law, or
his successor, or his superior, or an individual author-

'*Or(Io servandus in S. Congregaiionibus, TribunaUbus, Officiis Bo-
manat' Curio e, 29 sept. 1908, Pars II, Normae peculiares, cap. VII, art.
ITT. n. 19.

« Cod. Iub, Can., Can. 1042.

Matrinioniat Imped'nncnts in General.

iwd by either has the right to grant a dispensation.'*
Ordinaries below the Roman Pontiff may not dispense
from the general law ui' the Church, not even in a
peculiar case, miless sueli power was given to them
explifitly or implicitly, or unless recourse to the Holy
Mee its (lifReult and grave harm is feared on account
a( delay. It is understood that, Mhuuld these conditions
l>e pri'sent , the Bishop will lift "iily those impediments
frnni wliieh the Holy See ordinarily dispenses." Thus,
for iiuitanee, hv will not remove an impediment arising
from any degree of lineal or from the first degree of
('ollateral consanguinity, and only in extreme eases will
he dispense from lineal affinity in the (irst degree {pro-
vided the marriage from which it arises has not been
consumtiiated). nor from crime nlterulro vel utroque
coniuge machinante, praesertim si casus sit publicum.

147. The Bishops and other Ordinaries of places
may dispense from the diocesan laws; but only in par-
ticular instanci'R and for a just cause from the laws of
a Plenary or a Provincial Council. Should the Konmu
Pontiff diH'Ui it necessary to legislate for a certain tor-
ritorj-, such particular law in that locality would he
endowed «'ith the force 6f a general law, in the sense
that the Ordinaries of such places could not dispense
from it ill the absence of the conditions stated above
as required for the dispensation from a general law.*"
Without an express authorization pastors have no
power to relax either a general or a particular law."
Every relaxation of an ecclesiastical law must be occa-
sioned by a just and reasonable cause commensurate
with tJie gravity of the law from which a dispensation
in to be granted, otherwise a dispensation given by an

" op. Ht., Can. 80.
'Op. ra.. Can. k1.
-y^rif.. Can. 82.
•Of. eit.. Cin, »-A.

The New Church I.mv on Matrimony.

inferior is illicit and invalid. Should there be a douDi
as to the sufficiency of the cause, the asking of the dis-
pensation would be licit, and its granting both licit and
valid.'* The woi-ding of the rescript besto^^'ing the
faculty to grant the dispensation must be interpreted
strictly."

148, Since dispensations are generally given by
means of rescripts which serve simultaneously as a
proof, should the occasion require it, it is necessary
that the reader should familiarize himself with the new
law on this point. Excommunicati vitandi " or person-
aliter interdicti,"'^ or sitspensi," as well as persons
■whom a declaratory or a condemnatory sentence ex-
communicates or interdicts or suspends cannot validly
receive a dispensation from the Holy See, unless this
fact is mentioned in the petition and in the rescript."
If the favor need not be bestowed through a third
person (an executor), the effect follows as soon as the
rescript is given; otherwise it is deferred until the
authorized party executes it."' Only those conditions
are regarded as essential for the validity of a rescript
which are introduced by the conditional conjunctions
"if," "unless," and others belonging to the same
category.'* Rescripts are granted under the implicit
condition "Si preces veritate nitantur." Should the
causes stated in tlie petition be unfounded or imagi-
nary the rescript is invalid, unless it is given
"motu propria," or contains a dispensation from
a minor impediment. In the ease of a "motu pro-
pria" rescript the granted favor is sustained,

■ Op. cit., Chn. 84.
" op. et(.. Can. 85.

*■ Op. e«.. Can. 2285, 42.
-Op. cit.. Can. 2275, n. 3.
" Op. «!., Cna. 3383.
" Op, oil., Cm. 36,
" Op, c»(.. Can. 38,

■ Op. cit.. Can. 39.

Matrimonial Inipi'diment^- tn Genenil.

tlioiigh a part of the tnitli was concealed by the pcti-
lioniT. as long aa the filial or the only rause on which
tht' petition was based was not false.'" In tlie case of a
dispeTiwition from a minor inipodiment the rescript
would be valid even if the whole truth slioukl he (;on-
ceahni and an imaginary or even false reason substi-
tuted a« the causa rnotiva.'^

149. A favor denied by one Sacred Congregation or
Ofiice of the Roman Curia cannot be granted validly
by another Congregation or Office or by the Ordinary
of the place (should he have the power), except with
the atisent of that Sacred Congregation or Office by
which it was declined in the first instance; the right of

I the Saered Penitentiaria remaining intact,'^ No indi-

tvidual should ask another Ordinary for a favor denied
by his own, without mentioning the fact of refusal; nor
should the latter grant sucli a favor without having
first informed himself of the reason by which the
former was influenced when he refused the petition. In
Ihe same way a favor refused by the Vicar General and
asked from the Bishop without mention of that fact is
invalid, nor may a favor denied by the Bishop he asked
from the Vicar (ieneral without the consent of tlie
Ordinary, even if the fact of the Bisliop's refusal
should be exposed in the petition,"

150. Provided the Ordinary is unmistakably certain
as tn the identity of the person to whom a favor is
granted, and as to the nature of the favor, the rescript
b not Invalidated by an error that may have been eoni-
mitted as regards the description of the nature of the
coneession, or as regards the name of the grantor or of
the grantee or of the place of the latter's residence.'*

" Op. Pit., Can. *S.
" op. ril., Cjui. 1054.
"Ob. cit.. C«n. 43,
" Op. ril.. Con. +4.
■' Op. eU.. Oka. 47.

84 The New Church Law on Matrimony.

Should the Apostolic See grant a rescript not necessi-
tating an executor the recipient need not present it to
the Bishop unless expressly ordered by the rescript to
do so, or the nature of the concession obviously de-
mands it, as, for example, when the favor regards a
public matter, or the verification of certain conditions
by the Bishop is required/'^ The executor must observe
the essential conditions as well as the substantial form
laid dowTi in the rescript/® He may substitute another
person for himself unless such privilege is expressly
denied to him," or, unless he has been chosen indnstria
personae (by virtue of some personal merit).

V. The Power of the Bishops and Priests over Matri-
monial Impediments.

151. The Ordinaries of places may dispense their
own subjects in every place as well as all persons re-
siding within the limits of their territory, not only
from the form to be observed in the celebration of
marriage, but also from every impediment of ec<5lesi-
astical law, excepting those arising from the order of
the holy priesthood and from lineal affinity, if, in the
latter case, the marriage was consummated. This
faculty may be used whether the impediments ar<»
public, occult or multiple, provided scandal is removed
and the customary conditions complied with, should
the case demand a dispensation from the impediment
of disparity of worship or of mixed religion. The con-
ditions under which this extraordinary faculty may bo
used are clearly specified, namely: If urgent danger
of death necessitates the adjustment of matters of con-
science, and, should the case permit, the legitimation
of offspring.'

" Op. cit.. Can. 51.
'• Op. cit., Can. 55.
" Op. cit., Cnn. 56.
'• Cod. Iur. Can., Can. 1043.

Matriinotiial I mpedhnenl ■■< in General.

This is the most pxtensive faculty ever given to the
Kishops by virtue of ordinary power in case of urgent
cJaiiger of death. On Fehruary 20, 1888, tlie Congrega-
tion of Uie Holy Office issued a decree whereby the
Kishops were authorized to dispense from all public
niatrinioniai impediments established by eeeleaiastieal
law ill order to provide for tlie relief of conscience in
iM-half of those individuals who contracted a civil mar-
riage, or ''vivunt in conciibinaUi." '' The foregoiiig
faculty was not ordinary but only delegated, with the
prixnlege of .subdelegatio7i. The decree states distinctly
■ thai only argroti and in grainssimo nwrtis pericnlo
tconsfituti may be benefited by this faculty. By virtue
1'of the decree "Ne temere," art. VII. for similar rea-
■.sons plus the legitimation of offspring imminent e
liBorfijf periculo any priest could convaHdate a civil
Iniarriage provided neither the Ordinary, nor t!ie parish
T priest of the place, nor a priest delegated by either was
[ accessible. Finally on August 15, 1909, the SacreJ
I Congregation of the Sacraments declared that a priest
I who according to the foregoing article of the decree
"A'e temere" assists at a marriage is empowered to
I dispense from all the impediments mentioned in the de-
|cree on the Holy Office issued for the Bishops in 1888.
The present decree is the final development of the
I foregoing. Its oxtensiveness is due to the fact that it
I fiiniinates many restrictions found in the former de-
1 rrees. They all show the unbounded mercy and solici-
tude the Church entertains for those sinners who are
un the verge of eternity.

152. The first condition is the urgent danger of
death. The law fails to specify the particular cause
from which such a danger must result in order that
I the faculty may become operative. Tlierefore any

"N'trw Conertanfo, n. IfiSii.

86 The A'eic Church Law on Matritnony.

cause whatsoever will suffice, provided it may hp
qualified as urgens mortis periciihim. A soldier in the
fii'ftt trenches, a person rm board a submerging ship, an
individual living in a high story of a building that is all
ablaze from below affording little possibility of eseape,
and one living in a house which owing to a severe
earthquake is falling to pieces and whose exit is barred,
are as much in urgent danger of death in the sense of
this canon as one who is critically ill owing to grave
sickness, or as the result of an unsuccessful major
operation.

153. Hueh danger may threaten either the party
who labors under an impediment, or the one who is free
from it. The Holy Office decided that this faculty may
be used even if only the healthy party is directly bound
by the impediment and the other, exposed to an
urgent danger of death, wishes to adjust his matters
of conscience.'" It is presumed in this case that both
parties in question are Catholics.

154. But what is to be done under the same circum-
stances if they are both laboring under an impediment,
for instance, si moniaiis aegrotans in concubinafu
viveret cum diacono bene valenief The Holy Office
decided that ad consulendum conscientiae the Ordinary
could even in that ease dispense from all ecclesiastical
impediments, excepting the two mentioned above. It
is very questionable, however, wliether the opinion of
Grieran " can be upheld, namely, that this faculty may
be used even in order "to soothe tlie conscience of the
party who is not in danger of death." If botli parties
are Catliolics it is hardly imaginable that the conscience
of the dying person can remain "unsoothed" after the
eonvalidation of marriage and the legitimation of off-

; Phil&delphiA,

Matrimonial impediments in General. 87

pring. In such a case his contention might hold. Rut
pposp the dying party is a non-Catholic? In that
■ase. if he should decline to become a convert, the Ordi-
xiarv' could go no further unless he possessed the
faculty of granting a sanaiio in radice. One should
jiot lose sight of the fact that the purpose of this extra-
ordinarj- faculty is to benefit the djing person (whose
salvatioti the Church wants to secure) directly, the
"healthy person only indirectly.

155. Tlie second condition in the absence of which
the ordinarj' may not avail himself of this faculty is
the very condition which occasioned its granting,
namely, the necessity of adjusting matters of con-
science, and, should the case permit it, of legitimating
the offspring. It would be a mistake to imagine that
the two reasons must always be combined in one and
the same case, for the first can easily be imagined with-
out the second but not vice versa. The necessity of
settling matters of conscience affords in itself a suf-
ficient ground for the Bishop to act and to avail him-
self of the faculty bestowed by this canon. A civil
marriage, a concubinage not legitimatized even by the
eivii law, the wish to repair a wrong done to a woman
iir to fulfil the promise of marriage under which she
was seduced, the intention to restore the good name of
the accomplice or the desire to avoid grave scandal or
a proximate occasion of sin are .some of the reasons
ime could enumerate as necessitating an adjustment of
matters of conscience and in themselves sufficient to
justify the Ordinary in resorting to this faculty.

In some instances the validation of marriage may be
desired for the sake of the children born ont of wed-
lock. Though such might actually he the primary in-
tention, the secondary, namely, tlie settling of matters
of conscience, is implicitly included in it. It would

88 2'he New Church Law on Matrimony.

seem that the word "and" here is not to be regarded
as disjunctive but copulative, as connecting two things
existing in the same case, namely, the adjustment of
matters of conscience and the legitimation of offspring.
The faculty may be used in a case wliere the first con-
dition occurs without the second, but it is hard to see
how the second condition could be verified witliout of-
fering some relief to the conscience of the party who is
in urgent danger of death.

156. Should the validation of marriage take place,
tlic natural illegitimate offspring become ipso facto
legitimatized ; not so, however, the children born of an
adulterous or of a sacrilegious union." Even if such
a union should be validated, in the former instance
after the death of one of the consorts and in the latter
by means of a dispensation, the children already born
of a sacrilegious or adulterous union would still remain
illegitimate. Take the ease where a monialis aeffrntnna
in matrimonio civili viveret cum diacono bene i^alente.
The Ordinary by virtue of this faculty could grant tiie
necessary dispensation and the marriage could be vali-
dated, but it would not benpflt the children already born
of that union. Such children can be legitimatized only
by a special mandate of the Roman Pontiff.''

157. The faculty contained in this canon is granted
to the Ordinaries of places. Besides the Bomaii
Pontiff, under the name Ordinary in this connection
are to be mcluded: All residential Bishops, Abhas or
PraclaUis nullius, and their Vicar General, Adminis-
trator, Vicar and Prefect Apostolic."' They may ex-
ercise this faculty in behalf of their subjects wherever
they may be, or in favor of all persons who hie et mine

Tod. I™. (Tan., Can. 1051.

"GA.'iPAMii. op. cit., n. 1IM3; Woutebs, ap. rit., p, 68; S. C. 8, Off.,
8 iiil. ISn.'l, in the iipw Cntlei-taned, n. 2171; S, PociiK., 1 iul.

Matrimonial Imperii menls in General. 89

at'tually reside m their diocese. Thus the canon in-
vents the Bishop with a personal jurisdiction over his
owiisnhjects and brings under it also persons tarrying
witliiri the limits ot his diocese hut not possessing
cither a domicile or a quasi-domicile therein. There-
forp he may resort to this faculty even when peree/rini.
or 1*0^' are involved. In order to settle niattors of
I conwjence of a person who is in urgent danger of
^^ di'Stli outside his domicile or quasi-doniicilc, cither his
^M own Bishop or the Ordinary of the place may avail
m Iiimself of this faculty.

" 158. The first dispensation which this canon ein-

fiwtTs the Ordinary to grant, regards the non-observ-

aricc of some customary formalities prescribed for

"iarriage. {Forma in matrimonii celehratione ^erv-

""rfa.) By this form is meant the presence of the

Ordinarj' or of the parish priest and two witnesses. In

""* i*T words, he can dispense from the presence of the

'o fli-itucsBes. Owing to conditions prevailing in some

lities of China a petition requesting a similar privi-

■p was 8Pnt to Rome hy the Ordinaries of that coun-

, and on July 28, 1908," the Holy See acceded to their

hes,"

-As far as the impediments are concenn'd all those

t were introduced by the Church law fall within the

pe of this faculty, be they diriment or irnpedient.

public or occult or multiple. The exempted impedi-

ii»«*iits arise from the Order of the Priesthood and from

«Sjieal affinity, pronded in the latter instance the ninr-

Hpage has been consummated. Should such marriage

^^ot be consummated the Ordinary under such circuni-

^ BUiices could dispense even from the impediment of

Wal affinity. Since the law fails to discriminate as

r'-jmrds the degree, it is legitimate to infer that the

p. aS; at Ihe Catholu- Uni-

'M The New Church Law on Matrhnnny.

expression "ea; affinilate in linea recta" comprehends
liny degree of the direct line, if the marriage occasion-
ing the affinity hap not been consummated. Thus, for
instance, the Bishop could grant a dispensation by
virtue of which one could marry one's daughter-in-law
or mother-in-law, or step-daughter or step-mother. He
could also dispense from the impediment arising from
the Order of Diaeonate or Subdiacouate.

159. Even if all the above explained conditions
should be verified in a particular case, the Bishop be-
fore actually applying the necessary dispensation must
take heed to remove the scandal. His prudence will
suggest the various means whereby sueh a purpose can
be accomplished. If the parties show tlieir repentance
in the presence of witnesses, or if they are willing to
do public penance, or if they give a sincere promise
that as soon as the danger of death is removed they
will leave the present place where their scandalous re-
lations are known, and will go to a region where they
are unknown, these and other precautionary measures,
dependent on circumstances, would suffice to satisfy
the obligation the words "remoto scandaln" impose.
If the Bishop should find the removal of total scandal
a practical impossibility, its partial removal linked
with the parties' promise, or desire, or at least willing-
ness to do more will give him enough ground to grant
the dispensation. He can proceed even if the scandal
is irreparable, but not if the parties out of mere
obstinacy refuse to remove it when the difficulties to be
confronted are inconsiderable. This treatment is to be
accorded to them not as if the validity of the dispensa-
tion were conditioned on the words "remotn scandalo "
hut on account of their frame of mind. The least the
Church exacts under such circumstances is compunc-
tion of heart for the wrong done and the scandal ere-

■

Matrimonial Impediments in General.

•II

atttl. which compunction cannot lie conceived iinless
accompanied with readiness to embrace a little hiiinili-
atiitn or inconvenience connected with the reparation
iif liiH given scandal.

160. Should the case require a dispensation from

ihf impediment of disparity of worship or of mixed

Migiim, the customary cautiones must be subscribed

to. Wore the Ordinary proceeds any fnrtlier in liis task

of adjusting the persons' matters of conscience. A

tliormigh treatment of these cautiones is found in an-

liiluT part of this work." The importance of exaetins

and of giving tliese guarantees can be inferred frnm

tJif fact tliHt as recently as July 21. 1912. the Holy

Office (ieclared null and void all marriages in whicli a

'liKpeiisation from the impediment of disparity of wor-

sliip nns obtained witliout tlie exaction or after the

ft'fQsal of such precautionary conditions." We are in-

tliiied to think that, under such circumstances, the

I spirit of the Church would permit the Ordinary to make

I tliig faculty operative, at least quoad validitateni: even

I in ctuif the cautiones are refused by the infidel party,

Jtelong as the Catholic party constituted in urgent

I'dan^r of death is willing to do all in his power to

T eoniply with them should he recover. This inference is

I ^*'eitiniate from the fact tliat according to the new legis-

I lation a rescript is not invalidated (though its use may

I fc' illicit) unless preceded by the conditional conjunc-

I bou "if," "unless," "except," "provided" or any

r rtlipf belonging to the same class." What course should

rtiif Ordinary take if lie meets with an absolute refusnl

1 PVi^n on the part of tlie CathoIicT It is Imrd to sec hi>\v

JJOehan individual could be considered well disposed to

» his marriage validated and his matters of con-

'Sm thia work under n. 191 IT.
'Jtia Jp. Sfdit. vol. IV, p. 143.
'Cw. ivu. Ca-s-.. Cun. 39.

The Neir C'hiirrh Law on Mat

rinionij.

seieiice adjusted, and these are the main reasons i
the granting of the faculty expressed in this eanun.

161. Under the circumstances described above, htf
exclusively in a case whtre no recourse can be had even
to tlie Ordinary of the place, the same extensive faculty
to dispense is enjoyed by the pastor, and by any priest
who assists at marriage according to the norm of canon
1098, n. 2, and even by a confessor, tlie latter being
reBtricted to the internal forum and in the act of sarra-
niental confession.*"

In order that tlie three classes of priests enumerated
in thi(^ canon may validly apply the above-explained
t'acnlty it is necessary that the eircumstatiees should
be the same as stated before, namely, an urgent danger
of death, the need to settle matters of conseience, and.
should the ease permit, the legitimation of offspring.

The case must be such that neither the proper Bishop
(by virtue of domicile or quasi -domicile, or one month's
residence) of either party in question, nor even the
Ordinary of the place in which they tarry hie et nunc
can be approached. This does not imply an absolute
impossibility. It rather refers to the delay whieh such
a reeou rse would inevitably necessitate, and whieh
would expose the party concerned to the danger of
dying before the affairs of his conscience could be
settled. The priests mentioned in the foregoing canon
need not resort to such extraordinary measures as the
telephone or a telegram even if commmiication with
the Bishop could thereby be established.*"

162. The pastor has this faculty by virtue of his
office, which fact carries mth it the right to delegate
the same faculty to others. Besides the pastor this
faculty is enjoyed by any priest who, in danger of

Mntiimnnial linpEdiments in General.

•!3

((path, should assist at marriage wlicn iipitlicr 'In-
Ordinary, nor tlip pastor, nor a priest delegatrd hy
fiUitT can hv reaflicd. The qiialit'yiiiK adji-ctivc
"n/ius" permits any priest to resort to this faciiltA'. the
wIliiT conditions being verified, even if he should t)e
suspended, or excoramunieated, or deprived ol' all Juris-
liirtioii,"

Under the same circiinistanees a confessor is in-
VMtwl with the same power as thp Ordinary, hut he
may exercise it only in the tribunal of penance.'" The
dtffprenee between the power granted to the first t\i'o
and to the third is apparent. The pastor and the
^cerdos qui matrimonio ad normnn can. lt)l)8, n. 2.
ttmstil may make use of this t'a^-ulty either outside the
'rihiuial of penance, or in it: the confessor, as a cnn-

II ^iiin »in€ qua non, is limited to the sacramental con-
' '"''ssion. Should he dispense in foro interno from an
"Toll impediment which subsequently becomes public,
another dispensation must be obtained for the same
pro fnio extemo,"

163. Should the pastor or the other priest men-
'"»»ied in this canon (not the confessor) grant dispen-
^tioii for the external forum, he is inmiediatelv to
'"■ing this fact to the knowledge of the Ordinary nf 'he
t^^ce. and the dispensation should be recorded in the
^ptalrinionial Register,"

^H hy the Ordinary of the place is understood the head

J^Pf the diocese within whose territory such a dispensa-

I tlon is given. IJispensations granted pro foro extemo

B-fp public acts and as such should be recorded in the

''IVStiET, op. cit., n. eS; Vrhmeeksch. "t
"P. fit., a. 6S; nee this work, n. 5W.

*8. <;, 8. Off., litt. pnpycl., 1 marl. ISSfi;
^ H*nr., Pnrmm. et attnrufn. 14 mnii isns>.

•BowiiCT XIV, Dc SgTwdo Diurcewna. lib, IX

■COD. Iim, Cajc., Can. HH5.

■mfTt," n, 74; Wouterb,
upr. 1890 sd 2-4; 8. C.
n, n 1.

94 The New Church Law on Matrimony.

Matrimonial Register.*^ Dispensation given by the con-
fessor pro foro interno is a secret act, needing no
recording, for it cannot be revealed without breaking
the sacramental seal. It is for this reason that the new
law does not oblige a confessor to notify the Ordinary
of the place of a dispensation he has granted in the
tribunal of Penance.

164. The Ordinaries of places may dispense from
all impediments mentioned in canon 1043, heeding the
clause placed at its end, whenever an impediment is
detected after all the preparations have been made for
the nuptials, and the marriage, without the probable
danger of grave evil, cannot be deferred until a dis-
pensation from the Holy See can be obtained. This
faculty holds good even for the validation of a con-
tracted marriage, should there be the same danger in
delay, with no time to have recourse to the Holy See.
Under the same circumstances the same facultv is en-
joyed by all mentioned in canon 1044, but only in occult
cases in which even the Ordinary of the place cannot
be reached, or can be reached only with danger of vio-
lation of the sacramental secret.®"

This canon legislates for an emergency styled in the
past ** casus perplexus/' Sanchez was the first advo-
cate of the opinion that in cases in which the circum-
stances specified in this canon are verified the Bishops
have an ordinary power to dispense provided the im-
pediment is occult.®^ This opinion was subsequently
embraced by St. Alphonsus, and after a time was
adopted by all leading canonists.®^ Though all kinds
of reasons were contrived for its vindication and

•"S. C do Prop. Fide, instr. (ad Archicp. Hibemiao), 25 iul. 1791.

»• Cod. Iur. Can., Can. 1045.

•' Op. cit., loc. cit., lib. VII, disp. 40, n. 5.

•'RossET, op cit., loc. cit., n. 2389 ff; Gasparri, op, ctt., n. 409; Lett-
neb, op. cit., p. 504 ff.; Scherer, loc. cit, p. 640; Wernz, op, cit., n. 619;
De Smet, op. cit., n. 238; Feije, op, cit., n. 635.

ilalrimotiml Impedhnents in Getteral.

though some maintain that even the Holy Office sanc-
li(]ii*Kl it indirectly,*" it remained di)ubtful until the
prusKtit li'^islation not only confirmed it by express
approbation but augmented its scope by extending it
to all impediments, whether occult, public, or multiple,
iliriment or impedient, provided they are of ecclesi-
astical origin, excepting only two, already referred to
above. It must be borne in mind tiiat this canon does
not authorize a dispensation from the form of mar-
riagt.

The words "cum, iam omnia parata sunt ad nuptias"
liouttt necessarily convey the idea that before the Ordi-
nary iriay resort to this faculty the parties must have
alrt-ady crossed the threshold of the chureli for the
purpose of contracting marriage. It suffices that the
iivitatioUB have been issued and all arrangements have
tKf II made, even if the impediment should be discovered
a ffw days before the wedding, as long as the time
silotted is not sufficint to permit recourse either to the
Woly See or to one possessing delegated power.
}^m 165. If the above-stated conditions exist in a par-
H^KUlar case, Uie prohabile gravis mali pericidum fol-
^Bws almost inevitably. Therefore the Ordinary will
^'•Vg reason to dispense in most of such instances, for
tho probable danger of grave evil will be present in
^tttost every case, should the marriage not be cele-
■ai«l on the day appointed. The Bishop may dis-
se even if the parties should purposely postpone
revelation of the impediment to the very last
mte, and should thus be found in 7nala fide. He may
irthermore exercise the same faculty even in mar-
cs already contracted (invalidly), should a similar
iger be present in delay, and should time not permit
ni-iiiirse either to the Holy See or to its delegate.'""

V Collcctanra. n, 2007.

The Neiv Church Line on Matrimnvy.

Some conditions which the canonists laid down in the
past in order that tlie Bishop may exereise the same
faculty for validation of marriages invalidly con-
tracted, are eliminated by the new legislation. Should
the impediment have been discovered after the mar-
riage was entered into, or should a delay caused by re-
course to the Holy See be likely to occasion scandal, or
incontinence, when there is no possibility of separation
toro et 7nensa without great inconvenience to the
parties, no one would deny that such circumstances
would not only justify but even make imperative tlie
granting of a dispensation.""

166. Should the eireumstances be such as described
above, it being immaterial whether marriages to be con-
tracted or already contracted are involved, and should
recourse to the Ordinary be impossible on account fif
the (langer in delay or on account of the danger of vio-
lating the secret, then, the pastor, or any priest {in the
absence of the Ordinary, or of the pastor, or of a dele-
gate of either) or even a eonfesBor may grant the neces-
sary dispensation, provided the case is occult. The dif-
ference between the faculties enjoyed by the Bishop ajul
those by the three classes of priests mentioned above
is apparent. The former may dispense from all im-
pediments of ecclesiastical law (excepting the two
already so often emphasized) regardless of the nature
cif the ease, even if it be public; the latter may dispense
from the same impediments, but only in occult cases.
An occult case is not equivalent to an occult impedi-
ment, nor must the canon be interpreted in the sense
that unless the impediment is occult, it is withdrawn
from the jurisdiction of these three classes of priests.
Be the impediment public or occult, as long as it is
a secret case, tiie ])riests in question may dispense from

"' Webnk, op. cit.. B, 618; FUJE, op. cil., n. 633,

Matrimonial Impcdimenls in General.

it. It was necessary that the Codex should make use of
the expression "pro casibus occuUis" for in the new
logitilation the publicity or occultness of an impodi-
mcnt is not determined by the fact whetlier it is kno^vn
or unknown to others, but by the fact whether it can or
cannot be proved in the external forum.'"' Let us take
a hypotlietical case in which the invalidity of a mar-
riage is due to an impediment arising from collateral
consanguinity in the second degree. Formerly this by
its nature was a public impediment; consequently a
public ease in the old legislation, but not so in the new.
Should only the contracting parties know of the exist-
ence of the impediment, the new law would consider
the case an occult one and any one of tlie priests be-
longing to the three classes mentioned would be auth-
orized to grant the necessary dispensation, since this
canon gives them the right to dispense from all impedi-
ments of ecclesiastical origin except those arising from
the Order of Holy Priesthood and, should the marriage
have been consununated, from lineal affinity.

167. Wlien a case is to be regarded as public or as
occult is a question whose solution is yet pending. In
the past the Sacred Penitentiaria made the puhlicness
or tlie occultness of an impediment dependent on the
size of the village or the city, and on the number and
disposition of the individuals who were aware of its
presence.'"' Though the question was never solved
i*ith mathematical precision, it was a generally ac-
cepted theory that if in a village only six and in a city
only eight persons were aware of the impediment, it
conld still be considered occult. It would, perhaps, not
be out of place to apply to public and occult cases the
same principles which formerly decided the publicmess
or the occultness of an impediment.

98 The }t'eir Church Lair on Mnlrimnny.

168. Unless the rescript of the Sacred Peniteiifiaria
orders otlicrwise, a dispeiiKation granted in the internal
iiim-sacraiiiental forum t'ri)ni an occult iiupedinieiit is
to l)e caret'iUly recorded in the register kept in the
secret archives of the Curia in accordance with tlie in-
structions contained in canon 379, nor would the case
demand anotlier dispensation should sueli an impedi-
ment lieeome puhlic subsequently, unless the dispensa-
tion had been given only for the internal sacramental
forum.""

The Church law distinguishes three kinds of foi
(forums). The external forum is an eeclesiastici
court in which public matters concerning the right;
the temporal and spiritual transactions of Christians
are adjudicated. The evidence of this court is limited
to things that come to light either by testimony or by
public proofs. The internal fonini is divided into
sacramental and non-sacramental. The former is con-
fined to sins as confessed by the penitent, the latter
handles all affairs pertaining to the spiritnal welfare
of the individual and tlio society. The evidence of the
external forum consists of the exonerating or self-ac-
cusing declaration of the individual and of tliose who
testify for or against his cause. The internal forui
decides on the testimony of the individual alone.'

With this explanation in our possession the fore)
ing canon should create no difficulty. The Church
order to save the contracting parties from disgrace, or
to obviate scandal, takes all these precautions in ease
of occult impediments. For this reason it insists on
recording the marriage in which a dispensation was
obtained from the non -sacramental formn, In a register
used especially for that purpose, and kept nnder lock

<a-

^■no

"Cud. Tub. Can., Can. 1047.

•■ ttniFFKNSTt'f., on. ril. lit. .1, i

■>efe„r<o. HI.. XIII, v. XXII, i>.

; BENEtJICTlls XIV, Of Ryandn

Matrimonial Impediiiients in Genevnl.

and kpy in the diocesan arrhivfs."" A secret t-om-
niunicated in the non-sat-ramental forum ohligcs,
though its di\^llgation would not involve violationent
sigilli sacrnmentalis. If suoli a secret should become
public it ceases to bind. Consequently, the seoref lieinj;
divnilged, the dispensation granted privily on account
of it will of itself become public. Should the dispensa-
tion be given in the sacramental forum the secret would
continue to oblige notwithstanding the fact timt it be-
came pnbljc. For this reasoti, to justify the contract-
ing parties in the eyes of the public and to prevent
scandal, a dispensation for the external forum mnst
be procured when tlie knowledge of an impediment dis-
pensed from in the internal sacramental forum alone
becomes the property of others.

169. Should in a particular case a petition for a
dispensation he dispatched to the Holy See, the Ordi-
naries, even if they should possess the faculties re-
quired by the case, mnst rei'rain from making use of
Iheni, except in accordance with the nonu laid down in
canon, J04. V2.'"

Sometimes it may happen that the parish priest or
the party laboring under an impediment forwards a
petition to the Holy See for a dispensation. Tn such
instances the Ordinary, though he might have power
to dispense from the inqiedinient in question, sho-ild
abstain from making use of it, unless there is danger
in delaying until a response comes from the Holy See,
A dispensation granted under such circumstances must
immediately be brought to the knowledge of the Holy
see,'"* This canon does not mean to suspend the faculty
of the Bishop in a case in which the Holy iSee has been
petitioned to dispense. A dispensation granted by him

■"(.Sod. li'R, Can., Ciin. 3TD.
•^Op. cil., ("an. 104!!.
>»Oli- fit.. Can. 2CH, ^2.

100 llie New Church Law on Matrimony.

would be valid though the grave and urgent cause de-
scribed above be absent. He would, however, be guilty
of presumption, and would act illicitly, for non decet ut
rei ad superiorem delatae se immisceat inferior. If he
is obliged to notify the Holy See should he dispense in
grave and urgent necessity, a fortiori must he do so
should the dispensation be given sine gravi urgentique
causa.

170. Unless the rescript ordains otherwise all per-
sons having a general indult to dispense from a certain
impediment may dispense from the same in prospective
marriages or in those already contracted, even if the
impediment be multiple.^^® This canon embodies a
modification in what was formerly called facultas
cumulandi. By virtue of the present discipline if a
missionary possesses the general indult to dispense
from the impediment of collateral consanguinity up to
the second degree of the equal line inclusively, he may
dispense* also in cases in which the same impediment is
multiplex, when, for instance, the same parties are
related in the second and also in the third degree of
consanguinity.'*"

171. Persons having a general indult to dispense
from several impediments of different species, either
diriment or impedient, are authorized to lift such im-
pedim(»iits even if they should be public, or occur in
one and the same case.'*' For instance, if a person in
possession of a general indult may dispense from the
impediments of affinity, of disparity of worship, and
of crime, by virtue of the same indult he may dispense
from the same three impediments even if they should
occur in one and the same case. Formerlv this was not

"*0;). cit., Can. 1049, $1.

"•S. C. S. Off., 19 inn. 1875; (Mission. Trichinopol.), 2 apr. 1892; 8.
r • . Pi)onit., 20 a])r. 1883.
: - V '«' Cod. Iir. Can., Can. 1049, §2.

Matrimonial Impediments in General.

*iblp

:.il tlir

)-callHl fiii

lltK

101

one receiv
■Cumulating.

172. If together with one or several publie inipe<li-
itieiits which one can remove by virtue of a general
iridult, one finds that in the same ease tlicre is another
impediment from which he has no power to dispense,
t*i«' Holy See must lift all of them. If, however, the
impediment or impediments from which one can (lis-
jjc-nse were discovered oidy after the Holy Kee has
already heen petitioned for a dispensation, then one is
free to use his faculties."- The tenor of this canon
shows that it legislates for public impediments. Should
there be three public impediments in a case and should
the Ordinary have power to dispense only from two, all
three must be removed by the lloly See. If, however,
the two impediments from which the Ordinary can dis-
pense were not discovered until after the Holy See has
already been petitioned for the removal of the tliird,
the Ordinary is free to remove them."*

173. The offspring, except adulterine and sacri-
legious, bom or conceived by the parties in question is
legitimated when a dispensation is granted from a diri-
ment impediment. Such effect follows whether the dis-
pensation is given hy virtue of ordinary power, or by
virtue of power delegated by means of a general induU,
not hy rescript given for particular cases."*

Those children are in need of legitimation who de-
Rcend from parents whose marriage was neither valid
Dor putative. Illegitimate children may be either
spurious or natural according as the parents, at the
time the child was conceived or bom, or at any time
during the period of gestation, were or were not labor-

'TOB. iDR, Can.. Can. 1050.

'"8- <:, de Prop. Fnde, Htt. (od Deleg. Ap. Sjriftp), 10 maii, 1887.

"•rno. IirR. C*K.. Con. 10.^1; R. C. S. Off., 12 <ief. 1748 ad 1 ; 8 Uil.

19U.1, lilt., n a^p. i9oe.

102

The Neil- Church Ltiir on Ma hi 111071 if.

ing under a diriment impediment. There are four
classes of spurious cliildren, namely, adulterine (horn
of adulterous union), sai-rileginus (born of a union in
which one or botli parties were bound by solemn re-
ligious vows, or tlie father was a cleric in major
Orders), incestuous (born of a union m which the
parties labored under the impediment of consanguinity
or affinity), and nefarious (the child of a father and
his daughter, or of any direct descendant and ascend-
ant). It is certain that the foregoing canon legislates
for the natural children. The question might arise to
what extent does it affect the spurious children f It
expressly exempts the two classes, namely, the adul-
terine and the sacrilegious offspring. What are we to
say about incestuous children and nefarious children f
It would seem that an incestuous offspring, if its par-
ents are related witlmi those degrees of consanguinity
or affinity from which the Church dispenses, is meant
to be benefited by this new law. Not so, however, as
regards nefarious children for their parents can en-
tertain no hope of a dispensation. Tlie foregoing
cantm therefore implies that a dispensation given by
virtue of ordinary power, or by virtue of power dele-
gattni by means of a general indult effects an auto-
matic legitimation of the offspring if one excludes those
above mentioned. Should the faculty to dispense be
obtained by means of a rescript for a particular case,
no such effect would follow unless a clause inserted in
the same rescript would make a special provision
for it.

174. A dispensation given from an impedimeui of
consanguinity or affinity in a determined degree retains
its force even if a mistake crept into the petition or
concession as regards the degree, provided the degree

reiilly existing is inPerior. The same is fn be said when

Malrimuniul I miicdlmenis in General.

103

another impptUriipnt of the same species but nf an erjiial
or inferior degree was omitted,"''

Tlif first part of this canon is foundi'd on tlic priii-
eiplo that a dispensation granted from a higher degree
includes the lower degree,'" but Tiot vice versa. Let ns
suppose a case with an impediment of consanguinity in
the third degree. Should either the petition or the con-
eession. or both, speak of the st'cond degree, the re-
s^cript would not he invalidated thereby. Nor would it
be vitiated shonid a dispensation be asked from the
second degree of simple consanguinity, whereas in
reality one would have to deal with an impediment of
multiple eonsangninity in the same degree or in the
second and the third degree.

175. When the Holy See grants a dispensation from
a ratified non-consummated marriage, or gives per-
mission to contract a new marriage on the ground of
the presumed death of the other consort, it intends to
remove simultaneously the impediment of crime aris-
ing from adultery combined with a promise of, or with
an attempt at marriage, but not so when the same im-
pediment originates from the causes mentioned in
canon 1075 vmder numbers :i and 3.'"

There are four various causes which may give rise to
tile impediment of crime. This canon legislates for the
first two, namely, when it arises from adullery com-
bined with a promise of marriage, or from adultery
combined with an attempt at marriage. Should A.
marry B., and should he contract sucli an impcdinient
with C, he would not require a disp<>iisatr(iu to marry
Iht in case his first marriage is dissolvi'il as riilxin nnn
consummatiim. Again, should A. rc'ceivi' permission to

' fjn>, Tr«. Cxjf., Can. 1052.
" Sre. 35 knd 53, Pe rrguli* ii
mu." £0 aug. )51KI. (I.

"»D. Im. CaX., Clin. lO.J.T; \

' : S. Vws V, mnsl. "i
i.rk, II. :HIB IT. :iiiil :i!l

1(14

The New Church Law on Matrimony.

rraiarry oh praesumplam coniugis mortem, he could
contract marriage with B. notwithstanding the impedi-
ment of crime that might exist between them for either
of the two causes mentioned above. The discipline
embodied in this canon was handed do\ni hy the Con-
gregation of the Sacraments on June 3, 1912, and is
now extended to the universal Church.

176. Dispensation from a minor impediment is al-
ways valid. It is not vitiated either on account of sup-
pression of truth {suhreptio), or of assertion of false-
hood (oirepfio),'" even if the only final cause alleged
be false."" The meaning of this canon can be made
clearer by means of an example. Let us suppose that
tlie only cause advanced in the supplica for dispensa-
tion is aetas superadulta. Though the petition should
be faulty on account of obreption, and though the
parties should be in bad faith (having knowingly stated
a false cause), the rescript would be valid nevertheless
if the impediment which it removes belongs to a minor
grade.""

177. Dispensations from public impediments com-
mitted to the care of the Ordinary of the petitioners,
should bo executed by the Bishop who gave the testi-
monial letters or transmitted the petition to the Holy
See. This duty is incumbent on him even if the peti-
tioners, by the time the dispensation is to be executed,
abandoned the domicile or quasi-doniicile they had in
his diocese and, with no intention of returning, estab-
lished themselves in another diocese. In such case he
nmst bring the dispensation to the knowledge of the
Ordinary in whose diooese the parties in question in-

'■•COD. lUB. Can., Can. 42.

'" Op, fit., Can. 1054 ; Ordo tervandiu in 8. Congr., Trit., OffleUt, Som,
Curiae, 29 aept. 1908, Pars II, Normae pecvliareg, cap. VII, art, m,

Matrimonial luipediments /n General.

105

lind lo contract marriage."' This canon legislates for
dispensation granted by the Holy See in forma com-
mssoria. Such dispensations do not take effect iinfil
they are actually executed by the person to whom sjiicIi
a task was entrusted. Should a Bishop send a petition
for a dispensation to the Holy See, his task le not com-
plHwl until the granted favor is actually conferred by
means of execution. Should he be commissioned as px-
i-mlor. he retains his jurisdiction over the parties for
this one case even if they moved into another diocese.
If he should be constrained to execute the rescript in
another diocese, the Ordinary of that place should be
uolilied of the nature of this dispensation. It is to be
noted that such an executor, whether he be a Bishop
or a priest, is implicitly vested with the power to ab-
solve from any ecclesiastical penalties or censures
*hoge removal is absolutely necessary in order that
tte persons may be benefited by the dispensation."^
""loiild the person in question be an ej-communicafus
•t'aitrfus, or personaliter interdlctus, or one whom a
l^laratory or a condemnatory sentence excommuni-
' ks or interdicts, the executor could not apply the dis-

teisation validly unless a special clause inserted in
tte rescript expressly authorized him to absolve from
~' 'h Revere penalties. Persons thus branded cannot
the recipients of a favor unless the rescript takes

>Riiizance of their censure.'"

178. Without an express permission given by the

:oly See the Ordinaries of places or their officials are

forbidden to exact any fees for dispensations granted

those who are not poor except the slight amount re-

lired to defray the expenses of the chancery. AH

'Of. rit., Cun. 3fi; Cnn. 22fi5, 43; fin.

106

The New Church Laiv mi Midrimony.

contrary customs are reprobated, and thp Bishops are
bound to restitution should they receive any other
fees.'"

The Idstory of ecclesiastical taxes is rather lengthy
and it records several regrettable abuses committed
by individuals. These abuses the Church tried
to remedy by various repressive measures. The
earliest document containing a tax list dates from the
time of Benedict XII. Already the Council of Con-
stance had found it necessary to mete out punishment
against those who trafficlied with spiritual things. Pins
II decreed that scribes accepting more than the law
allowed should be removed from their office, and Inno-
cent VII, besides confirming the foregoing punishment,
threatened them with excommunication reserved to the
Holy See. In spite of such drastic measures the abuses
continued, and the subsequent pontiffs, especially
Alexander VI, Juliu.s II. and Leo X, were constrained
to have recourse to repeated legislation intended to
check this mercenary tendency regarding things spir-
itual. The Council of Trent decreed that under certain
circiunstances the dispensation should be given
(irntis.'^" Innocent XI on October 1, 1678, regulated the
fees and permitted moderate charges for matrimonial
dispensations, which alms were to he used for pious
purposes. The Sacred Congregation of the Council
under Leo XIII, modified the Taxa Innocentiarui on
June 10, 1896, and allowed the provincial councils to
regulate the taxes according to the customs prevailing
in the different localities. The tax-list adopted by such
councils required the approbation of the Holy See be-
fore it could become operative. This decree of the
Sacred Congregation is embodied in the new Codex.''*

•"Cod. Iur. Tan.. Can. lO-W.

■•"Srss. X.XIV, cap. V. Dc ' '

'"fOD. IrR. Can., Can. 1507.

Matrimonial Impediments in General. 107

179. Taxes are not to be confounded with compo-
noirtfl. They both repreKent money received in ex-
change for granted i'avors, but while the purpose of
the taxes is to defray the expenses of the chancery, the
componenda are used for pious works, and assume
lliercby a p<?nal cbaraeter, for they may be looked upon
as alms calculated to make partial reparation for the
transgression of tlie law of the Church.

The words of this canon "ynntUca prae.statio" refer
to the postage anil other actual expense the chancery
incnrii in eonnecliun with a particular dispensation.
From the poor even this amount may not be exacted.
Should tlie Ordinaries wish to retain the privilege of
dfitnanding some componenda as was customary under
~ 'e former discipline, they must obtain a special per-
UBHicin from the Holy Kee. The new law abrogates all
Kvious customs to the contrary, and restitution must
Wiuacle by all who disregard it by collecting a compen-
Wtion beyond what the present canon authorizes.
! 180, Persons dispensing by virtue of power dele-
JBtwl by the Holy See must expressly mention the
jtoiilifical in<lult when they make use of the given
Vuliy."' Failure to comply with this provision in the
kriiifr discipline, as a nde, invalidated the dispensa-
1.'" I'nder the same circumstances according to the
'' legislation the dispensation wouUl be illicit hut
*li(L The purpose of this canon is to protect the
ijiits of the superior,
't lias already been stated that a rescript is gener-
y given with the tacit understanding that the causes
Bprcssed in the petition are based on truth. The ques-
' n might arise: When must such causes conform to

». eU.. Can. 1057.

■BoiiinCT. XIV, ep. "Jd liuM," 8 HUg. 1748; 8. C. 8, Off. (8. I-udo-
■"■ ISiun, 1875; 12 npr. 1899; 8. C. de Prop. Pule, Utt. (ad Vic. Ap.

i.|. 3 iuti. 18S3; ioslr. (ad Vi>: Ap. Indiar. Orienl.), 8 sept. 1869,

108 The Netv Church Law on Matrimony.

the truth! The new law distinguishes whether one
deals with a rescript which needs an executor, or with
one that does not stand in need of being executed.*-®
In the former supposition it will be necessary that the
cause expressed in the petition and on the ground of
which the favor in question was granted be true at the
time the rescript is executed. In that hypothesis the
rescript will be valid even if the advanced cause was
false at the time the petition was dispatched. In the
latter case the causes must be true at the time the favor
was granted, otherwise the rescript is null and void,
unless it is actuated ''Motu propria'' *^" or the favor it
bestows is a dispensation from an impediment of minor
grade.^

131

**CoD, luR. Can., Can. 41.
'•• See this work, n. 148.
"» See this work, n. 176.

CHAPTER V.

iMPEDiENT ImPE1>IMBNTS.

(Canon 1058 — Canon lOGG.)

/. Impediment of Simple Vows.

1 18L Marriage is prohibitpd to those who takp the

HiDplt^ VOW of virginity, of perfect chastity or of celi-

bacj't likewise to those who vow to receive Holy

Orders, or to embrace tho religious state. A simple

ow does not invalidate marriage, unless the Holy See

dowcd it with .such a force.'

^ Vow of virginity is a deliberate promise made to God

' virtue of wliich one imposes on oneself a voluntary

bligation to preserve one's body intact from acts

hii'b violate its integrity, or which are instrumental

primum opus carnale consummatum. Persons

owid by such a vow would contract marriage validly

ot illicitly. The reason for the first lies in the fact

" at the Church has never bestowed an irritant clause

'*n the vow of virginity. The marriage would be illicit

li^K'ause such a step would expose the person to the

•lander of violating the vow, cum. altero coniufie postu-

'ftntf debitum reddere tenefur. It would, furthermore,

"iipiy the intention to consummate marriage, which is

^ ^uivalent to a formal violation of the vow.

In pertain instances a marriage with such a vow
*ouId be not only valid but also licit, namely. (I) if
f^'th parties mutually vowed chastity; (2) if the one
wiiiid by the vow of chastity is determined to refrain
troiti asking the debitum. and God reveals to him that

1. ICR. CiS., Can. 1059.

110

The Xcw Church Latv oti Matr

iiiony.

the otluT party has the same determination: (3) if the
I'uniKT has a firm resohition not to consunmiate mar-
riage but to enter religion within a reasonable time.
In this last ease he would sin gravely if he neglected to
inform the other party of suoh future intention. Only
before the first opus carnale is consumnmted does the
vow of virginity deprive one of the right to ask the
debitum, though it does not free one from rendering it.

182. The vow of perfect chastity implies abHtinence
from every carnal gratiiication whethtir external or
internal. The principles explained above in connec-
tion with the vow of virginity are to be applied also to
the vow of perfect chastity.-

The vow of celibacy is violated only by actual mar-
riage but not by a sin of the flesh. After one has con-
tracted marriage its use is perfectly licit.

Some persons do not possess a clear idea of the dif-
ference existing among the three foregoing vows. In
such case the intention with which one meant to bind
himself, or the obligation one meant to assume, should
be the detenninants as to whether one took the vow of
celibacy, or of virginity, or of chastity.

183. A person who contracts marriage places him-
self in the moral impossibility of fulfilling the vow
whereby he obliged himself to receive Holy Orders.
But under the circumstances he is not bound either to
enter religion or to abstain from asking the marriage
debt. Only in few and extraordinary instances does
the obligation to receive Holy Orders revive. Such
would be the case if the wife should lose her right to
debitum on account of having taken a vow of chastity."

If a person made a simple vow to embrace the re-
ligious state, the marriage he would contract would be

'Qasparri, op. cit., n. 438; Webnz, np. cit., n. 586; Feijb, op, dt.,
n. S.'iB: De Bmet, np. nl., n. 247; Dc Becsgb, op. eit., p. 246.
■ QAsrARRi, Op. cii., a. 440.

Impediment of Simple Voivfi

111

valiJ but gravely illicit ami lie would have to abstain
from its use. He may iiul ask lur the marriage del>t,
nor is lie permitted to render it, but should avail bim-
H'lr, if possible, of tlie curliest opportunity to fulfill bis
voiv within a reasoiialile time without liaviiig eoiisuni-
iiiated the marriage. Shouhl he consummate it without
Laving been dispensed from his vow, he would sin
graTciy but the subseijuent use of marriage would be
lii'it,

Tu form an idea how the foregoing five vows may
affect tlie de-bituvi conmgale the reader is referred to
Ihf moralists."

184. The Holy See has reserved to itself the right
to dispense from private vows, whether they regard
l^rlWrt and perpetual ehastity. or the embracing of a
wlipous order of solenm vows, provided both were
nuwlo absolutely and after the completion uf the
ttglitcenth year." Vows that are not reserved may lie
wiutnuted or dispensed from for a just cause (if such
ispensatiun does not violate the right of another)
bj- the Ordinary of the place or by the Superior for
*Jtrip8 who are exempted, or by a special delegate of
tte Holy See.*

Tlie vows here considered are simple vows which con-
*titnti' only a prohibitive impediment to marriage,' nn-
^*s» till' Holy See ordains otherwise in particular in-
Wauces, as it ruled for the scholastics of the Society of
Jwu8, whose simple vows taken after a novitiate of
t»o years it endowed with the force of nullifying
Nrriagis.'

'&U(CB«, Op. eft., lib, IX, disp. 'iZ IT.; Rorset, u]\. eit., n. 1230 fT.

'Com tin. Oar.. Om. i309.

'Ow. tit.. CM. 13J3.

'On, fit., ('«a. 107a ! p. .1, 4, 8, X, 7ui rtrriri vel vuventet matrimonivm
'**nlurr /viMHaf, IV, 6; 0, uo., de votu et voti rtdemptwnr. III, 15,
I *'r; 8. ('. C. Canarien.. BC niBrt., !t apr. 17IM.

"Oitooiirs XIII. const. ••A»crndtnte Domitui;' 25 maii 13S4. i22.

112 The New Church Law on Matrimony.

11. Impediment of Adoption.
(Canon 1059.)

185. All marriages regarded illicit by the civil law
of a country on account of legal relationship arising
from adoption, will be considered as such also in the
eyes of the Canon Law.*

The reader is referred to another part of this work
in which the origin, history and other features of this
impediment are treated more extensively.*** It will suf-
ficiently serve our present purpose to note here that
practically all civilized nations adopted this impedi-
ment which has its origin in the Boman law. The lack
of uniformity in the legal modes of adoption, and in the
force attributed to it by the civil legislation of the vari-
ous countries, occasioned frequent frictions between
the Church and the civil law. To avoid these frictions
the Church modified her discipline in this respect and
hence resulted the hitherto unknown impedient impedi-
ment of adoption. Many of the difficulties and contro-
versies are now happily ended. By conforming itself
to the civil law the Church leaves it to the decision of
the various countries whether in a particular locality
the relationship arising from adoption should consti-
tute a diriment or impedient impediment of marriage.

For marriages, therefore, to be contracted in various
countries, the Church will not only adopt the civil law
as the measure of the force of the impediment of adop-
tion, but will guide itself also by the scope of the im-
pediment as well as by the particular mode of adoption
prevailing in the respective countries.

186. The adoption may be perfect or imperfect. By
perfect adoption the person who is s^ii iuris (arro-
gatio) or alieni iuris is incorporated into the family of

•('OD. TuR. Tan.. Can. 1059.

'•Soe this work, n. 2S8 ff., treating on the diriment impediment of
adoption.

Impediment of Mixed Religion.

113

the adopter with all the duties, rights and privileges of
a legitimate cliild. The imperfect adoption, unlike the
former, permits the offspring to remain in his parental
home, and under the authority of his natural parents,
nor dues it require of the adopter to transfer any part
of his property to the child, though the latter may
assert his claim to it should the adopter die intestate.
The law of some countries admits only perfect adop-
tion, that of others penults both perfect and iiuperfect.
According as the civil law conditions the illicituess of
a marriage oidy on perfect adoption or on both kinds
of adoption, the ecclesiastical law will also condition it
only on perfect adoption or on both perfect and imper-
fect adoption- ,

Tlie scope of the ecclesiastical impediment of adop-
tion is likewise determined by the scope of the civil im-
pediment of adoption. In other words, persons whom
the civil law disqualifies from licit marriage on account
of the presence of a prohibitive impediment of adop-
tion, will be declared incompetent also on the ground
of the ecclesiastical law.

///. Impediment of Mixed Religion.

(Canon 1060— Canon 1064.)

1. Nature of the Impediment.

187. The Church most strictly forbids all marriages
between two baptized persons one of whom is a Cath-
olic and the other a member of a heretical or of a schis-
matic sect. Even the divine law prohibits sucli a wed-
lock, should there be danger of perversion for tlie
Catholic consort and offspring."

This canon defines the nature of a mixed marriage.
In order that the impediment of mixed religion may

" Udp. lutt. Can., Can, 1060.

114

The New Church Law oji Matrimonii.

arise between two persons, one must be a Catholic and
the other sectae hereticae seu schismaticae adscripta.
The word "adscripta" means an express affiliation
with such a sect. Therefore tJiis impediment would not
arise between a practical Catholic and one who fell
away from the Catholic communion witliout having be-
come a professed adherent of a heretical or a schis-
matic sect. In order that a person may be regarded a
heretic or a schismatic, it is not absolutely necessarj'
that he be incorporated into the sect by virtue of bap-
tism. It is sufficient that, after receiving Catholic bap-
tism, he allies himself with such sects by frequenting
their services or outwardly professing their doctrines.
A Catholic chUd, even if he should be brought up by
heretics from his very infancy, is not considered a
heretic, unless they enrolled his name on the official
register of such a sect, or unless he worshiped in it
even without such enrollment.

188. Mixed marriages are forbidden by natural,
divine, and positive ecclesiastical law. The latter 's
prohibition is based on the former's. Natural divine
law forbids such marriages on account of the serious
danger of perversion to which are exposed the Catholic
consort and the offspring.'^ Even if this danger should
cease in some particular instances, and thus the prohi-
bition arising from ttie divine law be lifted, the ecclesi-
astical law would not be relaxed and without a dispen-
sation the marriage would be illicit."

In the early years of the Church St. Paul '* and St.

»C. IE, 16, C. XSVIII, q. 1; Bknei>jct. XIV, cp. pncyil. "Uagnof
Nobit." 29 iunii, 1748; ep. " Stiigitlan," 9 febr. 1749, Sll; Leo XIII,
ep, eneyel. "Aremmm." 10 febr, 1880; ep. encycl. "Coiutonli Hnngaro-
rum," 2 sept. 1893; Secret. Status, instr. 27 niart. 1830; inatr. 22 mftii,
1841; initr. 15 nov. 1S58.

" WmiNK. »,.. fit., n. 578; GaSPahBI. op. cil., n. -I4«; Dk SmisT, <ip. cit.,
n. 252.

"I. Cor. V, 11; Titoi, III, 10.

Impediment of Mij'ed Religion.

115

I John '* found it necessary to raise their voice in ad-
moniphiriff their coreligionists against communicating
with heretics in things sacred, Tlie same warning
fornid expression in the early Councils which forbade
the Christians all intermarriages with persons pre-
fessing a different belief." This prohibition was very
rigorous in the early ages, hut hy virtue of sheer
necessity it was somewhat relaxetl after the pseudo-
reformation period. At the present time, in order
lo avoid a still greater evil, the Church tolerates
mbt*'d marriages provided certain conditions arc ful-
filled.

:i. Ois2)ensfi lion fro m lite h)tppili)ii-enl.

>189. The Chureli does not dispense from the ini-
f>ediment of mixed religion, unless:
i. Jnst and grave causes urge such a dispensation.
2. The non-Catholic consort furnishes cautioneti
vherehy he obliges himself to remove all danger of
■perversion from the Catholic consort, and both eon-
sorts bind themselves to baptize and educate all their
offspring in the Catholic faith.
3. There is a moral certainty that the cautione:< will
\\w fulfilled. These guarantees, as a rule, should he
I given in writing."

A mixed marriage, though all formalities required

[ for its validity may be complied with, must he alwav.s

I regarded as illicit unless a dispensation is obtained.

' A contrary custom, even of the longest duration.

Would be always considered as corruptela. and hence

I'ould never make such a marriage licit." When a dis-

"11. Rp. I, 10 and 11.

"Cap. XVI, rojic. Illiheril. (.lOOSafi) ; ,-Bp. X. XXI, Cr.nr. L-wdicru

Con. Irm. Cam.. Csn, \m\.

Be.vnin-r. XIV, Or HjinmU, IHnrcrtaHa, lib, I.\', en... HI, n. 3

116 The New Church Law on Matrimony.

pensation is granted from this impediment the Church
dispenses also from the law prohibiting communica-
tion in divinis with heretics and schismatics.

The following pages will be devoted to the explana-
tion of the foregoing conditions.

190. I. Benedict XIV *' deemed it tiecessarv to ac-
centuate the fact that though all the other conditions
may be verified in a particular instance the Church
does not dispense sine gravi aliqua, ac plerumque
publica causa. The Sacred Congregation of Propa-
ganda gave expression to the same doctrine w^hen it
admonished the delegates of the Holy See that only
iustae gravesque causae should influence them to
grant a dispensation.^® That the Church does not in-
tend to relax its discipline on this point is apparent
from the fact that the new legislation following in the
footsteps of the old, requires the same iustas ac graves
causae as a condition in whose absence a dispensation
from this impediment will not be granted.

It is easier to determine whether a cause is suffi-
ciently grave when one deals with a specific rather
than with an abstract instance. Some of the causes
justifying the granting of such a dispensation would
be: (1) The welfare of a Christian republic; (2) the
predominence of heretics or schismatics in a certain
country; (3) a written promise made by a heretic to
embrace the Catholic faith after marriage;'^ (4) a
well-founded hope that a favorably disposed non-Cath-
olic family would return to the unity of the true faith ;
(5) the fact that such marriage is the only means
whereby children bom of a former union can be edu-
cated in the Catholic faith, or whereby (6) scandal,

'• Op. cit.f loc. cit.f n. 5.

*»Litt. encycl. S. C. de Prop. Fide, 11 mart. 1868; in the new Collec-
tanea, n. 1324.

** ZiTELLi, op. cit., p. 60.

Impediment of Mixed Religion.

117

Concubinage, diffamation or attempt at marriage eari
be avoided." Causes of private nature, like sup^r-
axlult age, lack of dowry, poverty of the widow, an-
ffuslia loci, and others eiiiuiierated in the instruction
£:ivt^n by the Sacred Congregation of Propaganda ■'
<lo not sufliee suigly, but when several concur in one
and the same case the circumstances may justify the
granting of a dispensation.

The importance of a sufficiently grave cause is ap-
jiareiit from the tact that without it even the Roman
l*ontiff would dispense illicitly, tliough validly, while
"the Bishop under the same circumstances would not re-
»iovo the impediment for the apostolic indult which he
»*njoys requires the cautioner as a conditio sine qua
•Mon.

191. II. The second condition witliout which the
<iispensation should not be granted regards certain
guarantees to be exacted from the two contracting
parties. Formerly only the non-Catholie consort was
expected to give the cautiones; the new law demands
a promise also from the Catholic party. The former,
a<Tcording to the tenor of the past discipline, had to
promise that lie will not interfere with the religious
freedom of the latter. 'The new law requires that he
shonld go even further, 'and that by a positive act he
shoald remove whatever is calculated to jeopardize
tlie faith of the Catiiolic consort* (circumstances ex-
posing her to the danger of perversion). Besides,
'■both consorts must promise that their children will he
baptized and educated exclusively in the Catholic
faith." Formerly the Catholic party was not required
lo make tlus promise expressly for it was tacitly pre-
Biimed that such was his intention. Now the Church,

■B»KoeN, "p. eit., vol, IV, p. 20.
■ laatr. 8, C. de Prup. Fiiie, S nia

ii 187T; in the

118 The Neiv Church Laiv on Matrimony.

more emphatically than ever before, will call to his
mind this duty, thus making the non-compliance with
it so much more sinful.

192. III. These promises are founded on natural
and divine law ; -* therefore, not only should thej^ be
exacted but a moral certainty should be had as to their
fulfillment. The Holy Office in an instruction given to
the Primate of Hungary on July 7, 1890, insists that
unless the foregoing conditions are subscribed to a dis-
pensation should never be granted. The same instruc-
tion, like the canon of the new law, emphasizes the
moral certainty w^hieh the pastor should have as re-
gards the future fulfillment of the accepted conditions."
Should the indication show that their fulfillment is im-
possible under the contemplated circumstances, or
should the insincerity of one or both contracting
parties be apparent, the persons in question could
not be considered worthy applicants for a dispensa-
tion.

In case of urgent danger of death, to adjust matters
of conscience and, should the case permit, to legitimate
the offspring, a dispensation from this impediment
may be granted by the Bishop or by the priests w^hen
recourse to the Bishop is difficult, even if the non-
Catholic party should refuse to give the customary
guarantees, provided the Catholic party is favorably
disposed.^*

In order that the importance of the embraced obli-
gations may be more deeply impressed on the con-
tracting parties and that the proof of their voluntary
assumption be available for the external forum, if need

**Instr. Seer. Status, 15 nov. 1858.

"Benedict. XIV, ep. encycl. *'Magnae Nohi3f'* 29 iun. 1748; Gre-
GORious XVI, ep. encycl., ^'Summo iugiter/* 27 mail 1732; Leo XIII,
op. encycl. *'Quod multumr 26 aug. 1886; Pius X, litt. ap. **Provida,'*
18 ian. 1906, n. II.

"•Cod. Iur. Can., Can. 1043 and 1044; see this work, n. 160.

Impediment of Mixed Religion. 119

bp, the prpscnt discipline prescribes that, as a general
rule, the guarantpes should he given in writing."

13. Injunctions Relative to Mired Mnrriagen.
193. The Catholic consort is bound by the obliga-
tion of endeavoring by prudent means to prncure thr
Winvor.sion of the non-Catholic party." The legisla-
tion contained in this canon formerly ranstituted one
"f the promises to which the Catholic party M'a.s cx-
jicoted to subscribe expressly, and on which the grant-
'ij^ of the dispensation was conditioned." This obli-
gation does not lose its force by the fact that it is Tio
lonj^pr included in. hut separated from the conditions
^^t»lained above. Wlule the Catholiti party's readiness
'^ that effect need not be signified in the petition for
"' s* pensation, the law of charity, receiving a special
**"»idion and an added force by virtue of the foregoing
J^<^ lesiastical canon, nevertheless continues to oblige
' ■^. The former discipline employed the words "pro
ihis" to express the effort which the t'atholic party
s expccteil to make toward converting the non-
tliolic consort. The new legislation supplants those
*~ms with the word "priidentcr." By tliis change the

7»remp legislator means to emphasize the circmn-

'^V>*ciion and the discretion which must be exercised in
** '^"•Ipr that the Catholic party may succeed in bringing
\.*^<' dissenting consort to the unity of the faith. A
^^ithful performance nf all conjugal duties is withont
•^oiibt the first and one of the most effective means
^^ntributing toward the attainment of that end.

194. Though the Church should grant a dispensa-

" Plra VI. rewript. ad Card. Arcrhirp. Mpchlm^n., 3 iul. 1 782 ; 8. C, 8.
Off. (ad. Ep. Aiiirliancn,). 8 iun. ISTB; 9. C. de Prop. Fide, litt. (ad
Kp. Ottavipu.), IT opr. l«Tfi.

■Poo. Itm. C\x.. Can. 1062.

•8. C. 8. Off., iiwlr. (nd Arrliicp. Qupbwon.), 16 »"pi. 1B34, ad 3:
Isilr. («a Arr}|i«p. Corfyrm.), 3 ian. 1871, n. 3; 8. C. de Prop. Fidp,
iWr. (ad Vic Ap. Bisciap), 6 sept. 17^5; litt. enrvrl. 11 riKirt. 1S6S.

lliO

The New Chinch Law on MaUiinnny,

tion from the impediment of mixed religion the con-
tracting parties are -nevertheless forbidden to present
themselves either personally or by proxy, whether be-
fore or after the marriage, before a non-Catholic min-
ister in order to give or to renew their consent while
he officiates in his religious capacity,'" The laws of
some countries impose an obligation to give or renew
one's consent before a representative of the state as
a conditio sine qua non to the gaining of the civil ef-
fects of marriage. Should the magistrate of such
places be a non-Catholic minister, employed for a
purely civil function, the parties would not violate this
ecclesiastical law by making use of his services."
They would not be permitted, however, either to give
or to renew their consent before him should his office
as civil functionary and as minister of a sect be in-
separable, and should he officiate in both capacities
simultaneously, namely, by one and the same act.

If the parish priest is certain that the contracting
parties will disregard this law, or that they have al-
ready transgressed it, he should abstain from u-itness-
ing their marriage, unless a very grave cause urges
otherwise, and then he must first consult the Ordinary
and remove the scandal.*" Such a very grave cause
would exist in every case where the fear is present
that a civil marriage will be attempted or that the
already attempted invalid marriage Avill be consum-
mated. It is to be noted that in case the marriage is
attempted before the minister of a sect the parties
incur an excommunication lafae senfentiae reserved
to the Bishop." Absolution from this censure must
precede the celebration of such a marriage.

"roD. lin

Impediment of Mixed Religion.

121

195. Besides the foregoing injunctions diret-ted to
tlie contracting parties the new legislation inculcates
also the duties of the Ordinaries and other pastors of
souls when it admonishes them that they (1) should
dissuade the faithful to the best of their ability from
mixed marriages; {'!) should exert every effort not to
permit them to he contracted against the law of ftod
and of the Church if they are unable to prevent them
altogether; (3) should watch vigilantly over the faith-
ful fulfillment of the cautiones which were given in
marriages contracted in their own territory or outside
it; (4) should be guided in their assistance at such
marriages by the instructions contained in canon
1102."

The duties of the Bishop and pastors as outlined in
the first three points of the foregoing canon need no
explanation. It is sufficient to note that the pastor will
not consent to witness a mixed marriage until all his
efforts to dissuade the Catholic party from such a step
prove abortive. If the latter remains immovable and
there is a serious danger that marriage will be con-
tracted outside the Church, provided the parties ex-
press a willingness to comply at least with the mini-
mum requirements of the law, the pastor should rather
assist at their marriage than allow them to resort to
nn action which is contrary to the law of Clod and of
the Church, besides being invalid.

196. Even if the dispensation should he granted,
the banns of such marriage are not to be proclaimed
in the Church, as has already been explained in con-
nection with canon 1026." Should the Ordinary deem
it expedient to make such proclamation, no mention
should be made of the religious sect with which the
nnn-Catholic party is affiliated. For the validity of

"Op. ril.. run. 10(14.

122

The Xew Church Law on Main

nni/.

the assistancp at such marriages it is required that no
extrinsic force or fear should be brought to hear on
the pastor in order thus to constrain him to ask and
receive the consent of the contracting parties."

According to an instruction Pius IX ordained on
November If), 1858, that such marriages should not
take place within the church (extra ecclesiam), and
that all religious rites whatsoever must he barred.*'
As regards religious rites the new law conforms to the
foregoing decree. Since we treat here de ofHosis the
word "ecclesia" must be interpreted strictly, in which
case it should not he applied to the sacristy or to a pri-
vate chapel. Sucli is the meaning of a decision of the
Holy Office handed down on January 17, 1877."

If from the observance of this law grave evils are
feared, the Ordinary may permit one or the other of
the usual ceremonies but the celebration of the Mass
must always be excluded.'" The exclusion of the Mass
contains an indirect prohibition against the the im-
parting of the solemn nuptial blessing with the usual
prayers found in the Romal Missal, for such a blessing
may not be bestowed outside the Mass,'"

197. From all this legislatitm it is manifest that
under ordinary circumstances the Church wants the
parish priest to render more than a passive assistance
to such marriages, since he nmst ask and receive fhpir
consent. By passive assistance is meant the mere
presence of the pastor and the witnesses in order to
testify to the consent given by the contracting parties.
The only official act of the pastor would be the record-
ing of the marriage in the matrimonial register.
Should the obviation of serious evils necessitate it, the

"Cod. Tub. Can., Can. 1095, jl, n. 3.
"OASPAtim, fip. Ht. a. 458: De Bbcker.
■' OASPABat, op. fit., n. 463.
■•(■on. Irit. Cak.. Can. 1102, $2.

,, p. 264.

Impediment of Mired Rpligion.

Ciiilt.

123

Uop may. by way of pxceptioii, permit i'vmi the
aclivf assistance of tlip pastor wliii-h could extend to
nil tile marriage ceremonies contained in tlie ritual,
including tlie blessing of thf ring and all tbe prayers,
tiarring always the celebrati()n of the nuptial Mass and
ilie .sulcniii blessing usually imparted in it.

198. The guarantees nmst be exacted even after the
marriage is already contracted validly but unlawfully.
CiitU they are given and at least the Catholic educa-
tion of the children is secured, the Catliolic party can-
""t he admitted to the sacraments.*' Should the non-
Catliulic party decline to give the caufiones, the well-
disposed Catliolic party, provided she made the re-
'juired promises, may be admitted to the frequentatlon
'-r the sacramentK. scandnle remvlo."

Xt is incumbent on tlie pastor to validate the niar-
rittgK as soon a.s piis.sil)ie should it be invalid either on
account of the lack of form or of the presence of some
'lifiment impediment and separation is not practicable,
»s is generally the case. Tbe exacting of tlie cus-
'"iiiary caut'iones ought to be the first step under such
f ' rc-umstanees. Absolution from the censure of ex-
">riiiiiuuication latae- .lentenliae should follow next if
"><^ marriage was attempted not before a civil magis-
tr^tf but before a heretical minister. This absolution
*hoatd he given in furo eiterno. f)nly in case the at-
l^ixipted marriage if; secret and there is no danger of
it»i becoming publicly known, may the absolution he
K>Ven in fvTo inti-mo. Should the non-Catholic party
'■'^fune the giving of catitiones, as long as the Catholic
P^rty 'm favorably disposed and the former is willing
to renew his consent, the dispensation may still be ob-

^"i f.'. S. Off., 2 mar. 1842; S. C. S. Off., 3 ian. 1871 ; in tlie new
'^^Otcta^ra. o. 1362, *7.

"Onspjini, (./I, rU., n, 40S; De Suet, op. rif.. a. 357; Weknji, o/i, ril..

124 The New Church Law on Matriviony.

tained for the purpose of validating the marriage,
especially if there be some children who stand in need
of being legitimated. If the non-Catholic party de-
clines both the giving of cautlones and the renewal of
consent, recourse should be had to sanatio in radice."

VI. Impediment of Unworthiness.

199, The new law bases the state of indignity or
unworthiness on the following causes: (1) Public re-
jection of the Catholic faitti (without joining a heret-
ical sect); (2) Profession of membership in societies
condemned by the Church; and (3) Public crime or
censure coupled with unwillingness to show any sign
of repentance. The impediment of unworthiness is
thus contracted between a practical Catholic and one
wlio is stigmatized on account of any of the foregoing
three reasons. Formerly other causes beside those
enumerated could contribute to the origin of this im-
pediment. It is called impediment of imworthiness
because one party approaches tlie sacrament of matri-
mony unworthily, and exposes himself to the danger of
being guilty of sacrilege.

It is generally taught that a worthy party contract-
ing marriage with an unworthy party does not sin
gravely, notwithtsanding the fact that he is cognizant
of the state of unworthiness under which the other is
laboring and that he not only assists to administer the
sacrament to him but also asks it from him. Even
those theologians who accuse the pars digna of venial
sin because he becomes a tool offering parti indignae
an occasion to receive the sacrament unworthily excuse
him from all culpability, should he be in possession of
some reason justifying his act." Furthermore, neither

"Oaspabbi, op. Fi(., n. 468; De 8met, op. r»t., n. 25T; Vllxnt. op. eU.,
n. 5S8.

" D'Annibalb, vol. Ill, n. 329; Benedict. XIV, Df tynodo Dioeee-
tana, lib, TX, cap. III, n, 5.

Impediment of Unworthiness.

125

the pastor nor the witnesses are obliged ex officio tti
[jreveiit the sacrilege of another, but only ex caritale,
unil tla'v may f veii p<'rinit it indirectly, if the avoidai>ee
of greater e\-il, as is generally the case, demands this."
200. The faithful should be discouraged from pim-
traeting marriages with persons who publicly re-
nounced the Catholic faith, even if they did not join
a non-Catholic sect, or who profess membership in
sooieties condemned by the Church. The pastor should
not assist at surh marriages without consulting the
Ordinary, who, after having weighed all the circum-
stances in the case, may permit his assistance. Only
grave cause may influence the Bishop to such leniency,
and it cannot be shown until, in his prudent judgment,
lie Catholic education of all the future offspring has
'''>*?'ii safeguarded and the danger of perversion of the
"Hht consort has been removed."

The question will naturally arise : Which are those
*'*<?ieties whose condemnation by the Church makes a
"letnber liable to be the cause of the impediment of
"^ Worthiness f Since we treat here de odiosis, the
'^iTiis: "socielalibus ah Ecclesin damnatis adscripli
■*■*»»(" must be interpreted strictly." We would there-
'^^■e conclude that the canon has in mind only the mem-
"^»~$ of those societies which are expressly and nnmi-
"^*iin condemned. Such societies are the Masons or
Jp«» Carbonari, censured by the well-known eniistitu-
■■^n " Aposinlicae Se.dis'' of Pius IX, and the Odd
^«*||nw8, the Sons of Temperance and the Knights of
JTS-'thias condemned by the Congregation of the Holy
Office on Augnst 20, 1894, in a Decree addressed to the
'*iprarchy of the United States. According to a decla-

^Qua^AAu, op. tit., n. 475,

-0». Irm. Cax., Cmi. 1065.

•"8, C. 9. Off. (Porlas Aloisii), 1 aog. IS.'i.'j; (Marysvillc). 21 itug.
■I**!} <L«wliFll.), 30 inn. 18fi7; 25 msii 1897; conBult the new CoU
^'na»m ntiAft nnmbtrs l.tOO, U9h and 1069.

126 The Xcic Church Law on Matrimunij.

ration dated August 2, 1907, by thp Apostolio delpga-
tJoTi at M'asiiington this pondemnation is to be ex-
tended to the female secret societies which are to he
regarded as branches, if affiliated with male societies
already nominally conrlemned."'

Any reason justifying the granting of a dispensa-
tion from the impediment of mixed religion would
suffice for the Ordinary to permit the pastor to witness
marriages whose ilRcitness would be due to the pres^
ence of the impediment of unworthiness. Before such
permission is given all precautions must be taken in
order to safeguard the Catholic education of the chil-
dren and to remove from the Catholic consort the
danger of perversion." The good judgment of the
Bishop will determine whether the assistance of the
pastor should be passive or active. Should he decide
in favor of the latter, he should not be so indulgent as
to permit also the celebration of the nuptial Mass '^nis't
ffravia adjiincla aliter exignnt." ""

201. So much as regards condemned societies. A
few words must now be said on another aspect of this
impediment, namely, when it arises from the third
cause. The new law reads as follows: if a public
sinner or one laboring under a public censure declines
to make use of the sacrament of penance or to be
reconciled with the Church, the pastor should not wit-
ness his marriage unless there is a grave and urgent
reason, about which, if possible, he should consult the
Ordinary."

St. Alphonsus says " that a person is considerei! a
public sinner when his crime is notorious either by

" Fannino, in thp Cnlholxr Enryrhprdia, art., SfTrf S-icirties, a. VII,
-8. C. 8. Off. ( Marysvillej , 21 aug. 1861; (8. Bnni(acii), 23 *pr.
I8T3; 26 maii 18IIT; 11 inn. 1899.

"8. C. 8. Off., 21 fcbr. 1R8.1; in Iho new CoUertanfa. n. l.-itH.

" Cm. luR. Can., Cbh. 106fi.

'^ Thfiilngia Miiralis. viil. VI, n. 44, ib., OaSPArRI, np ril., n, ^1

Impediment of Umvorthiness. 127

Iaft% he having boen oouvicted of it by judicial process,
(T by fact, when it is eonunitted in a public place, or by
fBiiif, when the indications are such tliat many liave
already come to the knowledge of it, thougli to some
of those present it may be unknown. The liHuale Ro-
martum " classifies in the category of publicly un-
ft't>t-thy all those who are excommunicati, interdicti,
ma-nifesteque infanies; ut meretrices, conctihitmrii,
fo^tteratores, magi, sortilegi, blaspheml et alii eins
grvt-^ris puhlici peccatores.

202. Sliould a pastor be asked to assist at the mar-
riage ut* a public sinner who refuses to confess his sins,
if ait all possible, he should lay the ease before the
Bishop.'* This obligation would be incumbent on him
foi- a double reason when, by virtue of a particular
la-^^*, all marriages must be preceded l)y a sacramental
«>»afe8sion. The Sacred Congregation of Propaganda
w» April 17. 1820, decreed that Catholics wlio are pub-
» lit simiers and wlio refuse to confess their sins should
t: be admitted to marriage ''nisi parochus ex causig
»"f gravibiiti ercu.\ari possit." ^^ This decision is
fcltxaiided on the opinion of the authors that the assist-
ive of a priest at such marriages is sinful unless he is
r*^c«jnerated un tlie ground of grave reason.

203. Similar should be the mode of procedure in
"*^rriages of those against wliom a public censure was
'** lmiuate<l. The Sacred Peiutentiaria having been
^*-*iisulted about such a case answered that the pastor
'** to exert every effort to induce such a person to be
^_.'"*^i'onciled with the Chui'ch. Should his efforts prove

fx- ■—

(yTonji-KoiiRl.

"Qasi-uuu. op. fit., n. i'S.
I ■», C. 8. Off. (Boiiibav). ^1 febr. 18S3: 8. ('. de Prop. Fide

I Vwbccj, i; stir. IHiQ; S. Pwnil., U) dec. 1S60, ad IS.

128 The New Church Law on Matrimony.

{si gravia damna imminere videantur) may perr
even his active assistance, always excluding the ce
bration of the Mass.'^^ Should an unrepentant <
communicatus vitandus ask for a similar favor 1
Ordinary may not grant it without causa gravissinu

"St. Alphonsus, Theologia Moralia, vol. VI, n. 54; ib., Gaspai
op, oit., n. 483.

"Fkije, op, cit, n. 277.

CHAPTER VI.

The Diriment Impediments.

/. The Impediment of Age.
(Canon 1067.)

The impediment of age is an obstacle
virtue of wliieh a man and a woman, not having
readied either the use of reason or the age preseribed
by ecclesiastical law are barred from contracting a
valid marriage. This impediment, as is manifest from
the foregoing definition, can arise either from natural
law (want of use of reason), or from ecclesiastical law
(want of certain required age). Tlie marriages of
unbaptized persons, provided they are contracted
after the parties reache<l the use of reason, must be
(■onsidered valid unles.s invalidated by a civil impedi-
ment of age. The marriages of baptized persons are
invalid if the parties concerned lack the age prescribed
by ecclesiastical law.

205. In the former discipline the Church accommo-
dated itself to the Roman law ' which regarded as
pubercft and marriageable the female children after
the completion of tlieir twelfth year and the male chil-
dren after the completion of their fourteenth year.'
Wbiie the age of puberty required for the validity of

' L. 3 r. Qvando tutnrrt.

'<\ 12, 13, X, Wf dfApiineatinnr I'mjiubwiiin, IV, !
ff matrflfialit, el (mpnlriilid cofvndi, IV, 15; r.
impvbfTUm. IV, 2, in Vr°; Bknkdict. XIV, Const.
miHi," 12 fl-pt. 1744, $14, dub. V, $40.
129

1 I', 2, X, d« fryiidit
n, de detponaatione
"OmMium aolicitudv

130

The Neic Church Late on Matrimony.

other contracts has remauied luichaiiged," it lias un-
dergone some modiiication in relation to matrimonial
contracts. FoniU'rly prfco(.'ity could supply the defect
of age. Li other words, parties legally in the state of
impuberty, but actually in possession of physiological
or natural puberty (implying the potency to procre-
ate) could contract a valid marriage even before they
reached the age required by ecclesiastical law. This
gave rise to many doubts wliich the present discipline
happily eliminates by not permitting a valid marriage
unless the male child has completed liis sixteenth year
and the female child her fourteenth year.' After that
age, in the eyes of the Church, the marriage is valid
or may be contracted validly though neither of the
parties may possess the actual physiological faculty
to generate, for this condition is not required by nat-
ural law. But, the Codex adds, it is the duty of the
shepherds of souls to dissuade from marriage all
young people who have not reached the age at which
marriage is usually contracted according to the prts
vaililig local customs.''

From the foregoing statements it is obvious that the
power of the Boman Pontiff over this impediment ex-
tends only to the period at which the parties reached
the use of reason. Should a dispensation be granted,
the consorts are not permitted to cohabit usque, ditm
ambo potentes evaserint, or reached the nubile age.'
The Holy See may not dispense below the age of rea-
son, for it would be equivalent to crossing the purpose
of natural law.

206. The civil laws of the various countries are not
uniform in their demand of age required for a valid
marriage. Such laws are absolutely obligatory on the

'Cod. Tuit. Can,, Can. !

'Op.,
'Op.,

., Con. 1067, jl.
., Cnn. lOOT, ?2.

Impediment of Impulency.

131

unhaptized, for the baptized the conipliant'o with them
is not ad validilatem, for siieh persons are governed
hy the foregoing legislation of the Chureli. E. g., the
civil law of Belgiiun requires the age of eiglitecii
yoars on the part of the man and of fifteen on the
part of the woman, hut extends to them the privilege
of dispensation before that age should the highest eivil
authority deem it advisalih-.' Therefore, without a
fivil dispensation a man of seventeen and a woman of
fourteen years could not contract a valid marriage in
the eyes of the state, but they eould do so in the eyes
of the Church provided both were baptized. Should
the woman in this ease be an infidel and the man a Catli-
idic, their marriage would be null and void even iu the
eyes of the Chureh, iniless besides the dispensation
from the ecclesiastical impediment of disparity of wor-
idiip (for the man) a civil dispensation from the im-
pediment of age (for the woman) is also obtained.
If the civil law does not specify any particular age,
then the marriage between a baptized and an unhap-
tized person would be valid provided the former is in
possession of the legal age (prescribed by the Church)
and the latter of the age of reason (the dispensation
from the impediment of disparity of worship being
presupposed should the former be baptized in the
Calliolic Church).

7/. The Impediment of Impoteney.
(Canon 1068.)
207. Impoteney, in the wide sense, is an inability to
procreate offspring and to propagate the species. One
must be on his guard not to confuse impotentia cneundi
with impotentia generandi. The former is a natural
or acHdental defect in the genital organs of one or both

'Codf Sapoifon. art., 144 ami 145; iU,, De SmbT, op- t^-i "■ 273,

132 The Netv Church Law en Matrimony.

contracting parties preventing copulam de se aptam
ad generationem prolis. Such copula presupposes com-
pletam perforationem vaginae mulieris per erectum
memhrum viri cum effusione veri seminis virilis in
vaginam.^ Impotentia generandi, or in other words,
sterility, implies the inability to procreate, but presup-
poses the ability for coition in the way described above.
Impotentia generandi is neither a diriment nor an im-
pedient impediment of matrimony.^ Therefore, the
in fecundity of the sperm (on the part of man), and
ovariotomy, oophorectomy or fallectomy calculated to
prevent conception by having recourse to the Porro
operation causing an unnatural sterility in the woman,
imply only impotentiam generandi but not coeundi.^^

208. Impotentia coeundi in so far as it is a diri-
ment impediment to marriage may be defined: Per-
petual and antecedent, absolute or relative inaptitude,
on the part of the man and the woman, for a conjugal
act de se required for the procreation of offspring.
Impotency may be :

1. Antecedent or subsequent according as its exist-
ence preceded or followed the matrimonial contract.

2. Perpetual or temporal. It is called perpetual
when it is irremediable, or, if curable, not so without a
miracle or means illicit or dangerous to life. It is
temporal when its cure is effected of itself in the
course of time, or when it can be remedied by means
that are honest, licit and void of danger.

3. Absolute or relative, according as the incapacitas
coeundi extends to all persons of the opposite sex, or
only to some.

" Gasfarri, op. cit., n. 510; De Smet, op. cit., n. 276; Wernz, op. cit.,
n. 342; De Becker, op. cit., p. 156.

•(^OD. luR. Can., Can. 1068, $2; c. 18, C. XXXII, q. 5; c. 27, C.
XXXII, q. 7.

'"Dr. O'Malley, in the American Ecclesiastical Review, vol. XLIV, p.
6b'4 flf.

Impediment of Impotency.

133

4. Xatural or accidenta). Tlie fornier has its origin

1 in some intrinsic organic dcf(?ct of thf body, the latter

in some extrinsic cause, generally in some functional

defect of a pathological nature, as in the case uf an-

aplirudisia, aplirodisia and vaginism.

209. With these preliminaries in lua possession the
reader should experience no difficulty in interpreting
the first paragraph of canon lOfiS. whidi runs as fol-
lows: Antecedent and perpetual impotency, whether
on the part of tlie man or of the woman, whether
knomi to the other party or not, whetlier absolute or
relative, invalidates marriage by virtue of natural law.
This canon settles the nmch-nnjoted question concern-
ing the source from whidi the diriment force of this
impediment originates. The majority of theologians
always maintained that natural law. apart from eecle-
siaiitieal law, endows impotency with the force of nulli-
fying marriage. This conclusion must force itself on
every one who analyzes the nature of the matrimonial
contract, which, as all admit, consists in the mutual
tradition of the exclusive and perpetual right which
♦•ach of the contracting parties bestows on the other
for the purpose of procreating children. But impo-
tency frustrates this end absolutely and at the very
ootset, for it bars the possil)ility of even the first retjui-
eite, namely, an act apt in itself to promote tlie
primary end to wliich this contract tends by its very
nature. Furthermore, a person laboring under antece-
dent and perpetual impotency is not in a position to
transfer such a right to another iiu'm debitiim canmle
solvere non potest.

210. Impotency does not invalidate marriage un-
less it is antecedent. The subsequent impotency can
effect only the use of marriage or the right one ac-
quire.!* |>y it, hut not the nmrriage itself, wliich remains

134

The Neic Church Law on Matrimony.

valid even though under such eireumstariees its use
might become illicit.

Temporary impotency eveii if it should be antece-
dent does not ijivalidate marriage beeause it admits a
remedy. For marriage already contracted it matters
very little whether the impotency is absolute or rela-
tive (provided it is antecedent) for m either hypothesis
such marriage would be rendered invalid. The party
laboring under relative impotency may be admitted to
another marriage, not so, however, in the case of abso-
lute impotency.

The canon states distinctly that the marriage entered
into with an antecedent pt'rpetual impotency is invalid
regardless of whether the fact of impotency was known
or unknown to the other party. If it was known, some
authors bind the parties to a cohabitation as brother
and sister; others again permit a new marriage oblig-
ing the man to a support of the impotent consort."
This latter opinion reeeives an indirect sanction by thfi
new law, though it fails to take into account the ques-
tion of support. Such obligation would, however,
arise ex caritate should the party who is free from im-
pediment have the marriage annulled and subsequently
contract another. The imposition of such an obliga-
tion supposes that the marriage was contracted with
a full knowledge of the existence of antecedent impo-
tency.

211, Both the man and the woman are impotent
when they lack tlte genital organs proper to their re-
spective sex. The latter 's impotency may be caused
also by the arctitudo vaginae and vaginism." Tow^ards
the impotency of the former, besides the cause already
stated, may contribute the want of semen, also the ab-

Impediment of Impotency.

135

lenee of both testicles (as is the case with eunuchs),'*
.phrodisia,'* aud aiiaphrodisia." Before a definite
declaration is made as regards the objeotive invalidity
if the marriage on the gronnd of any of these reasons,
it must be carefully aseertained whether the iinpotency
to which they give rise was antecedent and by its na-
ture perpetual or incurable.

212. The aptitude or inaptitude to normal marital
intercourse is therefore the touchstone of the presence
or absence of the impediment of impotency. This gives
us occasion to say a few words about hermaphrodites,
or persons who are in possession of more or less per-
fectly developed genital organs of both sexes. Though
the organ of one sex, as a rule, shows a more perfect
or complete development than that of the other, pos-
sunt in utroque sexu copulam perfectam habere." De
Smet quotes Brouardel as the authority for the opin-
ion that no example has as yet been found of a person
who both externally and internally would possess the
attributes of both sexes."

The co-possession of organs of the other sex does
not in itself disqualify a hermaphrodite from mar-
riage. The question is easy of solution when he is
impotent according to the undeveloped or defective
»ex, for then he can make use of marriage only by
means of the developed sexual organ, and he must
even make a deposition to the effect tltat he intends to
renounce absolutely the use of the other. Should he be
equally potens in both sexes, which is a practical im-

"SutTDs V, const, "Cum freqamter," 27 \an. 158T.

"CalidiUB Tiri li Ule nequeat expirtarp vhs nmlipris, iguin totura
rmen dcfluat extra vaa. S. C. C, in f!eapolitana Matrim., 5 iul. 1862.

" Bi vir mpmbrum viTi]«^ ailea flaFfiduni habeat, tit capax ereHionin
litem sufflpieDlis non lit. 8. C. V., in t-auan nuUitntiH nintrininnii, 24

n. 1R71.

136 The New Church Law on Matrimony.

possibility, he is free to choose the organ which he in-
tends to use in marriage.^* He may be barred from
marriage only when there is a moral certainty as to
his absolute inaptitude to carnal intercourse. In case
of doubtful impotency, though his marriage should be
discountenanced as much as possible, it could not be
absolutely forbidden. The new law distinctly states
that when the impediment of impotency is doubtful,
whether by law or by fact, the possibility of marriage
is not to be absolutely excluded.*'* This settles a con-
troversy regarding women who have undergone a
surgical operation resulting in the removal of ovaries,
of matrix, or causing infecundity by some other way.
All these in the new law, which agrees with the prac-
tice established during the former discipline, will have
their way open to marriage.^^

It must be borne in mind that a marriage null and
void on the ground of impotency cannot be rendered
valid solely by means of artificial fecundation.^*

213. The impediment of impotency is not recog-
nized by the civil law of every country, though on the
ground of error a declaration of nullity can be ob-
tained even from those courts which do not admit the
existence of this impediment.-- The civil law of Aus-
tria, Italy, Spain and the United States of North
America practically accepts the canonical impediment
of impotency.-^

"Wbrnz, op. cit., n. 353; S. C. C, in Ferrentina Matrim., 24 mart.
1888; 18 aug. 1888.

'•Cod. Iur. Can., Can. 1068, $2.

^S. C. S. Off. (Quebec), 23 iiil. 1890; (Westmonastcrien), 3 iul.
1895; S. C. C. (Bosnonien), 30 ian., 27 febr., 30 apr., 25 iun. 1836; 26
febr., 23 apr., 1842.

" Gasparbi, op. cit., n. 533; see this Avork, n. 53.

^ Cod. Civil. Germ., $1333; Lex Hung, de matrim. civ., $54; Schulte,
op. rit., p. 514.

=" Wkrnz, op. cit., r\. 354; Keezer, Treatise on the Law of Marriage
and Divorce, n. 12, 160, 164.

Impediment of Liiiiimcn. 137

///, The Impediment of Ligamen.
{Canon 1009.)

214. Liyamen is the bond of i; previous and exbt-
9)g marriage. The Creatoi" by uniting one man to one

' woman, and Christ by restoring marriage to its pris-
tine ideality showed unmistakable preference for the
monog>*ny and monandry. It is generally agreed that
•.natural law proscribes both polygamy and polyandry,
•the former relatively, the latter absolutely. Withmit
noubt, positive divine law, contained in the New Testa-
ment, forbids both absolutely.''*

215. A person bound by the bond of a former mar-
riage cannot validly contract a new marriage, though

Phis present one is non-consummated, salvo privilpfi'io
The presence of the impediment of iigamen
ndicatcs the objective validity of previous wedlock.
ttt does not matter whether the latter is only a mere
natural contract (when both parties are infidels), or a
.erament (when both parties are Catholics). Should
iDotber marriage be attempted while the bond of the
trevious one continues and should the parties be guilty
»f adultery, they would contract a diriment impedi-
' ment of crime, necessitating a dispensation before they
could validly marry each other, even if the former
marriage should be dissolved hy the death of the con-
§Bort. Regardless of the cause invalidating or dissolv-
hg a previous marriage, no new marriage may be eon-
■acted until the nullity or the dissolution of the
former is established legitimatelv and beyond all
oubt"
In ease of doubt no new marriage should be at-
tempted until a defmite decision is reached, otherwise

•■ppe tbid work, n, 36 ff. ; 0*SPABBi. oji, cit., n. 631.
•Cod. Ipr. Tak., Cnn. lOfi!), 41,
»roD. IiiR. C*N.. Oin, moil, J2.

138 The New Church Law on Matrimoriy.

the objective value of a subsequent marriage would de-
pend entirely on the fact whether the parties were fret
or not. If the new marriage is contracted in good-M
faith it will enjoy all the advantages of a putative^
marriage ^^ even if subsequent investigation should re —
veal the presence of the impediment of ligamen, in.^
which case the parties would have to separate immedi —
ately after such discovery.

The declaration of nullity must always proceed f rom_
a higher ecclesiastical tribunal, namely, the Holy See-
or the Bishop. This law should never be disregarded
when the marriage has all the appearances of a valid-
contract. When the marriage is invalid on the face of
it, so that the fact is manifest to all, recourse to a
juridical process may be dispensed with. Canon 1990
legislates that in such cases the Ordinary, after
having cited the parties, may declare the marfiage
null and void with the intervention of the defensor
vinculi.

216. The impediment of ligamen ceases by the
death of the former consort,^* in case of non-consum-
mated marriages by solemn religious profession,^* or
by an authoritative dispensation of the Roman Pontiff,
and in legitimate marriages among the unbaptized by
Pauline privilege.'^ An extensive treatment of these
individual causes is presented in another part of this
work.^^

217. On May 14, 1868," the Sacred Congregation of
the Holy Office laid down special rules to be followed
in cases in which the ascertainment of the death of the
former consort is connected with some difficulties. The

"^ C. 8, X, qui filii sint legitimi, IV, 17.

*CoD. lUR. Can., Can. 1118.

* Op. rtf., Can. 1119.

*''0p. cit., Can. 1120.

" See this work, n. 547 ff.

" In the neAV Collectanea, n. 1321.

Impediment of Ltgamen.

139

[fallowing is a brief summary of the instruction. The
t step should be directed toward demanding an
.thtaitic death-certificate. Tliis should be based on
,e reliable records of tlie death-register of the parish,
T of the hospital, or of military authorities. If such
lA document cannot be obtained from the ecclesiastical
authurity recourse should be had to the civil authority
of tlie place where the consort died. In the absence of
BUfli a document at least two witnesses, worthy of be-
lief, j^liuuld lie placed under oath testifying to their
former acquaintance with the dead consort as well as
to llif cause of his death and the place where it oe-
curroti. If only one eye-witness can be adduced, pro-
vided lie is above all suspicion, his deposition may
saffiee, but of itself it does not constitute a probationem
|J«wm. If no eye-witnesses can be procured, sec-
ondary or hearsay witnesses may be summoned whose
knowledge of the death of Uie consort is founded on
thy testimony of eye-witnesses. In the absence of any
witnesses whatsoever the case sliould be solved by call-
'ng tn aid the principle of presumption. In doing so
iuquiry should be made into the moral character, re-
ligious attitude, occupation, age and health of the
pi'ssuinably defunct person, and into the circumstances
prpoediug^ accompanying and following his absence.
'■"'ght should be thrown also on his relations with the
*un-i\-ing consort. As partial testimony the letters he
'*T()tt" and the newspapers giving an aceomit of liis
'"■atlimay also be requisitioned. The sworn statement
of tho living consort does not of itself constitute a
snilieieiit evidence of the death of the other consort,
^(l it) the absence of other proofs corroborating such
testimony the Holy See must be consulted in every case
""dividaally."

140

The .Vt'jr Church Law on Matrimonii.

A moral pertainty is required as to tlie severaitcp of
the former matrimonial bond before another marriaK*"
may be contracted. The new law enacts sevt^rw punish-
meats against the bigamists. It hinds tlieni with irreg-
ularity ipso facto incurred *' and brands them as in-
fames even if they should attempt only a ci%il marriage
while the bond of the former continues. Should they
continue in illicito contubernio, notwithstanding the
admonition of the liisliop, according to the gravity of
their guilt they may be placed under excomnnuiication
or even under personal interdict."'

Because the impediment of lif/amen arises from
natural law it cannot be lifted hy means of a dispensa-
tion. To maintain that Pontiffs did dispense from it is
to repeat an old calumny which lias no foundation j
history."

IV. Impediment of Disparity of Worship.

(Canon 1070— Canon 1072.)
1. Uisiory and Nature of the hnpeiUmeni.

218. An adumbration of this impediment may be
found in the Old Covenant, in which God's chosen
people were forbidden to intermarry with the seven
Gentile nations who inhabited the Pronused Land be-
fore it was given as an inlieritance to the Israelites."'
The main reason for this divine prohibition was
founded in the same cause that inspired the matri-
monial legislation of the Catholic Church, namely, the
danger of perversion. This danger and that of spir-
itual apathy find fertile soil in a home where oneness
of faith does not contribute to happiness and peaceful

"Cod. Iuh. Can,, Can. B84, ii. 4.
■■ Op. eit.. Can. 2356.

"KoskovAnt, De molrim, iiiu-(., I. IV, \<. S4;
Oabpauii. op. eit., n. 631.

" Deut. XXXIV, 16; I, Esiira» X. 10, 11, IS. 13,

Impediment of Disparity of Worship.

141

cohabitation. The differcncp of religion is often the
contributory cause of much dissension whose avoid-
ance very frequently is bought by the Catholio party at
the cost of abandoning all roligious practices and of
neglecting to safeguani properly the spiritual interests
of the future offspring. St. Paul compares a marriage
between a Christian and an infidel to a fellowship
which liglit makes with darkness." St. Cyprian "
and Tertullian '" are perhaps the first ecclesiastical
writers who with St. Paul discountenanced such mar-
riages, and said to the early Christians: "Bear not
the yoke i^-ith unbelievers." *'

219. Despite the promptness with which the early
Christians complied with all disciplinary measures of
the Church, the Council of Elvira (300-306) found it
necessary to incorporate a positive law among its en-
actments, forbidding Christian girls to contract mar-
riages with infidels, Jews, heretics or priests of the
pagan rites." The rigor of this law was enhanced by
the Constantinian legislation (339) which threatened
with capital punishment all Christians attempting to
marry a Jew." The law of TheodosiuK (388) branded
as adulterous the marriages contracted between a
Christian and a Jew.- Estius, interpreting this law,
remarks that this stigma was attached to these imions
not on account of their nullity, but by reason of the
/gravity ()f the sin of which the Christian who thus de-
graded his character was guilty." It was in Spain that
this impediment first obtained the force of invalidat-
ing a marriage. Such force may have been attributed
to it in some localities of other countries also, hut,

"H Cor. VI, 14.

"MiCNB, P. L.. vol. IV, col. 767.

"MIONB, P. L., vol. I, tolB. 12110 and 1201.

•• II Cot.. VI. 14.

■ MAH9I, Cone, fit., cap. XV, XVI.

-Wo

'. Rnm. Ton.

I, 504,
Benkdic

r XIV, vril. Ill, "l^influlnri ffohig.- {T.

142

The New Church Law on Malrhiwtiy.

more eonuuoiily, it was considered only an impediJ
impediment." its incorporation into the Oratian t
lection did not of itself endow it with the force of^
universal law of the Church. The practically unani-
mous opinion of canonists holds that tlie diriment im-
pediment of disparity of worship was introduced by
virtue of an accepted custom prevailing in the Eastern
and the Western Church in the period intervening be-
tween the ninth and the twelfth century." This cus-
tom implicitly accepted by the Church in the past has
been canonized officially by the present ecclesiastical
legislation, invested with the force of written law and
declared binding on all persons baptized iTi the Cath-
olic Church, or converted to the Catholic Church from
heresy or schism, when they contract marriage with an
infidel.

220. This short historical survey proves sufficiently
that its diriment force did not originate from natural
or divine law. By virtue of these laws it is only an
impedient impediment, otherwise the Church could
neither dispense from it nor modify it to the extent
evidenced in the most recent matrimonial legislation.
With these facts in our possession we can see the dif-
ference between a perfect and an imperfect disparity
of worship. The former has its origin partly in the
ecclesiastical and partly in the natural divine law, and
according to the old discipline it used to arise between
a baptized and an unbaptized person. This was in
the past the diriment impediment of disparity of
w^orship in the strict sense. The imperfect impediment
of disparity of worship is founded on divine and nat-
ural law. It is only an impedient impediment, more
properly designated by the name impediment of mixed

" Benbdict XIV, Joe. cil., i9.

"Bbnkdict XIV. lof. fit., 4lO; Gasparhi, op. cit.. n. 607; EsUKiK,
Le viariage en droit cimoniquf, tit. cit., vol. I, pp. £16 ff.; 'Wani, q
Cit., a. SU4.

Impediment of Disparity of Worshi2).

143

religion. It arises betwei'u two baptized persons of
whom one is Catholic and the other a heretic or a
schismatic. The impediment of mixed religion renders
the marriage illicit; that of disparity of worship both
illicit and invalid. The iiiipedient impediment of
mixed religion has undergone no change in the new
matrimonial legislation. The diriment impediment of
the disparity of worship has been considerably
modified. Both the old and the new discipline base
this impediment not on the profession of faith, but on
the indelible character impressed by the sacrament of
baptism. The new legislation lays stress on the Cath-
olic baptism in contradistinction to any other, admin-
istered by other religious denominations." According
to the old discipline a marriage contracted between an
unbaptized and a baptized person was invalid irre-
spective of the sect in wliieh the baptism was received.
But, since the new discipline distinguishes between
Catholic and non-Catholic baptism, it is manifest that
by means of this impediment the Church does not
mean to legislate for marriages contracted by two per-
sons of whom neither was baptized in the Catholic
Church, Hence, the impediment of disparity of wor-
ship is re.stricted to marriages entered into by per-
sons of whom otie is baptized in the Catholic Church or
has been received into the Church from heresy or
schism and the other is unbaptized. This sweeping
change forces the conclusion that after the Feast of
Pentecost, 1918, the Church will consider valid all
those marriages that shall be contracted between an
unbaptized person and a baptized non-Catholic, the
latter in tliis one case being exoinpted from contracting
the impediment of disparity of worship on account of

"Nullum ea\ mtttrimDnium contrnctum a persona non baptizatu cum
pcrcona bnptiiata in Erdeaiu calholics vd nd runtlem ex liuerpsi uut
■chlauale cauversa. (CODICx Iub, Ca.v., Cud. lOTu, fl.J

144

The New Church Law on Matrimonii.

thi' recpption of non-Catholic baptism. Sueli mar-
riages will be valid provided no impediment of natural
or divine law or of wtfclesiastical law stands in the way
of their validity. Thus, the impediment of disparity
of worship will no longer invalidate a union contracted
by an uiibaptized person with a person baptize<l out-
side tlie Catholic Church. The form which must be ob-
served for the validity of such marriages is discussed
in another part of this work.

221. By the impediment of disparity of worship the
Catholic party is affected directly and the unbaptized
party indirectly. Thus, the Catholic party is declared
incompetent to contract marriage with an infidel.
Since, however, the nature of the marriage contract
requires that both parties be qualified, such marriages
would be invalid even if tlie Catholic party were not
bound by a particular form of marriage. By virtue
of the individuality of this contract the incompetence
of one party is connnniiicated to the other.

A double prohiliition stands in the way of a marriage
between a Catholic and an unbaptized person. On the
one hand, there is the divine and natural law as an im-
pedient impediment, and, on the otiier hand, the eccle-
siastical law as a diriment impediment. In some in-
stances the first prohibtion may cease, namely, when
the danger of perversion is absent. But. even in such
cases, the ecclesiastical prohibition retains its force,
and such marriages are neither licit nor valid without
a dispensation giveii by the Konian Pontiff or his dele-
gate.

2. Catholic Baptism.

222. Since it is the Catholic baptism from which
the impediment of disparity of worship draws its
origin in the new legislation, it will be well at this
point of our investigation to acquaint ourselves with

hnpedintcnt of D'lAparihi of Worship. 145

f)ic full iiiHaninK and scope wiiicli the words Catholic
'«if)tism imply.

For the sciH'ral guidance of the reader one could
preijiise that the foregoing words are to be interpreted
in the wnsp in whit-h the decree "Ne temere" eiuploys
tiiem, namely, baptism aduiinistered in the Roman
C'atiiolic Church.

223, 1. They do not include the baptism adminis-

tiTtxl by the ITniat (Jreek Churclies. Such baptism

makes one a ineniber of the Catholic Church, but not

Kiibjcet to this legislation. The Codex of Pius X. as a

Rciipral rule, does not legislate for the Churches of the

Ori«'ntal Rites, unless an express mention is made of

tlifin. or the tenor of the canon is such that its very

'*atiire presupposes its observance on the part of (lie

*-*'*» tTitals." Thus the new legislation expressly con-

f«»T-iiis in this respect to the traditional custom of the

*^'*i»irch whose first exponent was Innocent TTI in his

^* »»istilntion "Licet Oraecos" given in the Fourth

*^^teran Council." Therefore members of the Oriental

— ^'Hxireh. as long as they adliere to that Rite, do not

Bp^-'Ve to submit to the requirements prescribed by the

^■w*<-ree "Ne temere"' unless the other party to the con-

™***'^.pt, being a Roman Catholic, is bound by it. But if

* "»»iember of the Uniat fireek Church affiliates himself

^'•^I'ially with the Latin Rite, tlien he falls under the

»**"«»pe of the decree, and by this very act becomes
■"(Tod. Ira. C*s„ Can. 1.
f^,/^ An •Mcmblr of renownt-il thpologiaoB fonvencil in 1631, heailed by
l^ritin&l Pani|.liili, lliiig inlerprcU Uip tvnor of tliii C<inal!lutmn: Nelle
**njitittuiotii Apuslolichp nun ■'intendanu conipreBi gli uricntali se noii
^*i It^ sp^pnti eaa'i: 1. Nei |>unli ^i tede e dottTinn, cattolira; 2. dovp
■K nuttrriu itt^iisB diinoiitra la romprtneioni?, in quanto nun & una iegge
,, ^lUnta eecIeiiasUeai nta una dichiaraziane della legge divina e naturale.

1^^ *. Qnsnilo, bencli^ si tralti di urdinminni diKpiplinari, uli orlcntaM vi
^^^ •ftno p«pr.'w»iiniPiitc noiiiinali. Ejc litl. pnpvd. 8. (.'. d" Prop. Fid-, nuv.
^B K V'iii Colleelanea. n. 113; New Collertanea, n. 1578; Papp-BeilJLoyi,
^^M sai*lWniAo* iuris Reeleaiat orientalia Catkalicat. $55, p. 68. Ma^o-
^F Vvulini. 1S8I); Wknk, op. eU., n. If ~
^^ itta Ap. Srdi*. vol. I, p. MS.

14G

The New Church Law on Matrimtmy.

liable to all mntriinonial impedimpiits eiifori-ed by the
canonical discipline of the Western Church, including
those inipediiiients which are ignored by the Rite whioli
he leaves. He could therefore contract the impedi-
ment of disparity of worship which according to the
new legislation is based on the reception of baptism in
the Roman (not Greek) Catholic Church.

224. 2. The words Catholic Baptism include those
adults who in the reception of baptism were actuated
by the motive of becoming Catholics.

3, They include those heretics and schismatics who
return to the true fold, though they may subsequently
relapse into their former heresy or schism. If the
baptism of such converts is doubtful, they are to be
re-baptized conditionally. If it is valid, then the mere
profession of faith and absolution from heresy will
suffice to give thern the same standing in the eyes of
the ecclesiastical law as if they had actually received
Catholic Baptism.

4. In tlie ease of infants, baptism depends (a) on
the intention of its minister; (b) on the intention of
the child's parents. Both the minister and the parents
may be of the same faith or of different faiths. In the
first instance they may botli be either Catholic or non-
Catholic. In the second supposition the agent admin-
istering baptism may be Catholic and the parents of
the child non- Catholics, or vice versa. In the follow-
ing pages we shall consider these hypotheses by con-
necting them with eases in which baptism is given in
urgent necessity. Outside such necessity no doubt is
entertained as to the nature of baptism, since it is gen-
erally conferred by the minister of that religious de-
nomination into which the parents intend to incorpo-
rate their offspring. The child of non-Catholic parents
receives Catholic baptism, if it is administered by the
priest. The child of Catholic parents receives a no]

Impediment uf Di»piirilij of Worship.

147

Catholic: baptism, if it is biiptizfd i)y a clcrgyjiian out-
I siclp Uio Catholic C'hureli.

^m Xu placing the following eonsidciiitioua bi'l'ort' the

^B rt?ad(;r we do not intend to deteruiino coiidif ions nfecs-

^P sarj- for the validity of baptism. Onr purpose is to

" ascprtain tliose conditions only whicli must afFeet the

fhiJd ill order tliat it may become subject to the new

law regulating the impediment of disparity of worship.

225. A. If the parents of the child ami the person

wiio baptized it are of the same faith (CatlioUe or

i'rott'stant), it is presumed that the latter wished the

t'hild to become a member of tliat religioiis body to

which its parents lielongs. In such a case a Catholic,

rogardless of his intention, could administer only

Catliolic baptism to a cliild both of whose parents are

Catholics. In case one of the parents is non-Catholic,

*>v*-ii if the baptizing Catliolic shonld expressly exclude

^ t^atholic baptism, and should intend to baptize tlie

(^■hild for the sect of the non-Catholic parent, the bap-

tiNm would still remain Catholic. The same is to be

^^i<i if a non-Catholic in case of urgent necessity bap-

tiai*a.s a child whose parents are of mixed religion. To

u*?- fond thi.« opinion the following reasons are ad-

y"*-*ic«L The baptism in such cases is either valid or

J'*'V-aIid. Its proper administration on the part of the

■^^Jjlizing agent presupposes an act in conformity with

J^«? intention of the Church or of Christ. But neither

'***^' Church nor Christ intends tliat the cliild whose

l*^ rents, whether both or only one, are Catholics,

^■^ould be affiliated Avith a non-Catholic sect. Such

^-tliation would, furthermore, be against the will of

^nc parents. If both parents are Catholics, the reason

>s self-evident. If one of them is a non-Catliolic, then

*t is presumed that the parents have virtually inter-

Pri'ted and expressed on this point the intention of all

Uieir future children, wlien they gave the cmitiones,

148

The Nciv Church Law on Matrimony.

Bubiiiittiiig: to all i\n.'. conditions which the Church pi
scribes before a dispensation from the impediment
mixed religion or disparity of worship can be obtaim

If neither the person baptizing nor the pari-nts of tl
child are Catholic, there is still a possibility as to
admuiistration of a Catholic baptism. While on
narily it is presumed that the child is incorporated ii
the sect of its parents, this presumption nmst give w
to faot, if the minister of such baptism, though he
a non-Catholic, explicitly states that his intention is
administer a Catholic Baptism.

226. B. If the parents are non-Catliolic and thi
perRon administeruig baptism is a Catholic, then two
possibilities may arise, namely, the Catholic anent
either expresses his intention as to the administration
of Catholic baptism or fails to do so. If his intention
is expressed, then the baptism thus administered is
Catholic. This would be true even if the parents ol
jected to such au act. We presuppose here a
urgent necessity when the Catholic is bound in pt
science to administer baptism. He is released fi
this obligation if the parents themselves wish to ba]
tixe the child or authorize a non-Catholic present
do so.

If the Catholic fails to give expression to his m\
tion and the parents subsequently to such a baptii
inscribe the child's imme in the baptismal record ol
their sect, according to Lehniknh!,'" such baptism is not
to be considered Catholic. The question could arise,
does the mere entering of a child's name in a
Catholic register settle the nature of this baptism
is hard to see how an accidental circumstance, po(
terior to baptism, brought into play by the act of an
external agent unrelated to this baptism, could in any
way affect the objectivity of the sacrament. The bap-

"Thcotogia Moralis. n. 893, Frihiirgi BriBgoviae, 1310.

se, I

'II

Impediment of Disparitif of Worship.

149

tism, therefore, must be considered from its very be-
ginning either Catholic or non-Catholic. In our opin-
ion tht' registration cannot change its nature. We are
inclined to pronounce in favor of its Catholicity.

227. C. It' both parents are Catholic and the person
who in ease of urgent neciessity administers baptism is
a non-Catholic, the baptism nmst be considered Cath-
olic. The same is to be said though one of the parents
be non-Catholie, Tlie reason for the latter statement
is contained in the cautiones with which tlie present
marriage is supposed to have been contracted. It' the
mixed marriage is invalid, tlie child iilegitiniate. and
the non-Catholic agent administering baptism wishes
to incorporate the child into a non-Catholic sect, a
serious doubt might then arise as to the true nature
of suc-h baptism. Even in such a case the child ougtit
to get the benefit of the doubt, especially if the mar-
riage is putative, in which case the child would be con-
sidered legitimate. Cases like these will have to be
colved by the Holy See.

If the baptism is not administered in case of urgent
neeeRsity, and the parents, whether they are both
Catliolie or only one of them, intentionally make use of
the services of a non-Catholic clergyman, then two
possibilities may arise. Such parents may he either in
good faitli or in bad faith. In the former instance such
a baptism is to be considered Catholic. In the latter
case it is to be regarded as non-Catliolic. If the par-
ents in case of urgent necessity, permit their child to
be baptized by a non-Catholic clergyman, they must
instruct him that the child is to he a member of the
Catholic Church, or rather, if nobody else is present,
they should baptize it themselves. If they fell away
from the Church, and leave the matter to the nnn-
Catholic clergyman, it is presumed that he is at liberty
to incorporate the child into his own sect.

150 The New Church Law on Matrimony.

228. D. Some theologians maintain that we are not
to regard as Catholics those infants who, not yet seven
years old, were validly baptized in the schismatic
Church, even if subsequently educated in the Catholic
faith by their converted parents. The advocates of
this opinion ^^ do not admit that such a child, not yet
enjoying the use of reason, becomes a convert by the
very fact of the conversion of its parents. We decline
to subscribe to their opinion. It is admitted by all that
parents are the interpreters of the child's intention
before it reaches the use of reason. They are expected
to safeguard not only their own spiritual welfare, but
also that of their child. Therefore, what they have
considered their duty expressly, namely, to embrace
the Catholic faith, their offspring is to consider its
duty interpretatively. Thus it would seem that the
conversion of the parents of itself postulates the simul-
taneous conversion of their child who is validly bap-
tized but below the age of reason. This opinion is more
in harmony with both the spirit of the Church and the
wish of the parents, granted the condition mentioned
above. The other opinion which advocates that the
child must be permitted to decide this question after
it reaches the use of reason, cannot be sustained. The
Church insists on the Catholic education of such a
child. If analogy has any force, we could adduce the
civil law which, by the naturalization of the father, eo
ipso admits to citizenship his child who is a minor.

In the foregoing paragraphs the child's legitimate
superiors play the same role as the parents themselves
in the absence of the latter.

229. If the child has completed its seventh year it
is considered adult in or dine ad haptismum. Conse-
quently, the parents or its legitimate superiors cease

WouTERS, Commentarius in Dccretum **Ne temere" p. 85, Amstelo-
dami, 1910.

Impedinifnt of Disparity of Worship. 151

to be its interpreters in these matters. The child at
tiiat age is expected to express its ovm wish for the re-
ception of baptism."-

Until very recently there -was no particular rt^asuii
for a more specific determination of tliu true nature of
a Catholic baptism as differentiated from a non-Cath-
olic baptism. Therefore the authors gave a very in-
adequate treatment of this question and the Church
itself did not consider it necessary to lay down rules
that would embrace all contingencies m connection with
the mlmiiii strati on of baptism. Since the introduction
of the new Church-law this question carries with it
far-reaching consequences. The foregoing statements
are a tentative explanation of the author, salvo meliori
iudicio. Several doubts will have to be solved in the
near future by positive legislation of the Church. The
definition of the true nature of Catholic baptism will
determine who are bound by the new form of marriage
and who are liable to contract the impediment of dis-
parity of worship.

230. To sunuuarize the rules eimnciated above, we
can state that the validly baptized children of Cath-
olic parents will certainly be subject to the new legisla-
tion on the two points just mentioned, unless the cir-
cumstances under which the baptism was administered
plainly indicate tliat the parents did not intend to bring
the children up in the Catholic Church, for instance, if
they deliberately and in bad faith requested a non-
Catholic clergjman to administer the baptism. Chil-
dren of non-Catholic parents, if baptized by a Catholic,
will be regarded as having received a Catholic bap-
tism. Therefore, if they are subsequently educated in
the Catholic faith, the ecclesiastical law will not dis-
criminate between them and the children of Catholic
parents. This is evident from the unusual concession

■CtiD. Iirs, Can., Can. 7-15, }:2, u. 2.

152 The New Church Law on Matiiinonj/.

which thi' now law makes in tli«ir behalf, provided cer-
tain conditions are verified. Such baptized children,
wlieii they marry a noii-Catliolic, are exempted from
the Catholic form of marriage, provided, from their
very infancy, they have been brought up ui heresy or
schism or infidelity or without any religious training
whatsoever." Such persons are not bound by the
Catholic form of marriage because a special ecclesias-
tical law exempts them. Since no such special exemp-
tion is granted to them as regards the impediment of
disparity of worship one must conclude that they
would contract the impediment should tliey attempt
marriage with an infidel.

With this explanation in mind we may state that
the impediment of disparity of worship will always
arise between an unbaptized person and

1. The offspring of Catholic parents, baptized as an
infant in the Catholic Church.

2. One who, as an adult, received Catholic baptism,
but consequently relapsed into his former heresy, or
lost all faith.

3. A person born of non-Catholic parents and in his
infancy (whether in urgent necessity or outside such
necessity) was baptized in the faith.

4. A person baptized validly outside thf Catholic
Church and admitted into its membership by profes-
sion of faith and absolution from heresy.

5. The child of Catholic parents who after its Cath-
olic baptism has fallen away from the Faith, either
in infancy or in adult age.

231. A few years after the promulgation of the de-
cree "Ne temere" an inquiry was made whether the
new marriage law was to he applied to a marriage be-
tween an infidel and the child of non-CathoHc parents,
who, after bis reception of Catholic baptism, had been

"t."OD. Il-r. ('an., e'un. lOiia, }2. J^H

Impediment of Disparity of Worship. 153

Ijrought up a Protestant, or without any religion what-
Bocver. The Holy Office on March SI. 1911, replii-d
that the Holy See has reserved to itself the fxeliisivi^
right of settling such questions.''' Therefore, a rc-
couTRe was to be had to Rome in all such rases indi-
vidnally. The present general law promulgated in the
Undex of Pius X implicitly abrogates this decision of
llif Holy Office when it expressly exempts from the
new form of marriage all persons who, being born of
Don-Catholic parents, from their very infancy, after
their reception of Catholic baptism, are brought up m
herfsy, or schism, or infidelity, or without any re-
lipous training.

Thus the present legislation, as is seen from the fore-
goiiiK exposition of its tenor, modifies to some extent
thi' rulfl interpreting the scope of the Benedictine
•iHaration as approved by the Holy Office on April 6,
lS59," In this decree under the name heretics are
included :

1- Those who, though iiaptized in tlie Catholic
^''urch, have been brought up in heresy before their
**''''(^nth year, and still continue to profess its doetrini-.
, -■ Those who were educated by heretics rather than
''' heresy, having received little or no instruction in
."'at doctrine, and having seldom or never worshipped
"» it.

3. Those who as children fell into the hands of here-
"■*, and were incorporated into a heretical sect.

4. Apostates who fell away from the Catholic
^ -mrch, and allied themselves witli a heretical sect,

3. Doubtful Baptism,
232. The impediment of disparity of worship hav-

*■ B. C. 8. Officii, 31 mort., IPll. Acta Aprml. Sfdui, vol. Ill, p. IBS;
■^'iTTieau BeeletieaHeai Rerietc, vol. XI,V, p. H4.

■* FeiJK. op, rit.. II. mil; GAftPAMRi. ap. cit„ a. !)T7 ; Lehmkvhl. op.
"f- n. 91)5, Dole 1,

154

The New Church Law on Matrimony.

ing been modified, some of the principles formerly liehi
must also undergo a change. Though the impediment
will no longer prevent the validity of marriagfis en-
tered into by one baptized outside the Catholic Church
and an unbaptized person, a part of the old discipline
on this point will be applicable in cases whfre parties
thus married will wish to become converts. It goos
without saying that their marriage will be the first
tiling claiming the attention of the Church. Its objec-
tive validity must be decided by the form which such
persons arc bound to employ as a conditio sine qua
non. Since they are bound by all the other ecclesiasti-
cal impediments as well as by those of the natural and
the divine law, extreme care must be exercised in
the inquiry into the objective validity of such mar-
riages.

233. Baptism will no longer constitute the same dif-
ficulty as was experienced in the past in marriages
when neither of the parties was baptized in the Cath-
olic Church, If two Catholics wish to contract mar-
riage and a doubt arises as to the validity of the bap-
tism of one of them, then the party whose baptism is
questioned should be baptized conditionally before the
marriage ceremony is performed. If. however, the
marriage is contracted without this doubt being first
removed, such a union is considered valid. The ad-
ministration of conditional baptism may be postponed
for a good reason till after the marriage ceremony, but
it should not be neglected. Such a conditional baptism
should be administered secretly and without prejudice
to the validity of the marriage in question as long as
this doubt perseveres. If the subsequent investigation
should disclose that the supposed Catholic party whose
baptism was doubted was never baptized, then, we
maintain, the impediment of disparity of worship
would assert its force In- invalidating such a marriage.

Impediment of DisparHy of Worship. 155

Gasparri " holds tiiat it would be valid from tlie very
beginning, even if the doubt should subsequently be
settled in favor of the noii-rcecpticm or tlie invalid ad-
ministration of tlie saeranii'iit of liaptism. This opin-
ion, which enn hardly be admitted, is eouibated by sev-
eral leading canonists. An incontroviTtibh- prt'sunip-
Uon {praesumpiio iuris et de iure) favoring tlu' valid-
ity of baptism is at tlie bottom of sueh opinion, when
there is a question as to the validity of \.\w marriape
cimtracted by two parties one of whom is baptized and
the other is doubtfully Ijaptized. Mince this kind of
presumption admits no proof to the contrary, the con-
clusion is logical, but the premises are by no means cer-
_tain. The decrees of the Sacred Congregation wdien
SfoUowed to their final analysis fail to support this
opinion of Gasparri which is accepted by Leitner "'
nd Marsella/' Wernz '" shows how the following
^ausa Tarvisina cannot be adduced in its vindica-

The question was asked whetlier Laura Delfini (she
rried a Catholic and subsequently a doubt arose as
her baptism) is to be baptized condititmallyf On
May 4, 1737, the Sacred Congregation of the Council
answered: "affirmatively, and without prejudice to the
niarriage." (iiraldi'" adds: It is to be specially
iiutcd that whenever baptism is to be reiterated in case
of adults, it should be done secretly, whether they are
married or single, and without prejudice to the mar-
riage in the former case, if it was properly contracted.
It is this reply of the Sacred Congregation of the
Council which gives rise to such cnnflicting opinions.
The opinion of Gasparri, Leitner, and Mansella has

- Op. eit., n, 598.

•■ Uhrb. dri fculft, KhfrrrhU. p. 27B ; Paderborn, 1902.

■De InpeHitamtiM Matr. dinmfntiliui. p. 79, a. 1; R«map, ISRl.

"Op. H/., n. Cn7.

" Ktp. 1«T. Font., p. I, wet. Kin.

156 The New Church Laic On Matrimonii.

already been given. Sclierer " maintains that the deri-
sion of the Sacred Congregation of the Holy Offit-H
handed duwn on NovMiiber 17, 1836; " on February ij,
1851;"' and on September 9, I8(i8,"' arc liased on a
principle which directly contradicts the opinion ex-
pressed by the three autliors just named. It is mani-
I'ect tliat Scherer claims too much for these decisions;
nor do they reflect his opinion expressly, though it
must l)e admitted that they favor it.

234. (iasparri's opinion intimates that in case therp
is a doubt as to the valid administration of baptism
(especially if it is dubium (lubio iurii<] the Church ac-
cepts its validity by a presumption that cannot be
controverted (presumpiione iuris et tie hire). No one
will deny that in an impediment of ecclesiastical origin
the Church has a free hand, and therefore she may so
legislate in favor of baptism regardless of the sect by
which it was administered, as long as its nullity is not
certain. The Church eould surely be guided by such
principle, especially when doubt arises as to the valid-
ity of the baptism of one wliose parents were Catholics,

" nandbvch liru Kirrhenrechl», ]i. 374, n. 12; QrBn, INS6.

" It WH8 Bslfpd whether the Calviniiila and LulheranH whose bttpliam is
doubtful are to be regarded as inlidels so that the impedimenl at dis-
parity of worship arises between them and the Catholics. Beply: Eaeh
individual ease must be examined when surh herrtics belonj; to sects
whose rituals do not insist on the essential matter and form to )te uoird
in the adminiatration of baptiam. If their rituals prescribe the proper
matter end form, then the baptisni is to be regarded aa valid- If a
iloubt tdiould arise In the first case, the baptism is to be considered Talid
in relation to the validity of luarriaKe. But if it is diseovered that th*
baptism ia null . , . the nuirriage is likewise null. (8. C. S. Off.,
CoUectanfa. n. 049.)

" The inhabitants of Holland converted to CathoHeiHm are t!">CTBlly
to be considered validly married on the Krouni] of their haptisiu. If it
is discovered that in a particular case the baptism is invalid, reeaurse
must be had to the Uoir See, (Feue, Dr Imprd. rl THap. Matrima»iali-
bun. n. 467; Lovanii, ]6T4.)

"The Viear Apostolic of Japan asked: Are the doubtfully baptised
Japanese to be regarded as validly bepti^i'd if they wish to contraet
nmrriHgel Answer: A doubtful linpti>im in to be considered as valid in
rftuliuii til lUi- validity of ninrriiiBi-. {3. <\ S. OfT., rollrrlniiru, n. HM.i

Impediment of Disparity of IVomhip. Iii7

Iirho always professed the Catholic faitli, and married
L Catholic after having made use of the prescribed
form. But, de facto, it is questionable whetlier the
Church actually means to take such an attitude. F'nr-
iht'rniore, even if it should regard such a di»ul>tfiil bap-
tism ae if it were absolutely valid in relation to niar-
riap', the objective validity of the baptism, and
consequently the objective validity of the marriage
I'otitracted under such circumstances, would not depend
mi this particular subjective attitude of the CImreli.
Therefore, unless the Church intends to dispense ini-
pHritly every time this impediment may arise subae-
•lopntly to marriage (after the doubt concerning the
^'alidity of baptism is solved) such unions objectively
taki'n must l>e considered and treated as contracted, at
'Ae very beginning, by persons of whom one was bap-
I'Bwi and the other unbaptized. It is precisely the im-
plicit disposition Gasparri gratuitously attributes to
'he Churcli, which cannot be demonstrated nor pre-
•^mnpfi. because the decision rather favors the contrary
**Plnion. If we interpret the decree issued by the
'^^ercd Congregation of the Council iTi the ab<)ve-
nuojifl Caitsa Tari'isina (namely, Laura Uelllni should
"*' baptized conditionally, without prejudice to the
^"aliiiily of the marriage) in the light of this reasoning,
ry*' marriage in question does not necessarily have to
"*' regarded as valid from the very beginning. Wernz ""
'"inks tliat this clause has no more force than others.
'"Pitched in different language, but rendered in similar
**ases, for instance, "From reasons thus far adduced
*He nullity of marriage is not apparent." (E.f hnclenus
"erfurlis non constare de nutlilate matrimonii). Such
clause does not necessarily affirm the objective validity
*>f the marriage. It leaves the consorts in stntv qiw
«ntil the doubt is settled. After the doubt is once re-
* Op. eu., n. 507, n. 28,

158 The New Church Law on Matrimony.

moved the urt'suuiption must give way to certainty.
Therefore, if the invalidity of the baptism is proved,
the impediiiifdt of disparity of worsliip reveals itself
ajid invalidates the marriage from its very beginninK-
If it is discovered that the baptism (whose validity was
questioned) was valid, then, this impediment beinf; ab-
sent, the marriage from the very bcgiiming was objec-
tively valid.

235, The decision of tin* Holy Office, rendered on
July 20, 1840, if followed to its logical analysis, cor-
roborates the view here proposed." Gasparri re-
marks " tliat if in this case the heretical party (Angli-
can) is not baptized, then the first marriage was legiti-
mate, because neither one of them would liave been
under the jurisdiction of the Church at the time their
marriage was coTitracted. Thus he plainly admits that
on account of the subjective doubt the objective valid-
ity of the marriage is not subject to change. Nor is
the indelible character of Baptism conferred or re-
moved by such a doubt."* Therefore, the Holy Offiw ui
its ruling, it may be supposed, was influenced by the
presumption that the Anabaptist woman was never
baptized, and that the Anglican was baptized. But,
had it boon subsequently discovered that the latter was
imbaptized, the second marriage would have been null
oil account of the impediment of Ugamen. This oircium-
stance leads one to conoludc that the first marriage
could not have been declared valid objectively but siili-

" An Angliran wirfics In become a Catholii'. He was forniprly mar-
ried to an Annbaptist woman who mnintninB Ihnt ahp was never bnplixpd.
A Hcrious doubt, however, may arise also as to tho validity of the Hum's
baptism on thp ground that it waa administered by an Anglic*n minister.
Tlip husband left hia first wife and married a Irtilherno woman. The
question was asked: Which of the two women U his lefrilunat« nifcf
Reply; As long as it is evident that the first wifp was not baptized, th«
first 'marrisKe ia invalid. The seeond, provided no other impediment i>
in the war, is valid, (Fkijb, op. cU.. n. 464.)

" Op. nt., n. fiOn.

"Wernz. ••{• (■!(., n. 508, 1

Impediment uf Difipariti/ of Worship. 159

joelively aiid by a mere presumption. It is iu the liglit
tit' tliis principle one is to view the det'ision of the Holy
Office concerning the Cahinists and Lntlierans wliose
Iwiptism is doubtful. Titey are to be considered validly
married to Catliolics, but only on condition that this
doubt perseveres. If it is evident that the baptism is
nwll, the marriage is null,"

236. In the foregoing decisions the majority of
ui*)dern canonists'* see the implicit application of the
p-riiK-iple that the validity of such marriages is to be
prfsumetl witli a presumption whieh can be contro-
vtirtwl (praesvmptione iuris tantum). Such decisions
do not mean to attribute an objective validity or in-
validity to a dnulitful union. They bestow on it only a
presumptive validity or invalidity, as the case may
demand. This presumption must cede to fact wlieii the
"bjcetive validity or invalidity of the baptism is estab-
lisliwi, and it is detected that the presumption has no
Emulation in fa<*t. Therefore, if the subsequent in-
^p»tigation proves that the presumed impediment of
"lisparity of worship lias foundation in fact, the mar-
riage is invalid. If the contrary is proved, then the
marriage is valid, provided no impediment of natural
"I" divine or ecclesiastical law militates against its
raliiiity. This opinion has been canonized and incorpo-
fstixi into the new Codex.'' It states distinctly that if
St tlic time of the marriage one of tlie parties was gi'U-
'■rally considered baptized, or his baptism wns doultt-
H his union with a Catholic must he consi<lored valid.

"Si aulcm rerte coj^oBcator nullum baptisma . . . nullum est
■"Iriinonium/' {17 nov. 1B30; PnjE, op. rit., a. 464.)
^Dt IltTKB, De Spontalibm et MalTimonin, p. 21S: BnixHlPS, \9Q6.
"«n. op. at., n. 5117; l>E SuKT, Dr S/iiaaaUbm ft yatfinwiU', n.
=»< Bniicui, 11109: luid oIlii^rB.

''Sp»t« iMBpore coQlrnctl matrimonii tanquoiti linptUaln ciiininunitiT
■■"•Uiar ant riu* baplUmua erat dubiua, ■landum chI jiro vnliire
"Wriuionii, doocc etrlo probetur ullorum purWra buptizatnni eiwp, al-
'""- a baplizatani. (CoD. Iim. Tas., L'an. 1070, 42.)

160

The New Church Lair on Matrimanii.

until it is proved beyond doubt that one party i« bap-
tized and the other unhaptized. Tlie words; "Doner
certo probetur alteram partem haptizniam esae,
alteram vera non baptizatum" clearly indieati* that n
decision issued in all siieh inquiries does not pretend
to pronounce upon the ohjective validity of the mar-
riage under consideration, hut only upon its presump-
tive (subjective) validity.

237. The validity of baptism may be questioned on
two grounds, namely, a doubt may arise as to the fact
of its actual administration (dubiiim dubio facti), or
its administration l)eing certain, tliere maj' be a douht
whether the proper matter and form were used (du-
biiim dubio iuris). It is generally admitted timt either
of these doubts is sufficient to invest the baptism with
a presumptive validity in relation to marriage," and
the same kind of validity would be communicated to
the marriage contracted in such doubts. The Holy
Office expressly confirmed this opinion by a decision
rendered on July 7, 1880." Tlie princriple invtdved in
this decision has beeii somewhat modified in its appli-
cation to several more recent cases. Thus on July 10,
189(i, tlie Holy Office declared that if two heretics or
schismatics wish to be married, as long as the adminis-
tration of their baptism is certain, though its validity
may not be self-evident, they are to be considered as
validly baptized." While this decree seems to lay a
particular stress on the fact of administration, its tenor
must not be so construed as to lead one to maintain
that if such fact of ndministration is questioned
(dubium dubio fadi) the Sacred Congregation does iw\
mean to bestow on tlie baptism that presumptive valid-

" WraiKZ. np. r

Impediment of Dispanttj of Worship.

ir.i

it y which is the first and least rtKiuisitc in ordinc ml
validitatem matrimonii.

238. The principle that doubtful Imptisni is ro-
gardod as valid in relation to marriage is applicablo
both to prospective and to contracted marriages." Tliis
priiiciplf affects tlie validity nf baptism directly; that
of the marriage indirectly. Since the objective valid-
iti- or invalidity of the marriage depends on the objec-
tive validity or invalidity of the baptism, it is inipera-
liv'c that in each particular case a thorough investiga-
lion should be made into the baptism nf the non-Cath-
olie party. If the doubt cannot be removed even after
s conscientious inquiry, tlien the decisions sent to
Kishop Gross, of Savannah, by the Congregation of
Propaganda will Ite of notable assistance.'" Their
**"*»pp is so coniprelu'usive tliat it comprises practically
sU the cuntingent circumstances that can render a bap-
■ ^Uj doubtful. Their perusal will disclose tlie eondi-
■^tit) under whiclt one may be justified in forming a
^W*'*?8umption in favor of baptism. The document being
ttie most sigiuficant ever issued on this perplexing
lUtslion, we deem it advisable to reproduce it here in
fUbstauee.

^ Bishop Gross asked: I. Wliether, when there is a
ubt as to the administration or non-administration
baplifiin, we may pronounce judgment on the prin-
ciple of presumption, when such baptism affects the
Validity or nullity of the contracted marriages!

n. Whether, when the fact of administration of bap-
1 is unknown, one may apply the principle of pre-
iption in relation to the validity of a contracted
arriage, in the following cases:

S, C S. Off., 9 wpt., ]SIJ8: see ColUctanca, n. fi57.
'(.'otiritaxro, u. 002; Ada Sanclae 8rdU, XXV, |ip. 201-2(1.1; Con-.
1. Ball. Ill, ap. Bd num. 122, p, 240; Am, Heel. Kevkw, vol. VIII,
■- IW-U2.

1(12

The A>?/' Church Law on Matrimony.

1. If the non- Catholic party or parties are the off-
spring of parents who beh)ng to a sect which rejects
baptism, then tht; baptism is not to be presumed.

2. A similar pronouncement is to be made in tlie case
ol' those whose parents professed a religion whicli does
not admit infant-baptism, namely, in which baptism is
not administered except to adults, for instance, those
reaching tlie age of thirty years, as is the case with
the baptists.

3. The same is to be said of those whose parents
while living failed to ally themselves with any par-
ticular sect; pretending to worship a supreme being
hy their honest and upright conduct ratlier tlian by the
teachings of any determined religion.

4. If the parents were zealous members of a sect
which believes in the necessity of baptism, or in which
it is generally administered, then the baptism of tlieir
children should be presumed. But wliat is to lie said of
children whose parents were indifferent or negligent
members of such a sect, or professed a religion which
does not reject baptism absolutely but disbelieves in
its necessity and generally fails to administer itt Is
the baptism to he presumed in both instances or in
either of themT

5. If only one parent professes and practices the
teachings of a sect in whicli baptism is generally ad-
ministered, and this parent has the unquestioned
ascendancy over the child's education, then the baptism
is to be presumed.

The same is to he said when, after a sufficient in-
quiry, it is doubtful whether such a parent exercised
the chief control over tlie child's education. But what
pronouncement should be made when it is discovered
that neither the sect nor the disposition of mind of the
parent having the principal control over the child's
•education favors baptism, while the disposition of the

Impediment of Disparity of Worship.

163

less influential parent and his sect an- favorubly in-
clined towards baptism?

6. Cases in which no presumption favors baptism
should bt' decided on the print-iple: Fact is not to be
presumed, but must be proved.

The Congregation of Propaganda on August 1, 1883,
replied:

To the I. Affirmatively, investigation of each case
having first been made.

To the II. Affirmatively concerning tlie first, the
second and the third article, the first part of the fourth
article, and the first part of the fifth article; in the
I latter article after the words "chief control over the
child's education" are to be added the words; "and
the other parent is not known to be positively ojiposed
to baptism, then baptism must be presumed." In
other cases noted in the second part ol' the fifth article
recourse must be liail to the Holy See with a complete
statement of all the circumstances calculated to shed
light on the case under consideration. The foregoing
decisions provide the answer to the sixth inquiry,

239. The guiding principles approved in this decree
(enjoyed a very extensive application in the old discip-
, line. In tlie new legislation there applicability is liin-
I ited to marriages contra^^ted between a Catholic and a
lion-Catholic about whose baptism there is a doubt.
Li such a case a dispensation from the impedient im-
pediment of mixed religion will suffice, though it is
desirable that all such petitions should be accompanied
(ad caiitelam) with a request also for the dispensation
from the impediment of disparity of worship. Tlie
Sacred Congregation in our days is more disposed than
in the past to respond to such appeals. Though there
may be a doubt as to the validity of the baptism of the
non-Catholic party, as soon as the dispensation from*
the impediment of mixed religion is granted, the mar-

164 The New Church Law on Matrimony.

riage is licit. Thf> priest is not pcriiiitted to baptize
sueh a person conditionally with the view of obviating
tho possibility of tlip marriage's nullity. Such baptism
may be conferred only on the condition that thf non-
Catholie party is willing to make a profession of faith
ajid join the true fold."

240. If a doubt should arise as to tlie validity of tiie
baptism of flie Catholic party, its conditional admiiiis-
ti'atioii sliduld not be ncKlerted, irrespective of whether
(lie douhl ai^iise bcfiire ur after tlie marriage. A clear
distinction slmuki be made here between baptism which
is necessary to .salvation necessilate medii, and baptism
which is necessary for the validity of the marriage in
question. The first nmst be objectively valid : but a
doubtful baptism will suffice in relation to marriage.
Therefore, it is not absolutely wrong, under certain cir-
cumstances, to unite in marriage two Catholics without
having iireviously administered conditional baptism to
\hv (iiie whose baptism is not altogether certain. The
CliurciL [lennits even the sacrament of Holy Orders to
be adniini.-:tert'd to candidates who cannot prove by
nieaiis ritliiT of a letter or of a witness that tliey were
baptized; in that case the baptism is presumed, pro-
vided they are the offspring of Catholic parents.^'
When, however, there is a prudent doubt, it ought to be
removed by a conditional administration of the sacra-
ment which is the gate to all other sacraments."

241. The opinion of Lehmkuhl "" that whenever the
Church dispenses from the impediment of mixed re-
ligion it means to dispense simultaneously {ad caute-
lam) also from the impediment of disparity of worship,

"8. C. Inq.. 13 apr 1878; ib., Wni.vB, op. pit., n. 507, n. 29.
"8. C. de Prop. B^de, litt. (ad Vk. Ap. CoPioc. Oceid.), 30
184S; CnUfvlanen. n. 652.

^' Am. Ecrl. Review, vnl. XII. pp. 241, 4nfi. 407.

-Thrnl, U'milit. vol. TI, p. 566; Friburgi Briaguviap, 1010,

Impediment of Disparity of Worship. 165

fias long been discredited Viy modern eauoiiists."'
Tlicrefore a dispengation from the latter is never to be
prf^suiued unless the rescript alludes tu it explicitly.
This opinion is based on a decision of the Sacred Con-
ffrt'gatioa rendere<l on April 29, 1842,"" and is corrobo-
ralttl by the new legislation," Tlierefore, if a mar-
riage is contracted with a dispensation from the im-
P''*iiment of mixed religion (without ad cautelam from
"'*^ impediment of disparity of worship) and it is snli-
"^Ut-ntly ascertained that the non-Catliolic party
H*bo«(; baptism was douhtt'nl is nniiaptized, the mar-
riago is null. The declaration of nullity may be made
^y the Ordinary,*' provided a judicial process is estab-
"slietl; a course necessitated by the fact that unions of
"*'« kind possess the true form of marriage. In all
^oubtful cases recourse should be had to the Holy
Kp^."' The impediment of disparity of worship ceases
**> bind when Catholics live under circumstances which
"•sJcc it morally impossible for tlieni either to ask for
5^ 'lispensation or to marry one of their own faith,
* "ixs, for instance, the conditions prescribed by the
JH:-el^giastical law are impossible of observance by those
, ^'^Hg in some parts of China."" A similar case should
imagined, if some Christians should strand on an
i'^-ud where they could intermarry only with infidels.
**c3er .such circumstances, when they are obliged to
"P^^ose between marrying an infidel and remaining
^le, provided they do not expose their faith to very
*"ious danger, and are in good eonscieiiee, this ini-

Weknz. op. c

I. 33; Db Rbtkeii

., i>. 22^ :

* a)D. IDB, Ca-V,, Can. 1070, i2.

,~. ** ("iim inlFrvpntu tamen defcuaoris vinculi i
*^^ 5 iun.. 1689. {Colleftanea. n. 1706.)

* Db Bbckek. op. fit., p. 224; De 8mpp, op, r
, "a C. 8. Off., ep. {»d Vk. Ai.. Mandciuriae
**<-f,„,n, n. 1275.

166 The Netv Church Latv on Matrimony.

pediment would not be considered as invalidating their
unions." Such environments, can very rarely exist in
our times, though they may easily be imagined in
places like Alaska. The missionaries of those regions
should submit an exposition of facts to the considera-
tion of the Holy See, and abide by its decision.** It is
only a theoretical question whether the Church means
to dispense in advance in such infrequent instances,
whether it only tolerates such marriages, or, owing to
peculiar circumstances, it intends to suspend a law
whose observance is manifestly impossible. All three
hypotheses contribute to the same final result.**

4. Dispensation from the Impediment.

242. It has already been stated that the diriment
force of this impediment does not arise either from
natural or from divine positive law, but was intro-
duced by custom.*" Consequently it is in the power of
the Holy See to permit that a Catholic for grave rea-
sons may contract marriage with an infidel. A dispen-
sation in all such instances implies also the declaration
that the danger of perversion, which is the cause of
th(» existence of this impediment, is either absent or
remote. The Church does not dispense from this im-
pediment unless :

I. Tho marriage in question is contracted in a place
in whicli there are more infidels than Catholics.®*

II. Just and grave causes urge such a dispensation.

" De Becker, op. cit., p. 217; De Smet, op. cit., n. 289.

•■ De Becker, op. cit., p. 218.

"Gasparri, op. cit., n. 623; Wernz, op. cit., n. 510, note 37; De
Becker, op. cit., p. 217; De Smet, loc. cit.; see also Decree of the Holy
Office, on June 4, 1851; Collectaneaf n. 1275, and St. Alphonsus, op. cit.f
lib. Ill, n. 763.

- Benedict XIV, **Singulari Nobis,'* Bull. Bom. Con., vol. III.

•' This condition is not embodied in the new Code. It is a local law,
and its application to countries where infidels predominate will no doubt
continue.

Impediment of Disparity of Worship.

167

III. The non-Catholic consort furnishes cautiones
whereby he obliges himself to remove all danger of
perversion from the Catholic consort, and both con-
sorts bind themselves to educate all their offspring in
the Catholic faith.

IV. There is moral certainty that the cautiones will
be fulfilled.

These cautiones, as a rule, should be given in writ-
ing." It is to be noted that when a dispensation is
granted from this impediment the Church dispenses
also from the law forbidding communication in divinis
with bifidels. Sometimes certain restrictions are
placed in the rescript, as, for exanipU\ (1) the Catholic
wonuui is not permitted to marry a Jew; (2) the par-
ties shall not, either before or after the marriage,
presi'nt themselves before a non-Catholic iinnister for
the purpose of having him witness their consent in his
religious capacity."^

The following pages will be devoted to the explana-
tion of the conditions just mentioned.

243. I. The first condition, as Gasparri remark-s,"'
is not appended to dispensations granted to Christian
countries, but only to those granted to missionary
places, We may add that the new Codex makes no
mention at all of this first condition. Formerly in
niissionarj'' regions this condition was verified only
M-hen in the village where the Catholic party resided,
the infidels outnumbered the Christians. This re-
quirement was somewhat modified by a special iridult
j^raiited by the Congregation of Propaganda on Jauu-
ar>' 14, 1806, to the missionaries of China and the Kast
Indies." This decree states that the first condition re-

"Ooo. Ifii. Cas.. Can. 1061.
••Of. rt*.. Can. 106.1. *1.
-Op. tit., n. till.
" Callfi-tanea. n. 12T0,

168

The New Church Law on Matr

' mnny.

quired for the granting of the dispensation is t'uIfiUod
though in a certain village or town (pago) the Cath-
olics predominate, as long as they are in the minority
in the district (ioparckia) to which this jmrticular
town belongs. (Jasparri remarks " that unless this ex-
tensive interpretation is distinctly stated in the facul-
ties, the faculty to dispense is restricted to cases which
occur in towns where the Catholics are in the minority.
It is hard to see why such a conclusion should be drawn
from the wording of the decree. It distinctly states
that in the future the words of the clause ("in places
where there are more infidels than Catholics") are
generally to be applied to separate districts." It would
seem that the words "generatim in posterum" indicate
a rule whereby, in the future, faculties to dispense will
be given with the understanding that the first condition
for granting the dispensation will be verified when the
ahove-quoted words find their true application in their
amplified sense, namely, when they refer to the
toparchia (district) in which the person has a domicile
or quasi-domicile. Therefore, no such territorial re-
striction as Gasparri indicates should be put on these
words, unless the faculty to dispense distinctly contains
such a restriction.

244. 11. Natural, divine, as well as ecclesiastical
law prohibit the granting of such dispensation without
the verification of the conditions specified in the sec-
ond point, for otherwise the granting of the dispen-
sation would amount to offering contumely to the
Creator. Even if in certain instances natural law
would not militate against such a union, the apostolical
impedient and the ecclesiastical diriment law would

•* Op, HI., loe. eit.

""Conditio ilU, in loeie ubi Riinf plures infidelPH quam Sd»lp«, iretiCH-
tlni, in poBlcniiii inli^tli(ri'nda xit, non dc nint^ulis pagis vcl vi«ia, aed d»

Bingulis topari-hiis." (Ctitlectnnra, n. 1270.)

Impediment of D'n<imrity uf Worship.

169

sliJl n^tain their full force. In case the circumstances
nvre such that the natural law would forbid the niar-
riajcfe, the Holy See, even in the absence of a just cause,
(■'>ul<l dispense validly, though illicitly. Under the
esrno circumstances neither licit nor valid dispensation
could be granted by one who has only a delegated

Bpnedict XIV " deemed it necessary to accentuate
tho fact that tliough all the other conditions may he
verified in a particular instance the Church does not
disjiense sine gravi aliqua, ac plerumque pnhlica cmisa.
The Sacred Congregation of Propaganda gave expres-
Kion to the same doctrine when it admonished the dele-
Kates of the Holy See that only iu^tae graveaqne causae
sttould influence them to grant a dispensation." That
tli«? Church does not intend to relax its discipline on
'^is point is apparent from the fact that the new legis-
'*tiou following in the footsteps of the old, requires the
'*^-rne iu^tae ac graves causae as a condition in whose
■"^^wnce a dispensation from this impediment will not
'*•'- granted.

245. It is easier to determine whether a eause is
"^Efficiently grave when one deals with a specific rather
l*^ain with an abstract instance. Some of the causes
J**-»tifying the granting of such a dispensation would
*■*>: (i) The welfare of a Christian republic; (2) the
j;^*~pilominance of infidels in a certain country; (3) the
' ^ct that sucli marriage is the only means whereby
■rVfcildrHi bom of a former union can be educated in the
^^atholic faith, or whereby (4) scandal, concubinage,
'"iffamation or attempt at marriage can be avoided.'""
Causes of private nature, like superadult age, lack of

"fit Synodo Dioretiana, lib. IX. ra
"Utt, «i*tp1. B. C iv Prop. Fiilc,
"■wo, n. 1324,

"BiKOCS, lip. fit., vol. IV. p. 2(1.

n ColUc-

170 The Neiv Church Law on Matrimony.

dowry, poverty ol' the widow, angustia Inci, and others
enumerated in the instruction given by the Sacred
Congregation of Propaganda '"' do not suffice singly,
but when several concur in one and the samp case Ihp
eiremnstances may justify the granting of a dispensa-
tion.

The importance of a sufficiently grave cause is aj)-
parent from the fact that without it oven the Romaji
Pontiff would dispense illicitly, though validly, while
the Bishop under the same circunistancet: would not
remove the impediment even if he should grant a dis-
pensation by virtue of the power which an apostolic
mdult would give him.

246. III. The third condition without which the
dispensation should not be granted regards certam
guarantees to be exacted from the two contracting
parties. Formerly only the non-Catholic consort was
expected to give the cautiones, the new law demands a
promise also from the Catholic party. The former,
according to the tenor of the past discipline, had to
promise that he ^\-ill not interfere with the religious
freedom of the latter. The new law requires that he
should go even further, and that by a positive act hi-
should remove whatever is calculated to jeopardize the
faith of the Catholic consort {circumstances exposing
her to the danger of perversion). Besides, both eon-
sorts must promise that their children will be baptized
and educated exclusively in the Catholic faith. For-
merly the Catholic party was not required to make tliis
promise expressly, for it was tacitly presumed that
such was his intention. Now the Cliureh, more em-
phatically than ever before, will call to his mind this
duty, thus making the non-compliance with it so much
more sinful.

Impediment of Disparity of Worship. 171

2W. r\'. These promises are foundpd on natural and
► divine law,'" therefore, not only should they be exacted
Imt a moral certainty should be had as to their fulfill-
' nicnt. Tlie Holy Office in an instruction given to the
' i'riniate of Hungary on July 7, 1890, insists that unless
thf foregoing conditions arc subscribed to, a dispensa-
I'l^n lihould never be granted. The same instruction,
'ikt* the canon of the new law, emphasizes the moral
certainty wliit-h the pastor should have as regards the
future fulfillment of the accepted conditions."'^ Should
tl'f? indications show that their fullillment is impossible
under the contemplated circumstances, or, should the
"•sincerity of one or both contracting parties be ap-
parent, the persons in questions couhl not be consid-
ered worthy applicants for a dispensation.
I _ In order that the importance of the embraced oblign-
(tiuii^ may be more deeply impressed on tlie eoiitractiiig
U^rtieg and that the proof of their voluntary assunip-
*t>n be available for the external forum, if need be, the
P*'*-sent discipline prescribes that, as a general rule, tlie
S^arantees should be given in writing."'*

248. The Sacred Congregation distinguishes be-
t-\\-ppii dispensation of disparity of worship given to
t* "-nspective marriages and those granted to contracted'
'*>arriages. According to an instruction given l)y tlie
*^'«*ngregation of Propaganda on Feliruary 15, 1780.
^*»i.t dispensation should very rarely be granted to
'^atholic women wishing to contract marriages with
■"^Hfidels, because experience teaches that in their case
the danger of perversion seldom ceases.'"" The danger

"Inrtr. Sror. Slalna, 15 nov,, 1958. "Magnae Nobis."

■"Bkkbdict XIV, ep, enpyd., 29 iun., 1748; Qreoobiuh .XVI, ep.
*»>-)-(l. "Sammo iagiler," 27 maii, 1732; Leo XIII, ep. pqcvH. "Qwid
tmltuvi," 26 ■uir., 1886; Pitia X, litt. sp. •'Provida," 18 ian., 1906, a. II.

-Pll's VI, rrwripl. ad Card. Ardiiep, Mechlioen., 3 iul., 1782; S. C.
8. Off. <ttd Ep, Aurp1iani>n.l, 6 iun., 1S79; 8. C. dc Prop. Fidi-, litt. (ad
Ep. Oltavi*-!!.). IT ai>r., 1S79.

•^ CnlUelannt. a. 1206.

172

The New Church Lnir on Mntrimimy.

being less in case a Catholic man wiahes to marry aji
infidel, a dispensation mav be granted more read-
ily.""

249. After the marriage has been pontraett'd, thcmfili
invalidly, and the Catholic party wishes to have it vali-
dated, it' tlie danger of perversion is removed, the re-
quest to dispense should not be denied. Such a (Us-
pensation in favor of a well-disposed person is more
readily granted than in the case of mixed marriages,
when the validity of the marriage does not depend on
the dispensation.'"' If lie danger remains, it is prefer-
able to leave the Catholic party in good faith as to the
validity of the marriage rather than grant a dispensa-
tion.'"' If the Catholic party, being aware of the nullity
of the marriage, asks for a dispensation, sueh favor
eaimnt be granted unless the danger of perversion is
first removed. If this cannot be done, she should be
advised to have recourse to a civil divorce ratlier than
jeopardize her spiritual welfare.""

This remedy is practicable, hut only among civilized
nations. The Congregation of Propaganda in one of
its above-quoted decrees"" has provided for similar
emergencies arising in uncivilized countries. If a mar-
ried woman through no fault of her own, by force of
circumstances, is so situated that her faith is seriously
endangered, and slie is constrained by violence to con-
tinue in such circumstances, she should be reminded of
her miserable plight, and, if possilile, freed from tlie
spiritual danger surrounding her. If her actions
clearly indicate that slie is doing all in her power to
liberate herself from the degrading environments, then
she may be strengthened and comforted even by a

■"8. C. 8. Off., 29 apr., 1891; see Collectanea,
" De Smkt, op. cit., n. 291.

'■S. C. de Prop. Fidp, 13 sept-. 1"60; Colltctanra,
'"OASPjjutr. o/i. Wl., n. 015.

Impediment nf Dtsptirity of Woi'tiJiip.

173

prudent administration of the sacraun'iits. but a dis-
pi'nsatioii should never be given to her.'"

260, Tht! roprint of tlio answer given liy tlie Con-

(trcgaiidii of Propaganda on May 3, 1828. and the re-

incsl ffhirh ot-t-asioned it, will perhaps help to give a

clearer notion of the discipline of the Chnreh in these

matters. The Vicar Apostolic of Tonkin asked whether

this (lisiH'nsation may he granted to one (1) who, hav-

hig formerly lived with an infidel cum conhnnelin

(Veafom, now wishes to he dispensed from the ini-

P^'liiiipiit of disparity of worship. It is lioped that the

danger of perversion is absent, and a faint hope is en-

tfrtained even for the conversion of the infidel party;

'2) who hopes to be able to live ttine conhimelia Crea-

'"'"'-*■ as far as the infidel consort and the little children

sircady born or to be born are concerned. thouKh the

■■iult children will not he converted; (3) whose infidel

***»sort consents to everything except the Catholic edu-

tion of the first bom. or the first male child already

••ii or to be born. May the dispensation, In this third

be granted, in a most urgent necessity, as, for iji-

.nee, when the proximate danger of death demands

' To the first and the second inquiry the reply was

^■'irinative. The third also was affirmative with the

r*»"miso that the Catholic party Js at the point of death.

'*vitpven then it is necessary to exact a promise that in

'^'tsp of recovery she will endeavor to convert the infidel

r^sirty and to bring up all the children in the Catholic

T^th.'"

'""CTio ■«■ oon si fosHP pUb volontBricmenlo poatituitB in laic atato, nm

T TiolrntA e per forza tirata e rilenuta, allora rlovrpljbc proi-umrBi,

t Vnno e I'sltro pprictilci della [H'rversione p dpIlB forniunzionc ilu

■'llraMiiDn Ri faressP rimotn, e renperienzB prran da' mini aforii e diMtrnai

^tantitiiii, per rnaforto, ron prutliMiia aei^nrdurle i Sa^ramenti, veduta. la

1 Mil disposiiione, ma non accordare la dinpensa giamroai. {Collectanea,

1. I2<SI.)

"8. C. di- r-rup. Vi.lr. litl. (a.l Vii-. Ap. Tuiik. Oriont.), 'i maii, IS^S;
we CoOeetanea. n. 1273.

174 The New Church Law on Matt

imony.

251. Clement XIII in liis instruction to the Vicar
Apostolic of Oriental Su-tchuen insists that these fat-
uities must be used otily within the territory of thr
grantee. The dispensation can be given only to true
Catholics whose consorts refuse to be baptized, and
only in ease a grave inconvenience would result in
consequence of a separation. They must always be
given gratis, and with an injunction on the Cathob*-
party to educate all tlie children in the true faith and
to strive to bring about the conversion of the infidel.
Both parties must be instructed about the necessity uf
renewing their consent, which, in order to avoid perse-
cutions or scandal, may be done without witnesses, and,
if possible, the inlidel party should be informed of the
nullity of the present marriage.""

252. A grave cause can more easily be found in
contracted marriages tlian in prospective marriages.
It is of more frequent occurrence in missionary places
thaJi in Christian countries. Consequently the dispen-
sation, as a rule, is more readily given in the first two
instances thaJi in the latter two."* It is left to the good
judgment of the dispenser to determine whether the
existing cause is of sufficient gravity to justify thf
granting of the dispensation.

253. The decisions of the Sacred Congregations nf
Propaganda and of the Holy Office will furnish consid-
erable help towards forming an idea of such justif\'ing
causes. If a Catholic and an infidel have contracted
marriage, and have lived sine contumelia Crentoris.
their spiritual welfare is considered a sufficient cause
for the granting of a dispensation, especially if they
have children an<l a separation from the infidel part y is
connected with grave difficulties.'"

'■■ 8, C. B. Off., 12 ian., 1769 ; see Collfotanea. n. 12fi3.
'"GABrARKi. np. cil., n. 610: Cod. Iur. Can., Can, 1061,
"■S. U. S, Off., 15 acpt., 1736; CiiUretanca, n. 1258,

ImpetlimenI of Disparity of Worship.

175

Oasparri, from tlie decisions of the Sacred Congre-
gation of Propaganda, draws the inference tliat the
farulty received by an indult to dispense from the im-
pediment oi" disparity of worship cannot be sub-dele-
gated, ludess so extraordinary a privilege is expressly
coniniunieated by the Holy See."" Tliis statement has
to be somewhat modified. In the new legislation it is
distijietly stated that one who has an ordinary power
of jurisdiction may sui)-delegate a faculty which the
Holy See has granted him hy a special delegation, un-
less such a power is expressly mthdrawTi in the re-

■ seript.'"

■ Dispensation from tliis impediment, though all the
Beotiditions are willingly subscribed tn, should not he

granted with readiness, because experience teaches
that many unforseeii dangers arise threatening the
spiritual welfare of the Catliolie party."" It is for tins
reason that the Church prefers marriages which Cath-
olics contract among themselves even with a dispensed
impediment of aflinity or consanguinity, to those in
which she would her called upon to give a dispensation
from the impediment of which we treat."" Each indi-
vidual case must he examined carefully, so as to avoid
exposing the dispensation to the danger of nullity on
account of the absence of a sufficiently grave cauae,'^"
254. The spiritual danger threatening the Catholic
[party in such marriages is emphasized by the insistence
fwith wliicli the Church urges that the promises be made
Sby the infidel party. These promises must be exacted
|«ven in articulo mortis.'-' In the old legislation, in

■" Op. tit., n. 620.
'■'Cod. luB, Can., Can, IBS.

•"Utt. ,^p, Gregorii PP., XVI, 30 apr., 1841; CoUeehinra, a. H2R.
"•S. (,', 8. Off., 12 iaii,. 1769; Collectanea, n. 12«3.
'••8. C. 8, Off., 15 ftbr., 1780; CoUeelanna. n, 12fl8.
>*-8. C. 8, Off., 18 iDHrt., ntUl; CoUectanfa. n. 2IHH; Acta S. Sriti»,
rol. XXIX, p. «3N.

176

The New Church Law on Maiiimony.

articuio mortis, all the Bishops could dispense (in
favor of contracted marriages) from this impediment
i^sive per se, sive per alios) when recourse to the Holy
See was impossible.'" They enjoyed this special indult
on condition that the required promises were made.'"
De Becker '" interprets this decision in the sense that,
witliout regard to the circmnstanccs brought about by
the threatening death, all the promises must be urged
on both parties. A dispensation, in Ids estimation,
may, however, be granted in articuio mortis, tliough
the infidel party refuses to consent to the conditions,
provided the danger of perversion for the Cathohc
party is removed and the latter gives all the assurances
to abide by the cautlunes. This lenient interpretation
is quite comformable to the spirit of the Church, as
evidenced in the various decrees of the Sacred Congre-
gation,'" and in the new Code.

25S. In accordance with the tenor of the most re-
cent legislation the Ordinaries liave very extensive fac-
ulties urgente mortis periculo. These faculties are
personal; therefore, they may be exercised m behalf
of their subjects, without regard to territory, and in
behalf of all those who actually tarry in their diocese.
They may dispense from the form of marriage and
from all ecclesiastical impediments (excepting the im-
pediment arising from the Holy Priesthood and from
affinity in the direct line provided the marriage was
consummated) whether occult or public, even if they
be multiple. This faculty is granted for the spiritual
welfare of the parties concerned, and, if need be, for
the legitimation of offspring. If this privilege is used
to dispense from the impediment of disparity of wor-

" Decrees of VoUecla,

Impediment of Disparity of Warship.

17'

ship, its use should be preceded by the giving of the
catitiones."' Under the same eiremnstaiu'es, iii ease an
iuiiiiedjate recourse cannot be liad to the Ordinary, a
parish priest, or, when the ease is very urgent, any
priest who happens to be present,'" enjoys the same ex-
tensive power. For the internal forum (in the act of
sacramental confession) tlie confessor may make use
of the same extensive faculty.'^' The priest who has
exereised so extraordinary a power in the external
foriuii must without delay make it known to the Bishop,
and must note it in the marriage register.'""

The wording of the Canon 1043 allows one to infer

that ander the circumstances therein related a fiishop

"■" a priest may not only dispense from the impediment

of disparity of worship, but may also lend his passive

presence to the marriage, notwithstanding the fact that

*"^ cautiones are not given. This extreme leniency of

***« Church should be extended only as the last resort,

" mely, when all efforts made towards prevailing on

parties to give the cautiones prove abortive.

256. A decision of the Holy Office rendered on Sep-

^^^^■nber 16, 1824, in doubtful matrimonial cases sub-

"■^itted by the Bishop of Quebec, discloses the special

^ ^ffieet possessed by a dispensation from the impedi-

"^^-^nt of disparity of worship. The instruction specifies

r**at: The Church in dispensing a Catholic from the

"■ •"^ipediment of disparity of worship with the view of

t*^riiiitting his marriage to an infidel, intends to re-

^^^ove those impediments also from which the infidel is

^3(einpted."" This automatic dispensation from co-ex-

^ itiiig inip('dinient.s was restricted to relative impedi-

Cod. lini. Can., Cnn, 1043.
"Op. Pi*., Can. 1008. n. 2.
•Op. eit., Can. lOM.
•Or. eU., Can. 1046.
■Jrta a. aedu. vol. XXV, p. 5
*>?, eit., a. 310; De Bki ker, op. ei

The New Church Law on Malii

ments and to those only from which the Church dis-
pi-nses. Thus the pxeniptioii was not extended to the
impediments of vow, Holy Orders, affinity or consan-
guinity in the direct line, nor to consanguinity in tlic
first degree of the collateral line. Sinee in the new
Code an empliasis is laid on the faet that both parties
must be competent, and since no such special effect is
attributed to a dispensation from this impediment, it
would seem that the above instruction has been de-
prived of its significance.

257. As we have already stated, this dispensation i?
not given unless all the requisite promises have been
made previously by both the Catholic and the infidel
party who are about to enter into marriage. But it
must be borne in mind that the mere promises do nof
suffice in themselves. The Holy See insists that the
Ordinaries and the pastors of tlie flock have a moral
certainty as to their actual fulfillment '*' and that they
watch vigilantly that the promises be not disre-
garded.'"

Sometimes the infidel party feigns a willingness to
subscribe to these conditions in order to obtain the
necessary dispensation. But it might be discovered
subsequently that he was in bad faith, for, the dispen-
sation having been obtained, he retracts what he pre-
viously promised. If it can be proved that at the time
the promises were made he had no serious intentions
of complying with them, then the dispensation would
be invalid. It' he meant to give the cautlones when the
dispensation was applied for, but subsequently re-
tracted, then canon 41 finds application. The removal
of the impediment and the validity of marriage would
require that, as a conditio sine qtia non, his intention
of keeping tiie caufiones should be I'xpressed at the

Impediment of Dhpnriin of 1

-ship.

time tht' disppiisation is applit'd, wlit'ii, iiaiiifly,
marriagp is solpmnized.

tin;

,>. injunctions Itelntlve to Mixed Marriafics.

258. Tiic Catholie consort is bound by tlir obliga-
I tion of endeavoring hy prudent means to procure the

conversion of the non-Catholic party.'" The legisla-
' tion contained in this canon formerly constituted one
I of the promises to which the Catholic party was ex-
I pected to subscribe expressly, and on which the grant-
ing of the dispensation was conditioned.'"' This obli-
gation does not lose its force by the fact that it is no
longer included in, but separated from the conditions

I explained above. While the Catholic party's readiness
to that effect need not be signified in the petition for
dispensation, the law of charity, receiving a special
aanctioTi and an added force by virtue of the foregoing
ecclesiastical canon, nevertheless continues to oblige
him. The former discipline employed the words "pro
viribtis" to express the effort which the Catholic party
"Was expected to make toward converting the non-
Catholic consort. The new legislation supplants those
terms with the words "prtidenter." By this change
the supreme legislator means to emphasize the circum-
spection and the discretion which nmst be exercised In
order that the Catholic party may succeed in bringing
the dissentient consort to the unity of the faith. A
faithful performance of all conjugal duties is without
doubt the first and one of the most effective means con-
tributing toward the attainment of that end.

259. Though the Church should grant a dispensa-
i. tion from this impediment the contracting parties are

'" op. r«., Cnn. 1062.

"•B. C. 8. Off,, inslr. (ml Archicp. Qiiphep<>ii.). 16 fn-pt., 1S.14; ad 5;
inatr. (ad Ari-hiPp. Corcyrco.), 3 inn., 1871, n. 3; 8. C. de Prop. Fi.lo,
inalr. (nd. Vic Ap. Svwiae), 6 Bi'pt., 1"h5; litl, cm-vi-I., 11 mart,, ISflS.

180

The New Church Lo.

Midi,

nevertheless forbidden to present themselves either
personally or by proxy, whether before or after tln"
marriage, before a non-Catholic minister in order t«
give or renew their consent while he officiates in his
religious capacity.'" The laws of some countries im-
pose an obligation to give or renew one's consent bn-
fore a representative of the state as a cnniUfio sine qua
nnn to tlie gaining of the civil effects of marriage.
Should the magistrate of such places be a non-Catholic
minister, employed for a purely civil function, the par-
ties would not violate tliis ecclesiastical law by making
use of his services.'" They would not be permitted,
however, either to give or renew their consent before
him should his office as a civil functionary and as a
minister of a sect be inseparable, and should he officiate
in both capacities simultaneously, namely, by one and
the same act.

260. If the parish priest is certain that the con-
tracting parties will disregard this law, or that they
have already transgressed it, he should abstain from
witnessing their marriage, uidess a very grave eaase
urges otherwise, and then he must first consult the
Ordinary and remove the scandal.'" Such a very
grave cause would exist in every case where the fear is
present that a civil marriage will be attempted or that
the already attempted invalid marriage will be con-
summated. It is to be noted that in case the marriage
is attempted before the minister of a sect the parties
incur an excommunication latae sententiae reserved to
the Bishop.'" Absolution from this censure must pre-
cede the celebration of such a marriage.

261. Besides the foregoing injunctions directed to

•"Cod. Iub, Can., Can. 1063, (1.

'"Inntr. 8. C. 8. Oflf., 12 dec., 1888, n. 7; in the ntw Col Iff (on cd.
n. 1696.

'"Cod. riitt. Can., C.in. 1063. {2.
'"Op. eit,, Can. 2319, Jl, n. J.

Impediment of Disparity of Worship.

181

he contracting parties the Codex of Piux X iiiculeaten
llso the duties of the Ordinaries and otlier pastors of
EbouIs when it admonishes tliem that they (1) sliould
dissuade the faithful to the best of their ability from
nixed marriages; (2) should exert every effort not to
erniit them to be contracted against the law of God
and of the Church if they are unable to prevent them
lltogether; (3) should watch vigilantly over the faith-
\i[ fulfillment of the cautioner whieh were given in
marriages contracted in their own territory or outside
(4) should be guided in their assistance at such
arriages by the instructions contained in canon
1102.""'

The duties of the Bishop and pastors as out-
ined in the first three points of the foregoing canon
meed no explanation. It is sufficient to note that the
Kpastor will not consent to witness a mixed marriage
KUntil all his efforts to dissuade the Catholic party from
Much a step prove abortive. If the latter remains im-
movable and there is a serious danger that marriage
will be contracted outside the Church, provided the
parties express a willingness to comply at least with
miiiinium requirement's of the law, the pastor should
iTather assist at their marriage than allow tiiem to re-
port to an action which is contrary to the law of God
Jind of the Church, besides being invalid.

Even if the dispensation should be granted the
banns of such marriages are not to be proclaimed in
tthe Church, as has already been explained in connec-
tion with canon 1026."" Should the Ordinary deem it
lexpedient to make such proclamation, no mention
liould be made of the religious sect with whieh the
Jion-Catholic party is affiliated. For the validity of the
issistance at such marriages it is required that no

182 The New Church Law on Matrimony.

extrinsic force or fear should be brought to bear
the pastor in order thus to constrain him to ask a
receive the consent of the contracting parties.**^

264. According to an instruction Pius IX ordain
on November 15, 1858, that such marriages should
place outside and not within the edifice of the chur
(extra ecclesiam), and that all religious rites whats
ever must be barred.**^ As regards the religious rit^^
the new law conforms to the foregoing decree. Sinc?€
we treat here de odiosis the word ^^ecclesia'' must
interpreted strictly, in which case it should not be ap-
plied to the sacristy or to a private chapel. Such is the
meaning of a decision of the Holy Office handed down
on January 17, 1877.^"

265. If from the observance of this law grave evils
are feared, the Ordinary may permit one or the other
of the usual ceremonies, but the celebration of the Mass
must always be excluded.^^* The exclusion of the Mass
contains an indirect prohibition against the imparting
of the solemn nuptial blessing with the usual prayers
found in the Roman Missal, for such a blessing may
not be bestowed outside the Mass.^**

266. Under ordinary circumstances the Church
wants the parish priest to render more than a passive
assistance to such marriages since he must ask and
receive their consent. By passive assistance is meant
the mere presence of the pastor and the witnesses in
order to testify to the consent given by the contracting
parties. The only official act of the pastor would be the
recording of the marriage in the matrimonial register.
Should the obviation of serious evils necessitate it the
Bishop may, by way of exception, permit all the

"' Cod. Tur. Can., Can. 1095, $1, n. 3.

'**Gasparri, op. cit., n. 456; T)e Bbckeb, op. cit., p. 264.

'" Gasparri, op. cit., n. 463.

'**C0D. lUR. Can., Can. 1102, $2.

'"Op. cit., Can. 1101.

hnptdiineni of DisparUi) of W'ii\vhi[i.

183

marriage cereiuonies coutained in the ritual iiicludiiig
the blessing of tho ring and all the prayers, barring
always the celebration of the nnptlal Mass and the
blessing usually iniparte<i in it.

267. It is incumbent on the pastor to validate the
marriage as soon as possible should it be invalid cither
on account of the lack of form or of the presence of
some diriment impediment and separation is not prac-
ticable as is generally the case. The exacting of the
cutomary cautiones ought to be the first step under
such circumstances. Then absohition from the censure
of excommunication tatae sententiae should follow next
if the marriage was attempted not before a civil mag-
istrate but before a heretical minister. This absolution
should lie given in foro externo. Only in ease the at-
tempted marriage is secret and there is no danger of its
becoming publicly known, may the absolution be given
in foro interno. Should the non-Catholie party refuse
the giving of cautiones as long as the Catholic party is
favorably disposed and the former is willing to renew
his consent, the dispensation may still be obtained for
the purpose of convalidating the marriage, especially
if there be some children who stand in need of being
legitimated. If the non-CathoIie party declines both
the giving of cautiones and the renewal of consent, re-
course should be had to sanatin in radice.'"

268, It may happen that tiie C'atholie party entered
into an agreement whereby she intends to permit tlie
non-Catholic education of the future offspring in tlie
way that is found in some countries where the boys
follow the religion of their father and the girls that of
their mother. Consequently, both her defection from
the faith and her readiness to contract outside the
Church are seriously feared. The case may be ren-

"•Qasi-*Bri, op. «(., n. 40S| Db Bmbt, op. clt., u. 257; Wmlnz, op.

184 The New Church Law on Matrimony.

dered more difficult by the aggravating circumstanci
that she vnll neither retract her previous impious
promise nor give the cautiones. In all such cases th<
assistance of the parish priest must be unfalteringl;
denied.*^^ Such instances occasionally do oc<*ur ir" i

prospective marriages between a Catholic and a bap

tized non-Catholic. Because they are of more f requem
occurrence in Germany, Bavaria and some parts ol
Austria and Hungary, a special concession was grante<^r3
to those countries. Though the Ordinaries of thosF^^:3
places cannot dispense from the impediment of mixec:— :^
religion under the circumstances, they may permit th^^*
passive assistance of the priest to w^itness a marriag^^*
which the Catholic party is about to contract in mortatT J
sin."' That such marriages are most reluctantly tol — -

erated by the Church is manifest from their emphatic ^ ^

denunciation contained in the declaration of Benedic*^ -t
XIV, sent to Belgium and Holland."'

269. The question was asked wheth.er this signalT -1
concession is to be restricted to the place for whosr ^
special benefit it was granted. The Holy Office, onr
June 21, 1912, replied: Standum est taxative praece
dentibus S. Sedis ac praesertim s. m. Gregorii PP -

XVI (Lift. app. diei 30 aprilis 1841 ad Episcopos Hun ■

gariae), ad rem concessionibns^^^ Basing their opin

ion on this decision several theologians maintain thai
in similar cases the Bishop may permit such passive
assistance of the parish priest even in places for whichi
the above-mentioned decree was not intended. Bar—

'" Cone. Pirn. Bait. II, n. 338 ; Pi'TZER, op. cit., p. 342.

'" Saretti-Barrett. op. cit., n. 903. q. 10; Gaspafri, op. cit., n. 447:
PUTZER, op. rit., p. 342; Litt. Ap. Pii PP. VTTI, 25 mart., 1830 (ad
Arcliiop. Colonien. et ad Epp. Trniren. Paderbonen. ot Monastorien.) ;
Collectanea, n. 426; Litt. Ap. Gregorii PP. XIV, 30 apr., 1841, acl
Episcopos Hunjjariae; Collectanea, n. 1428; Instruction to the Bavarian
Bishops, on Sept. 12, 1834.

'*• Deolaratio Boned. XIV, 4 nov., 1741; Collectanea, n. 1420.

"* In the American Ecclesiastical RevieWf vol. XLVII, p. 331.

Impediment of Disparity of Wurship.

185

rett '" adduces several good reasons in vindication of
BUch opinion. The decree Ne temere, he argues, pre-
scribes the presence of a priest as a conditio sine qua
non of the validity of the marriage. It is easy to see
how the extension of this eoneession would reduce not
only the number of invalid marriages, but also the
number of those unfortunate Catholics who, owing to
the uncompromising attitude of the Church in this mat-
ter, betake themselves to a non-Catholic minister for
marriage, so that they themselves and their children
become lost to the faith. He quotes Lehinkuhl, Friini-
mer and Gopfert as advocates of the same extensive
interpretation. While the manifold advantages of such
interpretation must be conceded, one should not over-
look the grave danger which such a concession, if uni-
versally applied, would inevitably bring in its wake.^"
Therefore, unless the Church should rule otherwise, all
such instances, occurring in places to which this privi-
lege has not been officially extended, must be referred
to the Bishop. The latter should not consent to the
passive assistance of a priest ^^^tho^t having previ-
ously ronsulted the Holy See, if time permits. If, how-
ever, there is periculum in mora it would seem advis-
able to grant such permission, rather than suffer the
contracting of an invalid marriage, and all the subse-
quent evils and sins resulting from it.'"
6. Ecchsiastical Penalty.

270. Those who attempt to contract marriage be-
fore a non-Catholic minister incur an exconununieation
lalae sentenliae reserved to the Ordinary.'" It does
not matter whether both parties are Catholics or only

'■■8*Bffrn-BABBir[T. toe dt.. q. n.

'"Martin, 8, J., The Nev; Decree on Mixed Uarriof/rs, in the Ameri-
can Ercletiaituyi} SrvifW, vol. XLVII, pp. 477 S.

'•■ flASPAiMii, op. fit., n. 447; Fbije, op. eit.. n. 570; Putzek. op. eit.,
p. 343.

'"Cob. Iub, Can., L'hu. 2319.

186

The Xeiv Church Law on Matrimony.

one of thi'in, as is generally the rule. This ci-usurf is
incurred by all who either before or after mnrriajf
have recourse to a iion- Catholic clergyiiiau with the in-
tention of liaving him witness their consent in liis re-
ligious capacity.'"' Those who contract inarnage with
the implicit or explicit xuiderstandinj!: that one or all
their children shall he educateil outside the Cathttlic
Church, or knowingly permit their cliildren to lie bap-
tized by a non-Catholic clergjinaii, besides incurring a
similar eeiisuri;, are also suspected of heresy."" If the
marriage entered into with such agreement is con-
tracted before the priest, the Catholic incurs an exconi-
munieatiou. The text of this canon is to be interpreted
strictly. Therefore, the Catholic who would attempt
marriage before a non-Catholic clergyman incurs only
one exeomnmnication. He would not incur another
censure because the marriage was attempted with an
explicit or implicit understanding that one or all of the
children should he brought up outside the Church. The
word marriage is to be taken here in its strictly canon-
ical sense, implying a valid contract. In the c«se given
the marriage being invalid, the imderstanding with
which it is attempted does not occasion another cen-
sure. If in such a marriage the consent was given
before a priest and subsequently renewed in presieuee
of a non-Catholic minister, the Catholic party incurs a
double excommunication.'" The priest applying to the
Bishop for the necessary faculties should not fail tif
make knott-n these facts. One absolution, after the fac-
ulties have been granted, will suffice to remove both
censures. If a person, suspected of heresy on acrouTit
of the agreement whose nature is explained above,
fails to amend or remove the cause of suspicion within

'"Op. cit., Cnn. 10B3, (1.

"•Op. cit.. Cnn. 2^19. Jl, rni. 2-4.

'"Cod. Tuh. Can., Cnn. 23<i.

Impediment of Disparity of Worship.

187

SIX iiKiiitliK from tlif time the censure was incurred, he

'8 to be classed as a real lieretic and is liable to all the

P^'lialties imposed oii such.'^* Any one presuming to

'■ontract a mixed marriage, whether validly or in-

*'alidly. without the necessary dispensation of the

^^'iioreh, is excluded from al! legiiimnle ecclesiastical

**^ifi, and from the sacramentals until a dispensation

"*s been obtained from the Ordinary."'* Such persons

^'■e Hot permitted to exercise the functions of adminis-

'rator in ecclesiastical goods. They are barred from

e-tx*! csiaatical trials and forbidden to act as judges,

Auditors, promoters of justice or of faith, defensores

|fi»icu/i. notaries, chancelhtrs or prosecutors. They can-
'*<»t be accepted as sponsors at baptism or confirmation,
lor may they vote in Kcdesiastieal trials, or exercise
"*<* right of patronage [ins patronatus).'""
7. Civil Legislation.
271. The impediment of disparity of worship and
5'*i«M of mixed religion in its strictly canonical form
*'^^"V'(- been eliminated from the statutes of the Civil
*— «i«j(.s. The Code of Napoleon ignores it entirely.'"
*^*-** imperial enactment issued on February 6, 1875, sup-
^,^_*~»*ssed it in (iermany."" In Hungary it met with a
!**jilar fate through a recent legislative measure. The
■"V-il laws of Austria <lo not admit the validity of mar-
<*.ge between one professing tlie Christian religion and
^*» infidel. Thus the impediment is invested with a dis-
\.''-**-ted form, becoming inherent in the profession of
"■ith, and not in the baptismal character.'" Such a

*• Op. «*(.. Can. 231S.
*-0^ eit.. Can, 2319, JI, no. 2 4.

••Op. Ht., Cnn, 2258, «. 2; IIdlwh-k. I>ie tin-hUrhm HlrofgetrUi;
ISO, i'iV. D. 3, MHinz, JSRfl.

** D* Smw. op. «(.. n. E92.

**Alca»(KB. Covp. Jar. ffw„ ^172, note 4, Briiinae, 1S87.

•"OSJOLAK. io Ihf f'nmint <f Mangnot DictuinnaiTe du Tbeot. Ciilh.,
i-t, bitpanU df CuKi-, col, 1427.

I8S The Xeii: Church Laiv on Matrimonii.

civil enactment cannot fail to favor apostasy, for, pro-
vided one declares himself confenntondos, by this very
fact a way is opeii to him to marry an infidel ; while, on
the other hand, a civil impediment of disparity of wor-
ship arises between a person once baptized hut subse-
quently confessing infidelity, and a Catholic. This im-
pediment is singularly characterized by Wernz '" as s
the Austrian impediment of disparity of worship. The se
present Austrian legislation still upholds the impedi- —
ment of Holy Orders, and of solemn religious profes- —

sion, but it divests the impediment of disparity of wor-

ship of its canonical form. It legitimatizes two forms .^as
of marriage, namely, a canonical and a civil form. It zM" It
opens the way to apostasy by enforcing the former only "•^7

on those who profess tlie Catholic faith. The mere re ^^r

nunciation of faitli is sufficient to make one competent .:^*-it
to be married according to the civil form.'"

-r^rVJB

V. Impediment of Holy Orders.
(Canon 1072.)

272, The impediment of Holy Orders is a circum-
stance bringing with it an inability disqualifying a^ '
cleric constituted in Sacred Orders from contracting ^ "S '
valid marriage,'" or from continuing its licit use shoul(E> J-«3li
the matrimonial bond have been contracted before his i-rMu;
ordination m tlie Western Church. Among the majoi*:* fioi
orders are to be enumerated; The Episcopate, th»«"f^(
Priesthood, the Diaconate, and tlie Subdiaeonate. Som»«"«""«ne
rites of the Oriental Church class the subdiaconat*^ .«tfl
among the minor orders.""

273. The impediment of Holy Orders was founde»-^» prf

'■' Op. rit.. n. 513.

■"HrascHEi.. in the Arekiv fir katkolitcht* Kirdunreeht. vol, XXXS^^-Y,
pp. 2S2 ff.; De Smet, op. tit., n. 292; Oasparri, op. eit., n. 624.
-Cod. Iub, Can., Can. 107S,
'■Cone. ProB. Alba lul. (1872), p. 88, 90, 142; fiynndu* Sriar_ — ^/.

H (\»9»). i>. 141. mii ff. I

Impediment of Uoli/ Order:::.

189

Ion custom wliieh, by specific legislation, liocaiiic a nni-
Fversal law of the Church. This custom was probably
based on the words of St, Paul: "He that is without a
wife is solicitous for the things that belong to the Lord,
how he may please God, but he that is with a wife is
solicitous for the things of the world, how he may
please liis wife, and he is divided." "° This scriptural
quotation, to which others could be added,'"" furnishes
an argument in favor of the state of celibacy which is
better suited than that of matrimony to one whose life-
task, by virtue of a free choice, is to consist of a special
endeavor to promote his own and his fellowmrn's spir-
itual welfare.

For a fuller history and development of this im-
pediment the reader is referred to other sources."" It
will suffice to note here that from the earliest ages both
the Oriental and the f)ceidental Church forbade mar-
riage to clerics who as celibate were promoted to the
priesthood or even to the diaconate.'"

274. The law of Kmperor Justinian prohibiting
marriage to clerics was subsequently adopted by the
Oriental Church at the Synod of Trullo (692) whose
sixth canon legislates that no priest or deacon or sub-
deacon after his promotion to Holy Orders may con-
O^act marriage.'" The penalty of deposition was meted
but against those who transgressed this law. Tiiis

- r Cor. VIII, 32 and 33.
-top, eit.. VII, 8.

'• Vacandabd, in the Diet. Hi- Thfolonie, «. v. rfUlmt: Phii.llpb, in
c Sirehfniexiknn. ». v. Colibat ; Zaccabia, Storia Foleniiai del Celibalo
) (Pulittno, 1785); Paw, 1)w CSlitial BefUtiattiqite (Paria, 1S52) :
HAItBT. Le Cilihat Eccliaiattique (Parii, 1901) ; KobxovAny, Cnelibatui
( Breviaritim (Pmth, ISei-lSOO) ; Laobin. Der Colibat drr GrwUirhfn
Wnfrh mnonurhra Kerhte (Wipn. IBSO) ; Wkknz, Itu Decretaiium, vnl.
n, n. 295 a., and vol. IV, n. 3SI B.; Esmein. Le Marriafie m Droit
Gamtnigue, vol. I, p. 282 ff. {Paria, 1891); Mtlascr, Das Kirehenrecht
der Uorgenldndiarhen Kirche (Moatsr, 1905).
"' WER.vr, op. eit., n. 391.

'" Oaspabbi. np. n>'(. n. 591; Santi-Lbitneb, op, eit., lib. IV, til, VI,
, 5: Vlatax, op. eit., n. 391.

190 The New Church Law on Matrimony.

penalty was not only sanctioned hut even enhance^^j-
when ail excommunication latae sententiiie was addpir^^l
to it by Benedict XIV in his constitution issued for tlif=3^^
Italo-Greeks."* The same decree ordains that all mar — " —
riages contracted ai'ter the reception of jtriesthood. ut*^ ^
deaoonship or of suVxieaconship are null and void — •--
Similar is the discipline of thi- Maronites, if one ex — — —
empts the sulniiaconate wliich they do not regard as a^^^t*
major order.'"' The same prohibition under the samt' —»•-■*
penalty is emphasized by the Ruthenian S;^lod, but tlierE^»*-^
law confines itself to the priesthood, disregarding th(--_J»-*-'
orders preceding it.'" The Provincial Synod of the^^'^'^
Roumanians by special legislation declares null an(t-^"^
void all marriages contracted by clerics already iit -•-^
major Orders.'" The Synod of Scharfa in 1888 legis- -^^ — '-•'-'
lating for the Syrians and the Synod of Alexandria iir .^^^^^
18!)8 for the C'opts approached the present discipline-:^ -=- — -^
of the (Iccidental Church when they decreed that alC .tTlJ
canilidates tor higher Orders should be celibate. ^

275. This lack of uniformity in the Oriental Churel-:^-=^
is owing to the fact that the Holy See has failed tn:^ " — -^

legislate specifically, universally and uniformly for aV M^ '

its rites, and in the absence of such legislation a con- M^^^^
troversy arose as regards the validity of marriages ^^=*
contracted by deacons and subdeacons. This questiorMZ^^^zj
finds its practical application in case a schismatic clrri» -^-'
in major Orders, who marries after his promotioTi t» -^^*^
subdeacoTiship, deaconship or priesthood, wishes to be— -^ '
come a convert. In practice one should be guided b;^ * -*
the instruction of Benedict XIV''' which the Secret^ ""^^"^^

,. XI. i^. -«

n. 9.

"' Sgnodux Zamoieemig, lit, III, 48. _ — -,

"' Sviarhu Provincialia pro RumtnU (188.1), iirt, XI, seel. I, cap It^ " *

52.

'"ConM. "Annn IVrfriifr." $12, 19 iun., 1750; ComU •[£

tempore," 4 maii, 1T4S.

Impediment of Holy Orders.

191

Congregation nf PropHgamla ropcatedly approved in
its deeisions.

276. If a elprio of the Oriental rite whili- in major
L Orders wishes to contract marriage, he should ask for
I a dispensation. This the Holy See does not always
» deiiy.''" If the validity or the invalidity of a marriage

already eontracted is questioned the Holy See should
be consulted in eaeh individual ease.

277. The law of the Western Church, forbidding
I marriage to clerics in major Orders does not present
[the same vagueness.'" While up to tlie eleventh cen-
tury there might have been a doubt as to its intrinsic
force, this doubt gradually l>egan to disappear after the
Roman Sjiiod (1049) held under Leo IX. It remained
for the First Lateran Council (1123) to pronounce
invalid marriages of high ecclesiastics who had re-
ceived subdeaeonship."" This law was subsequently
more dearly defined by tlie Second and the Fourth
Lateran Council, and was again accentuated by the
Council of Trent.'*'

278. Benedict XIV decreed that neither celibacy nor
the duty to recite the Breviary can be imposed on a
cleric wlio was promoted to Holy Orders before he
reached the age of puberty, uidess after that age he
either expressly or tacitly embraced the obligations at-
tached to the Order he received.'"" He is not quite so
indulgent toward the cleric who was constrained either
by force or by grave fear to receive major Orders.'"^
There was ground for controversy whethei under such
conditions the ordination was conferred validly or not.

«*(., n. 594.
I, 2, X, qui eleriri vel voventei mat
:. 1, 4, X, de eltrkif eoniagalis. 111,
( «t affinitate, TV, in Clem.

"THURfiTON, ill till' Cathiilir Kneyclopedia, art.. VeUiai-y.

•'&f»a. XXIV, He taerem. natrim.. ca.n. IX.

■ (.'onsl. "Ko quumvit tempurc." 4 niaii, 1745, (2.1 aq.

" Loc. cil., (21; and De Sgnodo Ifiorccsana, lib. .XII, cap, IV,

192

The Neiv Church Law on Mairimony.

The validity of the ordination being questioned, the
arising obligation was also donbtt'ul.

279. The new law ordains that a cleric promoted to
Holy Orders under coercion, owing to grave fear, may
be reduced to the state of the laity by the sentence of a
competent judge, provided the coercion is proved and
it is likewise manifest that he never acquiesced in his
ordination, not even tacitly by exercising the rights the
Order bestows and intending thereby to submit to the
obligation. In possession of such evidence the cleric
in question is freed from the obligation of celibacy and
of the recitation of canonical hours.'"* Notwitlistand-
ing this definite legislation it would seem that if a
cleric ordained under coercion should contract mar-
riage while the sentence was pending, the validity of
such a marriage should be upheld on the principle that
in duhiu Htandum eat pro valore vmlrimonii.'*''

280. The coercion and the subsequent lack of aequi-
escence in the ordination must be proved by a juridical
process clearly defined in the law.'" In cases in which
tlie obligations contracted by ordination are impugned,
or in which the validity of the ordination is challenged,
a libellus must be sent to the Sacred Congregation of
the Sacraments, or to the Holy Office should the ordi-
nation be questioned on account of a substantial defect
in the sacred rite. This preliminary step liaving been
taken tlie Sacred Congregation will decide whether
the cause is to be treated by a judicial process, or by
way of a disciplinary measure. Should the decision
favor the former course the Sacred Congregation will
entrust the cause to the tribunal of the diocese to
which the cleric belonged at the time of his ordinntion.

"•Cod, Iur. Can., Can. 214.

■"Op. oU., Can. 1014; 8UA.R.BX, De virt. «l i
1, 9, cap. XVII n. 11; Balucrini, Op. theol
CHBZ. op. eit.. lib. VII, diap. XXVII, a. 0.

'-Cop, Iur. Can,, Can. 1993.

Impediment of Holy Orders.

193

f^hould the ordination be impugned on aceount of a
substantial defei-t in the sacred rite, the ease will be
I'oinuiitted to the eare of the diocese in whicli the ordi-
nation took place. Should the decision favor a re-
course to the disciplinary measure the Sacred Con-
gT«'gation itself will settle the question after the com-
P«-tent tribunal of the Curia instituted the proper
JiroecKS ill order to place itself in possession of all the
ncH-pssary information. The validity of the ordination
'nay l>e impugned either by the elerie himself or by the
*^'r«]iuary to whose diocese he belongs or in whose
Jioeese he was ordained. The absolution from the ob-
'igations attached to the clerical state must he asked
">' the ecclesiastic himself.'" The defensor of the bond
^''ising from Saered Orders enjoys tlie same rights
^•^d. has the same duties as the defensor vinctili matri-
'^'oniaiis,'" Even if tlie action was instituted only
*^«inst the obligations imposed by Saered Orders and
'**it against the validity of the ordination, the cleric
'**' cautelarn is to be barred from the exercise of the
*t-<Jer."' Freedom from such obligations is not to be
'^'"^Kumed until two judicial sentences agreeing in tlie
■'*-»iii.' decision have been handed downi by the conipe-
^""Ht ecclesiastical court.'"

281. This impediment is of ecclesiastical origin;

*>C'refore it is in the power of the Cliurch to dispense

■~«jm it. Gioviiie '•' enumerates several cases in which

-j^^'h a dispensation was actually granted by Benedict

-^, Pins VII, and other Pontiffs, in behalf of ecelesi-

E^tica below the Episcopate. The contrai-y opinion of
t. AJphonsus. holding that the Cliurch cannot lift tlie
:

"Op. rit.. Can. 1998.

-Op. eit.. i245; litt. encvcl. S. C. 8. Off.,

Ji„ Cui. 1043.

:0 fehr., 1888; Co». lUK.

194

The Neiv Church Law on Matrimony.

iinpedinieiit arising from tbe Ordsr of tlio Holy Priesi-
hood, must be rejected as untenable.'" While strictly
speaking th« Church could dispeuse even in the case of
a Bishop, history does not show that it has ever exer-
cised such a right either in the Oriental or in the Occi-
dental Church.'"

282. The present law disqualifies a cleric consti-
tuted in major Orders from contracting a valid mar-
riage, and imposes on him the obligation to observe
chastity.'" This inability to contract marriage validly
does not cease even if the cleric as the consenueiice of
a crime be penalized by a permanent irregularity, or
suspension, or deposition, or even degradation. The
impediment of Holy Orders retains its force even if
such an ecclesiastic should be reduced to the state of a
layman,""* and subsequently should become a heretic or
a schismatic or an apostate. Clerics attempting mar-
riage, even if it be only a civil ceremony, incur an ex-
communication lafae senientiae simply reserved to tlie
Holy See. If after due admonition they continue in
their obstinacy, they are to be degraded, and ipso h
all their offices become vacant.'"

^j«

VI. The Impediment of Religious Profession.
(Canon 1073.)
283. No marriage can he contracted validly by a
religious wlio embraced solemn vows or such simple
vows as have the effect of nullifying marriage by virtue
of a superadded force communicated to them through
a special decree of the Holy See."" These solenm vows

"*C0D. lUB, Can., Can. 132,
"^Op. cit., Cbh. 213, }2.
■" Op. eU., Can, 188, n. 5 ; Can.
'" Op ciX., Can. 1073.

Impediment of Religious Profession. 195

[ ■re chastity, poverty and obcdieiifle. It is only the first
lof the throe that has a direct bearing on the question
'm<i(?r consideration.

The vow of eliaetity finds its justification in the
^Hcred Scripture. The example and the counsel of the
"oander of Christianity served as incentives for the
^Hristians living even in the time of the Apostles, to
**iiid themselves by a vow of chastity.'"' The words of
'^t, Paul not only approved such a resolution but even
''Xtolled it.'" It was therefore nothing surprising that
^.■B early as the third century history recorded two

Passes of individuals who publicly pledged themselves
observe a vow of chastity."" These were called vir-
n^s vetafae and virgines non velatae."" Tortullian ""-
[■ntions also a third class, namely, virgins who took a
cret vow of virginity.
284. AVTiile the breaking of a vow entailed severe
^ecclesiastical penalties, it is a controverted point
"\*hether even before the First Lateran Council it pos-
*«essed a imiversal force invalidating all marriages.
There can be no doubt that by virtue of particular law
•^nforced in certain localities the vow did produce such
an eflfect even as early as the beginning of the seventh
rentury.'"* A universal law drawn at the First Lateran
Council (1123) declares all marriages contracted by
men belonging to a religious order null and void."* and
^Lthe Second Lateran Council (1139) makes a similar
^Kdecla ration as regards the religious communities of
^^ VfHmpn."" After the distinction between the simple

'•Malt. XVI, 24; XIX, n and 12.
'■r. Cot. VII. 7, 8, 25 IT.

** VatWEmscH, in the Cathnlie Encydnpr-dia, an., Frofra»wn. Ec-

■■ Thomas BiK ITS, p, I, lib. Ill, p. 42.
** De veloKd. virginibiu, cap. XIV.

■-Cop. XIV, Cone. Pari*. (615); tap. U unJ HI, C.Jfic. R.,m. (721);
tp. Vfll. Cnne. Trnnl. (909).
-Can. VIII, <iiBt. X.XVIl.
■C. 40, C. XXVII, q. 1.

196

The S'eiv Church Law on Malr'tmomj.

and tlip solenm vow eam« into t^xistence, around Ihe
time of Gratian, the solemn vow was generally asRO-
ciated with thp religious professed in an order. This
gave rise to a doubt as regards the force of a simple
vow. Solution was offered by the decree of Boniface
VTII who endowed with a force nullifying marriage
only those vows which were taken solemnly in the re-
ception of Sacred Orders, or in the profession, whether
express or tacit, made in a religious community, pos-
sessing the approbation of the Holy See."""

Tlie foregoing decree of Pope Boniface was subse-
quently emphasized by the Council of Trent which
anathemizes those who maintain that a cleric in Sacred
Orders or one who has taken a solemn vow of chastity
may contract marriage validly.^"'

285. The new law while legislating profusely for
religious congregations introduced no fundamental
change in this respect. The determination whether a
vow is solemn or simple depends entirely upon its
recognition as such by the Church."" In cimerete cases
the juridical recognition presupposes that the Church
has permitted a certain religious institute to bind its
members by solemn vows, and that all the conditions
required for the validity of such vows have been
verified.-"" Therefore the solemnity of a vow is deter-
mined by its effects rather than by the externa! rite
which is the means of its administration.

286. The solemn vow may affect marriage in two
ways, namely, by nullifying it, should it be attempted
after the vow has been taken, or by dissolving it, should
the vow be taken after a non-consummated marriage.""

"C. un. rif votn el vnli rfdvmiitu'iu; III,

-Spga, XXIV, De lacram. AfatHp,., pan. IX.

"Cod. Inn. Can.. Can. 1308, ^2.

■PAPr, Religiovt Frofeuhn, p. (New York, 1BI8).

"Cod. luR. Can.. Can. 1110.

Impediment of Religious Profession.

197

287. Tlie simple vow is only an impedient impedi-
ment to marriage unless taken by the SeholastieB of the
Society of Jesus, in whipli case by virtue of special
ItKisIation it constitutes a diriment impediment.'"
Some maintain that a simple vow of chastity taken Ity
a woman consenting to her liusband's promotion to the
Priesthood, has also the effect of dissolving marriage,
regardless of whether she should contract it before or
after the death of her former consort, if he was actu-
ally ordained."'' The opinion permitting a valid mar-
riage after the consort's death is, however, more prob-
able. Since all agree that such a marriage would be
illicit a dispensation should be obtained from the Holy
See from the taken vow. Should the marriage be con-
tracted without such a dispensation, unless the Holy
See declares otherwise, its validity must be upheld."*

288, It must be borne in mind that only the solemn
religious vows possess the effect explained above,
namely, when taken and administered in conformity
with the new law. The conditions of validity are
clearly specified:'" (1) The candidate must have the
required age, namely, the age of twenty-one years for
a perpetual profession, be it solemn or simple;"^ (2)
Admission to the profession must be given by the law-
ful superior according to the constitution; (3) The
profession must be preceded by a valid novitiate;"'
(4) It should not be the result of coercion, fear or
fraud; (5) It must be explicit and administered by the

"' QlunoBIITS XIII, conn). ''AtceKdenU Domino." 25 muii. 15S4, $22.

*"8*NTi-IjBITXEa, til, VI, De voto, a. 8; Sanchee, Vll, disp. 40;

BlNEDtr^. XIV, De Sj/nodo Dioecaana, lib. XIII, cap. XII, n, 16; see

alsu Dk Bni'KEK, op. cit., p. 1S2; 8chmai.zor.Obex, ad tit, gut cleriei vet

^ivmtfji. D, (17; Db Smkt, op. rit., ii. 2S4, note; r. 10, X, df eanrer-

e eoniugvm, III, 3S.

Wk&kz, Dp, cit., n, aau ; Gahpabrj. up. riJ., n, 5T6.
Cob. Iub, Can,, (.'nn. 5T2,

'" Op. ,

'•St* (

2 nnil 5

; nf th.' new Co<le.

The New Church Law on Matrimony.

legitimate Superior or his delegate: (6) It must '^'= — ^
preceded by a temporary and simple profession."^

The impediment of religious profession is of eeelesi — _—
astif'al origin, for the efficacy of the vows, whether^KX"
simple or solemn, is dependent entirely on the legisla— _*.—
tinn of the Church. This doctrine is contained in the:^^^^
abovf-quoted decree of Boniface VIII, and praftieall>^"^~^
all leading canonists admit that the Holy Hee may dla- -^^-
pense from a solemn vow; a fortiori from a simpl^^-^ ■^
vow.'" Such dispensation has actually been mi iiiili i ^ * 1
on several occasions. The best known instance is pei — -^ -■
haps the indnlt of Pius VII, who at the beginning o -^c^mJ
the nineteenth century ^'sanavit in radice muitarur^ ^ j
monialium et tnonachorum sacrilega matrimonia." '"

289. In urgent danger of death the Bishops and th^^^^H<
priests, as already explained, have the power to di; ^-^— ts
pense even from a solemn vow, provided it is dptnt-hp .^ ri

from the Priesthood."" Outside such danger only tli ^e

Roman Pontiff may dispense, unless the Ordinary ei^^^^-
joys a special indult. A very grave cause involviii^E=::^g
individual or public welfare is usually required f' ^^r
such a dispensation."'

290. The Clementimie record an excommunicati(^-^^;*n
fulminated against those men and women of religio^^»-^s
conmmnities who attempt marriage notwithstandii^r^^^g
the fact that they are solemnly professed."* Pius EI^ ^^
reserved this excommunication latae sententiae to t^^^"iP
Ordinaries,"' and the Codex of Pius X qualifies it -^^ s
excommunicatio simplicHer reservata Sedi Apc:^^ -*-

■" Op. cit.. Can. 374.

°"St, ALPao.vaus, op. cil., vol. Ill, n. 256; Oiovine, op. cit., $2.^
n. 2: Ht. Thomas, 4., Sent., rtiat. XXXVIII, q. 1, ad 3; WeenS!, op. t

381 ; Db Bec^kbb, op. Cit., p. 162.

" Oaspahxi, op. eit., n. 567.

"Cod. Iub, Can., Can. 1043; see this work, n. 151 ff.

" Qaspaihu, op. HI., n. 508; Wernk, op. eit., n. 381.

■C. un. de einuanguimtale et alJinifate. TV, in Clem.

"Coimf. -ApniilnlU-ae Sfdix." 12 (id., ISBH. t"!, n. I.

Impediment of AhdvcUon.

199

Violicae.^^* To the Bishop is reserved only tlie exeom-

Imunication latae sentenliae incurred in consequence of

I a marriage attempted by those who took perpetual

I simple vows in a religious coninumity."" Besides this

' exconmiunication such religious bound by solemn or

simple vows, whether perpetual or temporary, incur

irregularity, which is communicated to the other party

attempting to contract marriage with them."'

VII. The Impediment of Ahdiictinn.
(Canon 1074.)

291. Abduction considered as a matrimonial im-
pediment consists in a criminal act whereby one vio-
lently and with a matrimonial intent detains a woman
in a place where she lives or to which she repairs of her
own volition; or whereby ivith the same intent one vio-
lently carries her away from a safe place where she is
free to a morally different place where she is subject
to the direct or indirect control of the abductor until
she consents to marry him. The authors generally dis-
tinguish between raptus seductionis and raptus vio-
lenliae. The former is abduction by seduction, popu-
larly styled elopement. The latter implies violence em-
ployed by the captor in order to accomplish his end-
Abduction by seduction does not give rise to a diri-
ment impediment, for it presupposes that the woman
signified her willingness both to the flight and to the
marriage, regardless of the fact whether her consent
was spontaneous or the result of flattery, allurement or
cajolery. In this case should the woman bo under age
an injustice is offered to the non-eonaenting parents or
guardians, but the Tridentine decree on which tliis law

•"tVJD. liiR. Cax., Can. 2388.
■■ op. cil., Can. 2388, J2.

200 The New Church Law on Matrimony.

i£ based does not take their will into consideration, its
purpose ia merely to safeguard the freedom of tlie
woman in the choice of her consort. This fri'edom
about which the Church is so solicitous is threati-neil
only in the ease of detention or abduction by violence;
hence, either of those acts would induce the impedi-
ment.

292. The impediment of abduction would arise In
any of the following cases : ( 1 ) When a woman is seized
against her will and transferred into another plao'.
not secure, without consenting to a marriage to which
the abductor endeavors to coerce her, and for that rea-
son detains lier by force physical or moral (fear or
fraud being equivalent to force); (2) When a woman
yielding to fraud or enticement consents to repair to
another place, but with another intention than matri-
mony, and in that place she is subsequently detained by
the abductor who uses physical or moral coercion to
force her into marrying him; (3) When a "woman al-
ready espoused to the abductor, is carried away vio-
lently to a place unsafe for her, and objecting both to
the abduction and to the marriage is detained there
until she consents.

293. The perusal of a few historical facts will suffice
to acquaint the reader with the development of this
impediment. Some maintain that even the untutored
tribes stigmatized abduction as something dishonor-
able, and for that reason inaugurated the custom of
paying for the woman they wished to marry."' Though
this statement may be impugned it is certain that the
Jewish law did not favor marriages between the ab-
ductor and the abducted.'"' Rock maintains that the
old Roman law {Itts Vehis) permitted the soleraniza-

" Wern:!, np. rit.. n. 278.

"nrul. X.XII. 25 ff.; c. 8, S, C. XXXVI,
Archeolog., p. 643 ff.

Impediment of Abduction.

201

"tion of marriage between the raptor and the rnpta."''
CoTistantuie the Great forbade such marriaKes and
■•Tustinian decreed a capital punishment against those
■who perpetrated the crime of raptufi."" Owing, on the
one hand, to the ample provisions made by the Roman
law to punish the crime of abduction and, on the other
hand, to its infrequency among the early Christians,
the Church was not constrained in the first three cen-
turies to legislate on this point."' In the fifth century
the Council of Chalcedon (451) in canon 27 anathe-
matized tliose who resorted to ahduction in ordfr to
procure a wife, and degraded them if they were clerics.
Leo \'T contented himself with approving the former
laws in all their rigor, while the old Spanish law in-
flicted a capital punishment on the abductor who also
ravished the woman. In the ninth century abduction
was associated with a kind of impedient impediment "-
perpetual by its nature."" The law of Innocent III '"
favored the wife-captors inasnmch as it permitted them
to contract marriage mth the rapta even while she was
still in their power, provided she consented.^*' One
eonunendable feature of this law was that the consent
was not to be presumed, it had to be proved. The
Innocentian law divested the impediment of abduction
of its identity by making it practically indistinguish-
able from the impediment of vis et metus.

294. An important change in the history of this im-
pediment was inaugurated by the Tridentine law The
Fathers convened at the Council of Trent, seeking a

"•In the Calkolir Earyrloprdia, art., Jbducftnn.

■•I.. 1, Cod. Theod. de roptu virg. IX, 24; L. on. Cnd. di- mplu viro..
IX, 13.

"'8t. Basil., Eputot. canon, secund, ail Amiiliiloi-h.. v. XXU and
XXX.

"C. 4. 10, 11, C. XXXVT, q. 2.

"" D« Betkex. op. «(., p. 88.

•"<'. 7, X. <ir TaptoTibtm. V, 17.
Bi(., n. 539.

202

The New Church Law on Malriinony.

remedy for the eWls resulting from the frequency with
wliioh the crime of abduction was committpd suggpsted
that tiie impediment be made diriment. The result was
tlie following decree as incorporated in the official acts:
Between the raptor and tlie rapta no marriage can take
place as long as the latter is under the control of the
former. Should the abducted, after having been sepa-
rated from the abductor and conducted to a safe and
free place, consent to take the raptor for her husband,
he may marry her; nevertheless, the raptor with all
his counsellors, abettors and accomplices becomes by
law excommunicated, declared forever infamous and
incapable of acquiring any dignities, and, should tliey
be clerics, they are to be deposed. The raptor is fur-
thermore obliged, whether he marries the rapta or not,
to invest her with a decent dowry whose amount is left
to the decision of the judge.'"

295. The foregoing discipline, in its substance, re-
ceives the official recognition of the Church by being
promulgated in the Codex of Pius X. The canon em-
bodying the new law reads: There can be no marriage
between the man who is a raptor and a woman ab-
ducted with matrimonial intent, as long as she remains
in the power of the abductor."' Should the rapta be
separated from the raptor and eondiicted to a safe and
free place the impediment ceases, provided she con-
sents to have him for her husband.^" As regards the
nullity of marriage the violent detention of a woman
is to be regarded equivalent to abduction, when.
namely, a man violently detains a woman with matri-
monial intent in a place where she tarries or to which
she repairs of her own free will."*

""Seaa. XXrV, De refnrm,. miifHin., cap. VT,
"Con. lUB. Gam., Can. 107*, }J.
"■ Op. nX.. Inc. fit., (2.

Impediment of Abduction.

203

6. The following pages will be devoted to the
elucidation of the foregoing law.

1. Abduotion in the former discipline had to be coni-
fc)ineU with violence, namely, the woman had to be traiis-
-•Vrred reluctantly from a place in which alie was free
"•o another place controlled by the raptor either directly
■«»r indirectly. It was immaterial whether the abduction

'Was accomplished by the principal or by his agent.

I The impediment did not arise unless the removal from
a place « quo to a morally different place ad quern was
realized in every case."" Tlie impediment was induced
even if the woman in question consented to the flight
but not to the marriage,"' but not so when she acqui-
esced in botli/" Even moral force sufficed to give rise
to this impediment, for threats, grave fear or fraud
were equivalent to physical force. It was a contro-
verted question whether the impediment arose in con-
sequence of M'liat used to be called an act of sequestra-
tion, namely, when the woman went to a certain place
11 of her on-n volition and aubsequeutly violence was
I^L Used to coerce her to marriage. Much of the doubt that
^■formerly existed disappears owing to the definiteness
^piHth which the new law legislates on this point. Ac-
cording to the present discipline the change of locality
Ik only one of the causes giving rime to tlii.s impedi-
*n<*nt, the other cause is a violent detention with matri-
Hionial intent regardless of the place where the woman
is detained, even if it should be her own home.

2. Any woman, wliatever her character, even one's
own betrothed may be the occasion of the impe<liment
of alKluction, if the other conditions are verified. The
impediment is not contracted should a woman abduct

^Ls man, but she would incur the same penalties as the

8. C, C„ Brrbiiiolm.. 24 ajir., 1858; 1
B, C r., Olomurm.. 14 mart., 1772.
8. C. v., Medi/ilanin., 24 aiig., Hi(il.

204

The Nejv Church Lair on Matrimony.

abductor if she should participate in his erinie as an
abettor or a procnrator. A public woman wlif-n ali-
dueted is presumed i^olens explendae Ubidinis causa,
therefore, her unwillingness is to be proved.*"

3. Removal from one place to another t'omierly eon-
stituted a condito sine qua non of the impediment of
abduction. The present discipline has been eoiisider-
ably simplified by the fact that the law lays main stress
not on tiie change of locality but rather on the fact of
violent detention witli matrimonial intent.

4. Matrimonial intent nmst enter into the alKiuction
in order that an impt^diment may be contracted. Should
the crime be perpetrated for another purpose as, for
instance, robbery, gratification of lust, revenge, etc.,
the impediment would not arise. In doubt the matri-
monial intent is always presumed. In the former dis-
cipline the initial motive (whicli was difficult to prove)
of abduction had to be marriage. In the new discipline
the initial motive, whatever its nature, is not a decisive
factor, for the impediment is contracted by virtue of
a mere act whereby a woman is detained by force pro-
vided the final motive is marriage. This wise change
was suggested by the difficulty encountered in impugn-
ing the statement of an abductor who in his endeavor
to liberate himself from the incurred penalty would
make the assertion that his initial purpose in commit-
ting the crime was not marriage.

297. The impediment arises between the raptor and
the rapta. The abettor or the procurator would incur
the penalty but would not contract the impediment, un-
less after he abducted the woman for someone else he
would detain her by force and coerce her to marry him
instead of the principal agent,

Since the impediment is of ecclesiastical origin it
does not bind infidels (provided neither vis nor metvs

"■Gasparri, op. fit,, a, 547.

Impediment of Abduction.

205

is present) unless the civil law conforms to the Church
laM\ It does, however, regard all marriages m which
at least one of the parties, the man or the woman, is
baptized.

298, The Church very seldom dispenses from this
impediment, not only because the presumption is in
favor of coercion hut also because by setting the
woman free the marriage can be contracted without a
dispensation.'" With so deep a detestation does the
Churdi regard this crime that even dispensations from
other impediments she conditions on the clause: "Pro-
vided the woman was not abducted for that {namely,
matrimonial) purpose,""" Should the impediment of
consanguinity exist between the raptor and the rnptn

dispensation conditioned on such a clause would fail
remove it though subsequently to the abduction the
Oman was in toco tnto cnnstUiitn. The faculties is-
;ed on February 20, 188S, conferring the power to
ispense from public impediments in urgent danger of
leath, include the faculty to dispense from the impedi-
lent of abduction. The new law bestows on the
ishops and priests the same power by virtue of canon
1043.="

299. The penalty specified by the Tridentine law is
somewhat modified by the new legislation. The new
law omits all mention of dowry. One may therefore
iegitimately conclude that such an obligation will no
Honger be imposed on the abductor. Formerly an ex-
communication latae sententiae nemini reservata was
fulminated against the perpetrator of such a crime.
The new law reads: lie who with matrimonial intent

•"C. 10, C. XXXVI, q, 2; Ecg. 27. B. J. in VI" j S, C. 8. Off., inslr.
I tmi Ep. Albanide). 15 febr., 1901; B. C. rlc Prop. Fide (C. P. pro Bin-
l-Oorhin-ehin.}, 11 fehr., 1804; 32 nov., imo.

1 •"Poraw. Com nwnlnr turn tn Fecvttatrt Apii»to!ica», a. 126 (New
§ToTk. 1893).

""Se* this work, n. 151 ff.

206

The New Church Law un Matrimuny.

or with a motive to pander to his lust aMucts a re-
luctant woman whether by force or fraud, or a woman
who being a minor consents while her parents or
guardians object and dissent, is by law excluded from
all legitimate eeelosiastical acts, and should he pun-
ished also with other penalties proportionate to the
gravity of his crime."'

300. All those who in accordance witli canon 2309
co-operate in abduction with the principal are subject
to the same penalties as the principal himself.*" The
priest and the witnesses before whom the raptor at-
tempts to contract marriage while the rapta is still
under his control do not incur these penalties, for they
are not instrumental in his crime of abduction but ordy
in his inarriago. They would be liable to the same pun-
ishment only in case they abetted him by promising to
witness his marriage shouhl he succeed in his project.

To impugn the validity of a marriage contracted
under such eireumsfances is the right of the abducted
w*oman, hut not of the raptor. She ought to avail her-
self of the earliest opportunity to bring to the knowl-
edge of the proper ecclesiastical authority the cause
that might be advanced for the nullity of her wedlo ck.

VIII. The Impediment of Crime,
(Cauon 1075.)

301, The impediment of crime is a circumstance oc-
casioning an inabdity which precludes the possibility
of a valid marriage between a man and a wonian when
certain conditions specified by law have been verified
in their mutual guilt of adultery or of homicide result-
ing in the death of the consort of either. The new law
legislates '" that no marriage can exist between those:

■"Cod. Iur. Can-., Cnn. 2353.
•"Op. Ht.. Cnn. 2231.
"•Cod. Iur. Can., C^n. 1075.

Impediment of Crime.

207

(1 ) Who, while bound by one and the same legitinmtf
matrimonial bond eommitted adultery and mutually
promised to marry or actually attempted a civil mar-
riage; (2) ^ATio while bound by one and the sanio
Ifgitimate matrimonial bond conmiitted adultery and
then either of them became guilty of the murder of his
consort; (3) Who, by mutual physical or moral deeds,
caused the death of a consort, even if they are free
from the guilt of adultery,

302, The early Boman law prohibited marriage be-
tween an adulterer and an adulteress, which prohibi-
tion was endowed with an invalidating force by the law
of Justinian."" The statement of Devoti -" that tlie
early Church canonized this Roman law is untenable,
for the early canons fail to reveal the existence of a
diriment impediment of crime.''' The first intimation
of such an impediment comes from the time of I'ope
St. Leo. The Council of Tribur (895) decreed:
"Nulltts ducat in matrimomum, quam prius pollnit per
adulterium." "'* This law was subsequently incorpo-
rated in the various collections including the Gratian."'
Oratian records only two phases of this impediment,
namely, when it arises from adultery linked with
machination against the life of the husband of the
adulteress,'" or with a promise of marriage to be con-
tracted after the death of her husband. Probably on
the ground of the principle "plus est ducere qua/ii
[ /idem dare," Clement III (1187-1191) '"■' added the

"h. 21, (n, 1. 40 ff. ad leg. luli
Ut indign., Nov. ]34, cap. 12.

■•Lib. n, M40.

"Cap. IX, r»nc. tlUbfrit. (300-306); C.
XXXI, q. 1,
' "-C. ],C. XXXI, q, 1.

— C. 4, C. XXXI, q. 1.

— a3, G. XXXI, q. 1.
■*C. 4, X, de eo gui duait

teHvn, rV. 7.

de odaller.; L. 13 ff. dc lu quae

208 The Neiv Church Law on Matrimony.

third cause from which this impediment drew itB
origin, namely, adulttry coupled with an attempted
marriage. Finally, liis successor Celestine III (1191-
1198) introduced the fourth phase of this impediuwnt,
namely, murder of a consort procured by mutual con-
spiracy even if adultery did not intervene."' Gregory
IX (1227-1234) was the next Pontiff who had wva.-
sion to legislate on the impediment."* To a doubt sub-
mitted to him for solution he answered that the im-
pediment of crime does not arise from the mere
promise of marriage nor from the mere attempt at
marriage, nisi prius vel postea vivente coniuge adul-
terium intercemit.-" The Council of Trent refrained
from legislating any further on this impediment, and
the Code of Pius X simply approves the traditional
discipline as handed down by the Decretals.

303. Though the new law is couched in clear terms,
it is nut sufficiently comprehensive to solve all doubts
that in the past arose in eoimeetion with this impedi-
ment. The force of this statement will be better ap-
preciated by submitting to individual consideration the
various causes which are instrumental in giving rise
to the impediment of crime.

304. I. The new law declares that no marriage can
exist between those who, while one and the same legiti-
mate matrimonial bond existed, committed adultery
and promised to marry each other or attempted a civil
marriage.-"" To become a partial contributory cause
of this impediment the adultery must be:

1. Real and not merely putative, namely, one of the
accomplices must be bound by a matrimonial bond ob-

""C. 1, X, de convenione inpdelium. Ill, 33.
"C. 8, X, de eo gut dtixit in matrvmonvam,

"•EsMElH, op. eit., t. I, p. 384 ff.

n. 518.
■•Cod. Icm. Can., Con. 1075, 41.

tfuilrunonium, qvom pollnit per adult*-
II, p. 65 ff.; Wkbne, op «l..

Impediment of Crime. l!09

jwtively valid. It is immaterial whether such a mar-
nage is coiisunniiatfd or not, nor would the guilt be
li'»8('ii(Hi by the fact that in consequence of a civil
"iivnrec a separation a loro et mensa was obtained,

'2. Consummated, nami'ly, resulting from a perfect
copula in se fitted for generation. An incomplete
eopula, or sodomy or onanism would not suffice, for in
"''"ittiinal eases the specified penalty is not incurred
"ilcBS the crime is completed. Tlie attempt at the
f »i>ie is not penalize<l with the same rigor as the crime
'tst-ir. unless the law so ordains. In case of doubt
"i^it'ther the copula was perfect or not, both forums
P'*«*8uiiip the former."'

3. Formal on the part of the two a^'eomplieea,

"^■rnely, both parties must he aware of the fact that

'>f*^ of them is married, for the law presupposes that

"*^th offend against one and the same matrimonial

."«-»»id. Consequently, tin- impediment would not arise

" each of the offenders would have a knowledge of

"**ly his own marriage without being aware of the

T^^rriage of his accomplice. An ignorance of such a

'**-<■!. unless it is affected, would excuse one from con-

^~ acting this impediment even if all the other eondi-

'•-■ons should be veritied. There is a controversy

'^^It'ther vincible ignorance, called crass or supine,

^~ liich is gravely culpable, would excuse under the cir-

^ .Vzmistances. The majority of authors take the affirma-

*- ve side of the question.'"

305. Adultery, even if it should possess all the
^I'^araeteristios pointed nut above, would fail to induce
^^^le impediment of crime unless accompanied by the
-^^romise of marriage. This promise is not a partial

^ 0«8PAial, ep, eit., n. (HJ.

■"D» BK-KES, np. cil.. p. 166; ScHMAI.Kim'nElt. h. (.. n. II; Gaspakbi,
**p. (if., n, 647; Saxchex, op. fil., VII, dinp. LXXIX. n. SB; St. Al-
■ *»BOSBUS, up. rit., vol. VI, n. 103B; D"Anmb*lk. vul. III, n. 439.

210 The New Church Law on Matrimony.

contributory cause to the impediment of crime, unleto
it is:

1. True, differing from a desire or an intention by
the fact that it is manifested externally. In cast? of
doubt neither the internal nor tlie external forum pre-
smnt's it to liave been serious and true,

2. Manifested extenially to the accomplice, who in
turn employs such words or signs, or displays such
conduct as can be interpreted as a positive acceptation
of the proposal. One may not have recourse in this
connection to the principal ''qui tacet consentire
videlur." Some canonists insist so strongly on the
express acceptation that they require even a re-
promise, though there is a controversy whether a re-
promise is a condiiio sine qua non. The express ac-
ceptation, in the opinion of some, implicitly contains a
re-promise. Should such a re-promise not be included,
or should it be excluded, the impediment would not
arise or would be doubtful, to say tlie least.*"

3. Absolute, for conditional promise does not suffice
to give rise to the impe<liment unless the condition is
such that its fulfillment is likely before the dissolution
of the matrimonial bond. Tlie impediment takes effect
as soon as the past or present event on which the
promise is conditioned is known to have actually taken
place. It is contracted even by virtue of a promise con-
ditioned on de futuro necessario, hnpossibili aut turpi.
If the promise is de futuro contingenti ac honesto, the
impediment arises provided the condition was verified
before the dissolution of marriage ; not so, should its
fulfillment take place only after the matrimonial bond
was dissolved. This opinion is to be held against
Sanchez °"' and a few others.

4. Matrimonial, namely, its object should be ;

Impedimnnl of Criiiii:.

211

riagp to be coutracted after tht death of the consort.""'
Should its object be marriage after the civil divorce of
the consort, the impediment would not arise."" It is
inmiaterial whetlier this promise is antecedent, con-
comitant, or subsequent to adultery, as long as both
occur during the same marriage. The impediment is
not contracted if the adultery follows after the retrac-
tion of the previously given promise, and the promise
is not renewed after the moral offense.

5. Finally, detrimental to an existing marriage.
This presupposes the knowledge of the ligatnen bind-
ing at least one of the parties. One might ask : Does an
impediment arise between A. and B. when A. not know-
ing tbat B. was married promises her marriage and
subsequently, after having learned of her marriage,
knows her carnally! Sliould A. renew his promise
after he was appri-sed of the marriage of his aeconi-
pliee the impediment would umpiestionably arise. In
failure of such a renewal the impediment is doubtful.
Some advocate that the renewal of such a promise is
included implicitly in the commission of the crime of
adultery, others again deny suoh a tacit inclusion.
Owing to this controversy the impediment, at least on
the ground of reflex principle, should not be urged.

306. Neither adultery nor the promise of marriage
taken independently of each other would induce the
impediment of crime. They must be correlated, or, in
other words, both must take place during the same
marriage. If A. unmarried, promised marriage to B.
who is married, and during the same marriage they
have known each other carnally, the impediment would
ari.SB. But if the promise of marriage was made dur-
ing the life-time of B. 's first husband and the adultery

Sanchez, lib. VIT, rlisp. LXXIX,
ami »; Feije, op. fit., n. 649.

' Oaspabbi, .j;j. cit., n. 648; Wbbn'Z,

; SrHMALzaRt'Bm, h.

211i The New Church Law on Mfilrimontf.

followed after she was reinarripd, the irapedimei:»-^
would not be contracted unless the promise was rt?^^-
newed, for both the promise and the adultery must b "*^
injurious to the matrimonial bond which bound B. h ^; _ Jd
virtue of her second marriage.

307. On the ground of the prineiplri "plus est tin-^^"^'^
cere qunm fidem dare'' the impediment arises should^ "^
an actual attempt at marriage be substituted for th^^ .m^^
mere promise, for such action is construed as ofFerin^^fc. — *8
even a more direct and manifest injury to the innocenr ,^c=^^
consort. In this connection it must be borne in miiicr:^^ — *'
that any marriage, though it be only civil, will give ris(T^ ^^^.
to this impediment, provided it is correlated with adul — ^^ ^
tery such as described above."" It is iramateriaC -*~~^
whether the adultery preceded or followed the attempt" ^^^^
at marriage, as long as both took place during the ex — --^*'*
istence of one and the saniP matrimonial bond of whictar^*^ "^
the offenders were aware. If after the attempt at mar — ^*
riage the parties repented and the adultery foLlowei^&— -*^ ''
without a new attempt at, or without a promise oL* ^

marriage; or, if the attempt was made during the life- "^^

time of the first consort the impediment would not^^^ "*
arise in either case."'

308, II. The second phase of this inipedimentr^*' ^
arises when during the existence of one and the sanu— ^=^'^'^^
legitimate matrimonial bond the two offenders coinmit^^^^* '

adultery and either of them is guilty of the murdei "*

of his own consort."'

A. Adultery mentioned in this canon would not be —

come a partial contributory cause of this impediment ^^M
unless it were real, consummated and formal in th^ ^^H
sense already indicated above."" ^^H

L" S. C. de Prop. Fide, 14 ian., 1S44. ^^H

■"Oasparbi, op. cit., II. 649; De Smet, op. cit., n. 324; Wiat.Nz, up- ^^^1

■- CxiD. IiTR. Can., Thh. 1075, *2. ^^^H

"'Sec tbia work, n. 304. ^^^H

Impediment of Cr

213

309. B. The murder of the consort:

1. Must be the outcome of the machination directed
against the lil'e of the inuocent partner. It is ijnma-
terial wliether the murder results from physical vio-
lence (by means of direct killing), or from moral vio-
lence (by means of indirect killing, the outcome of a
mandate or of an advice).

2. Must be committed by one of those guilty of
adultery, and it must be one's own consort, namely,
real husband or wife. Furthermore, death as oo«a-
sioned by the plotting itself must follow either imme-
diately, or mediately, in the latter case the wound in-
flicted must have proved fatal.

3. Must have for its object the intention to contract
marriage with the adulterous accomplice. Should it
be actuated by a revenge, or by any other reason, tlie
murder would fail to become a partial contributory
cause to this impediment. It is sufficient that such a
matrimonial motive should actuate only the party
guilty of homicide.

310. There is a controversy to the effect whether it
is necessary that this intention be manifested to the
accomplice in adultery. Some take the affirmative '"
others again the negative side '" of the question. The
affirmative side can liardly be sustained in view of the
sources which speak of the plotting of one party
only.^" Should the intention be manifested to the
other party it would be equivalent to a conspiracy and
we would be confronted with the third phase of this
impediment when the death of the innocent consort re-
sults from the mutual machination of the two accom-
plices, in which case adultery is not a requisite. We

"'Gasfabbi. op. eit., n. 650; D'AMtriHALB, vol. III, n. 441.

•"Wkrnb, op, eit., n. 531; note SI; Rossbt, De Saeramento ifalri-
mi-nii. n. 2()4R IT.; Lkitner. op. eit., tit. VII, n. S. vol. IV, p. ■21a.

*"C. It, T, X, de eo qui Juzil tn matrimunivin quam potluit per oJuI-
terium, IV, 7,

214

The New Church Law on Matrimony.

must therefore condudc that tlie second phase of thips -Mis
iinpedimeiit does not rc(niire tliat the intention {t<r-» no
enter into marriage) of the party gnllty of murder l>r^»-<^e
revealed to the aeeompltce in adultery. It is to bE:»«3e
noted that, generally speaking, tliis intention is pre— -^^ap-
sumed, should all the conditions be verified. This pre — -as-
sumption is not praesumptio iuris et de iure; conse— ■'^-
quently, it admits a contrary proof.'" The aduUery^^:^ v
and the murder of one's consort must be so correlatetEzwd
that the former follows before death overtakes tht^^P

consort against whom the plot M'as aimed. It is inima

terial whetlier the adultery is committed before? oi_^
after the machination, for example, before or after thf^^
administration of poison from which the death of the
innocent consort resulted.

311, III. The third phase of this impediment arisi
from the murder of a consort, even when unaccomp
nied by the guilt of adultery, provided it was the t
come of mutual physical or moral acts of violence.'

In order that the murder of a consort may of itself
give rise to this impediment it is required:

1. That the consort whose death is procured
bound by a valid matrimonial bond to one of the i
complices, and that this bond should exist at the time^
the homicide is perpetrated. Therefore in case of j
putative marriage the impediment would not be <
tracted, for the murder would be (lualified as a simple
homicide and not a coniugicidium. The marriage new'
not be consummated, ratified marriage suffices.^"
is immaterial whether the husband is guilty of uxori-J
cide or whether the wife murders her husband.

2. The eo-operation of the accomplice must be i
such a nature that he may justly be reputed as the!

"•8. C. C, Uliiboncn.. 2S Hppt., ITSG.

"■Cod. Iur. Can., Con. 1075, n. 3.

■"SANcnez. lib. VIT, -iisp. LXXVIIT. n. 21); WEBMi. op. HI., n.

Impediment of Crime.

215

co-erimmal iii the felonious act.'" A nw're approval
given to the act after its commission would not involve
the required criminality. It is immaterial whether
tlie murder resulted from the physical or moral co-
operation of the accomplice, as would be implied by
physical acts of violence in the former case, or a man-
date or advice in the latter. If, therefore, A. reveals
to B. his intention relative to the murder of his wife,
in order to marry her, and the deed is perpetrated
after her approbation is given, it is presumed that B.'s
approval was an incentive to the commission of the
crime.'"'

3. That the death should be directly intended and
that it should not result from an accident but from
acts of violence either immediately or mediately
through the inflicted wound. If, however, the wound
18 not deadly, and the death can be traced to the inex-
perience of the physician the impediment would not
arise."'

4. Finally, that the murder be committed with the
intention of entering into marriage with the accom-
plice, or with one of those who participated in the
criminfil act. It is precisely this hope of such a mar-
riage the Church wishes to obviate by the introduction
of this impediment. There is a controversy whether
the accomplices must be actuated by this intention, or
whether they must have mutually manifested it to each
other, ffince the murder of the consort must be com-
mitted with some hope of marrying the accomplice, it
is reasonable to suppose that the principal should
manifest his motive to his accomplice, whereupon the

•" C. 1, X, df ecnveriione infidelium, III, 33.

"GASPARai. op. cit., n. 644; D'AwNreMB qupstionB the tenablrness of
Biiph nn infereni-e, vol, Til, n. 440, note 25.

"• SrHMALZBRrBER, h. (., (1. S.I i 8ANCHH5, lib. VII, disp. L.XXVII,
n. 9; RarrESBTt'L, IV, VII, 32, S.'i; Gabpabhi, op. eil., n. 644; D'ANNI-
BALK, v.>l. Ill, II. 440, mitf 24.

216 The New Church Law on Matiimnny.

latter by lending his aid to the murder not only accepts
it, but helps to make its realization possible, St, Al-
phonsus maintains "" that familiarity or exchange of
love-letters preceding the murder would constitute a
sufficient intimation of the matrimonial intention.
Other authors hold that in the external forum such in-
tention is to be presumed in every case, especially if
the accomplices, subsequently to the murder, Khouirl
wish to contract marriage. Such a presumption could
be praesumptio iuris tanium, to say the most, there-
fore it would admit a contrary proof. Nevertheless,
should such a doubt remain unsolved the marriage once
contracted must be sustained."'

312. The new law is silent as regards the multipli-
cation of this impediment, therefore imder the present
discipline this impediment will not be subject to multi-
plication. Since marriages contracted under the old
law are to be judged according to the old discipline, it
must be borne in mind that formerly the impediment
could become multiplex either hy \irtue of crime or by
virtue of marriage. Should the various phases of this
impediment occur during one and the same marriage,
namely, should the same guilt of adultery be followed
successively by the promise of marriage, then by an
attempt at marriage, and finally by the murder of
one's consort, the impediment would he threefold.
Should, in addition to the foregoing, the murder be the
outcome of the plotting of both accomplieos, the im-
pediment would probably become fourfold."' The im-
pediment may become multiplex also by virtue of the
injury offered to two nian-iages should both accom-
plices be married. Shonid A. (married) conunit adul-
tery, accompanied by a promise of marriage, with B.

•'Op. HI., vol. VI, n. 1033.

■■8, ('. (',. Biliinl., 15 inn., 2 iul., 1718.

" Db 8mkt, op. cit., n. 337.

Impediment of Crime.

217

(also married) the impediment of crime would be
ttt'ofold. Should they also attempt marriage, the im-
pediment would become fourfold. If A. should murder
his wife and also B.'s husband the impediment would
beeome sixfold.

313. From the foregoing facts it is evident that thu
impediment of crime is established by the Church law
and its purpose is to safeguard the sanctity and the
integrity of Christian marriage and thereby the wel-
fare of the commonwealth. Therefore infidels, not be-
ing under the jurisdiction of the Church, do not con-
tract this impediment unless the civil law of the coun-
try to which they are subject corresponds to the
Church law. Two infidels, after their conversion, may
contract marriage even without a dispensation though,
while in infidelity, they were guilty of a crime which
would have given rise to this impediment had either of
them been baptized.

314. Some maintain that if the adultery took place
before the conversion and the promise of marriage
after it, the impediment would arise. This opinion is
justly rejected by modern canonists, for it would be
equivalent to saying that the promise of marriage
independently of adultery is sufficient to induce sucli
an impediment.*" Should the crime he cninmitted by
a baptized and an unbaptized person, the impediment
would arise owing to the fact that one of them is di-
rectly subject to the jurisdiction of the Church, and
rendered thereby incapable of contracting marriage,
which inability is communicated to the other party.-"*
This statement is to be modified when one is confronted
with the third phase of this impediment affecting di-

I rectly only the party guilty of adultery plus the

■Sancimk, lib. VII, ilisp. LX.XIX, n. 4.1; Gakpabrc. »p. Hi., n. 652;
I Di Smbt, op. eit., (I. 338, rorollary II ; Webnz, w(i. cit., n. 521.
""8. C. dc Prop. Fide, 23 aiig.,1852.

218 The New Church Law on Matrimony.

murder of the consort, the party guilty only of adultery
being affected only indirectly. If it is the baptized
party that is guilty of the two crimes, the impedhueut
wouUI be contracted. Should the baptized party bf
guilty only of adulteiy, and the unbaptizcd party of
adultery combined with the murder of the consort, the
impediment would not be incurred.

315. It is necessary to say a few words on the
much-mooted question: How does ignorance affect the
impediment of crime T It is well to bear in mind at the
very outset that ignorance generally does not prevent
one from contracting an impediment. But the impedi-
ment of crime serves the purpose of a penalty for and
of a preventive against the crimes whidi constitute the
three phases of the impediment as explained above. It
would tlierefore be natural to infer tliat ignorance of
the penalty woidd excuse one from contracting the im-
pediment. To this opinion adhered Gasparri,'" D'Anni-
bale,"' Ballerini and Oury,'" and Slater.'" The other
opinion holds that the vindictive punishment is only
a secondary cause of the existence of this impediment,
the primary cause being the common decency militat-
uig against a marriage which can be traced to a grave
mora! offence (as adultery combined with the promise
of marriage or with an attempt at marriage), or whose
possibility was procured by the commission of a crime
(as in the case of the murder of a consort). This
opinion which is defended by the ma.jority of canonists
was always held as the more probable.™ It might bft

"■ Op. eit., n. 658.

"' Siimvta Theolng. Moralis, toI. Ill, n. 442.

" Thenloij. Monsta. toI. II, n. 778,

"• A manual of Moral Thrology, vol. 11, p. 317.

• KwMKB, IV, Vn, n. 1011 e.: DbAnoblis. IV, VII, n. ult.; W»i«t,
op. cit., n. 522; Sakti-Leithib, Jac. eit., n. 7 IT.; Db Smbt, op. fit., b.
328; Dt BETKm, op. eit., p. 185; BrRTSBLL, in the Calhnlic Enrj/rto.
pfdia, art., Crimf. impedimcn-t of; Feijk. np. eit., n. 46fi: RnrKENsri'i..
*. 1„ n. 28: Htlil to tticsp Zai.US*oeb, Hobckh\, Wiest.vbb. Schmaui-
GRi'B^ and othprs.

Impediment of Cri

219

said in its favor tliaf the decisions of the Sacred Peni-
tt^iitiaria and Dataria have nevpr pontradictcd it, and
that tlie old canons do not record a single example in
which a person ignorant of the fact that such a penalty
is annexed to these crimes was freed from incurring
the impediment.

316. Wliile the opinion holding that ignorance of
the penalty does not excuse one from contracting the
impediment had more weight the contrary opinion be-
ing also well-founded was regarded as possessing an
extrinsic probability. Consequently, if in the past
there was a question of dissolving a marriage whose
nullity was claimed by reason of the presence of the
impediment of crime, the authors advised for the sake
of safety to have recourse to the Holy See, should the
penalty attached to such a crime have been unknown
to the parties in question. In such instances on the
ground of reflex principle Gasparri would not urge
the impediment, but counsels either a dispensation rtW
cautelam or a sanatio in radice.'"" This would hold
good only as regards marriages contracted before the
new law went into effect. The subsequent marriages
must be judged according to the new Code which
espouses the opinion of the majority of canonists when
it legislates that ignorance does not excuse one from a
nullifying or a disqualifying law unless the contrary is
expressly stated."" The same is to be said with regard
to the ignorance of an impediment.""'

317. As regards dispensation from this impediment
P the new law legislates specifically when it declares that
Kb dispensation from a ratified non-consummated mar-
■riage, and the permission to contract marriage oh

praesumptam coniugis morlem always include also n

•. luR. C*K., Can. ](i, }1.

220

The New Church Lair

Mat

rimony.

dispensation from the first phase of this unpedinifiit,
namely, when it arises from adultery combined with a
promise of marriage or with an attempt at marriage,'"
It follows that from this phase of the impediment the
Church dispenses without mucli difficulty.

318. A very grave reason is required for the dis-
pensation when the impediment is contracted on ac-
count of the other two causes, namely, adultery com-
bined with the murder of the consort, or murder of the
consort as the outcome of the plotting of both accom-
plices. In these two eases, owing to the enormity of
the crime, Wernz maintains that the Church never dis-
pensed nor is it inclined to do so when the murder is
public."" Should it he occult the Sacred Penitentiaria,
though very rarely, in some instances does dispense,
for the forum of conscience, namely, when the guilt of
the parties in question is not likely to he divulged, and
the cause is most urgent. If the death of the consort
resulted from the administration of poison, an addi-
tional difficulty is placed in the way of obtaining a dis-
pensation."" If the marriage is already contracted
and the separation is not possible without occasioning
grave scandal, and danger of incontinence threatens;
or when the parties are so determined to marry that
a public concubinage or an attempt at marriage is
feared, then the dispensation ia granted provided the
murder is secret.

319. In case of urgent danger of death none of the
four species of this impediment is reserved. Under
circumstances already explained ■'" Bishop and priests
could dispense from it notwithstanding the fact that
the murder of the consort was a public act."'* Similar

"• Op. cit.. Can. 1053.
■* Op. fit., n. 534,
■•Gabpaibi, np. eit., a. GS4.
■■See thii work, n. 151 ff.

Impedimenl of Crime.

221

's the power of the Bishop over this impediment,
whether tlie murder is public or secret, whenever the

» Conditions formerly styled as casus perplexus are
J'orified."* The priest in this case could dispense only
^ the murder is an occult act and recourse to the
^iehop is difficult. It is to Itc noted that the new law
^'^sses the first phase of tliis iiiipedinient (namely,
^"lipn it arises from adultery ciurihiiicd with a promise

»'*f marriage, or with an attempt at marriage) under
■**>pediments of minor grade,"™ Consequently an
*»Tor either in the petitiini or in the rescript, and even
'^oreptia or subreptio would not impair the validity of
'■'le dispensation.*""

320. The new law does not impose specific penalties
*-*»! those who contract the impediment of crime. The
T^unifihrnents must he gathered from the various penal-
ties meted out on account of separate offences implied
*ri the impediment. These offences are: Adultery,
■lip'aniy, attempt at marriage and homici<le. Persons
guilty of public adultery are barred from all ecclesi-
astical acts until tliey give unmistakable signs of re-
Jientaiice and amendment."" Bigamists, namely, per-
t5.oiis who while bound by a nmtrinumial bond attempt
5*noth*'r marriage, even if it be only civil, are ipso facto
infamous. Should they persevere in an illicit famili-
a.rity. spurning the admonition of the Bishop, they are
to be exconniuniicated or placed under personal in-
tprdiet, according to the gravity of their offence,*"'
The new law brands homicides as irregidnres ex df-
licto."" Their crime brings with it exclusion from all
legitimate ecclesiastical acts, from every office they

■• Op. eU., Can. 1045.
••Op. rti.. C*a. 1042, i2, n. 5.
— Op. eil.. Can. 1054.
•- Op. eU.. Csn. 23S7, iS.

■ Op. eit., Can. j^^^^^^^^^^^^^^^^^^^^^^^^^m

- 4, ^^^^^^^^^^^^^^^^^^^^^M

222 The New Church Law on Matrimony.

may liuld in tin- Churtli, and tin: Imrdcn to rppair.l
daniagfs.*"^

IX. Impediment of Consangiiinitn.

(Canon 1076.)

1. Preliminary Notions about Con,sanf/niniiif, |

321. Consanguinity or blood-relationship is a i
ural bond, a blood union, existing between persons wliu
withbi degrees specified by Civil ov K(!cl(;siastical Law-
descend from a common ancestor, or one diret'tly from
tlie other.

The degree {yrnd-us) represents the distance be-
tween persons related in the same line. The descent
from the common ancestor, who is the root or source
{stipes) of consanguinity, may be traced either in
direct line {linea recta) or in collateral or transverse
line (iinea obliqwi, seu transversa, seu coUnteraiifi).
Line in this connection represents a series of persons
united with one another by a bond of consatiguinity.
According as the descent is direct or indirect we dis-
tinguish lineal and collateral consanguinity. Lineal
consanguinity exists between persons of whom one
descends directly from the other, for example, father
and son; grandfather and grandchild. The direct line
is descending {descend entalis), if the computation be-
gins from the highest and goes down to the lowest de-
gree of relationship. In the ascending {ascendentalis)
direct line relationship is traced from the lowest to
the highest degree. Collateral consanguinity springs
from the same ancestor, not by direct but by indirect
descent. In this case the common ancestor is the trunk
{.stipes) from which the different blood relations
branch out, not one from the other, but side by side,

- Op. cit., Can. •

Impediment of Consanguinitij.

223

for example, brother and sister; two cousins, two
nepliews. The collateral line is equal (aeqniUis) when
thfi persons in question are equally distant from the
common stock, t'or example, first cousins. It is un-
equal {inaequalis) when the distance is not the same,
namely, when one is farther from, or nearer to, the
common ancestor, than the other, for instance, uncle
and niece.

322. Consanguinity may be: 1. Legitimate and ille-
gitimate. The former presupposes the legitimacy, the
latter the illegitimacy of the union from which the
child was born. In either case the impediment of eon-
Banguinity has the same force.

2. Perfect and imperfect. Those persons are related
by perfect consanguinity whose father and mother are
the same. They are called brothera-germaii, or
"whole" brothers or sisters. If they come from tlu^
same father but from different mothers, or from the
same mother but from different fatliers, then we have
an example of imperfect consanguinity. In the former
instance they are called half-brothers, or lialf-sisters,
in the latter uterine brothers.

3. The blood relatives on the father's side are some-
times caled agnates, those on the mother's side cog-
nates. This designation must not be confused with the
idea of agnation and cognation as interpreted by the
Boman Law.

4. Simple and multiplex. In the former the related
persons trace their descent to the common ancestor by
one line only; in the latter hy two or more lines. Tlie
impediment of consanguinity is multiplied as often as
the common ancestor is multiplipd,'"" Thus the rela-
tionship is multiplex as often as the a.scendiiig lines
of the parties in question meet within degrees specified
hy the law. These lines must continue until, having

" Con. lua. Can., Can, 1076, 42.

224 The New Church Lau- on Matrimony.

passed beyond the persons constituting the intt-rmedi-
atp root, they converge in one and the same ancestor,
common to both.

3. Hintory and Nature of the Impediment.

323. A few reflections on the most important
torical aspects' of this impediment will suffice for our
purpose. The Mosaic Law, for reasons biherent in the
history, calling and character of the Israelites, pre-
scribed only a few degrees within which marriage
among blood-relatives was prohibited."'" The prohibi-
tion of the Roman Law was extended to more remote
degrees. It included all the blood-relatives legitimate
and illegitimate, of the direct line ascending or de-
scending.^'" It is also certain that in the collateral line
it never permitted marriage between brother and sis-
ter. The extent and force of the prohibition regarding
other degrees of the same line are a matter of contro-
versy among the various authors. The law of Theo-
dosius (384) extended this prohibition to first cousins
inclusivply,"" but for the Kastern Church the prohibi-
tion was subsequently revoked by the edict of Arca-
dius (400).'""' Justinian approved the Arcadian enact-
ment and promulgated it in the East and the West, ex-
tending the prohibition to first cousins and reserving
for the emperor the right to dispense."" At this
period the Germanic Law, following in the footsteps
of the Roman Law, introduced its prohibition to the
seventh degree of coni^nnguinity.

Up to the sixth century the Church permitted itself

"'Lev. XVIII, 6 fF.; XX, 11 ff.; Dent. XXXVII. 20, 22. 23.

■" Ebudn, op. rtC, pp. 336 ff.; L. 17, C. do mipt, v. 4; I,. 53, 54, 37.
17, (2; D. de ritu nupt. XXIII, 2.

■"8T. AUOCSTIME, De CivUate Dei, XV, XVT; 8t. Aubrosb, Kp. LX,
K/i Fiiternum; Ambrniii Op. Omnia, t'lm IV, p. .'lafl, ParUii*, ISM;
Wmaz, op. eit., n. 409.

'- KsMErN, "u fit.. i>. 336; L. 19. C. de nupl., V, 4.

'"L. 1, C. Th., de ineegt. nupt.. Ill, 10.

Impediment of ConsanguinUy.

225

to be guided by the civil legislation. In the middle of
tliat century it expressly prohibited marriaj^e between
second cousins.^" The Oriental Church half a century
after the .Second Trullan Synod"'' (692) submitti-d to
the same regulation. The lack of absolute uniformity
in Insisting on the universal observance of the law, in
computing the different degrees of consanguinity, and
in determining witli certainty the last prohibiting de-
gree, created not a little confusion, which lasted to the
eighth century. IJeairous to establish uniformity of
discipline, the Church adopted the Germanic method
of computation and, in accordance with the Germanic
and Roman laws, tlie impediment was extended to the
seventh degree. It is a controverted question whether
at that time the impediment was regarded as diriment
in all Christian localities. The majority of authors
agree that it was considered as such in Italy and
Rome, but that In some countries the last three degrees
were regarded only as impedient and not as diriment
impediments.*" It was only after prolonged contro-
versy and repeated ecclesiastical legislation that a
more positive step toward unifying the discipline of
the Church was undertaken. The Second Lateran
Council (1139) canonized the then prevailing disci-
pline.'" extending it to the universal Church, and pre-
sumably prohibiting marriages to the seventh degree
of consanguinity inclusively. Even subsequently sonii-
doubts were entertained as to the binding force of tlie
last two degrees. Finally the Fourth Lateran Comicil
(1215) ■" restricted the prohibition to the fourth de-
gree of the collateral line owing to the grave inconvenj-

■'■ C. 30, Con. Epavn; C. 8. C. XXXV, q. 2 and a.
'-Cone. Trvl., e. LIV; ib, Webnk, op^ fit., n, 403.
*'■ Wdinz, op. fit., toe. cit.

"*CuHf. Lai. 11, e. XVII, see MaNSI, AmflUaima Col. Con., vol. 21.
Eol. 5.^0.

•"PETB. LokBAHDI. in Sent., lib. IV, dial. XXXIX and XL.

226

The New Church Law on Matrimony.

ence arising from its observance in the more rt^raotp
degrees.'"

324. Several Fathers of the Council of Trent pro-
posed a reform favoring the restriptioji of the iniptdi-
ment to the third degree."' Their suggestion after thp
third reading was overruled and the former discipline
retained.'" This tendency, shown by several of the
convened Fathers, may have influenced Paul in
{1534-1549) in restricting the impediment to the swond
degree for American Indians,'" and also for the na-
tives of the Pliilippines.""

What the consensus of several Fathers convened at
the Council of Trent considered expedient has been in-
troduced by the promulgation of the most recent matri-
monial discipline. The impediment of consanguinity
in its present form is restricted to the third degree of
the collateral line.'" In the direct line, both descend-
ing and ascending, it prohibits and invalidates all
marriages between persons related by consanguinity
M'hether natural or legitimate,"" The computation
will begin with great-grandfather and great-grand-
mother, and the last in the direct line is the great-
grandson and great-granddaughter. The last degree
in the collateral line is second cousins, grand-nephew
and grand-niece on either the father's or the mother's
side.

Marriage may never be permitted if there is a doubt

'""Prohibitio quoque copulae FoniuKaliB quarlutn conranguinitalia e
affinilBtiB grKdum de cctrro non excedat : quonmm in ultPriuribus gnili
bus DUD ium potest absque gravi dispendio liulusmndi prohibitio geaeni-
iter obgerviiri," Mansi, op. Ht.. vol. XXII. n.l., 103M.

■"TSBINKR, Acta. II, 342.

•••De Bffi-rm. Matr., seuio XXIV, pan. III.

"•ZiTELU, Ayparal. lur. ecc, p. 439; Boniae, 1888; Mani
Tol. 36, bU; Cona. Ftov, Limonum I, not, 2S1.

■■Litt. Ap. Leonis PP. XTII, 18 apr., 1897; new TolFfrl., n. lUeS:
WBtNZ, op. ril., n. 409; BuKTSEi.L. iti tbe Cath. Enegrlupedi
"Cunaanguinilil."

■*C0D. lUB. Can., Tan. 1076, j2.

•"Op. cit.. Can. 1076, }1.

I Impediment of Consanguinity. 227

nrhether the pprsons to be married are related in any
Megrpe of the direct hne or in the first degree of the col-
laU'ral line."' Though it is a controverted question
whether marriage between brother and sister is against
the law of nature, the Church has never granted a dis-
pensation in such cases.'-' By prohibiting the mar-
riage absolutely even in ease of a prudent doubt
whether the persons in question are related in that de-
^;ree, the Church seems to favor the opinion of those
who extend the prohibition of the natural law outside
the direct line,

25. In tlie Uniat Greek Churches tlie discipline is
not uniform. Their method of computation is that
nsed by the Civil Law. The prohibition of some ex-
tends to the seventh,"" of others to the eighth civil de-
;gree. According to the canonical computation the
former would be second cousins touching third (third
degree touching fourth), and the latter tlie fourth
degree of the equal collateral line. Among the Syii-
•U8,''* Copts,"' Italo-Greeks and the Manniitcs the
former legislation of the Catholic Church obtains,
namely, the last prohibiting degree is the fourth, ac-
cording to the canonical, or the eighth, according to
the Oriental computation.

326. Since the new legislation contained in the

odex of Pius X does not affect the Oriental Churches.

leir discipline, until reformed, will remain unchanged.

JThe Constitutions of Boiiediet XIV, namely " Etsi

istoratis" "' and " Singulnris" "'" (this latter ap-

- Op. ril.. Cnn. 1076, ^3.

-BltNtDICT XIV, ■•Ae*tat Anni," oct. 11. 1757-. ape Ball. Rom. O-nt..

I. IV. p. 473, n. XIII.

-WntJiB. op. rit., n. 409, nnip 51.

•^ SyiuHttit Siitirfmiiu Syronim, c. V, art. XIV, %', p. 17'J. Riiiimi',

•Synnrftw Altxandrinnt Captomm, «. VIII, du Sacr. Metr., p. 168.
Bomw, 1609.

1" Behdict XIV. SvU Rom. Cant., vol. I, p. IB7.
■" toe. oU., p. 100.

228 The Xciv Church Law on Matrimony.

proves the letter of Innocpiit IV relating to tlio pro-
vincial Synod of the Maronites held in 1736) intended
t'Xpressly for the Uniat Churches, enforce the same
discipline as that in vogue In the Roman Catholic
Church, Papp-Szilagj'L "" remark that owing to the
pmdent economy of the Holy See, the above-mentioned
epistle of Innocent IV has never been enforced. They
also state that the Constitution '^Etsi pastorali^" was
ijitended exclusively for the Italo-Greeks and not for
all the Uniat Churches. From these two statements
they draw the inference that marriages contracted
within the eighth degree of consanguinity (fourth
canonical degree, namely, third cousins) are not to In-
considered invalid, unless the marriage takes place in
a province for which the Holy See has expressly legis-
lated to that effect. In the Churches of the East all
marriages between persons related in the direct line
are forbidden, and in the collateral line to the seventh
civil degree. The remotest degree is only an impedient
impediment."' The national Greek Church proliibits
marriage within the sixth degree, which corresponds
to the present ecclesiastical discipline.

3. Mode of Computation.

327. Roman Law is in agreement with Civil Law in
the nietliod of computing the degrees of consanguinity
arising from the direct line, but the two differ in reck-
oning the degrees of the collateral line. The following
rules will prove a guide in the canonical method of
computation :

(A). In the direct line there are as many degrees as
there are generations, or as there are persons minus
the common ancestor.'" Thus, for example, a grand-

"' Enchiridion lurU KfdMiae. Orimtalt* Calhalicae, P. 2, $100, Magnn
Vnrwlini, 1882: ib. Phjb, op. rit.. n. 365.
•" BcHTKBi.L. for. fit., art., "CoiuuHpHutily" (mode of calculation).
"Cod. lift Can., Cud. 96, }l.

Impediment of Consanguinity.

229

child is removed by two dpgrees from Ills grandfather.
(B). In the equal collateral line tliere are as many
legrees as there are generations on one side of the
line. Thus, for example, first cousins are related in
the seooud degree of equal collateral line.

(C). In the unequal collateral line there are as many
degrees as there are generations *"' on the longer side
of the line. But for the sake of completeness and ae-
iBuracy the number of generations in the sliorter line
zaust also be indicated. Thus, for instance, uncle and
niece are related in the second degree touching tiie
first

According to the English mode of calculation all
persons are counted, in both the lineal and the col-
lateral blood-relationship, the common stock being
omitted. Thus, for instance, the grandfather and the
granddaugliter are related in the third degree of lineal
consanguinity. Uncle and niece are related in the third
degree, first cousins in the fourth degree, set-on* I
eousins in tlie sixth degree of collateral blood-ndaticm-
diip.

328. Consanguinity may be duplicated. The mulfi-
ilication of blood-relationship is due to any of the fol-
owing causes:

(A). The persons in question descend from ances-
ors who, being related to each other, married persons
ikewise related, for instance, two brothers marry two
isters and the child of one brother and sister wishes
o niarry the child of the other brother and sister.

(B). The persons in question descend from a coni-
non ancestor whose two children contracted marriage
cnecessively with one and the same person; thus, for
ixample, they descend from the same grandfather
'whose two daughters married one and the same person,
or whose two sons married one and the same j

"•Op. ril.. fan. 96, {2.

230 The Neiu Church Law on Matrimony.

To elucidate these hypotheses it will be well to illus-
trate them by diagrams to which the authors generally
resort.

I. Diagram.
(Hypothesis A.)

Joseph

James

Theodore (brothers) Sylvester

Margaret (sisters) Helen

Raymond (wishes to marry) Agatha
(Son of Sylvester and Margaret) (Daughter of Theodore and Helen)

In this diagram Raymond and Agatha are twice re-
lated in the second degree of the equal collateral lino.
The former is traced to both Joseph and James
through Sylvester and Margaret. Agatha is traced to
the same ancestors through Helen and Theodore.

II. Diagram.
(Hypothesis B.)

Joseph

Bernard

Anna (sisters) Agnes

(Son of Bernard and Julius
Anna)

Angela (Daughter of Bernard and

Agnes)

Charles (wishes to marry) Clara

In this diagram Clara can be traced to the common
ancestor (Joseph) through Angela and Agnes; Charles

Impediment of Consanguinity. 231

through Julius and Anna. Having Joseph for their
common great-grandfather, they are related in the
third degree of the equal collateral line. Having
Bernard for common grandfather, they are related in
the second degree of the same line.

To arrive at the degree of consanguinity in which the
prospective consorts are related one may begin either
wth the conmion ancestor and descend to the persons
in question, or with the prospective consorts and
ascend to the conunon ancestor.

III. Diagram.
JoMph

rnlii

Jntltu Charles

J. J

FrancU Thomas

Bernard (wishes to marry) Agnes

From this diagram it is obvious that the prospective
consorts are related in the third degree of the equal
collateral line.

232 The New Church Law on Matrimony.

Genealogical Tree.

•

■

kmtt. mtm

A*M

A<ta

litMWiH ««••

TMr ctlMfM

A*M

Ami

TWtr «Mliii

•

■

R«nM m

Ante

rMT

Mmot

A^aafaH*

Mom mt

Pint iMilii

M— Wwhtr

Ht»nlm»

nnicMm

t_,— «.

n79OTBM''VI

rratn

•vw

Amhm

.«.

"^""^

Kim.

VMM

■^-^

ferkrw

ntiM

(Tr*>4na
OrMMawkHt

ftunt

rwmii

Impediment of Consanguinity.

233

4. Motives of This Impediment.
329. There arc three leading reasons which actu-
ated the Church in approving and enforcing the im-
pediment as it is accepted by the Mosaic and the
Koman Law, namely : 1. To safeguard the observance
of the prohibition arising from natural law; 2. To
establish a barrier against early corruption which
threatens young persons related and living under the
same roof; 3. To promote a more extensive bond of
imion among men by means of intermarriages and to
prevent the inbreeding of blood-relatives (a practice
which very frequently occasions procreation of defec-
tive offspring, and transmission, in an intensified de-
cree, of any physical, mental, or moral weaknesses
iunder which the parents may be laboring). For a more
ieomprehensive development of the aforesaid reasons
the reader should consult the authors suggested below,
few remarks by way of explanation will sufficiently
serve our present purpose.

I. The cause of consanguinity is identity of blood."'
This identity becomes more pronounced the nearer a
^^ rson approaches the conmion ancestor. It is gen-
erally admitted that marriage in the first degree of the
direct line, between parent and child, is prohibited by
natural law,'" for the reason that the blood of parents
and children is practically identical. To avert the dele-
terious effects of consanguineous marriages, the inter-
mingling of foreign blood is necessary, which can be
acquired only outside the family, for, as St. Thomas
Lpresses it, blood-relatives are of the same sub-
iance.'"

" St. Thduas, Svppl. lU". p., q. LIV, a. 3, c.

"SUAKK. Or leg,, lib. II, vsp. XII, n. ,1; Perronb, op. eit., vol. II, p.

17; St. Ambrosk, rp. XL, ad Pntrmum; St. Thomas, in Sc«(., lib. IV,

. XL, a. Ill, ad arR.; Sanchez, He Malrimnnui. lib. Vtl, disp. LI;

BJJZ, op. nf., n. 410; GABPARSr, n;i. cit., n. 675; Da Smet, op. cit.,

i. 2!>9; np. Beckeb, op, ril.. p. IHT.

'-Svppl. III«>. p., q. UV, a. IV, ad. 7.

234

The Netv Church Law on Matrimony.

330. Marriage bptween parent and child dops unl
absolutely exclude the possibility of the realization of
the primary end of nature. But this is attained very
imperfectly, while the secondary end is not likely to
be attained at all. Besides, such unions advocate the
most unnatural condition, by revorsing the essential
natural position existing between parent and child."'
By natural law the child owes to his parents deep rev-
erence, obedience and subjection. Marriage makes
them equal, or makes the mother even inferior to her
son in case the two should be united in matrimony.
Though, generally speaking, it is repugnant to a ra-
tional being to contemplate such unions, history is not
without precedents showing that the Church had re-
peated occasions to insist on the observance of natural
law in this respect. She had to deal witli nations like
the Persians who were addicted to practices contrary
to the law of nature,'"* and who Justly merited the
vituperation of St. Chrysostom and St. Augustine,
and even of the Pagan Aristotle and Pliny. The
Church, wishing to bring such Gentiles under hi-r s]iir-
itual domain, encountered the task of disabusing them
of their unnatural notions, by gently inoculating them
with Christian ideas, or, whenever such remedy proved
insufficient, by enforcing stringently some of her legis-
lative measures."'

It is a disputed question whether natural law for-
bids all marriages beyond the first degree of con-
sanguinity in the direct line. The affirmative opinion
is generaly advanced as the leading one,"" In support
of this view the authors draw attention in particular

'■'St. Thomab, liii-. <-it., q. LIV, a. Ill, r.

■"De Beckbk, op. cit., p. 1T9.

"•PnMMlKE, op. fit., vol. II, p. I3S.

•"8<HMAi,B0RrBiH, |i. Ill, til. XIV, n. 30 ff.; Webnz, op. «(., n. UO;
GAsrAOKi, up. cit., a. G7 1 ) De Beckeb, op. cit., p. 181 ; OK SUST. op. J "
n. 299.

Impediment of Consanguinity.

233

to the answer of Pope Nicolas I (858-867) occasioned
by an inquiry on the part of the Bulgarians, there be-
ing no more authoritative declaration available rela-
tive to the matter in question.'"

Though the Church fails to state expressly that her
prohibition of marriages between persons related in
any degree of lineal consanguinity is equivalent to a
mere enforcement of natural law, we are inclined to
believe tliat sueh is the case. It is true that this opin-
ion may be controverted, but in practice no difficulty
can be experienced, because the Church has legislated
by positive law. The discipline of the Church, dissolv-
ing all marriages of lineal consanguinity and those
contracted in the first degree of collateral consan-
gruinity,*" is certainly in favor of our opinion. Not a
single instance can be adduced in which after the eon-
version of one or of both parties the Church has
ratified such marriages. Nor has it ever dispensed in
these degrees of consanguinity, not even in the ease of
tln^ most urgent necessity.

331. While the primary laws of nature do not seem
to prohibit marriage in the first degree of collateral
blood-relationship (between brother and sister), the
deorUination of such a union strikingly militates
against the secondary laws of nature. This departure
from the natural order of things is sufficiently grave
to permit tlie inference that though natural law may
not put the same extreme ban on such marriages as it
dues on those of lineal consanguinity, it tolerates them

•"'■Nam qiiBruDdBiii nuptijs abntiinTc liebpnimi, inter eaa nenipe per-
•OTMJi i|iiiwi jiari'iitUDi liberonimve locum intrr w obtini'nt, nuptiae non-
trmhi Don pamunt, veluti inUr patrcui et flliam, vel aviim et ntptein,
■Mlrem i>t (Iliiim, ariani et nppotc^m, Pt usque ad inflnitum." [Opusc.,
S^tponta Nieolai I, ad ronsulto But^arorum. cup. XXXIX, p. 23, Bomac,
JB60: ih., Mansku.*. op. cit„ p. I, c. III. a. I, n. fl, note; Oaspauu, np.
rit: n. 674. PRIJt, <ip. cil., n, 364; Scnu&iXQRt'BER, op. «(., p. III. tit.
XIV. a. 3.i; Dc Bbckbb, op. cit., p. ISg; De Smet, op. cil., n. 2M.

SyiKKtu Limayui t, IS nug., 1582, Mansf. op, rtt. vol. 36 bis, eul.
WrBXZ, op. ril., n. 410 note, !>»; Ue Kk^KER, np eiX., p. INl.

236 The Xeic Church Law on Matrhnony

only oil the supposition that they are absolutely iieoes-
sary for the propagation of the human race, as a con-
ditio sine qua non.'" Advoeates of this opinion main-
tain that natural law yielded to such necessity in thp
ease of the sons and daughters of our first parents.'"

On the ground of the immutability of natural law
other authors maintain that marriages in the first de-
gree of collateral consanguinity are forbidden by di-
vine positive law which became obligatory on and
operative with the grandchildren of Adam and tlieir
descendants. One should not presume, they argue,
without an unavoidable necessity, that God dispense*!
from and suspended a law which, inhering in nature
and man, and having a universal binding force, is im-
mutable.''"' Other arguments as regards this question
will be found in the following section which treats of
the dispensation from this impediment.

The teaching of theologians, based on the practice of
the Church, gives the latter the right to dissolve mar-
riages contracted in infidelity within the prohibitory
canonical degrees, provided l3oth parties become con-
verts, and there is a just cause. This dissolution can-
not take place, if the persons in question have consnm-
mated the marriage subsequently to their conversion.'"
This point will be explained more fully later.

Though marriages contracted in tlie other degrees
of collateral consanguinity do not interfere seriously
with either the primary or the secondary laws of na-
ture, they are not thereby altogether reconcilable with
natural law by virtue of which they are considered
illicit. The Church has not only approved this mild

'"WebN!!, op. cit., n, 411; De Smkt, op. cit.. n. 299, note 2.

"'Gasparri, Dp. oit., n. 678.

'" BantiLejtnir. Praelfcliime* Ivr. Can., vol. IV, tit, XIV, n, 13,
RatUlHinap, 1905.

'" Fkijb, 'i/j, fi/.. n. 307 ; PoiiiONE, op. flit., vol. II, p. 313; Wnu4i(<
cit., 11. (iWt; IfAs'.vcKAl.E, lip. ril., vol. HI, n. 470.

Impediment of Consanijuimti).

237

prohibition of the natural law, but eiilmiiccd its t'ort'e.
Thus an impediment which, by virtue of natural law,
is only inipedient in some degrees of collateral con-
sanguinity, becomes diriment by special ecclesiastical
legislation. That the Church was justified m aimexing
the ptnialty of nullity to an act which by natural law is
only illicit will be evidenced from the discussion of the
following two points.

332. II. The bond uniting blood-relatives is a dif-
ferent bond from the one which arises among persons
related by marriage. In the first instance it springs
fronniatural relation, it is an inherited tie. In the sec-
ond it is acquired. Consequently the sentiments of
love and confidence arising from the first relation
[[differ substantially from those to which the acquired
ond gives rise.
The sanctity of home and the pure love which ought
» exist among consanguineous persons would be px-
osed to grave danger if such marriages were not dis-
ountenanced by the Church and also by public opinion.
The natural bond by which such persons arc united,
nstead of being instrumental in procuring an unlim-
Fited amount of good, would become the means of per-
verted intimacies, which would result in creating a poi-
sonous atmosphere at the very base of society. It
must he admitted that the occasion for evil is nearer
mong blood-relatives on account of their free com-
lionsliip and Lntercomnumion."" To counteract the
Dfluence of this threatening evil, as a matter of advis-
ability the Clmrch surrounds with safeguards and ad-
litional precautionary measures those who are exposed
ftoit.

■" "PiniH matrimonii . . . deperiret, si qiiaelibet conaanguinea

pniwrt in matrimoniam duei, quia magnus Fonrnpisccntiae aditus prsp-

biTflur, nisi inter illas pcnionas quas npcirtet In eodem donio convereari

..emi-t carnnlis copula interdU-ta." St. Thomas, Supi'l. llloo, p., q. LIV,

— ;.; and in II»II«. q. CLIV, u. IX, c.

238 The Neiv Church Law i

Main

333. HI. Marriage, the only legitimate means for
the propagation of the himian race, is the office of the
conmiunity. The reasons thus far advanted may 1k'
regarded as requisites for the moral welfare of society.
Btit the institution of marriage is to promote not only
the moral but also the social and physical we!I-bci»p
of the commimity. The most effective means ealcu-
lated to promote the social welfare of a comnmnity if
the tangible bond, be it ever so remote, linking thf
different persons and originating in niatriinony. Thr
most ideal society is one in which all the persons arp
related, for then its units will endeavor to promot''.
and take a personal interest in one another's happi-
ness and pros|jerity. To cultivate this feeling of
friendship and brotherhood is one of the ends of matri-
mony.'** thus to aid men to the realization of the
Fatherhowi of God."' By the prohibition of consaii-
guinwms marriages, this connecting link is extended to
(H'l-sons heretofore unrelated, and thus the fact that
mankind is one huge family is visualized more tangibly.

l•^lrthermon', both the Church and the State are au-
thorized by God to guard the physical welfare of
hvimanity. They exercise this authorization when they
lay down certain laws tending to promote that end.
The comnmnity implicitly admits such authority when
it conforms to such rules regulating its actions. The
legislation thus enforced may be either remedial (in-
tending to remove an existing evil) or prescriptive
(upholding for prudential reasons a hereditary law

**"Hahita ml onini ratio TectiBsima rnritalU, lit hominrs . . . di-
viTNirum nrvi'SiituiUnuin vinculo net'lcrcnlur . . . atqtie ita »c non in
pAiiTllal«< Kn*rrl«tuin, ard Istiua ntqllE^ numproiiius propinquiUlihua
iTfhria vjorulum snriale diffundfwt . . . ne hsbflst duaa nvcMai-
tuiltn<>« unit roTsona, nim duae possint eaa habere, et numrnia propinqui*
latin BUftfrl,' (St. AvonsTn-E. Dr CiviUitr Vei, lib. XV, cap. XVI.
Tj<pitlni<. l«r.7; St. Thomas. IU-IIm. q. CLXIV, a. IX, c; again, Sup^
lllw, p.. q. LIV, K. Ill, c; I FtttT II, 17.

"Jed. VII. Sfi.

I III pe diluent of ConsiinguinHy.

239

transmitted by foregoing generations). The proliibi-
tion expressed by such laws is founded on experience
and observation. They provide against acts which in
the past proved detrimental to the physical welfare of
society.

The impediment of consanguinity belongs to the
category of hereditary prescriptive laws. It is an
established fact of experience that eonsanguineons
marriages are injurious to the pliysical welfare of tlie
child. The modern physiologists accept tliis fact estab-
lished on, and corroborated by, statistical information,
but they fail to agree as to the gravity of the harm in-
flicted on offspring of incestuous unions.

334. The nature and scope of this work will not
permit us to enter into the discussion of the different
thiHiries suggested in explanation of exogamy and
endogamy as practiced by some savage races. The
reader is referred to the authors quoted below."''"
Westennarck mentions several writers who positively
exclude the possiliility that the harmful consequences

I resulting from endogamic marriages, as ascertained by
facts of observation, could have been instrumental in
influencing the untutored tribes to form laws prescrib-
ing exogamie unions."'' Granting that no positive
traces can be found favoring a contrary aasuntption.
We cannot legitimately conclude that the available
ifacts, namely, the obvious mental and physical defi-
ciencies of offspring born of incestuous marriages, en-
tirely escaped their attention. Unless there is positive

"•SpeNCHi, PrincipUt of Soriology. T, 614 ff . ; I-«ndon, 1886; Prazhi,
ToUmiMPi, Edinburgb, 188T; Maink, Dmrrtaliuiw on Early Law and
Cuttoptu, Ixindon, 1883: McLiwnan, Slailien in AiuHrnt Siatory, London,
_ 1B86; Exogarny and Endogamy, in the Fortnightly Review, vol. XXI,
' toodon, 1S87; Mb.odt. MarriaOf and Nrar Kin. in th^ CathoUr Vni-
m-vertily Ballftin. Jan., mvA. pp. 40-00, WoshlnKWn, D. C; Cronin, op.
TtfU., vol. II, pp. 4fi ff.

I ■■' WKSTCBUARrK, Gmrhirbtr der meiuehlirhtn PA*, ph. XIV and SV,
f pp. 289-356, Yena, 1893.

240

The Neiv Church Law on Malrimony.

evidpiice to the contrary one is not justified in placing
gratuitous limitations on the knowledge of peoples
wlio displayed so remarkable an Ingenuity in exploring
the secrets of nature, and so striking a familiarity with
its serviceableness and adaptability to their daily
wants."" Wliile we do not contend that the uncivilized
tribes were in possession of a "sagacious calculation"
of these harmful eifects,"''' we maintain that they were
not altogether ignorant of tlieni, and that their knowl-
edge, combined with their natural repugnance to such
unions, gave birth to the proliibitory laws against
endugamie marriages.

335. We already had occasion to hint at the fact
that there is a lack of unanimous belief as to the grav-
ity of the physiological evils resulting from incestuous
marriages. That these evils have frequently been ex-
aggerated we readily agree with Amer."" Though, to
all appearances, he is inclined to minimize these harm-
ful consequences, he admits with frankness that "suc-
cessive generations of offspring of incestuous connec-
tion . . . are very often degenerate."*"

The intensification by double inheritance of the
hereditary family characteristics is certainly an un-
doubted physiological fact. In the case of mental or
physical weakness on the part of the parents, degen-
eracy is a serious menace to be feared, though it may
fail to assert itself in every case individually, or even
in the first generation. Statisticians interested in such
investigations have almost unanimously come to the
conclusion that such hereditary defects on the part of
the parents are transmitted in an intensified degree to

'" Maine, op, Ht, p. 228.

"■ CRONiti. op. cit. vol. II, p. 453.

'^ Cojuumguineous Marriages in llie American Population. A Dnrtor-
nte DiMertatron, Columbln Univpraily, 1B08; Tuowpson, tlfrrdilji, pp.
3S6 ff,, Ixindon, 1913.

'"ASNIOi. op. fi(., p. 88,

Impediment of Conmnguinily.

241

the offspring."" This intensification is greatly in-
creased in ease the parents are living in an incestuous
union. Such unions, if not childless, as is often the
case, beget offspring subject to grave physical and
mental weakness, for instance, epilepsy, deaf-mute-
ness, and nervons diseases. The child of such a union
acquires and tran.smits easily the defects of its par-
ents, especially when the inbreeding of blood-relations
is repeated.'" The statistics of Fay bear out tliia fact.
He ascertamed that deafness, whether congenital or
adventitious, is more likely to be transmitted in a con-
sanguineous union than in a non-consanguineons
nnion*" and undoubtedly with increased intensity.

Viewing the foregoing facts cumulatively, no om*
should deny that the Church has sufficient ground for
the stand she takes in these matters. Since under
present conditions the blood-relationship beyond the
third degree of consanguinity does not seem prejudi-
cial to offspring, the Church has lifted her ban from
tlie fourth degree.

5. Dispensation from the Impediment.
336. Those degrees of consanguinity which are
I based on natural law bind both baptized persons and
1 infidels. Therefore marriages attempted between per-
I sons related within such degrees are ipso facto null
I and void and such consorts must separate in case one
1 or both embrace the Catholic faith. The authors fail
[ to agree as to the degrees prohibitory by natural law.

'" HttTM. The Marriage of Near-Kin conaidcrrd urifh retpect to taw of
matiom, Ihr resutta of experience, and the teaohin{i» of hiologp, London,
1875; SuKBLBD, La morale dant sea rapport* aveo la nidieine, el
Vhggiene, PhtIs, 1H96; LUKOCK, The hiilory of murriage, Jeiviih and
Chrietian, in relation to divorce and certain forbidden deoreea, London,
1895; PBTnmoN, in the ETicyelopaedia Brittanirv (Eleventh t'dilion), vol.
XIV, nrl., "Innanily," n. 6 (ConBanguinity).

•"BDiiTaBLL, loc. cit., "ComangviniCy" (Motivee of Impi^dinient ).

"•Pay, Marriagei of the Deaf in America, pp. 132-133; WftBhingloit,
18QS, Qibson Brothers,

242

The Neiv Church Law on Matrimoni/.

There are three opinions. Some iiichido all tho de-
grees of the direct line and the first degrtn* of tlie eol-
lateral line."''" Others inaijitaiii that the prohibition of
natural law does not extend beyond the first degree of
lineal and collateral blood-relationship.""' A third
class of authors confines the prohibition of natural law
to the first degree of lineal consanguinity.""

The solution of this doubt is of paramount im-
portance when a marriage contracted in infidelity is to
be ratified after the conversion of the parties. We
presume here that the <:'ivil law to which the persons
in question are subject does permit marriages within
the above-enumerated controverted degrees. If it
should prohibit such unions, then the civil impediment
has already suspended the validity of their marriage
and it cannot be revalidated, if they should be related
within any of these controverted degrees, from which
the Church never dispenses.

337. The advocates of the first opinion, the most
comprehensive, draw the conclusion that persons who
before their eonversion contracted marriage in lineal
consanguinity or in tlie first degree of collateral blood-
relationship, cannot be permited to remain in a union
invalidated on the ground of natural law. Such con-
sorts, on their conversion, should be separated and
permitted to remarry. In all the other degrees, pro-
vided the civil law does not interfere, the marriages

"•WmNZ, op. ril., n. 410 and n. 417; Peije, op. rit., n, 366 and 367;
Leiimki'hl, Thfulogia Morulit, vol. 11, n. 990; Friburgi Brugovuc,
191U; HBIS8, Pe Matrimnitio, pp. 1.19-142, Monachii, 1861; SANTr-Lwr
NKR. op. Oit., A. (.. n. 13, p. 250; SCHHAUEGRt'BEK, op. til., p. III. lit.
XIV, n. 35. The latter admite that marriage between tbe deai-eudanla
and BHReadaata is iuvalid in infinihim un Uie ground of natural la*,
but, in hii opinion, marri&ge in the first degree of collateral blood-
reUtionehip is not forbidden on the same ground. {Op, cit., liif. ril.,
n. 46.)

™8anchkz, op. fit., lib. VII, dis. I.I, n. 11 and disp. LII, n. 21.

"■GiispABBt, »;■. Ht.. a. 680; VDiBicia.i.1, Pr Apnttolinit MiMtionibim,
q. XCVIII, dub. 14; Qiuvine, Df Dup. Malr,, I, (208, n. 1.

p Impediment of ConaanQmnitii. 243

of infidpls arc valid, i'or they are not bouud by canon-
ical inipediiiu'iits wliioli, in tlio estimation of thi'sn
anthors, \wgm with the second degree of collateral
consanguinity.

The advocates of the second opinion, less eompre-
hensivp, true to their principle, maintain that only
those marriages should be dissolved which the infidels
contract in the first degree of either lineal or collateral
consangviinity.

The advocates of the third opinion, least compre-
hensive, base their decision on the fact that it is douht-
InX whether natural law actually forbids any mar-
■riages except those contracted in tlie first degree of
lineal hlood-relationsbip. Such being the case, they
[naintain that we must emphasize here the principle
that in doubt one is to pronounce in favor of the valid-
ity of the marriage. Therefore tbey conclude that all
uiions may be ratified on the conversion of the infidel
_ arties except those contracted within the first degree
Df lineal consanguinity. The others, nisi favor fidei
tliter expofiialj"'- should not be dissolved.

~18. There is no positive proof or categorical
declaration at hand which would help one to decide
with certainty that natural law forbids marriages in
any other degree except the first of the direct line.
Jnnoeent ITI "' distinctly declares that those who in
infklelity contracted marriage {praecisione facta a
civili lege) within the secoifd degree of consangiunity,
in the collateral line, should not be separated after
their conversion, This instruction may be used as a
negative argument. Since he does not extend the same
privilege to those married within the first degree of
collateral blood-relationship, it may be justly con-
cluded that persons so married must be separated.

244 The Xetf Church Laic on itatrimomy.

This separation would Im" tlip result of natural law pro-
liihiting unions in that degre<>.

There is no explicit decree proving that sm-li has
actually been the discipline of the Church, though in-
direct proofs are not wanting. Thus, for instance, the
Sacred Congregation of the Holy Office on two ilifftr-
ent occasions has given very extensive facidties to the
Ordinaries (and even to the parish priests when re-
course to the Ordinary is very difficiUt and there is
periculum in mora, urgente mortis pericuh)."* The
tenor of these decrees permits the Ordinary to dis-
pense from any and all impediments nf ecclesiastical
origin excepting the impediment arising from the Holy
Priesthood and from affinity in the direct line arising
from copula licila. This same faculty is given under
the same circumstances to all the Ordinaries and
parish priests by the new legislation.'"' It is admitted
that the aforesaid impediments are nf ecclesiastical
origin. Therefore, had the Church considered the sec-
ond and other degrees of lineal and the first degree of
collateral consanguinity of the same origin, these also
should have been added as exceptional cases witlidrawn
from the conferred faculty. Since no explicit mention
is made of them, and no one has ever presumed to in-
clude them in the faculty (for the delegate does not
possess a more extensive faculty than the one by whom
he is commissioned) the natural inference is that they
are impediments of a higher order.

339, Furthermore, there is express legislation en-
acted by Provincial Synods and subsequently approved
by the Church, ruling that all marriages contracted in
infldelity within the first degree of collateral consan-
guinity, must be dissolved on the conversion of the

'•■ Litt, Bncycl. 8. C, S. Off., 20 fobr., 1888
1 mBrt., ISPfl; new CoUectanea, n. 1898.
•"Cod. luii. Can., Cnn. 1043; see this work, n, 151 ff.

ColUetaiiea, n. 16^5 ;

Impediment of Consanguinity.

245

parties."" No such declaration can be found as re-
gards lineal consanguuiity, since it is generally re-
garded as founded on natural law, while the former
has constituted a bone of contention for many cen-
turies.

As an additional proof, it may be added that the
Council of Trent, legislatiTig on the dispensation to be
given from this impediment, insists that in the second
degree the dispensation should not be granted except
in very rare cases, and then only in behalf of influential
princes and to serve a public cause.'"' This insistence
plainly indicates that the legislative authority of the
Church over this impediment begins with the second
degree of collateral blood-relationship. The severity
of this decree and the failure to make mention of the
other controverted degrees, permit the tacit inference
that a higher law has withdrawn from the Church the
power to dispense from them. Whether this higher
law is natural law or positive divine law {which per-
mitted such marriages only in the case of the children
of our first parents) has little bearing on tlie question.

The weiglit of the evidence thus far adduced, when
viewed cumulatively, and corroborated by the fact that
not a single instance can be advanced in whicli the
Church dispensed from lineal consanguinity or from
collateral blood-relationship in the first degree, ought
to induce one to pronounce in favor of the first and
most comprehensive opinion. Therefore, marriages
contracted in infidelity within the controverted degrees
as specified above, ought to be dissolved after the con-
version of the parties and the persons thus parted
ought to be permitted to remarry.

'^Ssnodut Limantt, I, 15 aug., 15S2, Mansi, op. tit., rol. 36 bis, col,
109.

■""In iwcundo grnilu eonsniigui nit alia nunquam dispensetur, nisi inter
maenos iirim-ipcx, ct iih |iubUtnni •'iiusnTii." (De Srf. itiitr., !<>-!>:ii<i
XXIV. f. V.)

246 The Neii- Church Law un Matrimony.

340. Thp canonical diseipline as regards this iin-
pt'dimeiit binds all baptized pcrscnis. At the present
time the Churcli shows more leniency in these matters
than in the past. It is certain that for just causes she
may and does dispense from tlie impediment of eoii-
Banguinity in the second and third degrees of the col-
lateral line. The Council of Trent in the instruction
quoted above enumerates two causes justifying the
granting of a dispensation in the second degree of
blood- relation ship, namely, if it is asked by an influ-
ential prince and for public cause. Tlie recent diseip-
line interprets this decree in the sense that these two
eauRes suffice whether they be taken connectedly or dis-
junctively, and even in the case of private persoiis.

341. The causes for which the Holy See usually
dispenses from the equal second degree or from th»i
mixed second touching the first, in the case of illus-
trious persons, or persons of noble descent, are the
following: (1) Conservation of the noble family and
its estate within the family; (2) Avoidance of grave
scandal; (3) Infamy tlireatening a woman of noble
birth either on account of carnal intercourse or sus-
pected familiarity with a blood-relative; (4) Non-pos-
session of dowry; (5) Bitter enmities that can be
healed or avoided by marriage; (6) Marriage con-
tracted in good faith, or even in bad faith provideil
the woman is already with child; (7) Supr-radnlt age
of the woman.

It is to be noted tliat causes mentioned in points 3.
4, 5, 6, 7, if other, though less consequential reasons
concur with them in the same case, are generally con-
sidered sufficient to justify the granting of a dispen-
sation even in the case of poor applicants."* The rea-
sons just given whieli are looked npon as more grave
suffice for a dispensation from the seeond degree of thj

■"GASfAKBl, 'III. rit., n. (181.

mpediment of Consanguinity.

247

^<^ual line, or from the seeoiid and first, and third and
^*-st mixed. Any canonical reason will suffice for a
*- fpensation from tht* equal third degree or second
fcuchiiig the third,

The impediment ceases tn bind in case one of the
Dntracting parties is related in the fourth degree to
kie prospective consort, even if it should be fourth
aixed with the first."'

It is understood that the petition for dispensation
nvolves only collateral blood- relationship removed
further than the first equal line, A mention of the
■egret- of eonsangninity should never be omitted,
jid if the line should happen to be unequal and the
onsanguinity nmltipie, these facts must also lie ex-
pressed. If tlie fact of the unequal line was con-
*aled. provided the degree expressed in the petition
8 less remote (and the one concealed more remote)
tlie dispensation is valid. Thus, for example, a peti-
tion is asked from the second degree. If in reality it
should happen to be second mixed with the first, the
dispensation is invalid. If it should he the second
liilxed with the third, the dispensation is valid. Such
yi&s the discipline under the old law. Though the new
law fails to legislate specifically on these points, it
vronid seem that the former discipline will remain in
IJpree.

342. The third degree of consanguinity has been
placed in the category of minor impediments, there-
fore the di.«pensation granted from such a degree is
also regarded as minor. Such being the case, obrep-
tjon or subreption does not vitiate the dispensation.
The mere exposition of the fact of consanguinity
suffices, and the dispensation retains its validity even
if it should happen to be asked and granted on fictitious

*■ ScHMALKGBi'BEB, Op. cit., p. Ill, 111. XIV, fl. HO: GAsrsHHl, ll)J. fit..

24S

The New Church Law on Matrimomj.

of the
iUy o^

grounds."" It is furth(*r to be noted that dispensation
in any degree of consanguinity is valid though the peti-
tion or concession should contain an oversight about
the degree, provided the actual degree is inferior to
the one expressed. The same is to i)e said in cape a co-
existing impediment of the same kind ui similar or
inferior degree, should be withheld.""

6. Ecclesiastical Penalty and the Edpo.sure
Impediment.

343. Consanguineous persons attempting
tract marriage without a dispensation are guilty
incest. The Gratian collection enumerates several
penalties to which such parties were liable unless ex-
cused by ignorance or fear. Thus, for example, they
were declared infames by both civil and ecclesiasticjil
law;'" they were separated and, if they attempted
marriage in bad faith, neither of them could remarrj-
during the life-time of the other."' They were to be
separated from the communion of the faithful,"' and
the children of such parents were not to succeed to
paternal inheritance."" Schmalzgriiber mentions other
penalties besides those already enumerated."' The
Council of Trent imposes separation and intimates
that such persons, if in bad faith, should give up all
hope of ever being dispensed, especially if the mar-
riage has been consummated."' The censure of ex-
communication fulminated by Clement V was repealed
by Pius IX in his Constitution "Apostoltcae Sed is"

"'Cod. lua. Can., Can. 1054, and Cnn. 42.

•" Cod. Ius. Can., Can. 1053.

"C. 2. C. XXXV, q, 2.

"C. 4, C. XXXV, q, 2.

"•O. 3, C. XXXV, q. 8.

■"C. 1, C. XXXV, q. 7.

'" Dc Contanguinitatc and A/finitate, nn. 62-63.

'" De Ueform. Ualr.. ufasio XXIV, e. V.

linpediment of Cntumngninttij.

240

issued on October 12, 1869, hut that Constitution au-
thorized the Bishops to inflict the same penalty, if they
deemed it necessary in particular instances. A vestige
of the impediment of incest, which in the opinion of
the leading authors ^" was considered only an Jrapedi-
ent impediment in the past, is still retained in the form
of a clause placed as an adjunct to certain dispensa-
tions. The tenor of this clause is that a person who
knowingly has attempted marriage with one related to
him in a forbidden degree of consanguinity, caimot
licitly contract marriage without the express permis-
sion of the Holy See, not even after the death of the
consort in case liis attempted marriage was subse-
quently revaliditated.'"

The impediment of consanguinity is public whenever
it can be proved in the external forurn/'" Ttierefore,
not only the parties involved but also persons free
from suspicion have the right to apprise the ecclesi-
astical authorities of the nullity of a marriage con-
tracted without a dispensation from an impediment of
blood-relationship. The old discipline laid down spe-
cial legislation to be followed in all such juridical
processes.'" Since the old discipline still obtains in
this respect, parents, relatives by blood or marriage,
neighbors, acquaintances, whether Catholic or non-
Catholic, all alike possess the right to expose the hid-
den fact of consanguinity."^

344, If the parish priest is informed as regards the
blood- relationship of two prospective consorts, before
he as8ist.s at their marriage he must inquire into the

1. Fit., lib. VTI, diap.

■"Wernz, op. eit, n. 412, note S5; Sai
XV, n, 15; OaspaBRI, op. Ht.. a. 883.

"•Phjb, op. eit., n. 369; Webnz, d;i. ci
op. eit., ioB. eit.

"■Cod. Ipb. Car., Can. 1037.

■*' C. .1, X, iTUt malTimonium arevtare poMunt,

"' ,(p/fl Apottoticae Srdu, vol. V. pp. 1201 IT,

412, note H6; Oaspahbi,

250 The New Chttrch Law on Miitrhnonf/.

grounds on which sudi ijii'ormation is basod, ShonW
the fact of consanguinity be rcveah-d, a dispensation
must be asked. If his investigation sliould result in a
prudent doubt, leaving room for the presence of the
impediment of consanguinity, he must abstain from
assisting at the marriage without having first con-
sulted the Orduiary.'" The parish priest should ii«t
neglect to give heed to a trustworthy informant who
undertakes the task of revealing an inipediment exist-
ing between persons intending to contract marriage.
The present canonical discipline,"' as well as the
past ^" insists that those who are in possession of such
knowledge, should bring it to the notice of the Charcli.
346. The ecelesiastici'l iudgo or defensor matri-
monii is bound ex officio to institute a juridical pro-
cedure as soon as be has sufficient data on hand testi-
fying to the existence of eonsanguinity militating
against the validity of a marriage. The mode of
procedure which is to be pursued in all such eases is
described extensively in the instruction given by the
Sacred Congregation of Propaganda Mhich in its sub-
stance is retained by the new Code. For the present
it will suffice to know that no marriage may be de-
clared invalid unless the evidence against its validity
is absolutely convincing (prnbatio plena reqiiiritur;
semi-plena ««» sufficH). It is precisely in this feature
that the two prwesses, namely, the one instituted for
marriage to be contracted, and the other for matri-
mony already contracted, differ. In the first instance
Ihe marriage is suspended or prevented (without dis-
pensation), though the evidence on hand does not ab-

■-CViB, !r«. CaS., I'aa. IMl.

- Op. r*l.. i%K. 1027.

■"C Itt. X. 4r fn^MOtionr tpirititali. IV, 11; t. 3, X, de «i, qm tvg-
■o*^, IV. IS; r. 9. X. dr iMtibM et attnt^ II. 20; (. 3, X. d* ■
enmtr. i-natra iitlpnL jriWrxiac. IV. Iff; r. ST. X, A* ipouoliftai et n
rJWMHM. IV, I; r. 3. X. A- Handatimm Aafomaatiome, IV, 3; c; IXj
rf# <lM|Mi*«iliii«r inpsknvn, IV, 2.

Impediment of Con-sangnintty. 251

solutoly prove tlie existence of tlie impedmient in ques-
tion; surh would be the testimony of a person worthy
of belief,"'" or puhlica fama."^ {Probatio semi-plena
de consanguinitate stifficit ut matrimonium contrahen-
dum impedintur.)

In order that the doubt as to the fact of the existing
consanguinity may be solved, all sources calculated to
shed light on the ease under investigation should he
diligently consulted. Reliable data will be furnished
in this matter by the authentic records of marriages,
baptisms and interments,^'* whifh evidence ought to be
corroborated by tlie testiinuny of witnesses worthy of
belief. The discipline of tlie Church in the past per-
mits one to conclude that the testimony of two wit-
nesses, especially if tht-y should be relatives of the
parties in question, will certainly constitute sufficient
evidence {probationem plennm).""

7. Civil Legislation.

346. Tlie Civil Law of the different nations gener-
ally conforms to the Canon Law in as nuich as it does
not discriminate between consanguinity arising from
the tie of legitimate procreation and that arising from
natural procreation. A lack of uniformity prevails in
the Civil Law as to the degrees within which consan-
lineous marriages are proliibited. In England the
itatute (32 Hen. VIII, e. 38) of Henri' VIII, repealed
ly his son Edward VI, hut revived by Elizabeth (I
"lliz., e. 1), restricted the prohibition of such unions

□, 4, ST, de tpontaUbv» et moirimnniu, TV. 1 i R. C. O,, 4 ian.,
: ib., WoiNx, np. cit., n. 423, note 92.
"C. 2, X, dc conanng. et Jffi., IV, 14; C. 3. X, de mnlr. rirntrttcto
lira inttrd. Bee., IV, 16.

"Inatr. B. C. de Prop. Pidp, 1883, new CtilUetnnea. a. ISH"; 14 ian„
the Ada 8. .ledif. vul. XVIT, pp. 178 ff.
1-4, L'. XXXV, q. «; r. 1, U, X, de cmsaiig. fl Affi.. TV. 14.

252 The \ew Church Lav: on Matrimony.

within the "Levitieal degrees." The prohibited r
riages were those contracted between persons in the
ascending and the descending iine in in/initum, and in
the eollateral line to the Ihird degree inclusively ac-
cording to the computation of the Civil Law. The Act
of 1835 decreed that: "AH marriages which shall here-
after be celebrated between persons within the pro-
hibited degrees of consanguinity or affinity shall be
absolutely null and void to all intents and purpose*
whatsoever." Before this enactment such marriages
had been regarded as only voidable.

Tlie English law has been transplanted into Scotland
practically in its native form, but it has been some-
what modified in the United States of North America.
Tlie States of New Hampshire, Ohio, Indiana, Kansas,
Arkansas, Nevada, Washington, North Dakota, South
Dakota, and Montana have for a long time prohibited
consanguineous marriages between first cousins. The
example of the foregoing States was subsequently fol-
lowed by Louisiana, Oregon, Pennsylvania, Michigan.
Nebraska, Utah and Wisconsin.

In France the code of Napoleon forbids marriages
between (art. 161} all descendants and ascendants
legitimate or natural in the direct line, and between
(art. 162) brother and sister, legitimate or natural,
and between (art, 163) uncle and niece or aunt and
nephew.**"

The Civil Law in Italy,"' Hungary and Switzerland
conforms to the Civil Law of France. The Civil Law
of Spain distinguislies betwen consanEiiinity arising
from a legitimate and that arising from a natural
bond. In the former instance the impediment extendi!
to the second degree of collateral blood-relationsliip. in

"•Db Smet, op. cit, n, 301. Bcholion, TIT.

•" Jf (MmoJe de Ddiensa, Codier CiviU. tit. V, TIrl matrimnnio. spc. II,
art., .W nnd ."JS, p. 18, Mll«no, 1911.

Impediment of Consanguinity.

253

the latter it ia restrictpd to the first degrpp of the same
line. The civil authority according to art. 85 of the
Spanish Code reserves to itself the right to dispense
for just causes in the third and the fourth civil degree
of legitimate consanguinity."'

In Germany all marriages are null and void between
descendants and ascendants in the direct line, and be-
tween brother and sister of whole or half blood in the
collateral line.

The German Civil Law on this point was incorpo-
rated into the Civil Code of the State of New York of
the United States of Nortli America."'"'

347. As is seen from the foregoing exposition of
the civil legislation, the present discipline of the
Church on this impediment approaches more closely
the discipline of the Ci\'il Laws owing to the elimina-
tion of the fourth degree. Needless to say that this
relaxation favors only those who are under the juris-
diction of the Church, namely, who are baptized. If
the Civil Law of a country should forbid marriages up
to the fourth degree of consanguinity, a Catholic and
an infidel, related in the fourth degree could not con-
tract a valid marriage by the mere fact that they ob-
tained a dispensation from the impediment of dis-
parity of worship. The unbaptized party in the ease
would he bound by the civil diriment impediment of
consanguinity, and unless a dispensation from the
state is obtained, no valid contract can be made be-

•"Wbrnz, op. eti., n. 424,

^ For a more fomprehenaivp eiptisifion of the civil le(;i8lnti"n on this
point Ibe reader id rofcrrpd to the followiiic wnrks: Kvebslb^-, The Lnw
aiui nnmntir Sctatiann. London, 1906; Geaky. Marriage and Family
Belatinns. London, 1892; Murkay (Scolland), The Law Eclating t<i (Ac
Proprrty of Married FertoTUi, Glaggow, 1802; Bishop (America). Mar-
riagr. Divorce and 8epaTatiim. Chicafto, 1892; Nbustadt. Erititrhe
Stvdien »tim Famiticnreehl del birgertkhr-n Gescltbuehu*, Berlin,
1907; Ammft-WAONni. Dift. dr droit canon., Pnrin, 10(11; art., "ilar-
\agr," "jginitf; Dbbuond, TIus Chirch ond the Law, Chicago, 1898.

254 The New Church Law on Matrimony.

tween the two. This inference is based on the ne-?^^^^'
law.^»*

X. Impediment of Affinity.
(Canon 1077.)

1. General Notions about Affinity.

348. Affinity in the present canonical discipline is - 3
bond of relationship arising from valid marriag^^^e
(ratified, or ratified and consummated) '•' between ihmr^^
husband and the blood-relatives of the wife, and b(_^^ f-
tween the wife and the blood- relatives of the husbanc=::»<l.
The two consorts do not become related in the striciii^ct
sense of the term, they are only the source of relation-:^^-
ship.'®'* Since the Church condemned the principle ciriDf
Nestorius holding that affinity begets affinity, the bloocnii-
relatives of the husband do not become related t ^o
those of the wife, or vice versa. Affinitv is ahvavs ri
stricted to persons related to the consorts by consai
guinity. No relationship is acquired on the part cii=3f
one of the consorts with persons related to the oth(
consort by marriage.

In order that affinity may arise, the contracted mi
riage must be valid. An extra-conjugal carnal int(
course or a putative marriage will no longer constitu
a source of affinitv. The two consorts are the sour
(stipes) from which affinity originates. The wife
the stipes of affinity arising between her husband a:

S»4

"Quanquam impodimontum ox una tantum parte sc habpt ma'
inonium tamen reddit aiit illicitum aut invalidum." (Cod. Iur. C«
Can. 1036, $3.)

'-Cod. Iur. Can., Can. 97, §1; c. 11, C. XXVIT, q. 2; c. 3, C. X>— ^^V.
q. 5; c. 1, C. XXV, q. 10; c. 5, X, de consanguinitate et afflnitate, IV,
14; Benedictus XIV, ep. encycl. ''Inter omnigenwt,^' 2 febr., 1744, $ ^5:
C. S. S. Off. (Yunnan), 20 sept., 1854; instr. (ad Ep. S. Alberti), 9 dH. <'c.,
1874; instr. (ad Vic. Ap. Nankin.), 26 aug., 1891.

'••Gasparri, np. cif., n. 688; Schmalzgruber, op. cit., p. Ill, tit
XIV, n. 89; c. 20, C. XXXTT, q. 7; c. 13, 22, C. XXXV, q. 2, et $ ; c.
XXXV, q. 5; e. 5, X, dc consanguinitate et affinitatCf IV, 14.

Impediment of Affinity.

255

"O* blood-rt'lativps. The imsbaiid is tln> stipes of
^ffjiiity arising betwt^en liis wife and his blood-rela-
''Vts."' lu affinity there are no generations. The
'•^rras "line" and "degree" refer to the consan-
S"Hiii(.'ous relatives of the respective consorts.

349. In order to eompute the degrees of lineal or
*^«jllateral affinity, one must apply the following prin-
*^iple: The degree and line of consanguinity determine
" e degree and Ime of aflijiity. A person related to one
onsort in a certain line and degree of consanguinity
Incomes related to the other consort in the same de-
Tee and line of affinity.'"
A. 1. In the direct ascendental line the relatives
%n§ines) are: I. degree: father-in-law {socer), motlier-
Sji-law (socriis) ; II. degree: wife's or husband's grand-
father {prosocer), wife's or husband's grandmother
{pro)<ocrus); TTI. degree: wife's or husband's great-
^andfather (absocer), wife's or husband's great-
TundniotluT {absocrus).

A. 2. In tlie direct descendental line the affines are:
degree: son-in-law (gener), daughter-in-law

f(nMr«^); II: degree: grand-daughter's husband {pro-
jfcner), grandson's wife (pronurus).

B. 1. In the case of second marriage the relatives
the direct ascendental line are; I. degree: step-

fTather {vitrkus), step-mother {noverca); II. degree;
^aiidmother's husband (provHrirns), grandfather's
wife (pronoverca) .

B. 2. In the descendental direct line the affines are :

fl. degree: stepson {privignus, son of a father or
mother horn of a former marriage), stepdaughter (pri-
vigna, daughter of a father or mother born of a former
marriage).

■Cod. Icr. Cas.. Tan. ST, }2,

"foD. luR. Can., Can. 97, (3; r. 3, C. XXXV, .

ttT. (ad Archiep. Quebeceu.J, 16 stpl., 1824, ad ^

256 The New Church Lain on Matrimony. '

C. In the collateral line the affines are: I. degrew^ '■
brother-in-law {levir), sister-in-law {glos); brother""
wife (/ra(ria), sister's husband (sororius). The otlie
relatives have no special name. They are designate*
by the various degrees of affinity.'""

350. Affuiity is multiplied as often as tlie consaiu- -'
guiuity is multiplied."" A person related to one eon — —
sort by a double tie of consanguinity becomes relatec::^^
to the other by a double tie of affinity. Thus, for in '
stance, Charles contracted marriage with Agnes. Im^"*
Agnes should happen to be twice related to Cecilia irt*^
two different degrees of consanguinity, then Charle— — ""^
also becomes twice related to Cecilia in the same An- -^
gree of affinity. Affinity is multiplied also by a mar-
riage contracted successively with a hlood-relative or^ - ^
the deceased consort."" If Joseph should marry sue -=-^^-*
eessively Agnes and Ceeilia, related to Bertha in th^^ "^
first and the second degree of consanguinity respec-ss!^!=
tively, he becomes twice related to Bertha.

5. History and Nature of the Impediment.

351. The impediment of affinity is a mere enforce;^^^
ment, in a modified form, of the prohibition of th— — '
Mosaic Law, Leviticus forbids marriages between^ - ~^
relatives in the first and the seeond degree of the direcrr^^^
line, in the first degree of the collateral line, and in th^^ -[
first degree mixed with the second of tlie same line, b€=^
tween a man and the widow of his father's brother.*"""

By prescribing that the surviving brother sbouLrf— ■*
marry the childless widow of his deceased brother, tl. — ^^
law of the levirate removed from such cases the b^^»- ^
under wliieh they were placed by the general law, tir^ J

"■ Santi-Lbitnkb, ft. (., n. 34; Gasparri. op. ril., n. fiSl : Grons:* :^.
op. cil., $303.
•"Cod. lutt. Can., Can. 1077, (2, n. 1.
•" Op. eil., Can. 1077. {B, n. 2.
-Levit. .Will, 8 ff.; XX, 20. 21.

'npediment of Affinity.

vi Ttne of its prohibitum direfited against allinity in Dh-
/ii-st degree of the collateral line.'"*

The cause of affinity in the Koman Law was a valid
ii««rriage (iustae nuptiae) even if uneonsummated.
TMi' prohibition of marriage was confined to lineal
affinity, najnely, between stepfather or stepmother and
stc^pUaughter or stepson (the two born of a previous
in-«rriage) : and between t'ather-in-law or niother-in-
la-v* and daughter-in-law or son-in-law.""

352. The Mosaic and the Boman Law are the two
s<jurces on which Canon Law has drawn as regards its
'♦-^islation concerning affinity. For the first three cen-
t^Jries the C'hurch contented itself with the mere en-
forcement of the Mosaic Law. Towards the end of
tlie third and in tlie first quarter uf tlie fourtli century
tli«<t.f, app evidences proving that tlie Churcli has ex-
'•>n<Jed the impediment bi-yond the degrees ppecitieil in
■*<* Mosaic Law and ))egan to legislate independently of
^»>>- civil iiifiuem-e.*"'' The Councils, of Klvira (300-
•^06)*- and of Neo-Caesarea (314-325)/"' as well as
B^***? Synod of Rome,'"' establish this fact beyond doubt.
■*^*»* various ('ouncils held in Gaul in the sixth and the
P?*v-enth century either emphasized the already exist-
**fe' di.'<eipline or introduced new legislative measures
'5**-*'lifyiiig the impediment of affiuity by extending it to
**»-ther degrees. They threaten with severe penalties
^••r who should attempt to marry "the widow of his
^•"•jlher, or the sister of his wife, or his stepdaughter,
'^**~ his stepmother, or the widow of an uncle whether

-»i«l. XXV, 5! Uatt. XXn, 24; Mark XIl, 19; Luke XX. 28.
"Wbke. o;). eit., n. 429; Ue Shbt, op. eit.. n. 307; EsueiN, op. cit.,
^V I. pp. 375 II.; 47, uut. de nvpliU, 1. 10; L. 14, J4, 7). d^^ tUu nup.
■»^m, XXIII, 2; h. 4, «3 «]., D. de gradtlHU, XXXVIII, 10; L. 17.
-- A- nmpliU, V. 4.

*"W««KI, op. rit.. n. 429; EsMEIN, op. ril., vol. I, p. 375.
— &U.4SI, op. cU.. trol. II, rol, 15, C 61.
^ UAXm, op. fit,, vol. II, col. 540, c. 2.
I ^Mamm, Of. M., voL in, col. 1137 and 1138,

258 The New Church Laic on Matrimony.

on the father's or on the mother's side." The canon-
ical discipline adopted at these Councils was subse-
quently incorporated into the civil Codes of Burgnndy,
of the Visigoths in Spain, of the Longobards in Italy
and of other nations.

The reason adduced in favor of the iuipedinicnt of
consanguinity may be applied to that of affinity, hut
it does not possess the same force. By \'irtue of the
conjugal intercourse, whicli is the cause of affinity, a
certain similarity is established between the two im-
pediments owing to the natural bond which such an
intercourse creates between one consort and the blood-
relatives of the other.'"' The reverence, respect and
love which this particular tie occasions, are ill disposed
to encourage conjugal alliances among the persons thus
related."" The legislation of nations not altogether
untutored, as well as the Roman law,'" intimates that
the voice of nature makes itself heard by dissuading
from such unions.

353. The impediment of affinity being closely allied
u-ith that of consanguinity, there was a tendency to
limit both to the same degree. This was done by the
Council of Rome (1059) "' by virtue of whose legisla-
tion the two impediments reached the seventh, their
furthest prohibitory degree. But the force of the pro-
hibition attaclied to the last two degrees remained a
controverted question. In some localities they were
regarded as diriment, in others only as impedlent im-
pediments.'"

The early discipline of the Church was rendered

•"C. 15, C. XXXV, q. 2 and 3; St. Tbouas, Siippl. IIIw. p.. q. l,V,
&. VI, ad 1 and 2.

"•Wkrne, op. cit., a. 431: Oaspabbi, op. cil.. n. 697.

'■' $6, /fni(. dc nttpt., I. 10; L. I« »q., l>. aoluto mathmoHio. XXIV. 3.
'•"Mansi, op. eit., vol. XIX, col. 909.

'"C, 1 8, X, de potwdnffuiflifolc r( affinitolr. IV. 14; SAKCUta. de
imped, aff., lib., Vil, diip. LXVII, n. 3; Peiiu Uimbabdi, lib. IV, im
Sent., dUt. XLI.

Impediment of A}

Ul,J.

259

very compHcatpd on this point and it unnecessarily af-
feeti^d many porsons hy the fat^t that the accepted cus-
tom distinguished four different kinds of affinity. The
Jjeriod in wliich the impediment arising from illicit
affinity (from extra-matrimonial carnal intercourse)
was introduped into the canonical discipline, is a dis-
puted question. Whether its first trace is found in the
pseud o-Isidoriau deeretals, or whether it \va« anterior
to their date,*" has little bearing nti the present ques-
■tion. Suffice it to say that about the ninth century the
irst kind of affinity arose through either matrimonial
or extra-conjugal carnal intercourse.*" The other
liinds of affinity were introduced after that date,
though some traces of them may have been found in
some few localities even at that time. Wernz remarks
that no vestige of any other than the first kind of
affinity can be discerned in the canonical discipline en-
forced before the eleventh and twelfth eenturies,

354, The second kind of affinity established a bond
of relationship between the man and the affines (by the
first kind of affinity) of the woman, and vice versa.
Thus if a man contracted marriage with a widow, the
affines of the woman by the first marriage became re-
Jftted to the man by tlie second kind of affinity, and
vice versa. The third kind of affinity arose between
the man and the affines related to the woman by the
second kind of affinity."" There was yet a fourth kind
of affinity resulting from generation rather than from
carnal intercourse, affecting the ohildren bom of a
Becond marriage {sobotes ex secundis nuptiis}. The

"•EsMDN, itp. eit., vol. I. pp. 377 fT.; Webni, op. Fit., loc cit.;
KrBBlBKN. op. ril., pp. 44\> IT.; SANCHEZ, lor, fit., lib. VII, disp. I^XV,
■ «; ami disp. LXVII, n. 3.

'"C. 12, 21, 22, C. XXXT, q. 2 and 3.

"•SA.vn-LHT.'JitB, np, fit., H. (., n. IS; BrttTsELL, ia the Calhnlic En-
f.ryrlnpfdia. nrl.. "ASinity": OASPARRt, op. cit., n. 689; Benedict XIV,
' -c Synxdo Dwrcrsuna. lib. IX, c. XlII, d. 2.

260 The Xew Church Late oh Matrimony.

widow who married remained affined to the relatives of
her first husband even after his death, and transmitted
this affinity to her second husband. Her ehildn>n by
the latter were forbidden to eonfraet marriage with
persons related to her deceased husl>and within the
fourth degree.'"

The tendeiiey to give so wide a range to the impedi-
ment of affinity was checktKl by Innocent III. who in
the fourth Lateran Council {121.")) abolished the last
named kinds of affinity. Thus only the first kind of
affinity was retained, and that was restricted to the
fourth degree. It could arise either from extra-matri-
monial or from conjugal carnal intercourse,*'"

This impediment was submitted to another niodifira-
tion by the Fathers convened in the Council vt Trent.
As to licit affinity, the discipline of the Fourth Lateran
Council was retained intact. The impediment of illicit
affinity, arising from extra-matrimonial intereourse,
was restricted to the second degree of the collateral
line.""

The last stage of development is found in the new
legislation in which tltis impediment, like the impedi-
ment of conHaiiguinity, has been officially canonized.
The impediment of affinity can no longer arise from
two sources, namely, from licit and illicit carnal inter-
course. In the new discipline the impediniMit of illicit
affinity has been abrogated, and only that of licit affin-
ity retained with a modification. This latter forbids
marriage in all the degrees of lineal affinity. l>ut the
prohibition is restricted to the second degree of col-
lateral affinity.""

•"C. 2, 3, i, C. XXXV, q. ]0; EaMKiN, op. eit.. vol. I, p. 381; Dk
Bmbt. op. fit., n, 307,

•••Cone. Lateranmiie IV, rap, 50, neo Maksi. op. fit., vol. XXri, roL

1035: C. 8, X. Sf cnnsnnfln.nitnff rt a0nUale, IV, H.
■■■/)c Reform, mat., wssin XXIV, cup, IV.
•"Cod. Iur. Can., fen. 1077.

Impediment of Affinity.

261

3. Derivative Force of the Impediment.

355. It has been a much mooted question whether a
marriage contracted in any degrt'c of affinity is invali-
dated by virtue of natural law. No authors of note
liave ever olainied that natural law invalidates mar-
riage between affines beyond the lirst degree of the
direct line, whether the affinity is legitimate or illegiti-
mate.

356. It is generally admitted that carnal inter-
course, whether licit or illicit, establishes a natural
bond between each of the parties and the blood-rela-
tives nf the otlier.'" Tliis natural bond arises even in
infidelity, but it does not possess the force of invalidat-
ing a marriage between persons thus related.'"

As far as lineal or collateral affinity arising in the
Tst degree by means of extra-matrimonial carnal in-
;erpourse is concerned, tlie foregoing statement has
never been questioned. In all sucli instances for just
and grave reasons the Church lias repeatedly granted
a dispensation, whicli she could not presume to do. if
'le lield that natural law invalidates such unions. The
question is more difficult of solution as regards lineal
affinity in the first degree arising from valid and con-
summated marriage. There are, however, enough con-
vincing proofs to show that even in that degree the
diriment impediment is not one of natural law but of
ecclesiastical law.'" The attitude of tlie Church in de-
clining for a long time to dispense from licit lineal
affinity in the first degree must be explained on the
ground of inexpediency. Benedict XIV *" reprimands

. XlIT, ti

■> TFAnnibalb, op. eit.. vol. I, n. 62; Wmsi, op. cj(., b. .
' 4S; Oisl-Atal, op. eit., n. B8T; ScHMALZoattBEB, o;j. rit.. p. II
im. 87 »q. 1 Sanchez, op. cit., lib, VII, diap. 65, nn. 1 m\.
*" Wkrnz, op. cit., u. 430.

'■GiOVUiK, op. cit,, SS305 and 300: Gaspabbi, op. cil., n. i
op. cit., n. 379; SANTi-LdTMni. o" •••t . fc ( nn. -ifi <f.
^t " De Synodti Dioect»ana, lib. 1

262

The New Church Law oh Malr,

the Synod of Lima (1583) for having prescribed sepa-
ration ill the case of converts who, white in infidelity,
contracted marriage within the first degree of affinity.
A contrary opinion would be equivalent to maintaio-
ing, agamst the teaching of approved authors, that
natural law iiivalidatt-s all marriages contracted in
that degree. Therefore Benedict XIV emphasizes llii-
fact that for very grave and urgent reasons the Church
may certainly dispense in all such eases. The same
truth is accentuated in his encyclical " Aestas Anni." *"

357. To refute further the false assumption of the
Council of Lima one eould adduce the decrees of the
CouncUs of Agde (506),'-" Kpaon (517) '■' and of Or-
leans III (538),"' which distinctly state that marriages
contracted in infidelity with stepmother and step-
daugliter should not be dissolved.

On February 20, 1888, the Holy See gave an extra-
ordinary faculty to Ordinaries urgenle ?nortis pericuio.
They were authorized to dispense from all impedi-
ments from which the Church itself dispenses. From
this faculty the impediment arising from the Holy
Priestliood and from lineal affinity in the first degree
ex copula Uc'tia, is withdrawn."* That ttie fonner is an
impediment of merely ecclesiastical origin, no one will
deny. Consequently, the latter is withdrawn from the
faculty for the same reason. Tlie new discipline
■urgente mortis pericuio grants the same extensive
faculties, exempting the same two impediments.*'"

The decree of the Holy Office issued on August 26,
1891, settles this question beyond all doubt. It stated
expressly that affinity, contracted in infidelity, whether

Bull. Som, Cont., vol. IV, App. altera ad
MaKsi. op. eit., vol. VIII, poi. 335, c. 61.
MAN8I, op. eit., vol. VIII, col, 562, e. 30,
Mamsi, ojj. eit., vol. IX, col. 14, r. 10.

Litt, pnpyd. 8. C. 8. Off., ao frtr., 198S;
Cod. Irii. Can., Can. 1043; bpc Ihin work

Impediment of Affinitij.

263

; results from a licit or an illicit intercourse, should
lot be regarded as an impediment in the case of mar-
■iages entered into in infidelity."'

368. The statement contained in this decree is fur-
Hier corroborated by the fact that on December 2,
J9] 1, the Sacred Penitentiaria has actually granted
BUeli a dispensation to parties whose request for such
dispensation had been rejected by the Congregation of
' Sacraments.*'" On another occasion, eight years
before, the Roman Pontiff granted a similar dispensa-
tion by word of mouth."'

In view of these facts the statements of the canonists
who maintained that the Roman Pontiff never dis-
penses in lineal affinity must be modified.'"

359. Concerning the impediment of affinity as it
exists in the Oriental Church the same thing is to be
«aid as has been said of the impediment of consanguin-
Jty. The time, no doubt, is not far removed when its
discipline will conform to that of the Occidental
Church. Until then the past discipline of the Roman
Catholic Church will obtain among the members of
the Oriental Rite, Affinity will arise only from cnpula
perfecta either from matrimonial or extra-conjugal
intercourse, prohibiting and invalidating marriages in
both eases in all the (iegrees of lineal affinity, and in
collateral affinity to the fourth canonical or eighth Ori-
il degree (in ease of legitimate affhiity), and to the
second canonical or fourth Oriental degree in case of

"' "Affinitatem qune in inflHMitRtP nnturolitpr contrnhitur ex populu
tnm licitn turn illirita nnn fssc impi'dimeiitum pro matriinoniia qiinp in
inGdeltliilp incuntur." (Inatr. S. C. 8. Off., 26 aug., 1891; new Cnl-
l^elanea, n. 1766.

"Le Cantmitte Contemporam, vol. XXXV. 1912, pp. 859 IT.
"Db Burr, <ip. cit., n, 30fi; Ifouv. Ecu. Thiol, 1912, pp. 528 ff.;
tCottat. Brug., 1912, pp. 674 ff.

■"PniiWMiB, op. cit., vol. II, pp. 138 ff.; 8cHMArj!GBt'Bni. op. pit.,
. 111. til. XVI, n. 141: Wmwz. op. rit.. n. 4S0; GaspaBbc, op. eit., u.
I 703; PiiTBEB, op. HL. n. 220; BENEdifT -\IV, quoled uhnvf; et alii.

264 The New Church Lair on Matr,

any.

illegitiniate affinity."'^ The discipline piwailiiig anion!;
tho Maronitf'S extends tliis iiiipedinient to the scvnitli
degree according to the civil computation.''*

The Constitution of Bonedict XIV, "Et/ii pnsioi-
alls," affecting the Italo-Greeks. prohibits marriage
within the fourth degree of affinity ae^rording to the
eaiioiiieal computation.*" With the consent of the Holy
See a provincial Council "' legislated that legitimate
natural relationship will invalidate marriage up to the
seventh degree {civil computation) in tlie first kind of
affinity. As to the spoond kind of affinity (arising
between the blood-relatives of the two consorts)
it was decided that it must be retained wherever
it is in force and it will invalidate marriages up
to the seventh degree, ' ' if a iamen ut confusione
nominum kmid interrenienfe turn in septimo turn in
sexto gradu impedimentnm dirimens minitne con-
stittiat." At the same time the impediment arising
from illicit affinity was restricted to the fourth de-
gree.""

4. Dispensation from the Impediment.
360. As stated above the natural bond of affinity
arising between two infidels does not possess an in-

•"SynoduK SriarfeTuix SvroTvm, Rome, 189fl, «rt., XV, (8. n. 12;
Sj/norfu* A'exondritKi Cnptitrum. Bomnp, 1S09, art. VIII. jS, n. 0.
"Hinr! affinitaB semper aderit si far-tH fuerit rnnreptio (LKBMKUH^
op. ciL, vol. II, n. 9E18), vel piamni ilia facta non fuerit ni vir memtim
firili vas mulieris penetrsTit, et, rupto hjmene, semrn in vaf^inntn ile-
pOBuit." Acta Saoftae Sedit, vol. XXVII, pp. 33S ff.; Wernk. op. eit..
n. 432; Oasfabri, op. cit., an. 686 and 687; De Smkt. op. ott.. n. 302:
Fkjb, np. cit., n. 370; Db Becker, op. cit.. p. 185; MA.vso.tM, op. eit.,
pp. SO fF.

•"Synrwiiu Mont. L^bani (1736). in Colled. Lac. vol. II, col 161 •q.;
ih., WiBNZ, op. Hi., n. 442.

"■Benbuict XIV, 26 mail, 3 742, Bull. Rom. Cont., vol. I, p. 1H7, {»,
a. 5.

""Cone. Alba Inliente (1872), p. fl6; ib., Werni, op. eit., n. 442.

"• pArP-8ziLAc¥i. op. cit., pp. 44 ff.; Zhishman, Inc. rit.. pp. 2B0 ff.;
HILABCH. I)n» Kirrhenredit Avi morKenlsndiachen Kirchr?, p. tU,
(Mnstar, tSnS); MaNbcLLa, np. rit., pp. 57 ff.

Impediment of Affinity. 265

'alidating force. However, the individuality of the
md thus contracted, by virtue of ecclesiastical law,
;omes endowed with a diriment force after the con-
rersion of one or lioth parties in question."" The
inversion, however, does not affect marria;iCPs con-
;raeted validly in infidelity. It extends only to pros-
pective marriages, and to those invaUdly contracted in
infidelity, on account of an intervening impediment
other than that of affinity. The impediment uf affinity
affects all haptiKed persons regardless of the sect in
which the baptism was administered. The marriage
of two infidels is invalid if the civil law should sanction
diriment force of the impediment of affinity. If
o infidel affines should contract marriage invalidly,
id only one of them should embrace the Catholic
ith, not only the impediment of disparity of worship
it also that of affinity would interfere with the valid-
ity of their marriage.

361, According to a principle formerly accepted,
"the Church, when dispensing from the impediment of
disparity of worship, intended simultaneously to dis-
pense from that of affinity, unless it should happen to
be legitimate lineal affinity in the first degree, in which
the Church has not dispensed until very recently.
This principle is not in harmony with the new law, con-
sequently it must he discarded. It may be said, how-
jpver, that since the Church, owing to the relaxation of
ler discipline on this point, has already vouchsafed
Ispensations from the impediment arising from the
first degree of legitimate lineal affinity, it probably will
not decline to grant a similar favor in the future when
the need of legitimating children already horn of such
lion would make it imperative.

The dispensation granted in the past from

S. Off., 26 aug., 1890 (ad Vic. Ay. Nankin.), ai'vi Col-

266 The New Church Law on Malrhnony.

illegitimate lineal affinity contained the conditionaT'
clause: Provided the intercourse with the mother of
the i>rospective wife did not precede the birth of tbp
latter."' This adjunct was intended to ohviate the
possibility of a man espousing his own natural daugh-
ter. While in the future such affinity will no loDger
arise from extra-matriraonial intercourse, it Will be
the duty of the parish priest to investigate carofuUy
all such case.s, if he should be aware of the illegitimate
birth of the prospective spouse. If it should not be
possible, physically speaking, that the woman in ques-
tion could be the offspring of the man, tlie latter may
marry her withput dispensation. In all doubtful eases
the advice of the Bishop should be asked.

In the past the impediment of affinity, as is seen
from the foregoing exposition, could arise from two
sources, namely, from a licit and an illicit intercourse.
The new discipline deprives of its invalidating effect
the impediment arising from illicit affinity. It may
happen, however, that a person who contracted such
an affinity while the old discipline was in force, after
the promulgation of the new Code might intend to
marry the person to whom he is thus related. In all
such instances, since the marriage is not forbidden, the
affinity which arose under the old discipline will be
implicitly removed by the new.

Collateral affinity in the second degree is a minor
impediment consequently, a dispensation once granted
from it will be valid irrespective of an error, and re-
gardless of obreption and subreption.*" Since the im-
pediment of collateral affinity is restricted to the sec-
ond degree, whenever, in unequal Hue, one of the de-
grees falls below the second, the impediment ceases.

"'Db Svkt, op. fit., n. 306; Giovine. op. eit., (307, n. 4; Wtttst. op.
rit. n. 43a.

Impediment of Affinity.

267

Thus collateral affinity iu which the third degree
touches the first, does not constitute a matrimonial im-
jjediment.

5. Ptnalty Attached to thi-< Impediment.
63. The censure the authors niratioii generally in
-connection with this impediment is to he interpreted
by way of particular, namely, provincial or diocesan
legislation. In the early discipline of the Church by
■virtue of general legislation a censure tatae sententiae
rno» reservata was incurred by persons who attempted
marriage without dispensation with any one known to
' le related to them in a prolubited degree of consan-
guinity or affinity.'" The Constitution of Gregory XW,
''Sicut anliquus," issued on March 1, 1590,*" instructs
^the Ordinaries that they should penalize with severe
ecclesiastical censures persons who without the nec.es-
rj' dispensation attempt to contract marriage in the
'Second degree of consanguinity or affinity. Though
►the Constitution of Pius IX, "ApustoUcae Sedis," is-
iBued on October 12, 186i), abolished the Ch-mcntiiie cen-
JBure ipso facto incurretl, it did not proliiliit llie iiiHic-
tion of one ferendae setitentiae I'or tlie same tranwi;;res-
lion,

364. The new legislation declares infamcs all per-
Boiis guilty of incest.*" This infamy is called infamia
im, for it is attached to certain determined acts,*'" as
In this case to a .sin against the sixtli commandment
irith one's blood-relative or affinis.'" The consequences
*" C un. de pontattgainiiixte et affinUatr, in ('[*m. ; ib., Piitker, op.
, t., a. 222; Hollwkck. Eirchliehe Strafgetetze. p. 267, HIHH ff-;
PohmalzohObkh. op. «(., p. Ill, tit. XIV, an. 115 ff. ; Webnz, op. cU.,

"^ Freib. Kirchenlfz,

"■Cod, Iub. Can., Can. 2.^57.
*^0p. eit.. Can. 2293, }2.

vol. II, tol. 1403; ib.. Pui

2(18 The Xetv Church Lntf on Mnlrlmotuj.

of this infamy are manifold. It communicates irregu-
larity. It renders one incompetent to obtain any eccle-
siastical benefices, pensions, offices or dignities. It
incapacitates one for performing legitimate ecclesi-
astical acts '" and for exercising any ecclesiastical
right or function.'" This kind of infamy is not re-
moved without a special dispensation granted by the
Holy See."'

365. Affinity, as established by the new law being a
public impediment by its very nature may be exposed
by any person, like the impediment of consanguinity.
Therefore, in this respect, the same principles are to
be applied to both impediments."'

366. An adulterous intercourse with a blood-rela-
tive of one's true consort establishes an affinity be-
tween husband and M'ife, hut the affinity thus occa-
sioned does not invalidate the marriage.'" The con-
trary opinion was held for a while which permitted the
innocent party to remarry, but the guilty consort as
well as his aeeompHce, if single, had to remain single
all their life,'" Though to adulterous incest for a cen-
tury was attributed the force of dissolving marriage,
sucli an effect was always denied to adultery com-
mitted with a non-consanguineous relative of the other
consort."* It must, however, be borne in mind that
this discipline was localized and was never approved
by tlie universal legislation of the Church."'

"'See this work, n. 270,

. lUB. Can.. Can. 2294.

-Op.!

., Can. :

295.

Svppl. Ill, p., q. LV,
again, op, eii., q, I^

Si* IhiB work, n. 343 B.; St. Thom.
and XI, c.

«St. Thomas, op. eit,, q. LV, a. VI,
ad T.

-Cone. Vermer. (753), c. 2, 10, 11, 12, 18; c. 21, 24, C. XXXII,
c. 30, C. XXVII, q. 2; ESMKIN. op. riC, vol. I, p. 382; c. 19, C.
q, 7.

-C. 22. C. XXXII, q, 2.

x* Hetelb, EUtoire dm ConcUei, t. Ill, Snw pnrtie, p. 920,
1910.

Impediment of Affinity.

260

■the provincial councils held in the ninth century failed
ho approve it.*"" Furthermore, the Decretals of Cireg-
ry IX insist emphatically on the absolute indissolu-
■bility of a consmninated Christian marriage, even if
one of the consorts should happen to be guilty of in-
cestuous adultery.

387. As a penalty for such crime the former dis-
cipline deprived the guilty party of the right peiendi
debitum conjugale, though he is was not freed from
the obligation reddendi debitum when the innocent
party demanded it. In order that such a right may be
lost on the part of the offender, incestus adulterinus
debttit es.se formalis, consummatus, non tanhim incho-
atu.s, neque vi vet mctu gravi extortus. Furthermore,
the incest had to he committed with a person related
the other consort within the first or the second de-
'gree of consanguinity."' The affinity was not con-
tracted, nor was the penalty incurred, in the case of
'incestu.^ oAulterinus pntratus cum propriis cnnsnn-
ffuineis. The new law states distinctly tliat all penal-
tics whether spiritual or temporal, medicinal or so-
called vindictive, whether7a(ne or ferendae sententine,
are abrogated unless they are expressly mentioned in
the new Code.*"* Since the loss of the ius petendi debi-
'vm was a temporal penalty occasioned in consequence
of a specified moral offence, and since the Code fails
to refer to it, the conclusion is forced on us that such
a penalty is no longer incurred.

8. The reader's attention has already been called
to the relaxation of the discipline of the Church as re-

. J, 6, X, de eo, qui fngnnvit rnnnanguirtram arnris niiaf vet
Spoiuae, IV, 13; thp statutes of the provincinl counciils held in the ninth
«/^tur7, see Hetelb, op. dt., lot cil,

*" Com;. Trid., De Itefnrmatinnt mafrimonif, e. IV ; Wkrni, op, eit..

270 The New Church Laiv on Matrimony.

gards the impediment of affinity. It was owing tti this
tendency to lenienoy that the two dispensations re-
ferred to above in the first degree of lineal affinity were
made possible. Thu.« the prediction of Oasparri thai
the Church will never dispense in siioli affiiiitv has
failed."*

In the past it was against the practice of the Sacrwl
Congregation to grant a dispensation in any degrpo iif
licit lineal affinity.'"" Such dispensations will naturally
be rendered more obtainable in the future.

As to collateral affinity the Church never doclinod to
dispense, even in the first degree, though a grave cause
was required in case a widow wished to marry the
brother of her deceased husband. The cause had to be
even more grave in case the widow had offspring by
her former husband. The instruction contained in the
encyclical of Gregory XVT, issued on May 22, 1836,
may be applied also to cases of collateral affinity.
Since by nature the bond of consanguinity is stronger
than that of affinity, the causes for granting a dispen-
sation from the latter impediment suffice even if they
should be less grave than tMose required for dispensa-
tion from the impediment of consanguinity.

6'. Civil Legislation.

369. The present legislation of the Churcli
forms to tlie Roman and the Civil Law inasmuch as it
requires a valid marriage for the contraction of afKnity.
In the eyes of the Civil liaw, as a rule, the bond of
affinity retains its force though the marriage which
occasioned it should be annulled by judicial process
(divorce). This bond, however, is dissolved if the
marriage siiould be declared null and void from the

Impediment of Affinity.

271

1^'
4-01

very beginning, having been originally unlawful on
account of some civil proliibition.

The Code of Napoleon {art. 161) bases the impedi-
lent of affinity on valid marriage regardless of its

msunmiatioii."" It proliibits marriage in every de-
ree of the direct line and in the first degree of the

llateral line (art. 162). Dispensation can be granted
inly by the supreme ruler."'

The Code of Italy in this respect conforms to the
Code of Napoleon. After repeated introduction and
rejection the English Parliament finally adopted in
1906 the "Colonial Marriage Act" by virtue of which

larriages with a deceased wife's sister were permitted
!or the colonies. In 1907 the same enactment was ex-
tended to England itself under the title "Deceased
Wife's Sister Marriage Act.'""

The law of Germany (H1310 and 1327) in case of
lineal affinity prohibits marriage between one consort
and the descendant of the other consort, and between
tile ascendant and the consort of the descendant. The
statute fails to distinguish between licit and illicit
affinity."*

In France all the degrees of lineal affinity but only
the first degree of collateral affinity, constitute an im-
pediment to marriage (art, 161 and 162).

In Spain this impediment may arise from cither licit
or illicit affinity (art. 84). It prohibits marriage in all
the degrees of the direct line and in collateral affinity
it forbids marriage up to the second or fourth degree
(civil computation), according as it arises from a con-
jugal or extra-matrimonial intercourse.

"' Dk 8MBT, op. eit., n. 307, Sc^holion II.
•■Le t'ougrfs oaliiiDdl, Loi liu 28 fuv., 1S3I, article uni(|ui>.
" Kneyelopaeilia Britaniea (eleventh edition), art., "Marruige" (Eng'
Uod).

Lbhb, Traill Elementaire de Droit Civil Germaniqtte, p. 263, Puris,

n»2.

272 The New Church Lnii- on Mntrimo

370. Some Civil Codes impose a severe penalty or
those who in bad faith attempt marriage, though re-
lated in lineal affinity or consanguinity. Thus, for in-
stance, the criminal Code of Germany (§173) penaliwf
such crime with an incarceration lasting two years, and
the Italian criminal Code (art. 337) imposes the same
penalty lasting from eighteen months to five years.

The prohibition of marriage with a deceased wife's
sister has been abolished in most of the States of
North America. An exception to this is the State of
Virginia,'" where such a marriage is absolutely void."'
The statutes of the different states qualify as "void"
those marriages that are contracted within the pro-
hibited degrees of consanguinity and affinity. The
courts, however, by repeated decisions attribute to
term "void" the meaning "voidable."

XI. 'The Impediment of Piiblic Proprielt/.
(Canon 1078.)

371. In the former discipline tlie consent givenTT
a ratified marriage (whether valid or invalid), or in
valid espousals, produced a bond of quasi-alfinity be-
tween each of the parties and the blood-relatives of
tlie other, just as carnal intercourse is instrumental in
inducing real affinity.

It is a difficult task to trace the origin of this im-
pediment with certainty. Though no uniformity pre-
vails on this point among the authors, the opinion of
those who hold Roman law responsible for its intro-
duction lias as yet not been disproved. The Roman
law emphasized a Christian principle when it estab-
lished the legal rule that in marriage one should not

"'BuRTSEU.. in ilip Cathalir Enfycloprilia. art., "JJInity,"
"•Kki.I-y 1'. SfiHT. 5 Oratl. {Va,), 47S; ib., Kus«. Tke La w of
Uarrutge and Divorce, chap. Ill, $25, p. IT, Boatuu, 1906.

Impediment of Public Propriety.

273

insider only wliat is law-ful but also what is bfcom-
This rule explains the prohibition directed
:anist marriages violating publit propriety, as, for
ample, those between father and tlie betrothed of
lis son, and t'ice versa; between niiither and the be-
•otlied of her danghter; '"* between a concubine and

relatives of the man."*
372. Owing to the close resemblance existing be-
reen the Church and the Roman law on this point
; notliing more natural than to look to the latter
tor the vestiges of this ecclesiastical impediment. An-
other difficulty wliich is awaiting solution is the de-
termination of the particular period in which this
impediment was adopted by the Church. Writers of
the ninth century like Benedict the Levite, Ilinkmar,
and pseudo-Isidore fail even to allude to it. A decretal
attributed to Pope Benedict positively rejects it.""
while, on the otiier hand, other contemporary decrees,
which Gasparri brands as apocryphal, speak of it as if
11 were the universal law of the Church.'" For a long
time the impediment of public propriety was enveloped
in obscurity and several legislative measures enacted
by liiflferent Pontiffs were requirfnl before its identity
as an impediment distinct from affinity was clearly
established.

The legislation of Alexander III (1159-1181) does

shed sufficient light to remove all doubts surround-

this impediment.*" Innocent III in the Fourth

teran Council (1215) lifted the prt)hibition whereby

"the offspring of a second marriage was barred from

contracting marriage with the relatives of the first hus-

■"L. 42 a., De ritu nuptiarvm ; De Subt. op. rit., n. SOB; Qaspabki,
«p. CO.. n. T06: WBBSi. op. eil., n. 448.

-L. 12, t\ Bnil J2; I, 14 ff., Dr niv iv-i'lianiiH.
•" L. 7, i>c oradib. el agin.
— C, IS. <■. XXVII, q. 2.

C, I], 14. 15, C. XXVlI.q, 2.

C. 4, 5, Q, X, de desponaatio-ne inifiuberuni, IV, 2.

274 The New Church Law on Matri

baiid,'" aiid restricted the iinpedimeut to the fourth
degree, just as was the case with the impediments of
consanguinity and affinity. The suggestion made by
the Fathers convened at tiie .Second Council of Lyons
(1274) relative to the limitation of this impediment to
nearer degrees was not acted upon. With the decree ul'
Boniface Vlll the impediment began to assume a more
definite form.'" It was enacted that conditional and
indeterminate espousals whose invalidity results from
lack of consent cannot give rise to it. Finally the
Council of Trent limited to the first degree the impedi-
ment arising from hetrothmeut and decreed that only
valid espousals can give rise to it.*"

373. The Council of Trent did not concern itself
about this impediment as it arises from a ratified
marriage. Therefore until the promulgation of the
new discipline one had to be guided by the law handed
down in the Decretals, especially through the enact-
ments of Boniface VIII. The terms in which the law
of that Pontiff is couched occasioned a lively contro-
versy. The decree states that the impediment of
public propriety arises from marriage (even if not
consummated) whether valid or invalid, provided the
invalidity was not caused through want of consent. It
would be to no purpose to give a detailed account of
this controversy, for it is a subject of the past *'* with
no bearing on the present discipline.

374. The change which the concept of affinity un-
derwent in the present legislation *" necessitated a
change also in the impediment of public propriety.
According to the new law the impediment of public

'" C. 8, X, de Foiuangvinitate et a/pnitate, TV, 14.

*"C. un., (ic jponimfihiM rt matrmoniU, IV, I nnd 2. in VI°.

"'SeHH. XXIV, cap. III.

"'Wmnz, op. eit., n. 453, note 4fi; Db Smbt, op. rtt., n. 311; Oxs-
PABKt, op. eit., n, 722 IT.; D'Annibale, vol. Ill, n. i.H; Fbije, op. cit..
n. 400 ff.

'" Cod. Iub. Can., Can. 9T, 51.

Impediment of Legal Itelalionship. 275

iropriety arises from invalid marriage wliether con-
mmiiatcd or not, and from public or notorious con-
nbinage: and it annals marriage in the iirst and In the
lecond degree of the direct line betwen the man and
he blood-relatives of the woman, and vice versa."'

The new law specifies two causes which are instru-
n^-ntal in Inducing this impediment, namely, invalid
narriage and public or notorious concubinage. A few
irords must be said on each. The espousals do not give
rise even to an impedient impediment, while the
ratified marriage occasions the impediment of affinity.

375. 1. Invalid marriage whether consummated or
ion-consummated is the first cause giving rise to the
jnpediment of public propriety. The words "ex
natrimonia invalido" are to be interpreted in their
ibllest sense, so as to comprehend even a putative mar-
IJage which otherwise produces the same effects as
fee valid marriage. In order that the impediment
nay arise by virtue of this first cause it is necessary
bat the parties in question actually attempt to con-
ract marriage, and that their contract have the ap-
►earaiice of marriage (species vel figura matrimonii)
n a verj' wide sense of the term. It is immaterial
whether the attempt was made before a civil magis-
trate, or before the minister of a religious sect. On
this ground the impediment would arise even in
the case of a common law marriage if the civil law
In the locality in which it took place sanctions such
marriages by attributing to them all the effects of a
Biatrimonial contract and they are regarded as means
frhereby licit marriage relations may be established
between a man and a woman.

Since the law does not specify any particular cause
of nullity we are free to conclude that it does not mat-
ter whether the invalidity of the marriage was occa-

" op. (■!(., Can. lOTS.

276 The Xew Church Laic on itatrimony.

sioiied by the non-obsfn'anco of the proper form or
by the presence of a diriment impediment. Even if llie
marriage is contracted in facie ecctesiae, unless it is
objectively valid, it will give rise to an impedimeul of
public propriety and not to that of affinity.

376. 2. Public or notorious eoncubinage is the sec-
ond cause giving rise to the impediment of public pro-
priety. The question might be asked: When is concu-
binage public or notorious! The new law legislatej? '"
that an offence is public when it is already divulgt-d
among the people or when circumstances are such that
they induce one to conclude prudently and necessarily
that the fact wilt easily be published. The offence is
notorious by notoriety of law when a competent judgi'
in his final sentence pronounces the delinquent guilty
of it, or when the delinquent by confession of guilt
admits the offence either in writing or by word of
mouth, whether such confession be spontaneous or the
result of inquiry by the judge."" An offetice is no-,
torious by notoriety of fact if it is publicly known antl
committed imder such circumstances that no recourse
to subterfuge can conceal it. and it cannot he excused
by the voice of the law.

This impediment will occasion more doubts than
perhaps any other. Public eoneubinage in this connec-
tion is not to be interpreted as referring to occasional
extra-matrimonial intercourses. Thus, for instance,
frequent visits paid to a house of ill fame would not
constitute a sufficient ground to induce the impedtmont
of public propriety even if the illicit relations should
he limited to one and the same person. The concu-
binage presupposed by this law uuist result from a life
which may be called a quasi-matrimonial cohabitation.
Stress must be laid on the fart that the illicitness of

hupediment of Public Propriety. 277

the carnal relations is supposed to be publicly known,
A man and a woman ha\ing extra-niatrinionial reln-
tionR would not contract the impediment should they
be publicly reputed as husband and wife.

377. The impediment of public propriety is com-
puted like the impediment of affinity. It arises be-
t\\een the man and the lineal blood-relatives of the
Woman in the first and the second degree, and vice
versa. Therefore the man could marry the collateral
blood- relatives (the sister, for instance) of the woman
with whom he contracted an invalid marriage, or with
whom he lived in public or notorious concubinage, and
vice versa. The impediment would assert itself should
& man intend to marry the daughter or the grand-
■daughter, or the mother or the grandmother of such a
woman.

378. Since the impediment ie of ecclesiastical origin
it does not affect infidels in the absence of a similar
civil impediment. The question might arise : How are
we to decide the question when the man belongs under
the jurisdiction of the Church and the woman is an
infidel! The strict interprt-fation of the law would
permit a conclusion militating against the spirit of the
Church. Since the infidel woman is not affected di-
rectly by the impediment it would seem tliat she may
etmtract marriage with the baptized son of the bap-
tized man ■ttdth whom she entered into an invalid mar-
riage, or with whom she lives in public or notorious
concubinage. Such a marriage would be against the
spirit of the Church, but no impediment would stand
in its way unless we are to conclude that the baptized
person transmits or communicates his inability to all
his baptized blood-relatives affected by this law. But
such a conclusion is not warranted by the wording of
the canon. No one would deny that she could marry
the unhaptized son of such a man. Tn that case neither

278 The .Vew Church Law on Matrimoni/.

the son nor the woman (both being infidels) would
come under the jurisdiction of the Church, therefore
the impediment would uot bind. The same conclusion
is to be dra'ftTi when an infidel man is similarly corre-
lated with the unbaptized or the baptized blood-rela-
tives of the baptized woman with whom he lives in
public or notorious concubinage or with whom he con-
tracted an invalid marriage.

The new law bars from all legitimate ecclesiastical
acts all persons guilty of public concubinage and the
penalty remains in force until they show a sign of true
repentance and of amendment."' ^h

XII. The Impediment of Spiritual Relationship. ^|
(Canon 1079.)

379. Spiritual relationship is a supernatural bond
which, by virtue of ecclesiastical law, establishes a con-
nection between certain persons through the reception
or the administration of the sacraments of Baptism
and of Confirmation. In the present disciplme both
these sacraments are instrumental in giving rise to
spiritual relationship, but only that relationship has
the force of a diriment impediment which is associated
with the sacrament of Baptism.

The impediment of Spiritual Relationship passed
through several stages of development in the course of
its history. Its cause is to be sought in the bond which
springs up between the minister of the baptism and
the person baptized. This spiritual paternity and son-
ship, notions as old as Christianity,*" were gradually
extended to all persons who were actively connected
with the administration of the sacrament of Baptism.
Such persons were the godfathers and the godmothers

"■Con. tun. Can., Can, 2357, ^2; ste this work, n. 2*0,
'-I. Of St. Pbteb, V. 13; II Imothy. 11, 1; Titu*, I. i; PAilM
1, 10 IT.

Impediment of Spiritual Relationship 210

{levanles, susceptores vel tenentes) and alsffi persons
who instructed the eatechumons in Christian ppotrinc
as a preparatory step to their reception of the, sacra-
ment of Baptism, and testified to the worthiness of the
candidate {offeTentes).""' In the early ages the two
sacraments, namely, Baptism and Confirmation, were
conferred at the same time. The faet tliat the same
persons were acting as sponsors at both sacraments
dispensed lA-ith the necessity of introducing a distinct
impediment of spiritual relationship associated with
the sacrament of Confirmation.*"* Such provision be-
came necessary when by virtue of custom a period of
time was permitted to elapse between the administra-
tions of the two sacraments, for in many eases the
sponsors chosen for baptism were different from those
at confirmation.

380. In the early ages of Christianity the impedi-
ment of spiritual relationship would have served no
purpose, for the children were carried to the baptismal
font either by their own parents or, on account of
propriety, by persons who were of the same sex as
the haptizandus. When this discipline was changed a
praiseworthy custom gave rise to the impediment of
spiritual relationship.""

The first law prohibiting marriage between the god-
father and his god-child dates from the time of Em-
peror Justinian.*" Though this civil law as such did
not oblige the baptized, it nevertheless refiects the
spirit of the age and leads one to believe that even at
that early period Canon law accepted such an impedi-
ment and the purpose of this civil law was to aid its

™ Tektiti.i.ian, De bapt.. c. XVIII; Diontsius Arkop., Dr hieTarchia
eccl, fnp. VII, ill; sep Mignb, P. G., v«l. HI, t«\. 567 B.

-Lauwn, AtcK f. k. K., t. XV, p. 220 ff., 2.19. 253, 259 ff.

'"BsuEiN, op. eit., vol, I, p. 362; Webni, op. ci(.. n. 483; Laubin,
op. ri(., loe. eit., p. 220; Fbbibkn, Geschifhte dn caannvipfirn BhereehU
bin turn Ferfall dm GJongcnHtteTatur, p. 508 (Paderborn, 180:i).

- L. 26, Cod. de nupl., V, 4.

28U

The New Church Law on Malihtwn

enforcement."' The synod of Trullo (692) in its LIU
chapter not only canonized this law of the Kmperor,
but extended the prohibition to marriages between the
godfather and the natural mother of the baptized eliild.
After this legislation, by degrees the impediment con-
tinued to widen its scope, weaving a net of spiritual
relationRliip around paternity, compaternity, direct *""
and indirect,"' and even around fraternity."" But
even then it failed to reach its furthest limits. It was
extended to the confessor and his penitent rendering
incestuous all carnal relations between them.'"

MTien it became customary to select several spotisors
for Baptism and diflferent sponsors for the sacrament
of Confirmation a wide circle of persons became af-
fected by this impediment. The Council of Rome
(721), which was probably the first to legislate on this
point in the Occidental Church, drew up a law which
failed to remedy this undesirable tendency. It reads :
Him who enters into marriage with one related to him
by the bond of commaternity, let him be anathema.
The same prohibition is emphasized by other Councils
held in various places and at different periods. Canons
legislating on spiritual relationship as a distinct im-
pediment arising through the sacrament of Confirma-
tion did not appear until the eighth and the ninth cen-
tury."'

381. The Gratian collection incorporated the vari-

""Bbnedict XIV, De Synodit Dioecciana, lib. IX, cap, X, n. 6; Gas-
PAWU, ap. eit., n. 734.

*" Rf^lationship between the spunsiira and the natural pan^nls of Ihc

"•Belationship lii'tween the baplwed child and the huBband or tlie
wife of the sponaor.

•*" Relationship between the bnptiied child and the natural i-hildrpn of
the (rodpa rents.

"'C. 8, 9, 10, C. XXX, q. 1.

"■Cap. I, Synod. Genrr. in reg. Franc. (752), Hefele, op. ci(., toI,
Til, n. 591; Cap. XV, Cortc. Comp. (757).

Impediment of Spiriliial Relationship 281

ins decrees touching on this impediment,"" but several
"Scial decisions coming from the supreme legislative
thority of the Church were necessary before the
lumerous doubts arising in relation to this impediiiu-nt
■rp solved. These decrees are embodied in the offi-
cial decretals of Gregory IX "* and Boniface V1II.'°°
The Council of Trent was the first to attempt to nar-
row the compass of the impediment. It abrogated the
spiritual relationship arising ex catechismo and
through fraternity and spiritual affinity. The limits
the impediment were clearly defined, namely, it
arose (1) between the minister of the sacraments of
baptism and of Confirmation and the sponsors on one
'side, and the recipient of the two sacraments on the
other; (2) between the natural parents, whether legiti-
mate or illegitimate, of the recipient of the two sacra-
ments on one side and the minister and the sponsors on
the other."'

Several Fathers of the Vatican Council were iti favor
of depriving this impediment of its diriment force,
but their suggestion was disregarded. According to
the present discipline both sacraments, namely. Bap-
tism "' and Confirmation,"' give birth to spiritual re-
lationship, but only the relationship associated with the
sacrament of Baptism has the force of annulling mar-
riage.'" It constitutes a diriment impediment between
the recipient of the sacrament of Baptism on one side,
and the minister of the sacrament and the godparent
on the other.

Since it is the spiritual bond that constitutes

— C. 1, 2, 3, 4, .1, 7, C. XXX, q. .1; e. I, 2, 3, 4. 5, fi. C. XXX, q, 4;

4, C. XXX. ij. 1.

■"C. 2, 4, 5, e, 8, S, de PoffnalioKf MpiriluaU. IV, 12.

" 1, 2, 3, df cognatione ipiritvali, IV, 3, in Vi",
MID XXIV. De reform, malrim., rap. II.

Cod. 1v% Tjis.. Cnn. 7B8.

282 The New Church Law on Matrimony.

the source of this impediment, no impediment will
arise unless such a relationship is actually begotten be-
tween the recipient and the minister of the sacrament
of Baptism, and between the recipient and the god-
parent. The existence of such relationship presup-
poses the objective validity of baptism and the compe-
tence of the godparent.

383. In order that one may validly act as godpamit
the following conditions are required by the new law:

(1) He must be baptized. He must have reached the
age of discretion and must have the intention of as-
suming the responsibilities attached to such an office;

(2) He must not profess membership in a heretical or
a schismatical sect, nor should he be excomnmnicated
by a declaratory or condemnatory sentence, nor de-
clared infamous by infamy of law, nor should he be a
cleric deposed or degraded; (3) He should not be the
father or the mother or the spouse of the recipient ot
Baptism; (4) He should be designated either by the
natural parents, or by the guardians of the baptizan-
dus, or, in their absence, by the minister; (5) Tn the
act of baptism he should physically touch or hold, per-
sonally or b_v procurator, the person to be baptized, or
should receive the same immediately from the sacred
font or from the hands of the minister.""' These con-
ditions are a4 i^aiiditatem. Should any of them he
violated, or disregarded or omitted, no spiritual rela-
tionship would result from the administration of bap-
tism. The law very wisely eliminates alt possibility
of spiritual relationship between the parents of a chil(i
baptized by its father or mother. The relationship be-
ing non-existent, the debilum conhigaie would in nn
way be affected by such an act.

384. It is immaterial whether the baptism is solemn
or private, spiritual relationship arises in both, for

Mimpediment of Spiritual Relationship 283"

^e spiritual bond owes its oi-igin exclusively to spir-
Hal regeneration.""' A godparent should be chosen

fyen in private baptism. Should such a baptism be
administered without a godparent, his presence is re-
quired when the ceremonies are supplied, in whieli ease
no spiritual relationship is contracted.'^"'

When baptism is repeated conditionally, the same
godparent should be selected that assisted at the first
conditional administration of baptism. Unless this is
done, no spiritual relationship results from eitlier con-
ditional administration of the sacrament."'* A baptism
whose validity is doubtful can give rise only to a
doubtfnl impediment of marriage.

385. If the marriage is contracted without a dis-
pensation ad cautetam from a doubtful impediment of
spiritual relationsliip and subsequently the al>solute
validity of the baptism is established, in our estinni-
tion, marriage contracted with sucli an impediment
should be regarded as invalid, unless the Cliurch
tacitly intends to dispense in all such cases, which in-
tention is not intimated by any official decisions.
Wernz,""' and Gasparri '"' subscribe to the contrary
opinion. In this Gasparri is consistent (he applies
the same principle in all similar cases throughout his
worii), but Wemz may be accused of inconsistency.
]Te maintains that marriage contracted with a doubtful
impediment of disparity of worship should be regarded
as invalid if subsequently the invalidity of the doulit-
ful baptism (which is the cause of the doubtful im-
pediment) is ascertained with moral certainty.'"" It

-8. C. C, 5 mart., 1878.

"■Cod. Iue. Cas.. Obii. 782, (S; 8. C. de Prtip. Fidp, inatr. (ad Ep.
Seodren.), 11 iept., 177B, n. 4.
"Coo. lUB, Can,, Can. 763, (2.
— Op. cit., n. 489.
•- Op. cit., n. 737.

284 The New Church Laic am Jiatrimony.

is hard to see how the subsequent solution of such a
doubt would produce so diflFerent an eflFect when in
both instances the doubt concerns an impediment of
marriage whose objective validity depends on whether
at the time the contract was made the parties in ques-
tion were free or not. Furthermore, our contention is
corroborated by the principle adopted by the new law.
It states distinctly that the validity of a marriage con-
tracted without a dispensation from a doubtful im-
pe^liment of disparity of worship is to be upheld only
till such a time as it is proved beyond all doubt that
one of the parties is baptized and the other unbap-
tiwHl.'* There is nothing militating against the appli-
cation of the same principle to a marriage contracted
with a doubtful impediment of spiritual relationship.
Such marriage should be upheld until it is proved that
a relationship was actually begotten by the act of bap-
tism/"*' This once established^ the disqualifying force
of the impediment should be permitted to take eflFect
from the time the contract was made, which owing to
the inability of the contracting parties resulted in an
invalid marriage, because the impfHliment has a retro-
active force.

386. The impediment of spiritual relationship is of
ecclesiastical origin and can be contracted only by bap-
tized persons. Infidels can in no way be affected by
it, not even indirectly, for the contracting of spiritual
relationship, as has been already stated, presupposes
baptism as a conditio sine qua nan. In the new legis-
lation the impediment of spiritual relationship will not
l)e multiplied.

387. The Church always required a very grave rea-
son before it dispensed from the impediment of spir-

"^'CoD. ITR. Can., Can. 1070, $2.
^" Op. cit.. Can. 1014.

Impediment of Legal Relationship.

itual relationship arising througli patprnity.™" The
facilities given to the Bishops on February 20, 1888,
lo dispciige coiicuhinarios in periculn mortis constitu-
'cs, did not reserve this impediineut. Tho same ox-
tensive faculty is granted to the Bishops and the
priests by virtue of canmis 1043 and 1044 in behalf of
PTsons who are in danger of death and whose matters
"f ronscience need to be adjusted, and should the case
P^-nuit, their children legitiniated."'"

XIII. The Impediment of Legal Relationship.
(Canon 1080.)

388. The change introduced by tlio new law in this
iiiipedinient dispels many doubts and dispenses us
from the necessity of devoting much space to the pres-
entation of its history. We advise the reader to con-
sult another part of this work,*" as well as several
other authors."'*

Adoption is a legal act establishing relations of par-
enthood and filiation recognized by law between per-
sons not so related by nature The bond or connection
of persons arising from adoption constitutes legal re-
lationship. Cases of adoption were not uncommon
even anionj^ the Israelites'" and among the old Ger-
manic races.'" But it was nowhere so strictly r<*gu-
lated by laws as among the Oreeka and the Romans.

Roman law did not as a rule permit adoption uidegg
the adopter was childless and of such age as to pre-

► " Gaspauii. op. riC, n, T50; Werne, op. ctt., n. 495.
•-8« this wnrk.ii, 151 IT.
•" See thie work. n. IBS ff.
•"Kbmsin. op. rit.. vol. I, p. .157 ff.; Lauwn, lae. oil., t. Xl.X, p. 19:1
ff.; Gasfaui, np. Ht.. n. "51 IT.; W»nsi, op. ril.. n. 409: [>E Reckkb.
»|i, rit., p. 199 ff.: Fbjb, op. fit., n. 4S8 B.; Dn Smet, op. eit., n, ,119 IT,;
Saxtt LUTXra. lip. ril., »f.l. IV, tit, XII, p. 23* It.
'^Gtn. XLVIII, 5; Erod. II 10; Kather. 11, 7. 15.
•" BRXaitiT XIV, I>n tyiuidn duirrrmna. lib. IX, cap. X, n. 3;
UuLTXKNDOBri'. Etwt/klup. d. RtThtiwiimensch., p. 1, p. 25B.

'2SG The New Church Law on Matrimony.

elude reasonable expectation of any children being be-
gotten by him. The maxim "adoptio imitatur natu-
ram" required of the adoptive father to be at least
eighteen years older than the adopted child. The
■words alieni ittris and sui iuris played an important
role, for thoy determined the two species of adoption
accepted by the Roman law. Persons who were still
under the patria potestas were called alieni iurls, while
those who were their own masters were called sui
iuris.""

The adoption was either solenm or simple. The
solemn adoption, otherwise called adrogation, con-
sisted in a legal enactment issued generally by the
head of the state ■"' by virtue of which an indi\"idaal
M'ho was sui iuris passed into the family of the
adopter with all the privileges of a legitimate and
natural offspring including the right to inheritance
whether the' adopter died intestate or not,"" Tli«
simple adoption was a legal enactment effected by the
authority of the judge or of a competent magistrate
whereby relations of paternity and filiation were estali-
iished between a person not yet of full age (nondum
sui iuris) and the adoptive father, hut in such a way
that the former did not pass into the family of the
latter, nor was he constituted a necessary heir, thoof^li
he succeeded his adoptive father if he died intestate.

The adoption was perfect {plena) when the adopted
person was transferred into the family of the adopter
as was generally the case in all solemn adoptions or
adrogations, and also in simple adoptions when tho
adopter was a lineal blood-relative in the ascendant
line of the adopted. In every other instance the adop-
tion was imperfect or minus plena.

■" L. 1. 2, n. nc adupt., T, 7.
"*L. 6. <", De adfij'l., VIII, 48.
■" IubI. Ill, 10, lie acqvisil U)»e per arfagationrm.

Impediment of Legal Relationship.

287

389. The authors are uiiatiiiiious in maintaining
that the impediment of legal relationship constituted
a diriment impediment of marriage in the Roman law,
but it is a controverted opinion whether such an effect
followed only from the perfect or also from the im-
perfect adoption."'" In the old law this question was
of vital consequence, for on its solution dept'nded
whether the impediment existed or not in countries in
which imperfect adoption was in vogue. The lloly
See was consulted about certain countries and declared
the impediment non-existent in Bulgaria *'* and in
Tonkin while its presence was upheld for Austria,
though the civil laws of that country do not invest the
adoption with the force of a diriment matrimonial im-
pediment."" From this it would seem that for the pa-st
discipline one should be guided by the opinion which
denies to the imperfect adoption the power to induce
the impediment of legal relationship. It is precisely
owing to the imperfect adoption prevailing in c{mntries
above-mentioned that the Holy See did not admit the
presence of the impediment.

390. The legal kinship sprang from its resemblance
to natural relationship. Its purpose was to protect
and safeguard the morals of the adopted as well as of
those who by residing under the same roof contracti'd
a certain propinquity which on the ground of public
decency and propriety militated against their entering
into marriage."' Tlie intimacy begotten by adoption
became recognized by the Church as an impediment to
marriage on three grounds, namely, (1) on the ground

"Werni, op. cit., n. 489, note 38; Qasparri, op. eit., n. 755; Bbne-
WtKCt XIV. De Bynodo Dtoenesana, lib, IX, cap. X, n. 5; D'Annibai.e,
y^. Pil., vol. I. n. 65; Dk Subt, op. rit.. n. MM: BiiRTSBU., in lln- r<i»i-
Kelio Enej/clopedia, art., "Adoption," (Caiyonical) : Sanchez, op. rit., lib.
I Vn. iliap. LXriI, n. 18; Db ANQBa-ls, h. t.. n. 1.
■ '"B. C. 8. Off., IB apr., 1761.

•■ 1)B Beokex, op. rit., p. 204; Oasparki, op. dt,, o. 761 ff.
" St, Thomas, suppl. ///«, p., q, LVII, a. 2,

288 The New Church Law on Matrimony.

of paternity (in the direct line) between tlie adopter
and the adopted as well as his descendants who were
under his control at the time of the adoption ; "" (2) on
the ground of fraternity (in the transverse line) \n>~
tween the adopted and the legitimate natural offspring
(nonrfitm sui vuris) li\-ing under the control of the
adopter; '''" (3) on the ground of legal affinity, between
tlie adopter's wife and the adopted, and between the
wife of the adopted and the adopter."" The impedi-
ment arising from the bond of paternity and of legal
affinity continued even after the dissolution of the
adoption. The impediment to which the tie of frater-
nity gave rise ceased after the adoption was dissolved,
or after the children affected by it either became of
age or were emancipated.

391. Pope Nicholas (858-8fi7) not only admits the
existence of the impediment but comments upon it ver>'
favorably. His remarks were subsequently inserted in
the flratian collection,'" The other proofs showing
the early introduction of the impediment consist in the
fact that it was recognized by such early authors as
Roland,"" Peter Lombard,"' and Bernardus Papion-
sis,"' The Decretals of Gregory IX devote only nine
lines to this impediment "* and the Council of Trent,
as well as that of the Vatican, declined to sanction the
suggestions of the convened Fathers to modify its
scope,

392, The present discipline legislates definitely and
its tenor makes the question of perfect and imperfect

™BKHei>iCT XIV, Ue Syrtodo IHoeretana, loc. cit., n. i;
de nup(., I, 10; L. S5, D. de ritu nvpt.. XXIII, 2.

■■ *(B, 3, i, In»t. de nupt.; L. 3, 17, D. de rtlH nupt.

"•L. 14, D. de tUk nupt.; U 23, D. de ritu nupt.; L. 4, (10, A
et affln., KXXVIII, 10; 8. C. C„ Hortana, 23 «ept., 1734.

•"C. I.e. XXX, q. 3.

™ Svmma Mayigtri Ralandi, p. I4H (FA. Thnner.),

■^ Lib. IV. Sent., dist. XLII.

■" Svmma de jnofrimonio, p. 29S.

•"Cop. un. X, de eognatione legaH, IV, 12.

Impediment of Legal Relalionslii-p.

2S9

adoption entirely iiieonscqueiitial. It reads: Persons
who by virtue of ctvil law are rendered incapable of
■ contracting marriage on account of legal relationship
arising from adoption, are disqualified also by canon
Jaw from entering into a valid wedlock."" Thus the
Church law contains an explicit canonization of the
civil law of every country."' The tenor of the civil
will therefore decide not only the inipedient or
tlie diriment force of the impediment but also its scope,
namely, the number of individuals who will ho affected
tiy it.

S93. Though the principle is clear, its application
Mvill not be void of difficulties. In coiuitries where the
civil impediment of legal relationship is not recog-
nized, the canonical impediment will be non-existent,
"^•ome uncertainties will be caused by the fact that the
iei\-il Codes are not sufficiently definite in determining
the force and the scope of the civil impediment of legal
relationship. The canonists of the respective coun-
tries will be expected to solve sucli doubts and to sub-
mit the result of their investigation tn the Holy See for
final decision. Until such conclusions are reached we
can say tentatively that in the United States of N'orth
America the impediment will be unrecognized, for the
civil law does not admit its existence. As regards the
Code of Kapoleon {art. 348), which is the official Code
of Belgium and Erance, the impediment arising on tlie
ground of legal fratemitj- in the transverse line is not
confined to the adopted and the adopter's legitimate
natural offspring. Its scope is extended even to the
various children adopted by one and the same per-
son."' Other civil Codes as, for example, the Code of
Germany, "" restrict tlu- impediment to legal paternity.

"■ Coo. lUB. C*N., Can. 1080.

'•Op. pit.. Can. 1059.

■■Db Burp, op. eit., u. 322, uot 2.

"((1311, 1762, 1763] Holi.wkck, op. cit., p. 10-1, notp 3.

290

The .Yeic Church Laic on Mafrimoni/.

And a^in in other countries the impediment arititn^
from the direct line on the ground of legal paternity \»
(liMi«lved hy the dissolution of the bond of adoption,"'
while in others it remaios in full force even after such
di»tH>Iution. All these regulations will react on canon
law which will conform to the ri\'il law of every conn-
try in all its particulars.

394. According to the foregoing principles the im-
pediment of legal relationship will not be in force in
thoKe countries of Europe which are in the state of
formation, having repudiated the Code of the nation
to which they were fonnerly allied. For such coun-
tries the e.xistenee or the non-existence of the impedi-
ment will depend on the subsequent legislation incor-
porated in their new civil Codes bearing thp official
sanction of the representatives of tlie government and
promulgated as the law of the land.

395. To dispense from the impediment arising in
the direct line a grave reason was always required, but
even a slight cause is sufficient to justify the granting
of a dispensation from this impediment as occasioned
by legal affinity. In the transverse lim' the dis[>ensa-
tion is hardly ever asked and very seldom granted for
the bond of adoption suffers an automatic severance by
the fact that the children became of age or are emanci-
pated. To avoid all friction between the Church and
the state law in eonneetion with future disiK-nsation-t,
the Church will probably demand that the parties in
question should first procure a civil dispensation from
the impediment of legal adoption. The civil Codes as.
a rule hold out the prospect of such a dispensation.
The power to grant it is generally vested in the su-
preme civil ruler. Rliould the eivil authority deny it
in tlie case of two baptized iiulividualfi. the Church
strictly speaking lias the right tu grant it notwithstaud-

"• WeHN'Z, on. <■!(., n. -iF.!}.

Impediment of Legal Relationship. 291

ing such refusal. Should there be grave reason justi-
fying and demanding an ecclesiastical dispensation, re-
course could be had to a marriage of conscience, if
some evil is feared from the revelation of a marriage
entered into under such circumstances."^

Cod. Iur. Can., Can. 1106; see this work, n. 61 ff.

/. Mafrimnnial Consent in GencrnL

Consent referred to contracts in gent^ral 18
deliberate act of the will which reeults in an agreemoTil
of two or more individuals regarduig a well-defined
object and including within its compass all things in-
separable from the essence thereof.' Consent is there-
fore the vitalizing factor which legalizes all transac-
tions. The properly manifested eonsent of parties
juridically competent constitutes marriage. This con-
sent cannot be supplied by any iiuman powor.^ Matri-
monial consent is an act of the will whereby the two
parties mutually transfer and accept the right over
the body, which right is perpetual and exclusive and
its purpose is acts in themselves suitable for the
eration of offspring.' When both parties are com]
tent and tlie proper consent is given in the sense iw
cated hy the foregoing canon the individual union
called marriage springs into being and constitutes the
man and the woman as one principle of legitimate
procreation.
By declaring that consensus (when given under

'Oabpabri, np. eU., n. 7T1; D'Ankibai.E, vol. TI. n. 4. 11.

■C. nn., C. XXX, <j. 2; c. 14, 23-26, 31, X, dc apnnaalibiu
nuiniu. TV, 1; Leo XIII, deer, "Contentut muIuiM," 15 febr., 1
8, C. C, Mu(i»tMi., 19 BUR., 1724; 8. C. de Prop, Fide (C. P. p
Tunkin. Oreidpnt.). 5 npr., 1785.

■Cod. li'B. Can., Con. 1081.

Matrimonial Consent. 293

circ'iunstances specified above) facit matrimonium the
new law settles the much-mooted question of the
copula theory. One is no longer permitted to advo-
cate the opinion which holds that the conjufial act is
an indispensable requisite to marriage in the sense
tliat marriage is an incomplete contract not invested
with sacramental character until such an act takes
place. Tins opinion was defended by Gratiau * and
tlie school of Bologna in opposition to Peter Lombard ■
and the sdiool of Paris. Maj!;ister Rolandus, after-
wards Alexander III, contributed to flie solution of
the controversy by propounding a nii.Ked theory
whereby it was admitted that copula, (hough it does
not pertain to the essence of Christian marriage, is an
integrant thereof endowing it with an accidental per-
fection and with absolute indissolubility.'

397. Marriage-is a natural contract, hence its es-
sence is to be determined on the ground of natural law.
The marriage contract is vitiated whenever a circuin-
Btanee connected either with the contracting parties or
with their consent militates against its essence. Since
the matrimonial consent cannot be supplied by any
human power ' we are to conchide that the consent
must be:

1. Free and deliberate. Violence or coaction depriv-
ing the contracting parties of their freedom to dissent
would result in an invalid consent. In order that the
contract be vitiated and rendered null and void the
fear need not necessarily be absolute, relative fear
suffices as long as the person in question laboring

*c. 1-51, c. XXVII, q. a,

'Lib, IV, Sent., dial, XXVII.

• EsHBIN, Op. rit., vol, I, p. 117 IT.; WntNK, op. e-it., n. 36; Oasparri.
op. Ht., n. 770; Dm Smet, op. cU.. n. 60.

'SaNCHKE ugilales the quMlion wheOier God by HU absolute power
could cftuae nairiuge to ciist without the coMent of the eonlracliiiK

trtigH . Tbe coneluaion is to be negative. (Op, cit., Jib. II, diflp..

.JMrttfH. Tbe coneluaic

Ji^ n»* aVt ' J»9§r^h Ltttr tm Xttrrrmtimtt.

intit^r r.^ ,nifiii*ai**» ^ *^i#'Tr»f^L to 54in. & •?*iiL««it oat-

-L r.ir.*maL nanipi^. n*mare*L 17 oit*^ -vilL A ff«inr<i

if .iiar.-.mnniai .nrear -aiuiiir zivm- ri^kt t«> a valid mar-

">. P-r^>aai. :' jt ao p^inr^-^r •^-Siwoc ^mi^ Lzuiiritinai will
•\f •;i#* "tmrrai^firur partitnf -^aa hrinir afat>at th«f lireiti-
niari> niur.ui*. ':raiii»f**r if tii»* 'iuaiinii>a ov*fr tkrir bodies.

4. '/'ir^'arfiir aiiiaLf-*:*r^*ti .>r *^xr>*maL E«>r a neeipro-
^a; rraib»f-r 'jC :ji»* iv)«iiet* ifaaniiC b**- imtierstixwl by
lv^#th inif^.'« .rtifii Lntr*iLti«iQ L* maiiif'**!*^! by onmistak-

'n r>rtritimat«=^. pr**!*iipp«x*i2i:r that rii«r person who
flfiv*^ th^ r-r,n^^vLZ L* i?»>aLp«^t»MLt or ffapable. Against
Tt^ l^^timat^ ^>nif*-nt militaries th«^ nataral and the
p^>!»itiv«cr Law wh«rn for i?»rrtaiii reas«>iLs they disqualify
*/>rn^ person* from enrerinz into valid wedloek.

^>. Abfltohite or. if eonditionaL the eoiidition must be
AJifh that it is not incompatible with the essence and
intp^ritv of the marriage contract.

7, Sirnrjltan^ou.-, if n«it phy^in-ally. at least morally
yo. It. MijfFic^'?* that th^- conjsent of one party be given
^Jyrinjr th^- virtual eontinuance of the other party's
r'ony^'fit,

//, CmiHP^ Militating Against Matrimonial Consent.

398. In order that the matrimonial consent may
(lOHH^'HH the fharaeteristies si>ecified above certain con-
ditioriH are required on the part of the will and on the
(mrt of the intellect of the contracting parties. Causes
militating aKainst consent on the part of the intellect

' /iftn ApoHtolifar HfdiM, vol. II, p. 348.

'H. C. (!., /'aruiifn., 7 iul., 1 sept., 18K3 ; 7 mart., 1885; Acta Sanctae
HiiUh, vol. XXIM, p. 14 ff.; Masimkn., 1 iun., 1911; Acta Apostolicae
HniiM, vol. nr, p. .VJfi ff.

Miitrimonial Consent

are: (I) Want of proper discretion; and (2) Error.
Those opposing it on the part of tlie will are: {1) Sim-
ulation; (2) Coercion or fear; (3) Condition. A few
vords must be said on each of thes(> causes.

Causes Opposing Marriage on the Part of the
Intellect.

1. Want of Proper Discretion.

t99. In order that matrimonial consent may be
present it is required that the contracting parties be
not ignorant of the fact that marriage is a permanent
Btate betwen a man and a woman for the purpose of
procreating children.'" This ignorance is not pre-
sumed after they reached the age of puberty." Par-
ties who are lacking in this minimum of the required
knowledge cannot contract validly. This is a require-
ment of the natural law, its scope must therefore be ex-
tended to the unbaplized. Besides this required knowl-
edge the baptized persons must be guided also by the
ecclesiastical law prescribing a certain age,

400. The age of puberty for a male child is reached
after the completion of fourteen years and for a female
child of twelve years.'- After that age the sufficient
knowledge required for matrimonial contract is pre-
sumed, though the impediment of age would interfere
Vith its validity imless the former completed his six-
teenth and the latter her fourteenth year," The knowl-
edge required by the foregoing canon need not he so
precise as to extend to all particulars or factors con-
nected with the purpose of marriage, Kven a confused
knowledge has the force of inducing a valid consent
provided its giver is aware of the permanent bond and

"B. C. C, rFntimitien., IB mail, 18 aug., IS88.

■' Cod. IVK. CiK.. Can. 1082.

"Pp. eit.. Con. »S. »2.

"Op. rit.. Can. 101)7.

296 The Xew Church Law on Matrimony.

is readv to embrace all the conditions marriage im-
plies. Thus, for instance* the validity of the consent
would not be questioned should a person express will-
ingmess to comply with the primary end of marriage
without being enlightened as to the nature of the act
of procreation. Should lack of sufficient knowledge be
pleaded against the validity of marriage the cause of
nullity would have to be proved, for the contrary is
presumed if the party in question was in possession of
the age of puberty at the time the contract was made.
401. Persons incapable of giving valid consent are :

(1) Those laboring under dementia or monomania;

(2) Those who are bom deaf, dumb and blind; (3)
Those who are in a state of inebrietv.^* EJven civil

law disqualifies these three classes of persons from
making a binding contract. Should the person men-
tally deranged enjoy some lucid intervals, marriage
contracted during one of them would be valid but
illicit.^' In doubt whether the marriage was contracted
during lucid intervals or in a state in which the faculty
of coherent thought was wanting, the latter is to be
presumed/'

Persons who are deaf, mute and blind from their
nativity are erenerally classed among infants and for
that reason are barred from marriage.^^ It is a con-
troverted point whether the same inability is to be
[)redicatod of persons born deaf and dumb. If the in-
struction they had received renders them capable of
diseerninsT a formal violation of the moral law and of
realizing the duties and the responsibilities attached
to the marriaire contract, it would seem that thev could

♦D'Annibai.e, vol. I. n. 31. ami vol. II, n. 409.

"^ Gasparri. op. cit., n. 779.

• ScuMALZGRiBER, op, cit., IV. I, n. 14: Sanchez, op. cit., lib. I, disp.
VIII, n. ^^.

"Santhez. np. cit.. lih. I, disp. ^^II, n. 13; St. Alphonsus, lib. VI,
n. 303; D'Annib.u.e, vol. I, n. 30.

Matrimonial Consent.

297

give a valid consent. The testimony of men who ob-
served the physical, mental and moral status of deaf-
"mtes favors the assumption that such an instruction
's a possibility. Therefore, it would seem that they
■''Hould riot be barred from marriage as a class on the
S^^onnd of natural law, but that their individual fitness
s^Wciuld bo tlie deciding factor. Innocent UI distinctly
**^to6 that the deaf and the dumb are capable of con-
'^'■eeting marriage, but it is not clear whether be eon-
^^»aplates cases whore the two classes are taken sepa-
'*^*-leiy or a case where both deafness and muteness
^^^cur in the same individual.'* Deafness, muteness
*-*3d blindness when viewed separately, whether they
^*"e congenital or adventitious, do not disqualify one
* **om marriage."

A person in the state of inebriety depriving him of
^11 nse of his mental faculties '" is regarded as incap-
ably of giving a valid matrimonial consent.^' The same
*s to be said of individuals foimd in the state of stupor,
of delirium or of somnambulism."

3. Error.

402. Krror is a discrepancy between what is
thought to he true and what is actually true. It implies
not only a lack of information but also a positive ele-
ment of mistaken judgment, in other words misappre-
liension. Gratian " distinguishes various kinds of error
vhieh can be reduced to error of fact (error fncti) and
error of law [error turis). Error of fact relates either
to the physical person who is the second party to the
contemplated contract (error svbst(vnttalis), or to bis

" 0. 23, 3S, X, de ipontalibus el ma
"Wnwii, op. eit., n. 41.
•Coo. IDB. C*K.. Can. 2201, i3.
" Oaspaim, op. fit., a. 781.
"D« Ll'OO. De Saerammt^x in tirar
■C. XXIX. i\. 1; Pctbi Lombabd],

IV, 1

IV, dial. .XXX.

298 The New Church Law on Matrimony.

qualities {error accidentalis) . Error of law concern^
the principal object of marriage {ius in corpus) y or it^
essential properties {unitas, perpetuitOrS, indissolubili^
tas).'*

Error may be concomitant or antecedent. The coci--
comitant error has no real effect on the consent, inas-
much as it would not have influenced the contracting
party to desist from marriage, even if the error ha^
been detected before the contract had been made. No ^
so with antecedent error, which presupposes that th.
consent would have been withdrawn had the error bee
discovered in time.

403. The new law legislating on the error of fac^ "t
says : Error about the person nullifies marriage. Errc^ ^
regarding the quality of the person, even if it should
be the cause of the contract, invalidates marriage onl^i
(1) when the error about the quality amounts to
error about the person; (2) when a free person coi
tracts marriage with a person whom he presumes to
free, while she is in a state of servitude strictly ^^o
called.^'

404. Substantial error, or error about the perso:
whether it is antecedent or concomitant, vincible or i:
vincible, nullifies marriages not only by virtue of sjv
cial ecclesiastical legislation but also by virtue ^3f
natural law. Therefore the invalidating effect is n ^3t
to be confined to marriages contracted by baptized pc*- r-
sons but ought to be extended also to those entered
into by the unbaptized. A classical example of sil ^*h
error is found in the Old Covenant where reference is
made to the marriage of Jacob with Lia, whom Jac oh
erroneously thought to be Rachel.^® The matrimon 5al
contract presupposes a consent given to a determir»-prf

'* Wernz, op. cif., n. 223 ; Gasparri, op. cit., n. 783 ; De Smet, op. ^:rit.,
n. 2o9; 1^'Annibale, vol. TIT, n. 444.
'M^)i). li'K. (\\N.. Can. 1083.
»• Genesis XIX, 24.

Matrivioniai Consent.

299

person whom each of the coutractiiig parties has in

mind. If Charles intended to marry Agnes, but by

iiistaltp he is united to Cecilia whom he erroneously

'hiiiks to be A^es, his consent is really given to the

'atler; consequently no marriage exists between him

"'Hi C'wilia. Some autliars maintain the result would be

'^•fsame should Oiarlcn say: "I would want to marry

"tig woman even it' slie were not Agnes." In that ease,

'••?•>■ say, the words"! would want to" express an inter-

Pt*(itative wUl whidi de facto docs not exist, and in real-

'*>■ his consent is directed toward tlie absent Agnes and

'*«Jl toward the woman wlio is actually present.-' The

"-'ontrary opinion, it would .seem, has a more solid basis,

405. Accidental error affecting only the quality of

*V»e person does not, as a rule, invalidate marriage,

'hough the errmg person may suffer grave injury."

*t is immaterial whether such an error is vincible or

Invincible, concomitant or antecedent, or whether the

IXTSun is led into it without any deception or duplicity.

Or through imposture or fraud.'" In the latter case

Ih** damage may have to be repaired, if it be possible,

bnt the contract is not rescindahle. The explanation

lies in the fact that the consent tends principally

towards the identity of the person and not toward one

of his qualities.'" A different judgment would have to

be rendered if it were clear that the main object of

tlie contract was a particular quality of a person, which

character is specified as a conditio vmc qua non." Of

this we shall treat more extensively later."'

31KJ The Xeu- Church Laiv on Slatrimonif.

Accidental error whjjh affects tfap qualitj- of the
person annuls marriage whenever it is equivalent to
a substantial error, Tiamely, when it amounts to an
error about the person. Thus, for instance, should
Charles wish to enter into marriage with the oldost
daughter of Cecilia, his marriage woald be invalid
should he contract with Agnes whom he niistakenlT
regards as such daugliter; fur his consent in this case
is reserved to the daughter who is actually the oldest.
Should no »uch limitation be placed on his intention
but should his consent be given to the person present,
then the contract would stand, and in case of dimbt Un-
presumption is always in favor of its validity.

406. Another instance in which accidental error
annuls marriage is the case in which one erroneouslv
believes that the person whom he is about to marry h
free, while in reality she is laboring under servitudi'
strictly so called." Iji the former discipline error as
to the servile condition of a contracting party was re-
garded as a diriment impediment of marriage." The
nullifying force of that impediment was acquired hy
virtue of ecclesiastical, not of natural, law." There-
fore the marriage entered mto by two infidels, unless
the civil law disqualiiies the slave from contracting
with a free person, is valid." The marriage would be
valid should a free person contract with another free
person whom he mistakeidy believes to be a slave ; or
should a slave contract with another slave whom hf
erroneously considers to be free. Only a baptized per-
son can benefit by the nullifying force of error. Should
a baptized person marry an infidel of whose servili-
condition he is ignorant, the contract wonid be null and

"C. XXIX, q, 1; p. 4, C. SXIX, q. 2; c. 2, 4. X, de coniMffio .rrrc-
mm, IV, 9j 8. C, C, FrUingm., 7 et 28 nug., 1745.

"EaiiKiN, op. fit., vol. I. fi. 317 fr.; FwjB, op. fit., n. 120,
"Wbrni, np. Pit., n. 242: Gaspabhi, op. cit., n. 633.
"Saschb!:, ..;.. ci(., lib. VH, diap. XVII, n. 9.

MatrimonUil Consent.

301

void. Thf contrary would be true if an infidel should
marry a baptized person midor the same condition.
The Church law in contradistinction to the Roman
law" always nphehl the validity of a marriage be-
tween a bondwoman and a free man. or between a
bondman and a free woman ; provided the fact of serf-
dom was known to the free party at the time the con-
tract was made. The state of slavery must be inter-
preted in the sense in which it was understood among
till' Romans or in which it prevails in our own times
inustty among the untutored races.

407. The error would be deprived of its nullifying
force, should the liberation from bondage occur simul-
taneously with the act of marriage. The contrary
would be true, should the slavery continue after the
marriage, even if for only a short time. The subse-
quent emancipation granted to the slave, even if it
should take plaee before the other party becomes
aware of his error, does not affect the objective in-
validity of the contract. To validate such marriages
the renewal of consent is necessary, though in some
cases it might be advisable to have recourse to sanatia
in radice. The declaration of nullity should emanate
from a competent ecclesiastical tribunal, The burden
of proof as regards the presen(;e of error relative to
servile condition devolves on the free person. The
contract must be upheld should the bondman or the
bondwoman succeed in proving that his or her condi-
tion of servility was known to the other party." So
much as regards error of fact.

408. The new Code legislating on the error of law
says: Simple error as regards the unitj' or the indis-
solubility or the sacramental character of marriage,
even if it should give cause for the contract, fails to

30*2 The Xew Church Laa on Matrimony.

vitiate the matrimonial eunsent." This canon rejecfs
the opinion that persons entertiiining a mistaken id«i
abont the properties of marria^ cannot enter into
valid wedlock. The words "simplex error" charar^
terize the misleading notion:^ generally diffused in dot
times among infidels, heretics and schismatics. Sach
errors regard the practice of polyandry and polygj-ny.
the rejection of the sacramental rharacter of marriage,
and the belief that certain circumstances warrant an
absolnte dissolntion of the matrimonial bond. Such
theoretical errors, the new law states, arc not abso-
lutely incompatible with valid matrimonial consent"
as long as the persons laboring nnder them have the
general intention to contract real marriage as it was
instituted by God. and do not exclude any of its prop-
erties by a positive act of the will." It is generally
agreed, says Benedict XIV, that a person cannot wish
a contract unless he wishes also its essence." In order
that a substantial constituent element of a contrart
may not be tacitly included, it must be positively os-
eluded. This exclusion is not presumed and it is diffi-
cult to advance convincing proofs to show that it was
present.

409. The knowledge of. or the belief in. the nullity
of a marriage does iiot necessarily exclude the mar-
riage consent." The words "consenstim matrimom-
alem necessario non exclwiit" cannot be overempha-
sized. Consent depends entirely on the frame of tif
mind. If the person firmly believes in the invalidity of
the marriage he is about to attempt, but for the sake
of endowing his invalid contract with legal sanction.

•• Cod. Iuk. Can., Can. J084.

■*8. C. 8. Off., iimtr. (ad. Vic. Ap. Oreiiniae (■(■nirnl.), IS <!<*-, l^'-'
{lid Vip. Ap. Isponisc Mcrid.), i febr., 1891. Bcc lliu in-« Cullrelafta
under numbers 11127, i:)92, 1T46.

*■ Qaspabkt. ap. eil., n. 792; Wfflsi, op, eit., n. 22S.

•*De Sytmilo DUifreaana, lib. XII, c. XII, n. 8.

-Cod. Ivr. Caw., Can. 1085.

Matrimonial Consent. 303

sQbmits to the fonnality of a civil ceremony, iiis frame
"f Jniml would hardly favor the nt'cessary matrimoiiial
•^nsciit. Sliould he be mistaken, and should the sup-
posed obstacle militating against the validity of his
iii^rriage have no foundation in fact, the marriage
*'ould be invalid and its invalidation would necessitate
*■ renewal of ("onscnt. To eseni|)lify this canon we
I^**illd take the case of a baptized non-Catholic who, be-
'*>g ignorant of the new law of the Clmrcli, believes
*^Hat the impediment of disparity of worship exists be-
5^'een him and the unbaptized party with whom he
*»itends to contract marriage. Being influenced by this
^Tong lH>lief he does not attach any value to his matri-
Triunial consent, nor does he give it, hut goes through
the ciril ceremony merely to comply with the require-
iKlfnts of civil law. Though tlie stated impedimen{
according to the new law would not exist in this case,
the marriage would he invalid, for the true consent was
wanting. lint, on the other hand, if he intended to give
tile jimtrimonial consent in spite of his false notion as
to the prcBence of such an impediment, bis wrong con-
viction would not affect the contemplated marriage,
which would be objectively valid.for the proper consent
was given and the supposed impediment was absent."

B. Cituses Militating Against Matrimonial Consent

»on the Part of the Wilt.
1. Simulation.

410. The internal consent of the will is always pre-

stUQed to correspond with tlie words spoken or the

eigne exhibited at the celebration of marriage. But,

L «bouM one of the contracting parties, or both, by a

I positive act of the will, exclude eitlier the marriage

~S. C. de Prop. Fide, inslr. (nd Vir. Ap. ConstanliDop.), I oct., 1783;
MfC. p. Yaffnac), 23 aug., 1852, ad T.

304

The iVeu; Church Law an Matrimony.

itself or all right to conjugal act, or any essential prop-
erty of marriage, the contract would be invalid."

It has already been stated that matriniunial consent
must be internal, for without it no valid marriage can
bt' conceived. To inforiu tlie other contrarting party
of such internal consent, the necessity of its eJctemal
manifestation is a foregone conclusion. The new law
insists that this be done by word of mouth, nor can any
other mode be adopted if the parties enjoy the gift of
speech.*' Since in a matter of so grave importance
as marriage serious reHeefjon is taken for granted, the
recognized standard adopted by all nations gauges tlie
sentiments of the inward man by the words or signs
outwardly expressed." If the two are in conformity
the consent is full; if they differ, it is fictitious, or
feigned. In this last case the party would be guilty of
simulation, which consists in an outward display of
consent inwardly not existing,

411. Simulation may arise in tliree different wayn:
(1) Want of internal consent to contract;" (2) Inten-
tion to contract but not to oblige oneself; (3) Intention
to contract and to oblige onegelf, but not to fulfill the
assumed obligation.

A contract entered into with a want of intention i*
vitiated at its very base, consequently its invalidilT
must be apparent to all. In the second instance ofif
intends to contract marriage but declines to transfer
the right of ownership over his body to the otii''''
party, or to accept the same right over the body of the
prospective consort, or positively excludes the per-
petual or exclusive character of that right. In this

"Cod. Tur, Can., Can. 10S6.

•• Op. Pi(,, Can. 1088, ^2.

"8. C. C, Aaenionen:. 83 iun., 1907; 8. C. de Prop. Fide, invtr. ($i
Vic. Ap. CoDBtsntinop.), 1 Oct., 1785,

••8. C. C, Mutiaen., 19 uug., 1724; 9 iun., 172S; Pariaitit,. 31 lu.
ISSl.

Matrimonial Consent.

305

ase the two acts of the will are exclusive of each other,
for one wants the contract wliile the other excludes its
essence. Should one be willing to assnine the obligation,
As ill the third supposition, but be unwilling to fulfill it,
he would sin gravely, but the eontraet would stand."

412. These principles taken by themselves aro suf-
ificiently clear, but their application to concrete cases
will not be void of insurmountable difficulties. In
Lorder that simulation, as expressed in the foregoing

lases, may be invested with an invalidating force one
teust exclude the marriage itself or all right to the
conjugal act "by a positive act of the will," The so-
lution of all future pleadings for the nullity of mar-
riages on the score of simulation will therefore hinge
on these words of the new law. The contract would be
invalid should one positivo voluntatis actii exclude one
of the essential properties of marriage, such as its
Bnity, indissolubility or sacramental character. This
positive act of the will would practically have to
■amount to a conditio sine qua non or to a conditio in
pactum deducta.^'

413, Though simulation is very difficult to prove,
its presence was discovered in several eases in which
the Sacred Congregation decided in favor of the
Jlullity of marriage."' In such trials the sworn testi-
mony of the party supposedly guilty of sinnilation has
only a slight juridical value. All sources calculated to
shed light on, or to account for, such a frame of mind
must be unearthed and consulted. An important role
should be assigned to conjectures and to eircum-
«tances antecedent, concomitant, and subsequent to

" GisFABBi, op. cit., n. SOS.

"O'DoNNELL, in the IrUh Ecclcsuutieal Rrcord, art., Matrimnnial riin-

■Kt in the New Code, Ort. 18, 1918, y. 288.

•*8, C. C, Farttien., 7 mart., J885, in the Ai-ta Sanetae Si-dit. vol.
Xviii, p. 14 1 Uaitilien., 1 ian., ISll, In the Acta ApiaMicae Sedk.
Tol. in, p. 523.

306 The New Church Law on Matrimony.

marriage.'" It is immaterial on which of the three ^^
grounds the invalidity of the marriage is contested ^
(whether it be the exclusion of the marriage itself, or
one of its essential properties, or of all right to con-
jugal act), it must be proved that the alleged reason
did not result from a mere theoretical error, nor from
an interpretative but a ** positive act of the will." ^ '
Failure to produce sufficient evidence to that effect :^i
would cause a verdict upholding the validity of mar- — -:
riage.

414. The application of the foregoing principles ^^ <
may cause various complications, not the least serious ^ s
of which would be a conflict between the internal and
the external forum. The nullity of the marriage may
be unquestioned on the ground of the evidence pre-
sented to the internal forum, but the same evidence
would prove inadequate for the external forum. To
adjust the friction thus, arising, practically the only
remedy would be the validation of marriage, if the
party originally guilty of simulation is willing to give
the proper consent. Should he be unwilling to do so,
or should he render the case still more complicated b\^
contracting another marriage, the internal forum
would bo forced to admit the validity of his act (if the
proper form was used), while the external forum
would spurn it. The difficulty thus created would not
be solved satisfactorily until enough evidence should
bo advanced to the external forum to prove the in-
validity of tlio first marriage, or until the other party
of tlio first contract should die. In this latter case the
adjustmc^nt would be automatic.

2, Coercion and Fear.

415. The now Co(l(» legislates that marriage is in-

" Sanchez, op. cit., lib. IT, (lisp. XLV, n. 1 ff.; Gasparri, op. cit.,

n. 798.

Matrimonial Consent.

307

valid when it is contractod nndor the influpuce of grave
violence or fear extrinsically and unjustly eaused, from
which, iti order to free oneself, the only alternative left
is to select marriage. No other fear, oven if it slioiild
8;iv« cause for tlie contract, brings with it tlio nullity
of marriage/"

The terms coercion and fear are correlative, one
applies to the external active agent (causing the vio-
lence), the other to the passive agent (suffering from
violence)."

416. Violence in this connection is to be taken
morally, in the sense that some external agent
threatens some present or future physical or moral
*vil in order to extort consent.'"' A consent given under
such circumstances is not considered altogether in-
voluntary, but only secundum quid, inasmuch as the
liberty of action is more or less interfered with. There-
fore, we are not concerned here with an absolute or
physical coercion which precludes all possibility of a
jiumau act, hut with a conditional or moral violence
with which the internal consent ratifying the external
act is not essentiaiiy iiiconipatiblc, though the liberty
of action is impaired in a greater or less degree. Fear
way be:

1. Extrinsic or intrinsic ae^-ording as it originates
from an external agent (as a man, or a shipwreck), or
from an internal cause (as sickness).

2. Justly or unjustly caused, according as the agent
against whom violence is employed is guilty or inno-
cent.

3. Serious or trifling, according as it is liable to per-
turb even a steadfast man or only a man of weak will.

417. Special mention must be made of reverential

"(iw. Inn. Can., Cnn. 1087.
"ScHMALZflmrnrB, op. cit., lib. IV, tit. 1, n. 3«4.
"li. 1, 2, D. qvod mrlBd (vimjki.

308

Tlte .Vcif Church Lair on Matrimumif.

fear which e.\i«t* between tlie i«iiperior and his »al)-
ject. It has its soarce in the desire not to offend one's
parents or superiors, in order to avoid inrarring tfieir
indignation, wrath or displpasnre. M^rp reverentiiil
fear has not the force of invalidating marriage; it
muKt bp accompanied by, or Iiased on, the fear of sorm"
impending dangiT or dainagr«% as threats, blows, im-
porttinat*', persistent entreaties, and the like. In tiv
former discipline violence and fear constituted a mat-
rimonial impediment in the strict sense of the term.
The new law lias very properly discontinued to cIjia*
them among the impediments and treats them as coii-
ditions influencing consent. The earliest reseniblantT
to this impediment is found in the penal laws of the
Church enacted against persons guilty of the crune of
abduction,'" The Roman law rendered rescindahle all
matrimonial contracts entered into under the influence
of fear and violence,'" The fact that the disciplinary
measures of the Church were sufficiently safeguardeil
by the Roman law relieved the Church from the neces-
sity of legislating specifically on this point in the early
ages. It was soon discovered, however, that the pro-
tection afforded by the Roman law was inadequate,
for the doctrine of the indissolubility of the marriage
tie militated against the rescindability of the contract-
It was therefore necessary to declare invalid on the
ground of Church law or of natural law a marriage
entered into under such circumstances."

418. Violence and fear were endowed with the
force of annulling marriage even before the time of
Gratian. This is evident from the epistle of Urban 11."
The scope of the impediment w^as more clearly deter-

■Clio. LXVII. Apoitol.; Can. XXVII, Coneil. dutleriJoa. (451).
" L. E2, D. df rid* nupt., XXIII, I ; L. 14, C. de naiil., V, 4.
-C. 22, C, XXn, q. 4.

"C. 1, C. XXXI, q. 2; WraNS, op. cit., a. 282; Db BlCKn, op. f
p. 62.

k..

Matrimonial Consent.

309

lined, and its nature more specifically defined by
Jexander 111 (lloD-llSl)."* The Coimeil of Trent
nctions a species of this impediment when it decrees
lliat no valid marriage can subsist between tlie abduc-
:;or and the abducted until the latter Is restored to a
Bafo place not under the control of the former." In
addition the same Council anathematizes tliose feudal
Lords and civil magistrates who would presmne to in-
turfere with the liberty of their subjects, preventing
tliem from contracting marriage freely."

419. The new Code retains the former discipline,
and while it clears several controverted points, it fails
"to settle the question whether the Invalidating force of
fear is to be attributed to natural or merely to
ecclesiastical law. Both sides have their prominent
adherents. Those who advocate the former opinion
base their arguments on the grave duties and serious
responsibilities attached to such a contract, as well as
on the numerous evils which would inevitably residt
from unions* entered into without free will." TIte sec-
ond opinion, which seems more likely, is based on the
ground that a person under tbe iiiftuence of fear and
violence is not placed in a position which precludes all
possibility of giving a consent sufficient for other con-
tracts, nor is there any particular reason why the
matrimonial contract should be made an exception.'*
It is admitted by all that violence which precludes all
.possibility of a free Imnian act vitiates the given con-
sent on tiie ground of natural law,

**C. 15, X. de ipoiuatibtu ft matrimonii*. IV, L
"Scamo XXrV. De Tcfonnalimr matrimonii, «ip. VI.
* Loc. fit., rap. IX and also van, IX.
""Wimtie, op. fit., a. 267; BEi^rKMSTt'i., i

Br. tbqmab. Suppi. in**, p., q. xlvii, a. :
Bb. VI. n, 1054.

"Saxchkb. op. fit., lib IV, disp. XIV. n. 2; Oasparri. fj
SCHMALEOKf-BEB. op. eit., lib. IV, I. B. 406; SaNTI-Leit.veb
I. 14S; PBJB, op. eit.. n. 138 ff.

310 The New Church Law on Matrimony.

420. Tlie new law states that marriage is invalid
when contracted under the influence of a grave fear or
violence unjustly caused by an external agent from
which to liberate oneself one must consent to marriage.
This canon implies four conditions which need a fur-
ther elucidation.

I. The fear, in order that it may possess the effect
indicated above, nmst be grave, namely, such as would
aflfect even a steadfast man, or such as cannot easily
be overcome.*' It is immaterial whether the fear is
absolutely or relatively grave. Though the external
forum considers the objective gravity of the cause be-
getting fear, it does not disregard altogether the sub-
jective state or disposition of the passive agent. The
cardinal point on which the whole question hinges is
the determination of the fact that the cause inspiring
fear under the given circumstances was instrumental
in extorting the consent of ati individual who other-
wise would have dissented. Therefore, if the threats
are offered by one who is in a position to carry them
out, or if they cannot be avoided, the fear would have
a foundation."" Fear can be present even if the evil
feared is directed against the parents or near kin of
the contracting party."'

421. Reverential fear, such as described above,
may, in exceptional cases and accidentally, constitute
a fear invalidating marriage, namely, when one finds
in it the element of extreme sensitiveness on the part
of the passive agent and of extreme rigor on the part
of tlie active agent. Th(» fear of serious indignation
of one's parents or lawful superiors, especially if com-

C. 15, 28, X, de spoiisaUbus et matrimoniis, TV, 1; S. C. de Prop.
Fide, 20 iun., 1883, in the new Collectanea, 1587, $36.

"* Acta Apostolieae Sedus, vol. IV, p. 505; Causa Tarviein., 11 mart.,
1912.

De Smet, op. cit., n. 266; Feije, op. cit., n. 132.

«7

MatrimonUd Consent.

311

ilnpd with thfi fear of blows or otlier grave conse-
quences, is gemM'ally pstimated as sufficient to invali-
date the prospective contract."

422. U. The fear must be unjust. This element of
fear presupposes an extrinsic and free agent. Not all
the authors are in accord in determining when the fear
3S just. There are three things that ought to he taken
into consideration, namely, (a) whether the person
Bnbjeoted to fear is bound to choose between marriage
tor some other obligation; (h) whether the active agent,
Jk he a public or private person, has the right to exact
marriage; (c) whether he has right to threaten and
fi likely to carry out his threats. Should the answer

to these three questions be negative, the fear would he
Unjust. Should an individual be bound in conscience
to marry for the sake of his honor, and should the per-
son threatening him with fear have the right to insist
BD marriage, the fear wouhl be just, provided an alter-
native between marriage or denunciation before the
lidge, or between marriage and dowry, were offered
o the guilty party." The fear would be imjust if to
the passive agent were given the choice between mar-
riage and death.'"

423. III. The fear must be inflicted by an extrinsic
free agent. It does not matter whether the agent is
he other contracting party or a third party espousing
lis cause. Fear of disease, of eternal punishment, or
if death is regarded as proceeding from an intrinsic

' -Gaspawii. op. cit.. n, S16; Whinb, np. rit.. n, 284; S/tScnex, np. cit..
ft. rV. rti»p. SIV. n. 17; 8. C. C„ rrtprimifn.. 2 iut... 1911, in Ihp AHa
IpotioliMe Srdia, vol. |V, p. lOS ff.; PnrUu-n. 1910. '')'•, rit., vol, TI, p.
18 ff.: Lugdvnrit., 28 inn-. 1912, (oc. HI,, vol. IV, p. 816 ff.; Tunkinrn..
M.. 1911, loe. fit., vol. Ill, p. eUl ff.
~AmtTUv» Efplttiuutiiuti Btvirv, li)]3, p. 181 B.; FBije. «;.. eft,.

., 27 »rpt., 1725: Pk BstKEK, op. Fi(„ p. 6*;

133.

n.. 13 ii

I. S20; WbrNK, ap. f

312 The Neic Church Law on Matrimonii.

nerpssary cause, consequently it has no power of in-
validating the contract."

424. IV. The fear explained above, in order to
have the force attributed to it, must be correlated In
marriage. It is not necessary that the active agent
demand marriage as a conditio sine qua non. It suf-
fices that the passive agent should have no avenue of
escape from the threatened evil except the ehoiee of
marriage. This opinion of some authors is formally
adopted by the new Code."

425. In the former discipline the right to impugn
the validity of a marriage contracted under the ira-
pul.sp of fear or violence belonged to the passive agent
exclusively,'* The new law, by virtue of canon 1971,
authorizes also the other consort to challenge the valid-
ity of his wedlock provided he was not instrumental in
causing the fear or violence to which his marriage owes
its nullity. The party whose consent was extorted by
so illegal a means should avail himself of the first op-
portunity, when not impeded in his freedom of action,
to place before the proper ecclesiastical tribunal the
grounds on which he challenges the validity of his wed-
lock. Should he delay too long with such a step, and
continue to cohabit in matrimonial relations with the
other party, he would run the risk of forfeiting this
right according to the tenor of the former discipline."

426. The solution of the controversy whether fear
interferes with the validity of the matrimonial contract
on the ground of natural or of merely ecclesiastical

"Sancbei. op. cit.. lib. rV. aisTi. XII, n. 4; REinfEHSTl'L. r. XL. «.
26; St. Alphdnsus, op. »!., lib. VI, n. 1049; Oasparri, op. eit., n. S19,

" SmuALZniiJlBER, op. fit., lib. IV, n. .'IBS ; Da Lroo. 0* iu»tili4t ft iittf,
XXII. n. 175 ft.; iee also Gabparbi. op. eit., n. «2\; Dk Bbckeb, op. fii.,
p. 84 ; Feub. op. Ht, n. 134.

"ScBMALZ<%^BeK, op. eit., Inir. eft., tit. I, n. 429;; WniNZ. op. eit.,
n. 209 ; Dk Smet. op. Pit., n. 268 ; FEIja, op. ril., a. 143.

"8. C. dc prop. Fido, instr., 30 iun., 1883, n. 36, in the new Cot-
IfctaTiea, n. 1.187: <r. 4, X, qui malrim/inium aiv-uMrr poftnnt. frl rontm
illuil Imli/icari. IV. l"; i-, 21, X, de simnnaHlnis el nmfrimintw. IV, I

Matrimonial Consent.

313

law would decide the objective validity or invalidity
of marriages entered into by infidels, under such im-
pulse. Since the new law fails to commit itself in
either way we are free to pronounce in favor of the
validity of such marriages in countries in which no
civil diriment impediment of fear is enforced. Should
the validity of a marriage contracted between a bap-
tized person and an infldel be questioned on the ground
of grave fear, we are to consider whether the passive
agent was baptized or unbaptized. In the first instance
the marriage would be valid; the contrary would be
■true in the second instance.

■ 427. The Church does not supply, by way of dis-
Pvensation, the consent either withdrawn or suspended
■^r not freely given. The fact that she never dispensed
from the impediment of fear and violence is to be at-
tribnted partly to the doubt occasioned by the contro-
versy whether the impediment is of natural or of
ecclesiastical law, and partly to her desire to safeguard
the liberty required by a matrimonial contract and the
right of tiie person whose consent was extorted in so
illegitimate a way.

428. It must be noted that the marriage is not in-

jvalidated unless the fear continues to the very mo-

■went of its celebration." If this fact is proved the

Rlhurch law invalidates the marriage even though the

consent was actually given, provided the party chose

marriage because it was the only expedient whereby

he could disentangle himself from a serious difficulty."

|£inphasis should be laid in tliis connection on the fact

;at the fear nuist be unjustly caused by an extrinsic

igont. Ill some parts of the United States of North

merica there is a civil law in force which imposes the

Qternative of imprisonment or marriage on a man who

314

The New Church Law on Matrim

acquirer! carnal knowledge of a woman either against
lier will or by seducing her with the prospect of wd- \
lock. Should the woman's ronsent to marriage be ob-
tained under those eircumstanpcs, the contract woulil
be ahsohitely valid even if the man's consent was the
result of fear and violence such as already descriW
for it would be justly caused."

429. The proper way to validate marriages which
are invalid on the ground of fear and violenre is hr
public renewal of consent, if the fear is a public fact;
otherwise the renewal should take place secrclly.
Sometimes sanatio in radice is more feasible, provided
the consent of both parties is present, of one by con-
tinuance and of the other by private renewal.

3. Condition.

430. Condition is a circumstance attached to an act,
on which the validity of the act, as well as the conspnt.
depends for an indefinite time." The two general cato-
gories of condition are : Voiding and suspensive con-
dition. In a contract entered into with a voidirit
condition the party is absolved from all assumed oHi-
gation as soon as the condition is verified. The con-
tract made with a suspensive condition does not ini-
poae any obligation nor does it take effect until the
actual fulfillment of the condition. The in<Iividuality
of the marriage contract, or, more properly its char-
acter of indissolubility, is incompatible with a voiding
conditioTi.

431. The several classes of condition are :

1. Past, present, and future, according as the cir-
cumstance determining the validity of the act and the
obligation following therefrom is past, present nr
future. A past or present condition is a condition

" OASPAftBt, ip. I

vol. 1

; Gasfabri, op.

Matrimonial Consent.

315

improperly so called, or only a relative condition. It
has no influence on the contract objectively but only
subjectively in so far as the parties are ignorant of
certain qualities or circumstances wliieh actually exist.
Conditional contract, therefore, in the strict sense is
one whose validity depends on some future event which
is in the realm of the contingent but has not as yet
taken place.

2. Possible or impossible. The tirst embraces a cir-
cumstance which in the natural order of things either
already exists or is contingent. The impossible condi-
tion is one whose realization would require the inter-
vention of divine power. The possible (condition iw sui)-
divided into necessary and contingent condition.
These terms are self-explanatory. The nK-essary con-
dition whose verification is inevitable belongs to the
same class as conditio de present! or de futiiro.''''

3. Honest and Immoral. Honest condition is one
which does not militate against the natural or divine,
positive or human law. Inunoral condition is sub-
versive of morality and good order.

4. Repugnant and non-repugnant to the substance
of the contract. Three factors, namely, the good of the
offspring (bonmn prolis), the good of the faith {bonnm
fidei), the good of the sacrament {bonum sacramenti)
are intimately related to the essence of the matrimonial

. contract. An express condition directed against anv
lof these, as, for instance, "I will marry you if you will
L avoid or destroy all offspring, or if you will practice
I adultery for the sake of lucre, or until I find another
I person who is richer or who will appeal to me more"
t -would render the contract null and void ab initio.*"
432. In conformity with general principles condi-

"Wersk, op. eit., n. 283; Gasparri, op. eit., n. 844.
••Santi Leitmeb. JJ6. IV, lit. V. a, 6; Qasparjii, op. eit., n. S.-iB ff,;
7, X, dr •■unditiimibua appoaiiui in d^spniixationf rel in alUg ron-
tlraclibui. IV. 5.

316 The New Church Law on Matrimony.

tional marriages were tolerated among the Romans,
though an express text giving them positive approba-
tion is wanting in the ancient Roman law." The 6ra-
tian collection, on the ground of a decree drawn by the
African Council, does not attribute any value to a con-
dition under which marriage is contracted.*^ Contrary
to this doctrine is the opinion incorporated in the
Decretals of Gregory IX, attributed to Alexander
III " and to Urban III,** in which a condition is in-
vested with unmistakable legitimacy and value, though
the subsequent consummation of marriage, should it
take place before the verification of the condition, is
interpretatively looked upon as a relinquishment of the
proposed condition.*" St. Thomas ** and St. Bonaven-
ture *^ gave a fairly precise exposition of the doctrine
relative to conditional marriage contracts. The Coun-
cil of Trent did not venture to introduce a change in
the discipline theretofore accepted, nor was any other
legislative measure enacted by the Church on this
point until the new legislation recast the former law
and gave it a more precise expression. The new law
reads: A condition attached (to a matrimonial con-
tract) and not revoked: (1) Is to be regarded as non-
existent if it concerns the future, whether it is neces-
sary or impossible or immoral, but is not against the
substance of marriage; (2) Should it be based on the
future and militate against the substance of marriage,
it would render the contract null and void; (3) Should
it be directed to the future, involving something that
is honest, it would suspend the validity of the mar-

" Wernz, op. cit., n. 294, note 7; Freisen, op. cit., p. 247 ff.
"C. 7, 8, C. XXVIT, q. 2.

" C'. 3, 4, X, (le cotiditionibus appositis in despofisatione, vel in aJiis
contractibus, IV, 5.

C. 4, X, lit. cit., IV, 5.

Innocent III, c. 6, X, tit. cit., IV, 5.

Suppl. Illae, p., q. XLVII, a. o.
*' Comment, in lib. IV, Sent., dist. XXVIII, q. 3.

84
M

Matrimonial Consent.

317

riage; (4) Sliould it eoiiecru the past or the present
the marriage would be valid or invalid according as the
thing on wliich the condition is based exists or does not
exist.

These four propositions contaiiiiiig the doctrine re-
garding "condition" in a nutshell, will be explained
iiidiWdnally in the pages that follow.

433. I. Should one say: "I will marry you pro-
vided the sun will rise to-morrow," the condition
would be vitiated by the fact that it is based on a
future event whose oceurrenee in the natural order of
things cannot be prevented (conditio de evenfu fuUiro
necessario). Such a condition would not suspend the
validity of the marriage.*' The same is to be said of
an impossible condition as, for instance, "I will marry
you if you will touch the heavens with your finger.""
Should the future coneern something iumioral hut not
repugnant to the substance of marriage the condition
would be void of force.'" Such condition would be: "I
will marry you if you will murder your brother." The
reason why such conditions are not permitted to affect
marriage is that it is generally taken for granted that
tliey are not meant seriously. This supposition, how-
ever, is to be accepted only by a presumption of law
(not praesumptione iuris et de lure), as admitting a
proof to the contrary. If therefore in certain instances
it can be proved that such conditions were actually
suspensive of consent, or that they were meant as cnn-
ditinnef! sine quihus n<m the objective validity of the
marriage would depend on their verification. Under
such circumstances an impossible condition would re-
sult in an invalid contract. A necessary condition
Iwouhi beget a contract valid from the very beginning.
■Sakcbbe, op. rit., lib, V, disp. II, n. 3; Gaspawh, op. oft,, n. 843;
Dl Lugo. De iMtitia rt ivre. dUfi. XXII, n. 336; WuNZ, op. oit., n. 301.
■ •C. 7, X, (iJ. eit., IV. 5; Wernz, op. rit., a. 300. ^mm^^^^^^m

318

The New Church Law on Malrimnny.

Should tlie condition be immoral, the validity of (Iw
marria^t' would be susppnded, without any nhligation
on tho part of the other party to eontrihute his efforts
toward aiding the fulftllment of such a condition. What
is more, he must positively abstain from lending his
aid, for such an act would involve him in sinfulnens.
Should the immoral condition be fulfilled, the contracl
would become valid automatically, provided in Ihp
meantime the consent of the conditioning party has
not been revoked.'*

It is easy to see how difficult it would be to advance
convincing proofs in the external forum showing that
any of these three species of condition was actually in-
tended to suspend one's consent. Should the doubt
remain after a careful inquiry the condition is to bo
treated as non-existent. In the internal forum tlu'
declaration of the individual constitute.s all the en-
dence on which the question would have to be dp-
cided.

434. II. If the contract is conditioned on the fotnrp
contrary to the substance of marriage, it is null and
void. The nullity in such a ease results by virtue of
natural law, for nothing can exist when deprived of Its
essence. To the .substance of the matrimonial eontrart
belong the marital right of each contracting party ovor
the body of the other, the essential properties of mar-
riage (unity, indissolubility and sacramental dignity),
the good of the offspring and the good of the faitb.
Accordingly, the marriage would he invalid if it -shoiilil
be entered into withoait transferring the right of own-
ership over the body to the other consort for the sake
of procreating offspring, or should a condition be di-
rected against having any cliildren. or should a limit
be placed on their number in the sense that after a

■ ^2i q*a-

Matrimonial Consent.

319

specified number has been reached the itis In corpus
will be revoked."'

435. Should the right to the body he transferred,
but by mutual understanding a restraint placed on its
use. such a pre-niatrimonial agreement, tending to cul-
tivate chastity, would not annul the marriage contract.
for the transfer of the right and its actual use are two
distinct things, the former pertaining to the essence
of marriage, but not so the latter.

436. Since the proereation of offspring is the pri-
mary end of marriage by virtue of natural law, any
condition interfering with that end would invalidate
the contract, whether it be a demand to renounce the
ius in corpus, or to resort to preventives making the
attainment of the primary end impossible, as for in-
stance, the practice of onanism, the procuring of abor-
tion, etc. The same is to be said of a condition involv-
ing the positive exclusion of the reception of the sacra-
ment. To entertain a hope of absolute separation
(namely, the dissolution of the matrimonial bond quoad
vinculum) for any causes, or to reserve the right to
have relations with others besides the legitimate wife,
would also invalidate the contract, provided these con-
ditions were not merely interpretative but actual ac-
cessories {condiliones in pactum deductae) placed in
the contract by one or both of the contracting parties."'
Marriages contracted outside the Catholic Church,
though they are generally entered into with this theo-
retical error of seeking an absolute dissolution of the
matrimonial bond in case of adultery, are valid if the
condition is in mente tantum; the contrary is true
should it be in pactum deducta'*

"C. 7, X, de conditionibua appotitu in de§poiuatione, vel altta eon-
traclibia. IV, 5; Gaspakhi, ..;<. Ht., n. 8.18: Santi-Lkitneb. lib, IV, tit.

Synodo Diuei-esana, lib, XIII, cap. XXII,

320 The Xew Church Law on Matrimony.

437. If the condition concerns a future event anj
something that is honest, the validity of the marria^
is suspended. Such a condition would be: "If my father
will consent." In this case the ascertainment of the
father's consent or dissent will decide the obj«ctive
validity of the marriage thus contracted." Should ht
decline to consent, no marriage woold exist between
the two parties.

The question might arise whether contracts of this
nature, entered into nnder similar conditions, an, for
instance, "I will marry you provided iiiy dying raotler
will be spared to life," become ipso facto validated by
the realization of the condition, or whether a renewal
of consent is necessar>-. Theologians espouse both
sides of the question. St. Thomas with the majority
of canonists maintains " tliat such a marriage is valiii
as soon as the condition is verified."

438. This teaciiing was confirmed by the decision of
the Sacred Congregation of the Council. It bases its
decrees on the theory tliat in such conditional mar-
riages the presence of the pastor and of the witnesses,
as well as the consent, virtually perseveres (unless the
consent be expressly revoked) up to the time the con-
dition is fulfilled." Hence the renewal of consent can
be dispensed with, unless, as some authors maintaiiii
the marriage was entered into under the condition "If
the Holy See will dispense." "" In that case we uphold
the opinion that the consent must be renewed at tliP
time the parties are benefited by the dispensation. Thi'
prospective consorts under those circumstances witp
rendered incapable of giving the proper consent and

•*C. 5, X, dv ennditionibun uppoaitis in deipniisatiiine, vel m aJruP*
trartibut, IV, 5.
- Btippl. IIIw. p., q. XLVII, a. 5, c.
" Faqnanus, Commcnlarium, ad c. a, X, de
" Santi-Leitheb, lib. IV, tit. V, n. lU,
"FnJE, op. cit., a. 647; Werni, op. cU., a.

Matrimonial Consent.

321

>f placing thp roiiditioii de futuro by the fact that they
were laboring under an impediment.""'

19. A eonditional marriage contracted with an-
Dtlier person wbilf tlie condition of the first marriage
Bras pending, would lie valid, provided no undispensed
mpedimeiit interfered, for such an aet would indicate
explicit recession from tlie eonditional consent
previously given. Should also the second marriage be
wuditional then that marriage would be valid whose
«ndition is verified first, provided the consent given
o that particular marriage was not expressly revoked
n the meantime. Should the realization of tlie condi-
tions specified in two conditional marriages he simul-
taneous, neither of them would be valid, unless suf-
.JipieDt evidence can be advanced in the external forum
to prove that the party in question revoked his or her
consent to the first eonditional marriage before the ful-
filment of the specified condition."" A free copula
Intervening by mutual agreement between parties
iliound by a eonditional contract, should be interpreted,
•praesumptione itiris, as implying a recession from the
placed condition.""

440. In all conditional contracts it is tacitly under-
stood that should the consent be withdrawn before the
condition is actually fulfilled {an act not entirely void
of sinfulness if unexcused by a just cause) its subse-
quent fulfillment would fail to validate .such a contract.
If the fact of conditional marriage is public, the ex-
ternal forum may demand convincing proofs as to the
actual fulfillment or non-fulfiUment of the proposed
condition. The parties are not free to desist from the
conditional marriage until the occurrence of the event

Di LiK». De Sacratnentit, in genera, VTTI, n. 9S,
Sakchez, hie. r-il.. diap. VlII, n, 12; Oahpaku, op. Ht., n. 845;
WnucK, op. cit.. n. 2»8.

"WuM, lac, rit.. FaGKanus, opi eil., loo. Cit., n. 21; OASPAttRI, op.

I., n. B47,

322 The New Church Law on Matrimony.

calculated to decide the validity or the invalidity of tli
contract, Should they disregard this law their actio J
would be valid but sinful.

441, The canonists raise the question: "When d- ■<
the parties to a conditional marriage contract receive
the sacrament of matrimony!" The conferring of tk*;
sacrament, it is generally answered, begins at tlie time-
when the parties manifest their consent, and its ad-
ministration is completed after the consent takes fii7/
effect, which, in conditional marriages, does not
happen until the condition is verified.

442. IV. The foregoing principles will guide the
reader in tliose conditional contracts which are entered
into cum conditione de praeterifo or de presenti. They
are to be declared valid or invalid according as the
specified condition actually exists or dues not exist.
Such conditions would be : "I will marry you if your
father was a nobleman " ; or, " If your mother is dead ' ' ;
or, "If your dowry is of a certain specified sum," etc.
In default of the verification of any of the foregoing
specified conditions, when they are in pactum deductae-^
as conditiones sine quibus non, the contract would
stand.

///. Manifestation of Consent.

443, This ,snbject has already received partiRl
treatment in another part of the book.'"* The new
Code legislates that the contracting of a valid mar-
riage necessitates the presence of the parties either in
person or by proxy. The parties should express their
consent by word of mouth, nor are they permitted to
resort to equivalent signs when endowed with Uu
faculty of speech.'**

Matrimonial Consent.

323

The sense of this canon needs no commentaiy. By
implication it is probably intended to abolish the con-
tracting of marriagps by letter. Such abolition could
be effected only by virtue of a special ecclesiastical
law, for natural law does not militate against such
marriages. Therefore, marriages entered into by let-
ter, provided the contracting parties are not bound liy
the Catholic form of marriage, are valid. Though the
contracting parties are forbidden to make use of signs
expressive of matrimonial consent when they enjoy
the gift of speech, such signs, though gravely sinful,
would nevertheless result in a valid marriage, pro-
vided they are unmistakably translated by the other
party as conveying a matrimonial intent.'"''

444. In regard to marriages contracted by proxy or
by interpreter the new law introduces several sub-
stantial innovations, and casts the ancient discipline in
unequivocal words. It states that the diocesan statutes
on this point must be observed and that the procurator,
in order to contract the contemplated marriage validly,
must have a special mandate to contract with a speci-
fied person. This mandate should be signed by the
authorizer and by the parish priest, or by the Ordinary
of the place in which the mandate is issued, or by a
priest delegated by either, or by at least two witnesses.
Should the mandans be unable to write, the document
must take cognizance of that fact and an additional
witness should sign it to that effect, otherwise the man-
date is without force. If the principal revoked the
commission or became demented before the time when
the proxy contracted marriage in his name, the con-
tract was invalid, though neither the procurator nor
the other contracting party was aware of the revoca-
tion or the dementia. In order that the marriage may

"'C. 2.^, X, rfc nmnsaiiliua et ma/rimoniis, IV, 1.

324 The New Church Law on Matrimonii.

bp valid the procurator must in itcrson pert'orm the
service conmiitted to his care.""

446. TliP ancient discipline nl" the CImrch rplativn
to the rights and duties of the procurator finds a thor-
ough exposition in tlie Decretals of Bonifaee VIII.""
Thi> foregoing canon introduces several important
clianges. These changes have already been explained
under number 22 and following.

As a supplement we might add that tlie matulan.^
need not he apprised nf the day and the liour in whirh
the proxy will interview tlie intended spouse. The
validity of the marriage would not be suspended should
the contract he made wliile the mnndans is in the state
of insobriety or of sleep. Nothing but his insanity
would have such an effect.'"*

The requirements specified in the foregoing canon
are so important that failure to comply with them
would result in an invalid contract. The same is to
be said should the proxy disregard tlie fulfillment of
a certain condition which the inandana specified as a
conditio sine qua no«.'™

446. Marriage may be contracted also through an
interpreter."" Some authors denied that such mar-
riages could be valid, though the Chureh has acted on
the contrary prineiple.'" An interpreter will beeome
more of a necessity by virtue of the fact that the new
law insists on the manifestation nf the consent by word
of mouth. A graver cause is required for a marriago
by proxy than for one through an interpreter. As
long as the interpreter is reliable and the parties are

"• Cod. Iur. Can., Can. 1089.

'" C. 1-B, de prorUTatoribiui, in VI*.

'"This opioiini must be 8ec«pted iigHiiifll t.lint of San'chkz. l.Vmsult
hifl work, lib. 11, diptp. XX, n, 12,

'" Oaspakri, op. eit., a. R3S.

'•'Can. li'B. ("AN., rnn. lOBO,

'" Bbnh)1(.tL's XIV, De Sgiu/do Dincccmna, lib. XIII, ru\>. XXll
n. 9.

Matrimoninl Consent.

325

unable to oommuiiicate with the priest witnessing their
marriage in a tongue known to him, the services of an
interpreter may be justly employed.

447. Tlie pastor should not assist at a marriage
contracted by proxy or by interpreter, unless there is
a just cause and not the slightest doubt ean be enter-
tained as to the autlienticity of the mandate or tlie
trustworthiness of the interpreter. If time allow, he
should secure the permission of the Ordmary.'"'

This canon mentions some of the precautions which
must be taken in order to lessen the possibility of
error or fraud. To resort to so exceptional a way of
contracting marriage, the presence of a just cause and
the permission of the Bisliop are required.

448. Marriage by proxy or througli an interpreter
is a real sacrament if entered into by persons who are
baptized. Therefore on the part of the contracting
parties it is required that they be in the state of grace.
The state of mortal sin on the part of the procurator
or interpreter would not involve an additional guilt."^

449. Although the marriage should be contracted
invalidly owing to the presence of an impediment, the
consent originally given is presumed to persevere un-
less its revocation is manifest.'"

This canon retains the ancient discipline, and the law
it promulgates is of vital importance in the validation
of marriages. The consent once given but ineffective
on account of the presence of an impediment becomes

factor by means of which a marriage can be vali-
dated. The revocation of the consent is a fact which
must be proved in the external forum, otherwise its
continuance is presumed. Separation or divorce would

Cod. Iub. Can.. Can, 1091,

Sanchez, op. eit.. lib. II, disp. XI, n. 2B; Qaspabbi. op. Hi., a. 740;
Bt. Alpbonsds, lib. VI, n. 8S4: Salmaticbnses, Dr MatTimuaio, c. Ill,
, n. 10; and p. Ill, dub. 4, n. Sit, MS.
Cod. Iub. Can., Cun. n)93.

326 The New Church Law on Matrimony.

indicate a revocation of consent. Though the consent
may persevere, it does not produce its effect by the
mere fact that the inability of the parties was lifted by
a dispensation from the impediment interfering with
the validity of their wedlock. In all such cases in addi-
tion to the dispensation a renewal of consent must also
take place. Should such a renewal be impracticable
or impossible, as is sometimes the case, then a sanatio
in radice would validate the marriage in its very root
and would effect the automatic legitimation of such
offspring as do not stand in need of a special mandate
of the Roman Pontiff to that effect."* To apply a
sanatio in radice no formality whatsoever is required
and even the presence of the contracting parties may
be dispensed with.

"• See this work, n. 173 if.

CHAPTER Vm.

The Form of Marriage,
(Canon 1094— Canon 1103.)

/. About the Form nf Marriage in General..

450. The history nf the form of marriage is some-
what, involved and the scope and purpose of this work
viW be served sufficiently by the presentation of a few
leading historical facts.

The Council of Trent declared ' that the Church al-
ways discountenanced clandestine marriages on ae-
count of the evils which they occasioned. As early as
the second century St, Ignatius of Antioch inculcates
the necessity of apprising the Bishop of one's intention
to enter into marriage." It is the testimony of Tertul-
lian that clandestine marriages in the early ages of
Christianity were looked upon as sinful unions.' The
Church was always conscious of the sacredness of mar-
riage and it guarded solicitously the right to marriage
which every man inherits by virtue of natural law. To
prove these statements sufficient evidence could be ad-
vanced from the writings of the early Fathers and the
enactments of the various Councils.' The different
rites and ceremonies for whose introduction local cus-

Scwio SXIV, De rtformationf malriomnnii, cop. I.
8t. Iqnatii, Eput. ad Polycarpum, cnp. V.

Dr jntdicitia, tap. IT, see Migne, P. L., vol, II, col. 887; ulso vol. I,
fol. 1302.

•St, Ambrcsii, eput. XIX. ad ViaUiun. cnp. VII; see Mtonb, P. L.,
»i>I. II. rol. U«4; c. 3, 6, XXVTF. q. 2; c. 4, 5, 8, C. XXX, q. 5; c. 17,
C. XXniI, q. 1 ; c. i, C. SXXI, q. 2.
.127

328 The New Church Lniv un Matrimonii,

toms or universal Ipgi&lation of tlie Church were rp-
spoiisiblc, serve the purpose of enhancing the solem-
nity of the celebration of marriage and of emphasizing
its sacred character."

461, Notwithstanding tlio strict vigilanee exercised
and the severe condemnation hurled by the Church
against clandestine marriages, the evils assumed pro-
portions so alarming that they necessitated tiie inter-
vention of the Fathers convened at the Fourth Lateran
Council (1215), whose well-known decree prescribes at
least one public announcement of every marriage to be
contracted.

Up to the time of the Council of Trent the redressive
measures taken by the Church with the intention of
checking the tendency to contract marriages secretly,
were not sufficiently rigorous owing to the fact that the
validity of such wedlocks was accepted. As a last re-
sort the Holy See was constrained to have recourse to
the most powerful weapon at its command, namely, to
promulgate the decree "Tameisi." and to declare null
and void all marriages except those contracted in the
presence of the proper pastor and at least two wit-
nesses.' Though this decree, more than any other fac-
tor, contributed to the abolition of clandestine mar-
riages, it failed to eliminate them altogether. Some of
the existing abuses remained unremetlied owing to the
fact that those places in which the decree was unpub-
lished were exempted from the obligation of submit-
ting to the law it enforced. Besides this effect, many
hardships were created in places benefited by its actual
publication. At the root of these perplexities lay the
difficulty encountered in the attempt to determine in
every individual case the identity of the parochus pro-
priiifi. Prompted hy the desire to simplify the dis-

The Form of Marriage.

329

ripline and to reduce the number of invalid marriages,
the Holy See, yielding to the entreaties coming from
the Hierarchy of the universal Church, deemed it
necessary to modify tho Tridontiiie law. The rpsult
was the promulgation of the decree "Ne temerc"
which became operative on the Easter of 1908,' Tlie
wisdoni and circumspection with which this decree was
formulated and its adaptability to modern times and
needs, are evidenced by the fact that it was incorpo-
rated into the new Code in its entirety with only a few
eiianges of minor importance.

fcf/. The Form of Marriage in the Present Legislation.

f 452. As regards the form of marriage, the new law
decrees that only those marriages are valid which are
contracted before the pastor, or the Ordinarj' of the
place, or a priest delegated by either, and at least two
witnesses: due regard being paid to the rules expressed
in the canons on the subject and to the exceptions con-
tained in Canons 1098 and 1099.'

t. Qualifications of the Witnesses, the Pastor and the
Ordinary of the Place Relative to Valid
Assistance at Marriages.
463. The new law does not require any special
t^nalitications for persons who are to be the witnesses
of a marriage. The natural inference is that any per-
son enJo>-ing the use of reason may fill that office,
whether a man or a woman, religious or lay, Catholic
fir non-Catholic, even if excommunicated or interdicted.
Individuals belonging to the last three classes may not
be tolerated unless no scandal is feared and the per-
mission of the Ordinary is obtained.' It is not abso-

■ Pius X, 8. C. C, 2 auK., 1007.
•Cop. ll'R. C*s.. Cnn. 1094.
•8, C. 8. Off., 13 aug., IH9I.

330 The New Church Law on Matrimony. ^^H

lutely necessary that the witaessen be asked and desig-
nated for that special purpose. It sufliccs that they be
physically and morally present, cognizant of the fact
that a marriage is being contracted, and capable of
testifying to it.'" They should, however, be sufficiently
determined owing to the necessity of recording their
names in the Matrimonial Register. The assistance of
the Ordinary or of tlie pastor and that of the two wit-
nesses must be simultaneous and complete. They must
all witness the same marriage, and attest to the con-
sent elicited by the same bride and bridegroom.

454. The wording of the decree presupposes that
their presence is physical. The requirements of the
law would not be fully satisfied if they could not be
seen or heard except by means of a telescope, or a
telephone."

Violence and fear employed against the ■fitnesses in
order to coerce them to bear testimony to the marriage,
would not militate against their valid assistance. The
contrary would be true, as we shall see later, should
violence and fear be used In order to compel the pastor
or the Ordinary to render his assistance to the mar-
riage.

455. The pastor and the Ordinary of the place may
assist validly at marriage: (1) Only from the day on
which they have taken canonical possession of their
benefice in accordance with the rules laid down in
canons 334, §3, and 1444, §1, or on which they began to
exercise the functions of their office, unless by sentence
they have been excommunicated, or interdicted or sus-
pended from office, or declared such: (2) Within the
limits of their territory, in which they may assist
validly at the marriages of their subjects as well as of

ikin.). 2 iul., 1827.

The Form of Marriage.

331

"on-subjects ; (3) Provided they are not constrained
hitler by force or by grave fear to ask and to receive
*He consent of the contracting parties."

456. According to the definition of the new law a
pEistor is a priest, or a moral person to whom a parisli
*^ entrusted with the care of souls under the jurisdic-
' '^C-Jii of tlif local Ordinary. As regards pastoral rights
*»"*d obligations, to pastors are equal, and by law are so
''^igarded, the quasi-pastors to whose care a quasi-
t*srish '* is committed, and parocliial TO^ars if vested
"^viili full pastoral rights. Military chaplains, whether
*»iinor or major, must be guided by the special legisla-
tion of the Holy See."

457. Under the term Ordmary are included, besides
the Roman Pontiff, each for his own territory, tlie resi-
df^utial Bishop. Abbot or Praelatus nullius and their
Vicar General, Administrator, Vicar and Prefect Apos-
tolic, and all those who on the vacancy of such offices
become their successors either by law or by approved
I'ustom."

488. Neither the Bishop nor the pastor is autiior-
ized to witness a marriage validly within his own ter-
ritory unless he has de facto taken canonical posses-
sion of his benefice. This presupposes either an offi-
cial installation or an inception of the performance of
the functions inlierent in such offices. The residential
Bishops take canonical possession of their diocese as
soon as either in person or by proxy they present the
Apostolic letters to the Chapter of the Cathedral, in
the presence of the Secretary of the Chapter, or the
chancellor of the Curia, whose office it is to record it

■Cod. Idk. Can., Can, 1095.

■ Parts ot Vicnmtes Apoatolic, (ir Apostolic Prefectures to which a
Mrtieular rector htis been assigned (Cod. Ids. Can., Can. 210, (3j.
"Op. eil.. Can. 451.
■• Op. nt., Can. 198.

3:\2

The New Church Law on Matr

mony.

among official acts." Where the Cathedral Chapter "i*
wantijig, as in the United States of North America, tho
document of appointment is generally presented to tie
Diocesan Consultors who, in view of canon 427 of tlie
new law take the place of the Cathedral Chapter.

459. The pastor does not obtain jurisdiction over
the souls of his parish until he takes formal possession
of it." The tenor of the local law or legitimate customs
will guide him in the mode of taking canonical posses-
sion of his benefice, unless by virtue of just cause the
Ordinary should dispense him from the formalities
connected with an official installation. In such a i-ase
the dispensation would be equivalent to taking posses-
sion." Should no rites or ceremonies be in vogue on
such occasions, the moment the pastor begins to exer-
cise the functions of his pastoral office he is regarded
as having taken formal possession of the benefice to
Mhich he was assigned.

460. In accordance with the foregoing principles
tlie Roman Pontiff, by virtue of his general jurisdic-
tion, could either in person or through a delegate wit-
ness the marriage of any of his subjects in any part
of the world. The Ordinaries whose names were given
above may do likewise within the limits of the territory
over whicli they liave jurisdiction. The pastor has the
same right over those who reside within the limits of
his parish."

461. This power of the Bishops and pastors ceai*es
by the loss of their office,'" and is suspended after a
sentence has been pronounced which is followed by
a legitimate appeal. The loss of a benefice may

>■ Op. cit.. Can. 334, ^3.
" Cod. Iub. Can., Can. 461.
"Op. eit.. Can. 1444, jl.

"McNiCBOLAS, The nev' IfaMation on engagemmU and marriagt.
p. 23, Philaaelphiu, 1S08.
"Cod, Iur. Can., Can. 208.

The Form of Marringe.

333

o«? effected in six different ways, namely, by priva-
tion," by removal,^' by transfer,"* by reduction to the
'tate of the laity," by dismissal," and by exchange of
"f>icfs." Besides the foregoing six causes Bishops and
Pastors are deprived of their jurisdiction and the right
**> ftitness marriages validly within the limits of their
■***rritory by the fact that a declaratory or a condemna-
*Or>' sentence was fulminated against them witli the
^ffTeet of excommunication," or interdict," or suspen-
sion from office."

With this explanation in our possession we shall pro-
^'ted to interpret individually the three propositions
iJientioned under imniber 4;>.') of this work.

462. A. The clause of the first proposition would
Hot he verified should a Bishop or a pastor incur a
Koeret or even a public excommunication lalae sen-
ienttae, or should either of them commit a crime which
Would ipso facio deprive him of his office or place him
under interdict. It is necessary that a special con-
demjiatory or declaratory sentence, emanating from a
competent ecclesiastical superior, should declare him
excommunicated or suspended from office or placed
under interdict. As regards suspension, it nmst be
borne in mind that suspension from order, or from
benefice, or from jurisdiction does not disqualify the
Bishop or the pastor from assisting at marriage
validly, for such assistance does not involve an act of
jarisdiction. Since the judicial sentence must always
contain the name of the guilty party,"" it is obvious that

■■ Of. eti., Cui. 2299, ftl, 3.

■op. at., C»ii. 183, il.

"Op. eit., Can. 1421, M22, 1426, 142R, SJy, 3.

-Oj>. fit.. Can. 211, (l, 213, 214, 2.105, 51.

■Op. nl.. Can. KM IT.

■ Op. cU.. Cso. 1487 tt.

"Op. eit.. Can. 2257, 225H, 2S64.

"Op. fit.. Can. 2288, 2275.

*0p. «(.. Csn. 2324. 2342, d. 1, 2347, n. ■2.

"Op. rtt., Can. 1874,

334 The Neiv Church Law on Malrhnony.

the one against whom any of the above-mentioned
censures was fulminated becomes nominatim excom-
municated or interdicted, or suspended, as the ease
may be.

463. B. The most significant deviation from thp
Tridentine discipline is contained in the second point
of the foregoing canon. Tlie new law declares that tlie
Bishop and the pastor may assist validly at those mar-
riages which are contracted within the limits of thoir
respective territory. Within these limits their aMist-
ance is valid regardless of whether the parties in qnes-
tion are their subjects or not. Outside those limits
they have no competency even over their own subjects,
unless they have received proper delegation."

464. Tids law, which is identical with the one pro-
mulgated in the decree "^e temere," gave rise to sev-
eral doubts submitted to the Holy See for solution.
Their solution, published by the Sacred Congregation
of the Council on February 1, 1908, is here given,

Dubium VII. To what territory is confined the com-
petence over their subjects of the military chaplains,
and of those pastors to whom no particular territory,
not even jointly with another pastor, is assigned,
but who exercise direct jurisdiction over certain per-
sons or families, in the sense that they follow those
people wherever they choose to establish a home T Tlio
response was: As regards military chaplains and other
pastors referred to above nothing has been changed.
The inference is that pastors of the class mentioned
above can assist validly everywhere at the marriages
of their subjects, but they would need to be delegated
by the pastor or the Ordinary, if they intended to join
in marriage those who are not their subjects, even if

"De Suet. op. rit., n. 64; Wouters, np. cit., p. i2; Ljotmb, DU-
VertnOiinija und EhetchlirnBunffiifonn nach dem Decrete ""
J). 34 (Kfgi-nsliurg, 1910).

The Form of Marriage.

335

the ceremony were to take place in tlieir own church or
military' cliape!.

J)ubium Vill. In what place and liow are those pas-
tors to assist at marriages who, not possessing terri-
tory exclusively their own, hold territory in common
*"ith another pastor or other pastors? The Sacred
^Congregation of the Council responded: Affirmatively
'^^ the territory which they share in common with
** tiers.

Duhium IX. In what place and how is a pastor who

f*^s jurisdiction over some persons or families residing

w^^ the territory of another pastor to assist at the mar-

^^ages of his subjects! The answer was: Anywhere

H^thin the mentioned territory. This decision was

^^ndcn^d after a consultation witli the Roman Pontiff.

Subsequently it was decided, for a particular case in

t:>ie East Indies, that the vali<l assistance is reserved to

till? personal pastor to the exclusion of the territorial

X»astor (the delegation not being presumed).'"

Dubium X. May the chaplains or rectors of pious
places exempted from parochial jurisdiction, validly
assist at marriage without the delegation of the pastor
or the Ordinary? Affirmatively, for persons committed
to their care in places where they exercise jurisdiction,
provided it is clear that they were invested with full
pafitoral rigtits. Such places are hospitals, senii-
iiaries, Catholic Universities, orphanages, etc. Should
the rector or chaplain of such places be invested with
only partial jurisdiction not including marriages, dele-
gation from the pastor or the Ordinary would be re-
quired for such functions."

The foregoing declarations provide an answer for
rthose pastors who do not possess a territory exclu-

"B. C. dr Surrumi'Qtis, 2 iun., 1910, in tht Aria Ap"sloUra>- Sedui.

"OEKXaSI, Brrtf C'lmmfnln della naova Irgge su^H spojuuH r sul
UriPMnio, p. 39 (Boma, 1908}.

336 The Seiv Church Law on ilatrimony.

sively their ovni but hold certain territories in c

with other pastors, or who exercise care over certain

persons or families.

465. CaiioD 209 legislatPS that in positive or prob-
able doubt (site iuris sive jacii) the Church supplies
the necessary jurisdietion for the external as well ac
the internal t'orum. By virtue of this law a putative
pastor, one who is mistakenly rcgardetl as the pastor
of the place, would assist validly at marriage; nor
would such marriages be in need of being validated ad
cautelam as was the custom according to the former
discipline." The foregoing canon must not be inter-
preted in the sense that a valid assistance could be
rendered even by a pastor who is called tnlrasus,
namely, who without the consent of the legitimate
superior, by usurped authority was placed in the pas-
toral office."

466. C. The valid assistance of the Bishop and the
pastor demands that they should not be constrained
either by violence or grave fear to ask and receive the
consent of the contracting parties. This is a signal d^
parture from the Tridentine law which accepted as
valid even unwilling or coerced assistance. The de-
cree "Ne temere" introduced this particular article by
the words "dummodo invitati ei rogati" {sint Episcopi
vel parochi). These words were subsequently ex-
pounded as being verified even in the case of an inter-
pretive or implicit invitation to witness the propose<i
marriage." The new law discards them as inconse-
quential but retains the rest of the article unchanged.
The words "requirant et excipiant consensum" indi-
cate an active and not a merely passive assistance.
The decree is to be interpreted in the sense that an

"8. n. C. Cnfsaravguil.. 1(1 mart., 1770; Noi.WN, iSumma Tkfohilif
MoTolis, vol. Ill, n. 643 (Oenlponte, 1914).

"Pius VI, ad ApLscopos Galliue, 26 sept., ITSl.

■"8, C. C, 38 mart., 1909, Romana el alkirum, n. 4. '

The Form of Marriage. 337

active assistance, but only as far as the asking and re-
ceiWng of consent, is prescribed even for mixed mar-
riages.

467. One is said to ask and receive the consent of
anoHuT under coercion if one acts against one's own
express will. One does it under the influence of grave
fear, if it is done voluntarily tliougli under intimidation
resulting from grave fear, whether justly or unjustly
caused.'' The fear in this connection denotes the fear
of a grave injury threatened by an extrinsic agent or
a free cause. It is inmiateriat whether the fear is
occasioned by the cttlier contracting party, or by one
ho pRpnused his or lier cause.

This fear, in order to prevent the validity of the
eontract, must be caused with tlie intention of extort-
ing assistance at marriage. Some maintain that a fear
lastly eaused does not militate against the validity of
Triage." Others contend that such an effect follows
mly when the fear is just not only quoad suhstantiant
tut also quoad modum." A third class of authors
leaches that fear, whether justly or unjustly caused.
always renders the assistance at marriage invalid.*"
This opinion is the most probable, for the new law fails
to distinguish between fear justly and unjustly caused,
and such a distinction was rejected by the Sacred Con-
TPgation," In default of a specific law to the coii-
rary, fraud and deceit as regards assistance at mar-
riages do not aflfeet the objective validity of the con-
'ract.

■Not*IK, op. eit., vol. Ill, n. 844.

*NoU»iM, op. cit., loc. eit.

"Db BBClCEft. LegitMio nova A' fnntin nvhttiintiaJi qtinatl »jin-niutJio
) matritnnnium. p. 27 (Lovnimi, I9I)R).

" WorTIBS. op. HI., p. 44; Besson', Of to puliltrilf dr» fiuncaillft rl dn
Wtariagti da«a In nouveUr Hginlatvin. N. B. Thiol., I. X[. (IflOMi, p. 34;
Cboupim. t™ fUmfaiUet tt le nariage, n. 31 (ParU, IBU).

" Acta Santar Bedit, vol. XL, p. 338.

The New Church Law on Matrimony.

2. Authorization to Asaist at Marriages.

468. The pastor and the Bishop of the place who
are qualified to assist validly at marriage may au-
thorize another priest to witness the nuptials validly
within the limits of their territory." Permission to
assist at marriage granted in accordance with this
canon must be given expressly to a determined priest
for a specified marriage, all general delegations bein^
excluded, save in the ease of assistant vicars {vicarii
cooperatores) with regard to the parish to which they
are assigned. Otherwise the delegation remains inop-
erative. The pastor or the Ordinary of the place
should not grant such a permission nnless all the
conditions prescribed by law to ascertain tlie free
State of the contracting parties have been complied
with."

It lias already been stated that a priest delegated by
tlie pastor, or the Ordinary may assist validly pro-
vided the marriage is contracted within the limits of
their respective territory." This authorization must
be express, a presumed permission would be void of
all force." In order that such a delegation may be
operative it must proceed from a pastor, or an Ordi-
nary who is qualified to assist validly at the nuptials in
question. These qualifieations have already been ex-
plained." Therefore a pastor or an Ordinary against
whom a condemnatory or a declaratory sentence of ex-
communication or interdict or suspension from oflice
has been fulminated is disqualified from conmmni eat-

" OOD. JuB. Can.. Oan. 1095, $2. |^H

- Op. Bit., Can. 1096. ^^H

"Bee m» wnrfa, n. 452 IT. ^^H

"Wkenz, op. HI., n. 18U; Qaspaiuii, op. rit., n. fl<6; 8. C. C. PdricfeM^

M det... 1889, in thu Aria Sanctae Srdis. vol. XKII, p. 4TT S.; 22 tun.,

ISSl.
"Bee this work, n. 465 ff.; Qennari, op. eU., p. 58; WoirrBBa, op. rit.,

p. 58.

The Form of Marriage.

339

Ing valid delegation, for no one ean traiiKtVr to another
i right not possessed by him.*'

In the former discipline a universal as well as
t particular delegation was permitted. It was iuima-
[prial whether the authorization was extended to all
Poarriages, or whether it was limited to certain deter-
lined ones to be contracted within the territory of the
lelegator. A very important change is introduced by
jhe new law in this respect. In tlie future only the as-
fetant priests will be authorized to receive a general
ition, in the sense that they may w'itness any and
I marriages that may take place in the parish of the
[elegator. Such a delegation would hold good only for
he period of their assistantship. Outside that period
h<* former assistants or any other priests may receive
mly particular delegation, namely, a determined priest
~ r a specified marriage. Such delegation would not
• sufficiently specific were it to include all the mar-
riages that might take place in the parish, let us sup-
pose, within the coming week. AVhat has been said
about presumed delegation applies also to tacit delega-
tion. It would seem that the new law demands that the
delegator should designate the contracting parties liy
name.

470. The delegation may be conferred either by
word of mouth or by writing, and even by a telephone
»r telegram.*" The last two methods are not to be en-
couraged, for the reason that generally there is no
necessity of resorting to so extraordinary a measure
and in case of extreme necessity {urgente mortis peri-
culo) no special delegation is needed should all avenues
tof communication with the proper superior be closed,
except the two referred to above.*'

"De Tfflulu iurU. RPB. UJXI.X, in VI*.
■ McNlCHOLAS, op. cit.. p. 26.
■8m Ihia work, a. 151 ff.

34t) The Neiv Church Law on Matrimonii.

471. The detprmination of the delegated priest does
not necessarily have to be by name, it woidd suffice if
such terms were used as would equivalently establisli
his identity, as, for instance, the pastor of St. Peter's
Church, Western port, Maryland.

A delegation extorted by fear or fraud is regarded
by canonists as valid to all intents and purposes."'

472. The wording of the new law clearly indicates
that for matrimonial purposes general delegations
have fallen into desuetude. Even a Bishop can no
longer authorize a determined priest to assist validly
at all marriages to be contracted within the limits oF
his diocese, nor can a pastor do the same for his own
parisli, except in the one case stated above, when,
namely, the priest to be delegated is an a.ssistant in the
strict sense of the term appointed to the parish by the
legitimate ecclesiastical superior.

473. What is to be said of the general custom estati-
lishcd in the archdiocese of Baltimore in the United
States of North America whereby the pastor under-
takes to marry in any part of the diocese a person who
rents a pew in his church without residing within the
limits of his Parish! Such means would contribute id
the acquisition of a proper pastor, but the new law
does not condition the validity of the contract on the
assistance of the proper pastor (by virtue of domicile
or quasi-domicile). but of the pastor of the place where
the marriage is solemnized. The assistance of a pastor
whom one acquires in the way indicated above woulil
be valid only if such parties were placed under his
jurii^diction with the understanding, or by virtue of a
special ruling, of the Ordinary, as is the case with
national churches. In want of such arrangement wHth
the Ordinary of the diocese a pastor could not assist

The Form of Marriage.

validly at the marriage of sueh pewiioldurs except
•within the HmitB of his parish, unless he is delegated
by the pastor of the place in which the marriage is to
"le solemnized.

474. Formerly it was generally understood that a
priest who was nominally excommunicated or sus-
pended from office could not assist at marriages validly
though he possessed the authorization of the Bishop
or the pastor."' The new law does not legislate on this
point specifically. The fact that a pastor who is ex-
communicated or interdicted or suspended from office
may not assist validly at marriages contracted within
Uie limits of his parish, or delegate another priest to
do so, does not ipso facto deprive him of the possi-
liility of assisting validly (though illicitly) at mar-
riages contracted outside the limits of his parish, when
"he receives a special authorization from the proper
isource. Unless the Holy See should legislate other-
wise, assistance at such marriages cannot be deprived
of its validity.

475. Closely allied to delegation is subdelegation.
Delegation may be particular or universal. The
former implies delegation for a certain marriage or
for a specified number of marriages: the latter for all
marriages that may be contracted within the limits of
the parish. A priest invested with particular delega-
tion cannot subdelegate unless such a faculty was ex-
pressly granted to him by an authorized agent for each
individual case." Since general delegation in the new
law must be limited to assistant priests, it is to be
inferred that, without a special permission granted by
the delegator, no one may presume to subdelegate of
bis own accord except the assistant priest who enjoys

" OaKNAM. op. «'(., p. 34.
"Oaspahei. op. fie,, n, S45; Wbbnz. '>p. i
p. 5H ff.

. ISn; WOUTEBS, O,

342

The New Church Law on Matrimony.

the privilege of special delegation from the pastor, or
from the Ordinary. Such delegation must be limited to
the parish to which the assistant is legitimately ap-
pointed with the duty to aid the pastor to take care
of souls,

476. It must be borne in mind that the person dele-
gated, as well as the delt'gator, must possess the Order
of the Priesthood. The new law does not permit dea-
cons to be assigned to a parish with the title of pas-
tor," consequently, they cannot witness marriages
validly. As a matter of advisability the pastor should
invest at least one of his assistants with universal del**-
gation ad omnia negvtia matrimonialia.

477. The delegated priest in order to assist validly
must witness the marriage witliin the territory over
which the delegator has jurisdiction, and must not be
coerced by force or grave fear. Tliese propositions
have already been explained."

Even if the pastor should intend to delegate some-
one to witness a certain marriage, it is incumbent on
him to perform all the transactions preliminary to such
contract, and calculated to ascertain the free state of
the contracting parties, such as tlie examination of the
parties, publication of banns, etc. He should not shift
the burden of this obligation on another without a just
cause.*'' Should he neglect this duty the delegated
priest would assist illicitly unless liis act was preceded ,
by compliance with this law. I

3, Requirements for Licit Assistance at Marriage.

478. The pastor and the Ordinary of the place may
assist lieitly at marriage, provided : ( 1 ) By due process
of law they have ascertained the free state of the c

"Cod. Iue. Can., Can. 451, Jl.
"See thiH work, n. 466 ff.
"Gennari, op. fil., p. 34,

The Form of Marriage.

343

' traeting parties: (2) They have concluded that one of
the contracting parties has a domicile or a quaei-dom-
ieile or a one montli's residence or, if there is a ques-
tion of a vagus, actual residence, in the plaoo in whicli
the marriage is to be contracted; (3) Should the condi-
tions mentioned in number 2 be unfulfilled, they have
obtained permission from one who is the pastor or the
Ordinary of either of the contracting parties by virtue
of domicile or quasi-domicile or one month 's residence ;
unless there is question of vagi who are in the act of
traveling and who do not possess anywhere a plaoe of
residence, or a grave necessity inter\'enes excusing
from the asking of permission.*'

479. A. The ascertainment of each party's free-
dom to marry is the first step the pastor will take. The
mode of procedure in this initiatory act has already
teen clearly outlined." In other words he must make
sure that they are immune from all impediments
whether diriment or impedient. public or occult, espe-
cially from that of ligamen. This process consists in
the examination of the contracting parties " and also
of two competent witnes-ses," should doubt arise as to
the presence of an impediment. This investigation
should be followed by the proclamation of the banns."'
The domicile or the quasi-doniicile of the prospective
consorts will be the deciding factor as regards the pas-
tor by whom this proclamation is to be made."

480. The pastor will not neglect to exact the bap-
tismal certificate of the Catholic party and also of the
non-Catholic baptized party should the marriage be
contracted with a dispensation from the impediment of

"Cod. lua. Can., Can. 1097, }1.

" See thi« work, a. B7 ff.

"Co». lUR. Can., Can. 1020.

•Op. eit.. Can. 1031.

"WouTQw, op. eit., p. 50: Obnnari, ap. cit., p, 30.

"Cod. Irii. Can., Chii. 11)2:).

344 The New Church Law on Matrimony.

mixed religion." The marriages of vagi should lie rp-
i'errcd to the Ordinary or to the priest delegated by
hira for such cases, and the pastor should ahide by
tlieir instructions as regards the preliminaries of mar-
riage."

481. B. Another important question which the pas-
tor must solve with certainty before he lends his as-
sistance to a marriage is that of the domicile or quasi-
domicile or one month's residence. Should a case
involve a marriage to be contracted by a vagus the
priest would face the necessity of ascertaining such
person's actual residence in his parish.

482. Tlie question of domicile and quasi-domieile
plays so important a role in connection with marriage
that a familiarity with at least the leading factors con-
nected with them is an indispensable requisite for the
pastor.

Neither the modern civil law nor the ecclesiastical
law has an independent or original theory for the de-
termination of one's domicile. They both draw on
Roman law in this respect. The notion of domicile ac-
cording to Roman law may be defined as: Dwellmg in
a place with the intention of remaining there perma-
nently, provided no unforeseen circumstance shall in-
ti'ii'i'ii'."' Thus the juridical element constitutive nf
ilomicile is the intention to take up a permanent abode
in a place. A domicile is not acquired unless the ma-
terial element (actual residence) is eomhined with the
mental element {intention to remain indefinitely)."
Even when a domicile or a quasi-domicile is presumed
{praesumpiione iuris tantum), the presumption yields
to certainty should it be subsequently ascertained tha^

■ op. cil.. Can. 102J.
" Cod. Iliti. CiiN., Can, 1032.
"L. 7,C. de incolii.
"Cod. Ira. C*"., Can. 92.

I The Form of Marriage.

'hp person by a positive act of the will excluded the in-
'''Ution of acquiring a domicile or a quasi-domicile.

A domicile is acquired by a residence in a parish or a
'lUasi-parish or at least in a diocese, or in a vicariate
**»* prefecture apostolic. Should an individual have
''osided for ten years in a place the acquisition of a
•ioniicile would be presumed {praesumptione iuris et
^f (Mrc)."'

483. Quasi-domicile is acquired by an actual resi-
lience in a place combined with the intention of re-
inaining there for at least the greater part of the year.
According to an instruction issued for the United
States of N'orth America and for Pingland the intention
to reside in a place until the completion of six months,
or an actual residence for that length of time would be
sufficient to constitute a quasi-domicile." A domicile
or qoasi-domicile in a parish or quasi-parish is called
parochial; in a diocese, a vicariate or a prefecture, hut
not in a parish or quasi-parish, it is called diocesan.""

484. In contradistinction to English law"" the
canonists, as a rule, admit the possibility of acquiring
more than one domicile or quasi-domicile.'" This is to
be determined not so much by the length of time which
one allots to one's residence as by the int<'ntion with
which one takes up an abode. The time need not be
di\'ided equally with mathematical precision between
the different places."

- Is-NOCEMTIf 8 XU, const. -Spitulatori-ii." i nov., 1694; 1. 2, C. iff

-a'c. C. Off., lilt, onpyd, (aJ Ep. AnglUe et RIatuum Fwdi-r.
Anmrap. Scpt^ntrion.), 7 iun„ ISfiT; 9 nov., 18BS; in thr new CnU
^ lw(«»w, D. 1305.

"Cod. Iub. Can.. Can. 92, (3.

"WtsTLAKK, in the Knrgctopaedia Britannira (deTenlh pditioo), art.,

"OAaPABSt, op. «'(., n. 919; Vlawimo, PrafUetintte* 4e iurr malri-
B. I6IJ ( Warmundar. lS9fi, 11)02); BouorsHo.v, in the l,e Canon-
.nlfmporain. 1HB9, p. 273; WeBNZ, «(i. HI., n. 177 ff.
"VumNO, op. cil.. loc. ril.: Woltsbs, op. rit., p. 109; Sanchee, op.
«., lih. Ttl, dUp. XXIV, n. 3.

346 The Neiv Church Law on Matrimony.

485. A wife not separated legitimately from her
husband retains the domicile of her husband; a de-
mented person that of his guardian, and a minor re-
tains the domicile of him who exercises tutelsKe over
him." Persons residing on the bordering line of two
parishes have their domicile or quasi-domicile in the
parish to which the principal door of their home leads.
A minor after the completion of his seventh year and
a wife not legitimately separated from her husband
may acquire a proper quasi-domicile." The latter may
even acquire a domicile provided she is legitimately
separated/' Children acquire a domicile in the parisli
within whose limits their parents or tutors reside.
Soldiers are not classed as vagi, though they may not
be assigned to a permanent post; for, should they re-
side in a place for a longer term than the greater part
of the year, they would acquire a quasi-domicile, and
unless they renounce such an intention they retain the
legal domicile of their parents. Orphans and found-
lings acquire a domicile or quasi-domicile in the or-
phanage to whose care they are entrusted. Persons
incarcerated for life or for an indefinite period acquire
domicile in the prison to which they are confined.
Shouhl their imprisonment last only six mouths they
would acquire a quasi-domicile. In order that an in-
disposed person may acquire a quasi-domicile in a
hospital, it is necessary that his ailment should detain
him there for the greater part of the year. Servants,
as a rule, do not lose the domicile of their parents, and
may acquire also a qiiasi-domicile in the place where
their masters reside. Young men and women availinR
themselves of a college education acquire a quasi-

"C Z, de teputturi*. III, 12 in VI' ; S. C. 8. Off,, 30 iun^ 1892; 8, C.
C„ Eomana am Tmnitana. 27 spr., 1720; 8. C. de Prop. ¥\Ar, instr. »-
1883. n. 3; Con. Titr. Can., Han. 93.

"8. C. C, Cnirlami et Terracintn., 31 Jan., 21 febr., 1835.

"Con. luR. CvN., Can. 93.

The Form of Man

lage.

347

domicile in the place where their college is situated,
though they do not lose their paternal legal domicile."
A domicile or quasi-domicile is forfeited by the act of
departure from the place with no intention of return-
ing."

486. J'or all legal effects, as a general rule, the act
of establishing a home in a place with the intention of
remaining there pi-rnianently (domicile) or for the
greater part of the year (quasi-domioilf) bestows <m
one from the first day of residence the prerogatives
of a domicile or quasi-domicile. If the intention of an
individual to establish such a residence is clearly nian-
ifestwl by his actions, the pastor of the place, per se,
eould witness his marriage licitly even from the very
first day of his residence. Tliis gives rise to a possi-
bility of acting in fraudem let/is, or to abuses against
which the pastor must guard. If there is a well-
founded doubt as to the sincerity of the person's in-
tention, he should be compelled to wait until he estab-
lishes at least one month's residence which, in oreHne
ad matrimomum, is likened to a quasi-domioile.

Chaplains of colleges, educational institutes, hos-
pitals, orphan asylums, and prisons are not competent
to assist validly at the marriages of those who acquired
a domicile, or quasi-domieile, or one month's residence
in such places, unless they are invested with the full
power of a pastor, or possess a particular delegation
given to tliem by the pastor or the Ordinary.

487. As regards valid assistance in the ease of one
month's residence it must be borne in mind that after

" For a more complete exposition of this doctrine the reader Hhould
ronsult other authors. For instance, LAitRW, in the Archiv fiir Icalk.
Kirehenrtebt. I. XXVI, p. 165 ff.; Bohmnhon, in the Cathnlic Encsdo-
ptdia, art,, "Domicae" ; Webni, op. eit., a. 177 ff.; Gasparbi. up. cit..
n. 916 ff,: BiHDEBs, Praktischca Eandbueh dts Icalholiachtn Ehereditt,
p. 150 ff (Freiburg, im BresKHU, 1891).

" Cod. Ttiu. Can., Can. fl5.

348 The New Church Law on Matrimony.

the expiration of the month, namely, of thirty days, the
pastor would assist not only validly but also Udtly
even if from the very first day the party did not intend
to prolong his stay beyond that period of time.

The month's residencf does not require an unintCT^
rupted stay for thirty consecutive days. The intention
to pstabtisli a home for a month in a certain locality
would be sufficient though the person's avocation in life
might neeessitate an arrangement whereby he would bf
constrained to spend his days in another place, pro-
vided he should return to his abode at night. The mar-
riage ceremony under sueh circumstances, if witnesswl
by tlie pastor or the Ordinary of the place or a prieat
delegated by either, may he performed lawfully in tlii*
morning of the thirtieth day."

By actually residing or intending to continue to re-
side within the limits of a determined diocese but not
within the confines of a particular parish, one could ac-
quire a diocesan but not a parochial domicile or quasi-
domicile. Such individuals, the new law states, laay
be married by the pastor in whose parish they actually
reside at the time the marriage is to be contracted,"
In this respect such persons are likened to vag'i,^* Imt
while the pastor's assistance at the marriage of the
latter must he preceded by the permission of the Ordi-
nary, or of the priest delegated for such cases, he may
assist at the wedlock of the former without the asking
of such permission.'"

488. Vagi are persons without a domicile or quasi-
domicile or one month's residence." Any pastor hi
whose diocese they tarry htc et nunc has the right t"

"8. C. C. 2
ip. fie., p. 31.
" Da Smkt. op. Ht., n. 72
"Cod. Iur. Can., Can. 94
"Op. cit. Can. 04. (2.
•' Qp. rit.. Can. 10.^2.

ISOf^, Romana i

ih., Oensj*

The Form of Marriage. 341)

'tst at their marriage not only validly but also
tly. It is presumed that his assistance was pre-
led by permission granted by the legitimate avithor-
appointed to exercise vigilance over such niar-
jes. Should one of the contracting parties havt^ a
bicile or a quasi-domicile or one month's residence
[ should the other party have none, the marriage
nld be contracted in the parish of the former, re-
dless of whether it is the prospective husband or
e that is without a legal home.
89. C Should the bride or the bridegroom have
miicile or a quasi-doniicile or one month's residence
1 different place from the one in which they wish to
(tract marriage, the pastor of the parish where they
ih to get married would have to ask permission of
pastor or the Ordinary of the place where at least
■ of them has a legal home. In such cases, since the
tor of the bride has the first right to witness the
triage, his pemiisison should he asked in preference
Jie otlier pastors'. The pastor of the place where
has her one month's residence has the least claim
he three to witness such marriage.
Jie permission of which this canon speaks is re-
red only for the lawfulness of the assistance, and
law permits the pastor to dispense himself from
i requirement when grave necessity so demands."
I pastor himself is the judge whether in a certain
e the necessity is sufficiently grave to justify his
[-compliance with the foregoing rule. Such neces-
' would arise if the marriage is urgent and the time
e consumed by asking permission cannot he spared,
t there is a well-grounded fear that unless they are

BrMorius XVI. rp. "AcrFpimu*," fcbr., 1836;
Buidwic), 11 lice.. 18S0. aa 25-27; 8. C. Je Siicr
mm. 1.1 murt., 1910. ad 5; 8. C. C. deer. "Nr (fi
V, (3.

8. Off. (Vif,
is, Komana pt
' 2 «ug.. 100",

350 The New Church Law on Matrimony.

married immediately the parties will attempt marriage
before a state official or a minister of a religious sect,
or will live in concubinage." A notable financial loss,
scandal, or defamation of character threatpning tin
prospective consorts would also be considered a suf-
ficiently grave reason. Since there is question lipre of
mere permission, not of delegation, a tacit or presamed
permission would suffice for a licit assistance,

490. From the application of the foregoing prin-
ciples the reader is to conclude that in case each of the
contracting parties has a domicile and a quasi-domicifc
and also a month's residence, the marriage is to b« con-
tracted in the domicile of the bride, though it may be
contracted in any of the other places. If the bride has
at least one month's residence in a place she is entitlwi
to contract marriage in it though the bridegroom may
have a domicile (in another place). If the bride ami
the bridegroom reside in different parishes, the former
Iiaving only a one month'.s residence while the lattir
lias a (lomicih^ the bridegroom's domicile yields to the
one month's residence of the bride, because by virtno
of general custom marriages are contracted in thf
home parish of the bride and to act contrary to such
a custom would entail inconvenience and probably even
unpleasant conrmient. In the same case McNicholas
maintains '* that the marriage sliould be contracted in
the parish where the future husband has his domirilp.
This is true should the bride so desire, but we believe
that the spirit of the law gives her the first choice.

491. The new law says: In every case the general
rule shall he that the nuptials be witnessed by the pas-
tor of the bride, unless a just cause excuses; the mar-
riages of Catholics who belong to different rites, an-
to be contracted according to the rite of the bridegroom

" MoNlCFOl.AB. lip, t

np. at., p. 31.

tThe Form of Marriage. 3J1

and before liis pastor, unless some particular law or-
dauis otherw-ise. A pastor who assists at marriage
without perimssion, as required by law, should not ap-
propriate the stole-fee but should deliver it to the
proper pastor of the contractmg parties."

By virtue of this canon the parish of the bride al-
ways takes precedence over the parish of the bride-
groom. There may be many just causes which would
justify the solemnization of the marriage in the parish
church of the bridegroom in preference to that of the
bride. Among such reasons one could enumerate the
following: (1) The intention to establish a liome in tlie
parish where the prospective husband has a domicile;
(2) Saving of considerable expense; (3) Avoiding some
inconvenience; (4) Forestalling an expected humilia-
tion, etc. The fact that the prospective husband is a
very prominent member in bis own parish, and that
his staunch faith and well-known generosity have won
for him the particular friendship of his pastor may
also be reputed among just causes.

492. The foregoing canon contains something ex-
ceptional in the fact that it is one of the very few which
legislate for the Oriental rite. The new law gives to
the woman, whose rite is different from that of the
man, liberty to follow the rite of the hushaiul both in
entering uito marriage and while the marriage en-
dures." After the marriage is dissolved she is free to
rrtam to her native rite, unless a particular law or-
dains otherwise." Should the two contracting parties
belong to different rites of the Oriental Church, the
marriage must, as a general rule, take place before the
pastor of the man and according to his rite. Tliis gen-

"000. lOB. C*N., C«n. 10«T, J43, 3.

"Cod. Ira. Can.. Cnn. 8S, i*.

■Bkkbdictus XIV, ronst. "EtMi jMutoraliii." 26 nmii. 1742, JVIII.
. 0; IJ» XHI. litt. ap. "OrvnUilium.- ,11) nuv., IMiM, n. VIM; 8. C.
■ Prop. Fide (C. O.), deer. 19 mail, 1TS9.

352 The Xeu- Church Law on Matrimony.

fral legislation ia not meant to abrogate those partim-'
lar laws which were promulgated on this discipline for
certain places. Thus, for instance, the Rntheniatut in
the United States of North America must contrairt
marriage according to the rite of the bride and in prc-S-
encp of her pastor."

493. The specific punishment meted out to pastors
who disregard the prescriptions regulating licit assist-
ance at marriages, is the necessity of returning the
matrimonial stole^fees to the pastor whose permission
lliey have failed to obtain, in case they witnessed the
marriage of parties neither of whom had a domicile, or
a quasi-domicile or at least one month's residence
^\'itliin the limits of their parish. The pastor in ques-
tion may appropriate such fees only on condition that
there was some grave necessity for his assistance at
the marriage and time did not permit the ohtaiuiiig of
permission from the parochus contrahentium.

494. The pastor of the bride is one to whom the law
concedes the right to perform the marriage ceremony
and who is to be benefited by the stole-fees. Therefore
should the contracting parties belong to different
parishes and should each of them have a domicile as
well as a month 's residence, the pastor in the case of
an unauthorized assistance should return the per-
quisites to the pastor who is the bride's parochus prit-
prius by virtue of her domicile."* Should he decline to
accept the fees they belong to the pastor of the place in
which she has a one month 's residence. A pastor in
whose parish the bridegroom has a domicile or a quasi-
domicile or a one-month's residence would satisfy tbf

"8. C. ae Prop, Fide, deer. "Cum Epiteopo," 17 wig., 1914; tUl M*
law w»» enfori^ in Canada five venrs befoTP thp promulgilioii of ll*
n»w Cn<Ie. (S. C. de Pr.)p. Fi(ip.' .Ipi c "Fidrlihuf Kulhrnin." IS *l>|t.,
1913.)

"Qennau, op. cit., p. 40; Wnin'ISS, op. eit., p. S3; McNlClW> m%<
cit., p. 46.

The Form of Marriaye.

353

requirements of the new law for a valid and licit as-
sistance at his marriage. Therefore the surrendering
of the emolument would not apply in such a case even
if he should witness the marriage sine iusta causa*"

4. Ctnises Justifying the Non-ohser ranee of the Fore-
going Law.

495. Provided the parties are unable without grave
inconvenienee to resort to a pastor or an Ordinary or
a priest delegated by either who would assist at their
marriage in accordance with the rule laid down in
canon 1095 and 1096: (1) Their marriage contracted in
danger of death in presence of merely two witnesses
would be valid and licit, and also outside such danger
provided it is prudently foreseen that such state of
affairs will last for a month; (2) In botli eases, if an-

, other priest who can be present should be nigh, he

^should be called and should assist at the marriage ti>-
[ether with the witnesses, without prejudice to tlie
validity of the marriage if contracted solely in the
presence of the latter."

The foregoing canon states the conditions which
nust be verified before one is dispensed from the neces-
lity of complying with the form of marriage prescribed
jby the Church and explained above. When such eon-
litions are present one is authorized to contract a valid
ud licit marriage in the presence of two witnesses
nly. In order that one may avail oneself of so excep-

' tional a privilege, it is necessary that : (1) The circum-
stances make it impossible to have access to the pastor
or the Ordinary of the place or a priest delegated by

J either; (2) Tlie danger of death threaten the contract-
ing parties or one of them.

p. 57.

354 The New Church Lnir on Mnfrinwnr/.

496. The law does not leave us in doubt as to the
main condition under which one is entitled to the fore-
going privilege, but it tails to specify the caust^ from
which this danger must result. Therefore any cause
which would threaten one with the danger of death,
such as sickness, a shipwreck, a fairly serious opera-
tion, the necessity of confronting the line of the enemy
in wartime, etc., would be regarded as cases for which
this law means to legislate. Since the eanon witli which
we are concerned leaves the danger of death unquali-
fied, it need not be imminent as required in the decree
"Ne temere," nor urgent as exacted by canon 1043.
There must, however, be a well-founded fear or prob-
ability which would induce one to expect death. When
such circumstances are complied w^th the inability of
securing the services of one's pastor or the Ordinary
or a priest delegated by either, marriage may be con-
tracted in the presence of two ^^^tnes8es only. This
inability need not be absolute. A relative inability, in
the sense that the death feared is liable to occur before
any of the above-named priests is accessible, suffices.

497. The same canon provides also for cases in
which the danger of death is not threatening but in
which there is a reasonable probability that neither the
pastor nor the Ordinary nor a priest delegated by
either can be had for a month. The decree "Ne
temere" connected this inability to secure the sen'iceg
of a qualified priest for the period of a month with the
word "region." The result was that tlie term "regio"
led many theologians to believe that the law legislated
for general inability," and only for certain regions
suffering from scarcity of priests. Only a few advo-
cated the theory that even an individual imposRibility
to procure a competent priest is included within the
scope of the law. The present canon discards the word

"B. C. ae Sacramenlis, 31 isn., 1916.

The Form of Marriage.

the

old la'

'^regio"" and rt-tains
hanged, uamely, "si haberi vel adiri nequeat sine
ravi incommoda parochus vel Ordinarius vel sacerdos
delegatus." Therefore, in the new diseipline the fore-
loing privilege may be used regardless of whether the
itapossibility be physical or moral. Physical inipossi-
ility would involve a case in which a priest of any of
be three classes mentioned would not be accessible
rith any effort or cost. Moral impossibility pertains
the overcoming of grave difficulty militating against
lis presence. Such a hardship may affect either tlie
Ontracting parties or the priest. Both hypotheses
rould justify a marriage contracted in tlie presence of
wo witnesses only. The same is to be said when the
fifficulty to procure a proper priest is personal (lini-
led to the persons in question), or local (affecting a
jertain class of people residing in the same locality),
terticular or general."

The privilege is not to be extended to a case in which
4ie parties would experience grave difficulty in secur-
Bg the services of their pastor or the Ordinary of the
llace or a priest delegated by cither, but no hardship
rould he encountered by them in resorting .to another
pastor. By virtue of a special decision of the Sacred
Jongregation the foregoing privilege could be invoked
!ven by persons who in fraudem legis repaired to a
ocality in which they would labor under a physical or
noral inability to secure a competent priest to witni'ss
heir marriage."

498. On January 31. 1916. the Saere<l Congregation
»f the Sacraments decided that the Holy See should be
lonsulted in every case individually should in certain

"8. C. de SHcrampntis, doer. 1(1 mart., IfllO, in Ihr AcUi Apvglolii-iif
Mi». vnl. tl, n. S, p. 193 fT.

•■ Wnrrl&s, op. ril., p. 7S ff.

"8. I", dp SHcrnmpnliH. IS mart,, 1910; Saretti-Barhet, op. eit..
U 912, p. 18: WoiTTBKs, Of. fil., ioc, €it.

356 The New Church Law on Matrimony.

localities thi' law of the state demand tlie celebration of
civil marriage before the religious ceremony is per-
formed. Exception was made tor the danger of death,
whicli case is provided for by canon 1043 of the iipw
law." If, outside such danger, time would not permit
a recourse to the Holy See and the assistance of a
priest could not be secured, owing to the penalty with
which the civil law threatens the priest who would dan
to disregard such legislation, the tenor of the presi
canon permits the parties to avail themselves of
privilege it confers. The same is to be said whei
country, as is the case in some parts of thn Uni'
States of North America, enforces a law against mis-
cegenation, prohibiting marriages between the white
and the black race in order to obviate their amalgama-
tion. A priest presuming to witness such marriages
would be regarded as a transgressor, and would be-
come liable to severe penalty. Such circumstances
would induce a moral inability on the part of the con-
tracting parties to secure a competent priest to witness
their marriage and would authorize them to benefit h^y
the law promulgated in canon 1098.

499. Tlie canon does not require any particular
son for marriage in order that the law it contains may
become operative. Therefore, provided the other con
ditions can be established in the case, no other reason
need bo had than the wish of the parties to enter i:
wedlock.

500. The witnesses mentioned in this canon need
possess any other qualifications than those requir«
by natural law. The oftice could be filled validly
whether they are men or women, religious or lay, Cath-
olic or non-Catholic, even if excommunicated or inter-
dicted. The last three classes could not be employed
licitly unless others could not be secured without grave

tan-

nis-
hite
ma-
iges
be-

ICPS
?011-

..less

: may
■ con-
?ason
r ii^H

id 1^1
uired

' The Form of Marriage. 357

nconvenience. Any witness would be qualified pro-
Gided he (a) enjoys the use of reason, (b) takes cog-
lizance of the parties' intention to contract niarriag*-,
<c) is capable of giving testimony to that effect.

The same eanon says that outside the danger of
death nothing but a reasonable certainty as regards
the inability to procure a competent priest for a month
(earn rerum condttionem esse per mensem duraturam )
TPould justify one's entering into marriage before two
"witnesses only. The month in this connection consists
of thirty days. The decree "A^e temere" exacted a
wait of full thirty days before the parties were per-
mitted to avail themselves of the privilege it extended.
This delay of thirty days is not required by the new
law. The parties may profit by the exemption from the
general law even on the first or the second day if they
foresee tliat for thirty days to come they will be unable
to contract marriage according to the prescribed form.

501. ^\Tiether the marriage for which this canon
legislates is contracted in danger of death or outside
8Ueh danger, should a priest chance to be near he must
be asked to assist together with two witnesses. The
■words "alius sacerdos" permit the inference that the
obligation to request the presence of a priest would not
be removed even if the parties were constrained to use
the services of one who is excomnmnicated or inter-
dicted or suspended. It must be borne JTi mind that his
presence is not required ad valid it ale in mnlrlmonil con-
trahendi but only ad eius Hceitalem. Slmuld he decline
to accede to their wishes their marriage, contracted in
the presence of two witnesses only, would be not only
valid but also licit.

S. Persons Affected by the Catholic Form of Marriage.

502. The form of marriage prescribed by the
Church hinds: (1) .Ml individuals baptized in the Cath-

358

The New Church Law on Matrimony.

olic Cliui'ch or oonverted to it from heresy or schism
though either thti former or the latter may have suhsi^
quently fallen away from it, whenever they coiitraet
marriage among themselves; (2) All persons referreil
to above when they enter into wedlock with non-Cath-
olics, whether baptized or unbaptized, even after thev
have obtained a dispensation from the impediment of
mixed religion or of disparity of worship; (3) Orien
tals if they contract with persons of the Latin rite, sub-
ject to this form."

Tlie foregoing canon brings us to the discussion of
the nature and meaning of Catholic baptism. This
question has already received an extensive treatment
in this work in connection with the impediment of dis-
parity of worship, which in the future will exist only
between a person baptized in the Catholic Church and
one unbaptized.*' The conclusions reached from tin-
discussion of the meaniTig of the terms "in Catholica
Ecclesia baptizati" would impose the observance of the
prescribed form of marriage on all persons:

1. Who are the offspring of Catholic parents and in
their infancy were baptized in the Catliolic Church ;

2. Who as adults received Catholic baptism but suli-
sequentlv relapsed into their former heresy or lost all
faith ;

3. Who were bom of non-Catholic parents and in
their infancy (whether in urgent necessity or outside
such necessity) were baptized in the faith, provided
from their childhood they have not been rearetl in
heresy or schism or infidelity or brought up without
any religious training whatsoever.

4. Who were baptized validly outside the Catholic
Church and admitted into its membership by profession
of faith and absolution from heresy.

The Form of Marriage.

359

5. Children of Catholic parents who after their Cath-
olic baptism fell away from the faith either in their
infancy or in their adult age.

503. All person.s belonging to the forfgoiiig five
classes whenever they contract marriage among theni-
Belves are bound by the prescribed form. The .same is
to be said when they contemplate a mixed marriage
with a non-Catholie, whether baptized or unbaptized,
even when a dispensation has been obtained from tlie
impediment of mixed religion or of disparity of wor-
ship.

The above-explained form of marriage is extended to
the whole world with the exception of Germany and
Hungary. The former's exemption was granted by the
Papal Constitution "Provida" issued on January 18,
1906, the latter 's exemption was granted by a decree
of the Sacred Congregation of the Council, dated Feb-
ruary 27, 1909. In these two countries mixed mar-
riages did not have to conform to the general law as
embodied in the decree "Ne tcTnere.'"" In order that
the exemption may have its force it was decided that
"the marriages must be contracted by the natives of Ger-
many and in German territory, or in the case of Hun-

rians by the natives of Hungary and on the soil of
that nation."" Therefore a native of Germany could
aot be benefited by this exemption if he should intend
tfl contract marriage with a sub,iect of Hungary regard-
less of the territory in which the marriage was to be
Bolemnized. Thus, unlike the decree "Tameisi," the
communicatio privilegioriim was excluded. This par-
ticular legislation is not ipso facto abolished by the gen-
eral law promulgated in the new Code, though many
difficulties are placed in the way of its operation by the

)K Smet, lip, ril., Ti. 72 ff.; LElTNBt, op
BAfta«T. n. 913 (er[. XXV).

"8. C. C. Bomana el alinnim. 1 febr., 28 mart., 190S.

fiS ff. ; Babetti-

3(J0 The New Church Law on Matrimony.

fact that the present limits of the two countries are
far from being well determined.

504. Whenever the Orientals contract marriages
with any of the above classified persons the validity or
invalidity of their marriage depends on their adherence
or non-adherence to the form prescribed for the Latin
rite. Therefore, should the forms of marriage enforced
by the two rites differ, a marriage contracted between
a Catholic of the Latin rite and one of the Oriental rite
would be invalid if celebrated according to the latter
rite.

606. Xon-Catholics whether they are baptized or un-
baptized are nowhere bound by the Catholic form of
marriage, provided they contract among themselves.
The same is to be said of a person bom of non-Catholic
juirents but baptized in the Catholic Church, provided
that from his very infancy he was brought up in heresy
or infidelity or without any religious training whatso-
ever, whenever he contracts marriage with a non-
Catholic,^^^*

The first of the two classes of persons expressly ex-
rniptril from the Catholic form of marriage will cause
no dirticulty. Individuals belonging to the second class,
when they contract marriage wHith an unbaptized per-
son, are not exempted from the impediment of dispar-
ity ot* worship but only from the Catholic form of mar-
riaire. The terms '*a& infantili aetate'^ are to be ap-
l>litHl to a child before he has completed his seventh
yrar/'- It* at any time before that age the teachings
of tht* Catholic Cliurch were not inculcated on the child,
l)ut, on the contrary, he was reared from infancy in an
atnu>si>luMe of heresv or schism or infidelitv or irre-
liiiii>n, tho Catholic form of marriage would not be
ol>liuator\ on him as long as the other party to the con-

"" (Oh. I IK. rv\.. Tan. 1099, v^2.
"^(>/'. Kit.. Tan. S^. ^i.

The Form of Mnrriage.

361

tract is a iion-CathoUc. Should he intend to enter into
uiarriage with a Catholic, a dispensation from the im-
pediment of mixed religion would have to Im obtained
in view of the fact tliat, though baptized in the Catholic
Church, he is an adherent of a lieretical sect or an
unbeliever.

Even if such a person should profess infidelity he
would not be an infidel in the strict sense of the term,
for it implies the non-reception of baptism. Therefore,
even in that hypothesis the impediment of disparity of
worship would not arise between him and the Catholic
party. Nor would an impediment of un worthiness
arise between them for the reason that it presupposes
a public rejection of the Catholic faith.""

On the supposition that such a child was reared in
the Catholic faith up to the completion of his seventh
year and after that age fell away from the Church, the
law of exemption from the Catholic form of marriage
could not be invoked in his favor.

IG. Rites to be Observed in the Celebration of
Marriage.

506. Outside th« case of necessity the celeliration of
marriage must conform to the rites proscribed by
rituals bearing the approbation of the Church or re-
ceived by laudable customs.'"*

The ceremonies usually connected with the celebra-
tion of marriage consist in: (1) Mutual declaration of
intention on the part of both contracting parties; (2)
Sanction and blessing of the union imparted by the as-
jsisting priest; (3) Blessing of the ring; (4) The plac-
ing of the ring on the bride's finger by the bridegroom ;
(5) Prayer offered up by the assisting priest in behalf

362 The Xew Church Law on Matrimony.

of the spouses: (6) Celebration of the nuptial Mass
( Missa pro Sponso et Sponsa) at which the solemn nup- |i:
tial blessing is imparted with prayers contained in the
Missal : ( 7 ) Short exhortation.

507. The pastor should take care that the spouses
receive the solemn blessing, which mav be imparted
even after they have lived in matrimony a long time,
but only during the Mass (attention being paid to sp^
cial rubrics ) and outside the forbidden time. Such a
blessing may not be given except by a priest who is
authorized to assist at the marriage validly and licitly
or bv one whom he commissions.***

The solemn nuptial blessing, whenever the parties
are entitled to it, should not be omitted. It is imma-
terial how long the contracting parties have lived in
married life, the blessing may be imparted at any
time and it is the wish of the Church that it be not post-
poned without reason.**^

508. In imparting this blessing, (a) the special m-
brics regulating it should not be disregarded, (b) it
should not be given in forbidden times; (c) the officiat-
ing priest should bo one who is authorized to assist
validly and licitly at the marriage in question, or one
deputed by him.

The forbidden time during which the new law pro-
hibits the solenm blessing of the nuptials runs from the
first Sunday of Advent to the feast of the XatiWtv in-
clusivelv, and from Ash Wednesday to the Resurrection
Sunday inclusively.^*'^

The Mass ''Pro Sponso et Sponsa' ' may be cele-
brated any day except a double of the first or the
second class, except Sundays and other holy days of
obligation, except the vigil of Pentecost and the entire

Op. cit.. Can. 1101.

S. r. 8. Off., 31 aii^., 1881.

Con. Ii'R. Can., Can. 1108.

The Form of Marriage.

363

ave8 of the Epiphany. Pentecost and Corpus Christi.
t parish ohurehes where only one Mass is celebrated
te Missa pro Sponso et Sponsa may not be said on
Rogation days.'"* On feasts which do not permit the
etiebratiun of "Missa pro Sponso et Sponsa" the
prayer of that Mass may be insfrted in the Mass of the
clay by way of commemoration but not sitb eadem con-
clusiune. This prayer shouhl be said after the prayers
prescribed by the rubrics, but it taki'S precedence of an
oratio imperata. The prayers containing the nuptial
lil»«sing should be borrowed from the "Misna pro

Konso et Sponsa" and inserted in their proper places
the Mass of the day.
H)9. If a locality is plaeed under a general inter-
dict, unless the decree ordains otherwise, no solemn
nuptial blessing can be imparted in it until the inter-
diet is lifted.""" Should the interdict be fulminated
against only certain specified cliurches, the privilege
to bless the nuptials would thereby be withdrawn from
lem.""

510. A woman who received the nuptial blessing at
r first marriage may not be benefited by it when she
Btraets marriage the second time.'"
The blessing in question should be given either by
' pastor or the Ordinary of the place or a priest
puted by either."" Compliance with this law is only
'■ liceitalem benedict tonis. Needless to say that the

8. C. R.. July 3, 1869, D. 3208 (5430). Wapei.HOrst. p, 4«7, n. 299.
. 9tlt. 1916.)

Cot. In«. Can.. Can. 2271. n. 2.

Op. eit.. Cu. 22T2, $3, n. 2.

1^. cit., CftB, 1143; c. 1, 3, X. df serundis nHpliii, IV, 21; Isso-
nva IV ep. "Sub ntlhiiUrar." <I marl., 13u4. 43, n. 21; Bkkk-
fa XIV. cotM. "Etai pattoraHn." 26 marl.. 1742, SVllI. n. 4.
'Cone. Trid., sMiio XXIV, De teformationc matTimoniy (rap. I;

X (i» Ci/ne. LateTiinen. V), const. "Dum intra," 19 Aev., 1518. 41.1;
C. S. Off., instr. (ad Praef. Misaion. Martinica.', ett.), 6 ml., 1817;
C. de Prop. Fids. detr. 6 oct., 1M83.

364

The Neic Church Law on Mnlritnoni/.

priest selected as a substitute must be one whose ri^t
to celebrate Mass has not been withdrawn.

511. In marriages between a Catholit^ and a non-
Catholic the asking of the consent must comply with
the prescription of caiion 1095, ^1, n. 3, but all sacred
rites must be barred. Should it be foreseeji that this
prohibition would occasion greater evils, the Ordinary
may permit some of the customary ecclesiastical cert^
monies, but the celebration of Mass must always he
excluded.'"

Tlie assistance of the priest at marriages may bo
either active or merely passive."* Passive assistance
implies the mere presence of the officiating priest and
excludes any active part in the ceremony, even the ask-
ing of tlie consent. The new law prescribes that even
in mixed marriages the consent of the contracting par-
ties must be asked and received by the witnessing
priest, but ad validitatem it Is furtliermore required
that neither violence nor fear should coerce him to
engage in that work,'"'

His active participation in the ceremony, however,
must be limited to the asking and reoeiving of consent,
and, as a general rule, all sacred rites are forbidden.
This question has already received full treatment in
connection with the impediment of mixed religion.'"
The ritual approved for the United States of North
America, besides the asking and receiving of the con-
sent, permits a declaration to be made by the assisting
priest as to the state of marriage begotten by the given
consent and the placing of the unblessed ring on the
linger of tlie bride by the bridegroom.

512. The prohibition as to the employment of sacred

"' COK, lUE. Can., Can. 1102,
"•See this work, n. 28fl.

"■a. C. C, dwr, "fff temere," 2 auR.. 1907, u
Somajut et aliariim, 27 iul., 190S, nd III.
"'Sev Ihia work, n. 196 ff.

. IV. 43; art. Xl, i£;

The Form of Marrkine. 3G5

k. . .

Hntes IS only relative not absolutf. Should the avoid-

Hbuir(> of greater evils make it advisable or necessary

"that certain sacred rites be permitted, the Ordinary is

expressly authorized to show some leuieiiey, provided

the Mass docs not become a part ol' the nuptial cere-

■ luonies.'"

HlU

?. Rctjisiratlon of Marriage.

513. After the marriage lias been celebrated the
pastor or the priest who is acting as such should record
as soon as possible in the Matrimonial Register the
Ltianies of the consorts and the witnesses, the place and
^^date of the celebrated marriage and all other informa-
E^tion as required by the ritual hooks or by the order of
the Ordinary. This obligation devolves on the pastor
ev<'n if another priest delegated by him or by the Ordi-
nary assisted at the marriage.

Moreover, in conformity with canon 1070, §2, the
pastor should note also in the Baptismal Record that
(lie consorts on such a day contracted marriage in his
parish. If a contracting party was baptized elsewhere,
the pastor who witnessed the marriage should either
personally or through the Episcopal Curia transmit a
notice to tile pastor of the place where the party in
cfuestion was baptized in order that the marriage may
be inscribed in the Baptismal Record.

Whenever a marriage is celebrated according to the
I>rovi8ions of canon 1098, the priest, if one assisted at
it, otherwise the witnesses are obliged jointly with the
«i*ontracting parties to see to it that the contracted wed-
lock be entered in the prescribed books as soon as
lossihle.'"

pyoi

OUQOUi^s X\^, pp. "Nim «in('
pbpf), 10 s'pt., 1820; 8. G. dp
lOT.J, a. 1858; lilt, enc-vrl., II n
'-Cod. Il'R. Can., Can. 1103.

36()

27(1; .V('([; Church Law on Matrimony.

514. The h'gislation embodied in the foregoiufc
cauon needs little commentary. The Cimreh insisted
repeatedly on the observance of the same law. The
Council of Trent thought it necessary to exhort th«
pastors to procure a register in which to enter the
names of the consorts and of the witnesses, and the
place and date of the contracted wedlock."* A similar
instance is found in many other ecclesiastical sources.'"

The enforcement of the same discipline was made not
only more rigorous but also more specific aTid better
adapted to the needs of modern times by the promulga-
tion of the decree "A^e temere." ^" The law of that
decree is identical with the one incorporated in the nc»'
Code. The purpose of the law is important, hence it is
generally conceded that it obliges under pain of mortal
sin,'"

515. The word "statim" of the decree "Ne lemert^*
was replaced by the term " quamprimum." The eom-
meiitators of the decree "A'e temere" contended that
the spirit of the law required that the pastor should
record the marriage within two or three days after it
was contracted. While the word "qrmmprimum" does
not imply the same necessity of speedy compliance
with the law as the term "statim" implies, neverthe-
less it would seem that a delay of four or five days
should not be exceeded.

This obligation rests with the pastor of the place (or
his substitute) where the marriage was contracted.
The recording is not to be made by the Ordinarj- or by
the personal pastor who might have assisted at the

"•Sesain XXIV, De refnmalioiie malrimonii, e«p. 1.

'"BBNKD1CTU8 XIV const. "Sniut Vobui," 27 noT,. 1741; 8. <'-. d*
Prop. Fide, instr. (ad Vic. Ap. Indinr. Orii-nt.), 8 sept., 1M9, o, 11:
Eitwile Bom,, Ht, VII, e. 2; Bitiu eeUbrandi matrimonii laepamrnlirm:
c 5, Forma dfi<^ribendi eonitigatog.

■" 8. C. C. 2 aug., 1907, art. IX, jl.

■■Obnnahi. op. ci(., p. 3D; WOUTEBS, op. fit., p. HI; 8. C, dej

The Form of Marriage.

367

laarriagc. Tliis duty incumbent on the pastor of the
place would be fulfilled if another priest should be au-
^borized by him, for the words "manu sua" are not

oitained in the new law.'"
|fil6. The marriage register should contain (a) the
nies of the contracting parties; (b) the place and
date of marriage ; (c) information relative to
iclamation of banns; (d) dispensation from the im-
dimeiit if granted in tlie external forum; (e) the
fact of delegation if the pastor did not assist in per-
son; (f) validation of marriage if it took place in the
^xtemal forum; and finally (g) the name of the assist-
ing priest and of tlie two witneKseR,'"'
K&17. The pastor should record the fact of marriage
tIso in the Baptismal Register if one or both parties
Were baptized in his parish. In ease they were bap-
tized elsewhere tlio pastor of tlie place where they
rere baptized must be notified of the marriage. The
»tilicatioii mu.st be sent by the local pastor either
(rsonatly or througli the Diocesan Curia.
"When marriage is contracted in presence of two
itiiesses only, whether it be in danger of death or
Itsido such danger, the same information must be
iparted to the pastor in whose territory the mar-
ge took place. The duty to impart this infonnation
ivolves on the assisting priest, or, if no priest was
'escnt, on the witnesses and the contracting parties
njointly (in solidum). They are all e<]ually bound
r the obligation until it is satisfied."' The others are
kt freed until it is certain that one of them complied
Kh the law. The pastor is to see to it that the mar-
e will not pass unrecorded in the proper Bap-
al and Matrimonial Registers.

' WriUTEBS, op, n
■Qemmu, op. rt
'8. C. de Prop.

toe. Ht.; LeiTNER. op. cit.. p. 54.
D. 38; McNiCHOLAa. op. ril., p. 41.
f, ga iuB„ 1S30.

518. Marriage of conscience is a union contractpi]
with a special permission of the Ordinary by nit-aiis at
tlu' prap4'r form but without the proclamation of the
barnis and witli an obligation to secrecy imposed on
the contracting parties, on all who witness it, as well
as on the Ordinary. No substantial change has been
introduced on this point by the new law. In its essen-
tials it conforms to the principles enunciated by Bene-
dict XIV.' The reader is referred to another part of
this work in which this question has already receivetf
a partial treatment.'

519. As regards the licitness of the marriage of
conscience the new Code says: Only for a very grave
and very urgent reason, and by the Ordinary alone, to
the exclusion of the Viear General urdess he has a
special mandate, may it be permitted that a niarriagi'
of conscience be contracted, namely, that a wedlock
be entered into without the proclamation of the banns
and in secret, according to the canons that follow.*

The witnessing of the marriage of conscience is one
of the extremely few ecclesiastical functions in which
the Vicar General may not engage unless he has a
very special mandate from the Ordinary. The lead-

'Const. "Sotiji r»6w," 27 nov., 17+1.
•See this work, n. 61 fl.

'COD. luB. Can., Can. 11(M; Lko XIII, litt. "II dieuammto." a fehr..
1893; S. C. de Prup. Fide, instr, a. 1TS5.

Marriage of Conscmice. 369

ing factors connected with a marriage of conscience
are: (1) A very grave and very urgent cause; (2)
Permission of the Bishop or the Vicar General, if the
latter has a special authorization; (3) Dispensation
from the proclamation of the bamis; (4) Absolute
secrecy. For reasons justifying a marriage of con-
Bcience consult this work under number 62.

As regards the secrecy to be observed in con-
nection with the marriage of conscience the new law
legislates thus: Permission to celebrate a marriage of
conscience brings witli it the promise and the grave
obligation to observe secrecy on the part of the assist-
ing priest, the witnesses, the Ordinary and his suc-
cessor, and even on the part of each of the contracting
parties unless the other party consents to its divul-
gence.*

521. The secrecy to which are pledged all those who
■witness such a marriage as well as the Ordinary and
his successor is a very grave matter and therefore its
intentional revelation on their part involves them in
mortal sm. Even one of the consorts is not free to
reveal the secret without the express permission of
the other party. A presumed or a tacit permission
would not absolve him from observing secrecy, nor
would it excuse him from mortal sin in ease he inten-
tionally communicated the secret to others. The wit-

s are always obliged to keep the secret and only
an extremely grave reason would free them of its
observance. Should a grave danger threaten, or
should the manifestation of the secret become neces-
sary for a very serious reason, if time permits they
ought to have recourse to the Ordinary, wlio would
either absolve them from secrecy, or would himself
reveal the fact of marriage under such circumstances.

522. Conditions which would justify the divulgence

'Cob. Iub. Cak„ Con. IIOQ.

370 The Netv Church Law on Matrimony.

of the secret on the part of the Ordinary are clearlv
specified in the new law and have already been ex-
plained in this work."

523. Another factor contributing to the secrecy of
the marriage of conscience is its mode of registration.
The new law does not permit the entering of such a
marriage in the usual Marriage and Baptismal Regis-
ters. It should be recorded in a special book to be
kept in the secret archives of the Diocesan Curia.*
This depository for secret documents should be so con-
structed as not to be removable; in other words, it
ought to be a vault or a safe built into the ■wall. The
door of this vault should be provided with two differ-
ent locks to be opened with different keys, of which
one should he kept hy the Bishop or the ApostuUO' i
Administrator, and the other hy the Viear General 4
in his default, by the Chancery.'

'Bea this work, n. fll; Cod. Iim. Tan., Can. HOfi;
eoftit. eit., $9, 11-13.
*0p. eit., Cnn. 1107.
• Op. eit., Can. .179.

Time akd PiJiCE of Mareiagb.
(Canon 1108— Canon 1109.)

, The Time of Marriage.

524. Marriagf may be fontracted on any day of
the year.' The solemn hlrssing of the nuptials is for-
bidden from the first Sunday of Advent to Christmas
Day inclusively, and from Ash VWdncsday to Easter
Sunday inehisively,- The Ordinaries of places, how-
ever, heeding the liturgical laws, may permit the
solenm nuptial blessing even on the above-mentioned
days provided there is a just cause, and provided they
admonish the spouses to abstain from too much dis-
play.'

As regards the time at which marriage may be con-
tracted the new law does not introduce any change
from the former discipline,' AVhile the general law
permits marriages on any day of the ecclesiastical
year a particular custom in vogue in a certain locality
may prohibit them at certain times.° This conclusion

•C. 4, X, de feriis, 11, 9; 8. C. C. Ariannl.. itioruM- muii, 1.187;
SiMmm., 2 Acr.. 1644; 8. R. C, Mnntui AlbaiH. 14 auc, I85M.

•C. 810, C. XXXIII, <]. 4; Cone. Tridfnl.. bi-wIo XXIV, De rrforma-
tftmt Mdlrinuinti. pap. .\; Bknkoictus XIV, ep. enrvc. "Inter omni-
emat." 2 febr,, 1744, Jlfl; S. C. 8. Off., 31 aug.. IS81,'

■Cod. ItTK. Can., Can. IlOfl.

■BiwioiCTUS XTV, Innt. Em., n. RO.

•Oaspjuuii. op. eit., n. 102S; ScHMALZORiiBER, op. HI., IV, XVI, n. 34;
BsirTEKaTl'L, IV, XVI, n. 12 i SANCHez, op. at., lib. VII, dwp. vu,

372 The New Church Law on Matrimony.

is justified by the decision rendered by the Sacred
Congregation of Propaganda.*

525. A departure of signal consequence from the
former discipline is noted in the new legislation with
n^ganl to the nuptial blessing. In the past for a just
rt^son the Ordinary could permit the celebration o(
tht* Mass even in forbidden times, but it was not
within his power to authorize the nuptial blessing on
those days.* The period of forbidden time in the ante-
Tridentine discipline comprehended almost twice as
many days as it did subsequently.* The present legis-
lation has rinluced it to still fewer days, and limited
iht^ jvriiHl to the two main seasons of penance, namely,
Adwnt and Lent. The forbidden time runs from the
mi\)night of the first Sunday of Advent to the mid-
nijrht of the Feast of the Nativity, and from the mid-
night of Ash AVednesday to the midnight of Easter
Sundjiw

53& Tlie forbidden time is a period during which
tho soloiun nuptial blessing should not be given. The
prx^hibition \vntained in the new Code is not absolute,
iu< it was in the ]>iist, but only relative, obliging the
priosT at\d the Ordinary under pain of mortal sin, un-
los^ tlioro is a just cause to dispense from the general
law. As rocarvls the justness of the cause the judg-
tv.otit luiisr always proceed from the Ordinary, nor may
a jv^stv^r assume the riirht to render a decision in the
r.iattor at.d to aot on his own initiative without con-
.vuttvvi: t).o i'^rdinary of the place.

riio Wssistotuv that marriages contracted by Cath-
x^!iv*s shouUi Iv aivompanied by the solenrn nuptial
bU ss::\^ stunvs the anient desire of the Church to
l^^Uv ft: lu r nu irJvrs by the graces it imparts, for the

'S v^ ,lo rrx'V V^:.l<\ .' *u:.. IS41.
>X r. ■ . r. .v^i. v\\Kx:^RE, op. cit., n. 921: Gasparw, op. cit..

Time ami Place of Marriage.

373

precise purpose of this blessing is to give that par-
ticular supernatural aid of which the newly wedded
stand most in need. It is for this reason that the new
law does not require a grave cause ; even a just cause
Would warrant the decision of the Ordinary to impart
the solemn blessing in forbidden time. Such ivsta
causa would be present whenever the parties cannot,
■without inconvenience or scandal, postpone their
nuptials till the end of the prohibited period. If the
favor of having their nuptials blessed is granted to
them, the assisting priest nmst observe the liturgical
laws relating to the nuptial blessing, and the parties
Bhould be forewarned not to indulge in a display of
"worldliness and frivolity which would be in conflict
with the spirit of the holy season.

527. Should the Ordinary permit the nuptial bless-
ing in forbidden time the commemoration of the nup-
turientium may be made sub unica conclusione vnih
the prayer of the feast on Christmas . Day, and on
Besurreetion Sunday. The Congregation of Rites de-
creed that by "the nuptial blessing" are meant the
iBpecial prayers found in the Missal and said during
the Mass over the nupturienles kneeling at the altar.
According to canon 1108 the Ordinary for a gust cause
may permit tliat nuptial blessing in the closed, or for-
bidden time, but witli the restriction "Salvis legihiis
^turgicis." In other words, the nuptial blessing thus
permitted may be given with the Mis^a pro Sponso et
Sponsa, if the liturgical laws permit that Mass on a
certain day ; otherwise the blessing would have to be
given with the Mass of the day." Should the Ordinary
©f the place ex iusta causa permit the solemn nuptial
lllessing in forbidden time, the votive Mass for the
|«pouses may he said any day, excepting the Sundays
'.Oad the holy days of obligation of the first and second

I. A., Mbv 9, I8»3, D, 3798. 8eo this work, n, 525.

374

The Xeiv Church Lair on Matrimony.

class, the privileged octaves of the first and seeond
order, the privileged t'erias, and the vigil of
Nativity.'"

//. The Place of Marriage.

528. Marriage contracted by Catholics should bS^
celebrated in Uie parish church; it may, however, be
soleiiiiiizcd in another church or oratory either public
or semi-public, if tlie permiseion of the Ordinary, or ot
the pastor be obtained. The Ordinaries of places,
extraordinary cases and in presence of a just and n
sonable cause may grant permission to celebrate mi
riage even in private houses; but they should
permit such celebration in the churches or oratory
of a seminary or of religious women, unless there is"
an urgent necessity and oidy after all proper precau-
tions have been taken. Marriages betwen a Catholic
and a non-Catholic should be celebrated outside the
church {extra eccles'iam). If in the prudent judgment
of the Ordinary this rule cannot be observed without
the danger of greater eWls resulting, it is left to
discretion to dispense from this law, due regard beii
paid to canon 1102, §2."

Since marriage is a sacred thing one would natur-
ally infer that whenever possible it should be aolenm-
ized in a sacred place. The Roman Ritual insists tliat
the church is the proper place for the celebration of
marriage." The present law contains probably the
first formal injunction that the parish church is the
only place in which marriages between Catholics may
be contracted without any special permission. Should
the parties wish to contract in another church or in a
public or semi-public oratory, it is in the power of

"8. C. R., 14 iun., 1918. See Acta Apoitolicae Sedia, vol. X, i

3lic

Time and Place of Marriage. 375

Ordinary of the place, or of the pastor to accede to
their wishes.

629. A public oratory is a place devoted to divine
worship and ernctfid for the convenience of a college or
of some individuals with the understanding that all
the faithful may frequent the divine series held
therein. A semi-public oratory is erected for the con-
venience of a community, or of a particular class of
tlie faithful; entrance being barred to all others.'"

No one but the Ordinary or his superior may permit
tlie celebration of marriage in private houses or do-
mestic chapels. Oratories of that nature are con-
Btructed for the convenience of a family or of a pri-
vate individual." The Ordinary would act illicitly
should he, in the absence of a just and reasonable
cause, permit a marriage to take place in them." Such
a just cause would present itself if one of the parties
to the contract should be a member or a near relative
of the family or the person who is the o'ftTier of the
oratory. Only urgent necessity would justify the
Ordinary to permit the celebration of marriage in the
oratories of a seminary or of a convent, and such per-
mission must be preceded by the taking of all neces-
sary precautionary measures to obviate scandal.

630. The new law does not introduce any change as
regards mixed marriages contracted with a dispensa-
tion from the impediment of mixed religion or of dis-
parity of worship. They are not to be solemnized
within the ehureh." The terms "extra ecclesiam"
permit the inference that their celebration in the
sacristy or in a private oratory is not forbidden."
Should the avoidance of greater evils necessitate per-

"OOD. lEi. Can., Can. 1188, (2, n. 1, 2.

-Op. ril.. Can. 1188, *2.

" B. r. B., Baririnoncn., .11 BUir., 1872 ; Silvalf gnm.. tit. eit., n. 16.

"B, C. R, Off., inittr. (nd Archifp. Corevren.), » i«ii., 1871, n, 3.

"Hi-p Ibis work, n. 106 ff.

376 The New Church Law on Matrimony.

mission for their celebration in the church, the Ordi-
nary would be at liberty to show leniency, but under
no circumstances is he allowed to extend the privilege
of a Mass to parties entering into a mixed marriage.'*

"8. C. 8. Off., instr. 15 nov., 1858; 29 ;iov., 1899. Cod. Iur. Can.,
Can. 1102, $2.

CHAPTER XI.

The Effects of Marriage,
(Canon lllQ— Canon 1117.)

/. The Matrimonial Bond,.

I 631. A valid marriage begets hotween the consorts
■ bond perpetual and exclusive by its very nature, and
I addition the Christian marriage confers grace, pro-
pded the consorts do not place an obstacle in its way.'
1 The purpose of the foregoing canon is to emphasize
Zte three properties of marriage, namely, its indis-
solubility, its unity and its sacramental character.
The first two belong to all marriages, whether Chris-
tian or non-Christian, tlie third exclusively to Chris-
tian marriage. An explanation of these properties has
already been submitted, and the scope of this work
does not require their more lengthy presentation.' The
~~ ^timate marriage, wliich springs from mere nat-
»1 contract, is endowed with only a relative indis-
^lubility. Absolute indissolubility can be attributed
aly to consummated Christian marriages, and to those
^ntracted in infidelity and consummated after the
lonversion of the parties,

i 632. In favor of the unity of Christian marriage
Uead : ( 1 ) The fundamental principles of natural
■ (2) The Sacred Scriptures;* (3) The testimony

'Coo. Irk. Can.. Cnn. llin.
*8*e Ihii work iindpr numbern ll-IS^ .16-1.5.
* tllM wnrk, n. .•!(i IT.

j¥, 32; XIX, 9; Mart X, 11; Lute XIV, :

37S The New Church Law on Matrimony.

handed down in tin- writings of the early Fatliprs nt
the Church;' (4) The legislation of the Coum-ils;'
and (5) the ofiicial decla rations proceeding from the
lips of supreme ecclesiastical legislators.'

633. As regards the indissolubility oT the marriagp
bond it is the teaching of theologians founded on re-
peated legislation of the Church that marriage is dis-
soluble only extrinsically, but not intrinsically. In
other words, the consent of the parties, from which
the matrimonial bond takes its rise, has not the power
to annihilate what it created. Such dissolution of thp
marriage bond can be effected only by higher author-
ity in the case where certain conditions specified by
divine law are verified, or in a ease in which the
Church, by virtue of her diviiie commission, has thp
power to dissolve the vinculum.* The indissolubility
of the matrimonial bond can be established: (1) From
the principles of natural law;* (2) From the Sacre*!
Scriptures; '" and (3) From ecclesiastical legislation."

//. Effects of Marriage as to the Coniiorts and Their

Children.

534. Both consorts from the very beginning of

' Athekahobas, Legatia pro ChrutianM, n. 33; Migke, P. O.. \n\. VI,
pol. 967; St. Theophii.os Antioch., Ad Autntynim. lib. Ill, n, 15;
MiGHE, loe, Pit., vol. VI, col. 114S; Climens Alex., StTomatwm, lib. Ill,
c. XII; MlONE. lor. fit., toI, VIII, col. 1183; 8t. Ahbbosius, Dr Abra-
ham, lib. I, p. VII; MiGNK, P. L., vol. XIV, pol. 44S.

•Cnnc. Lugdnn. II. Denzikoex, op. nil., n. 388; Cnne. Trid., aewio
XXIV, can. 2; Deniimosi. op. eit., n. 848.

■ NiPHoLAi's I, Ad Coiixalta Bulgarnnm, t. LI, Mione, P. L., vnl. Mil.
ml. OBll; iNNOCENTius, in, <■. S. X, de Aivirtiu. IV. 19,

' Pksch. Praelectiomt Dogmalicae, toI. VTI, n. 703 (Friburgi Brisgn-
viae, 1897).

•See this work, n. 41 ff.

"Matt. XIX, 6; / Cor. VII, 10; Earn. VTI, 2, 3.

" NiCHOLAUB, Ep. ad Adnn. Fi^n^ n. 1; Maicsi, t. XV, pol. 343; I«-
NOCENTius in. p. 7. X, de dii>ortii». TV. 19; Cniu: Trideitt.. wguiin XXIV.
de sacrafBcnto matrimonii, can. V-VIII; A1.FRONEUS, op. fit., lib, VI,

Effecis of Marriage. 379

llifir marriage have an equal right aiid duty as re-
gards the proper acts of conjugal life,'"

Tlie statement of this canon simply emphasizes a
doctrine clearly set forth in the Saered Scripture.'*
The ius ad copuiam {or ratlier the making use of that
right) may sometimes be forfeited either temporarily
or permanently. This would liappen: {1} If one of the
eonsorts should be bound by a vow of chastity taken
before or after marriage;'* (2) If the conjugal act
would seriously jeopardize the healtii of one or both
spouses;'* (3) In the case of supervening impotency,
whether it he temporal or perpetual;'" and (4) If a
Well-grounded douht sliould arise as to the validity of
the marriage.

535. With regard to canonical effects tlie wife be-
comes a participant in the state of her husband, unless
a special law ordains otherwise." This presumed
■Quality ceases by an ante-nuptial agreement made by
Bk contracting parties, as is the case in morganatic
^barriages. The husband is the head of the family, to
him all its members owe submission and obedience, and
he in turn should show them paternal affection, cherish
them with solicitude and protect them. The fidelity
hieh the two consorts owe to each other must in all
;pects be reciprocal.

^6. As regards the obligation of parents tlie new
(W says; Parents are bound hy a very grave obliga-
n to cherish to the best of their ability the religious,
ioral, physical and civil education of their offspring
[1 also to provide for their temporal welfare.'*
Ctoo, lUK. Can., Can. 1111.
•/ Cor. VII. 3,4.

"St. ALPHOKeiia, op. ci(., lib. VI. n. 944.

•■ At-EXAKDOi III, c. 1, X, dr coniugia Ir/'roaorvm, IV, 8; Pt. Thomas,
£ti,t.. dist. XXXII, q. uu. a 1, ud 4.
•8t. Alphonsus, op. oil., lib. VI. n. 933-954.

•"COD. luB. Can.. Can. 1112; f. 3. do lepalfurui, III, 12. in \'V ; ate
' work. n. 60.

Coo. luK. C»S.. Can. 1113.

380

The Netv Church Law on Mnii'imony.

Thf duties inculcated in this canon flow from natural
law. The obligation of the parents is not satisfied un-
less they exert every effort to instill into the heart ot
their child those principles of right and wrong without
which he cannot attain his supernatural destiny, and
without which he is not qualified for the field of moral
endeavor or tu become a useful member of the com-
munity. To promote these ends the parents are obliged
to impart religious and moral education to their chii-
dren, and their attention must be extended also tu
their physical and moral training. Not only the niaiiy
lofty motives inculcated by Christianity, but also the
animal creation should serve as an incentive to tlie
parents in their task of providing for their children
tliose temporal necessities which are indispensable for
their existence. This duty does not cease until the
child reaches an age at which he is able to secure such
temporalities by his own efforts.'*

537. Tliose children are legitimate who are con-
ceived in, or born of, a valid or putative wedlock, un-
less the parents, at the time the child was coneeivwli
were forbidden to use the contracted marriage, beeaus*'
solemn religious profession or the reception of Holy
Orders had supervened.'"

The first effect of the conjugal bond is the establisli-
ment of a distinct family under the supervision ami
guardianship of the husband and wife and of a union
which in sacredness excels even the one existing; 1"^"
tween them and their parents, for "a man shall leavp
father and mother, and shall cleave to his wife: aim
they shall be two in one flesh." " This union begets a
particular relationship between the husband and thP
blood-relatives of the wife, and vice versa; and hetwwn
their children and their blood-relatives."

"See this work, n. 30, 42.

Effects of Marriage.

381

The ctuijugal bond constitutes the two contracting
parties a principle of legitimate generation and invests
their offspring with all the prerogatives of legal and
eaiioiiical legitimacy. In conformity with the ancient
discipline the otTspring of a putative marriage is made
enual in all things to one born of a valid marriage.
Putative marriage is a wedlock contracted in good
faith by at least one of the contracting parties. It
remains putative until both consorts become certain
of its invalidity.*'' In the strict sense only those chil-
dren arc legitimate whose parents are validly married.
By a signal concession, which is based on the good
faith of the putative husband and wife, the church does
not discriminate against the offspring born of such a
union.

538, The use of marriage is forbidden to consorts
wIh) entered into marriage and one of whom subse-
quently took a solemn vow of chastity or received Holy
Orders. The legitimacy or illegitimacy of their off-
spring would depend on whether it M'as conceived be-
fore such a step was taken by one or both of its par-
ents, or afterwards." On the latter supposition, chil-
dren of such unions are sacrilegious, and their legitima-
tion can be effected only by a special mandate procured
from the Holy See.

539. Should there be a doubt as to the father of the
child, the new law states that the father of the child is
he whom the valid marriage indicates, unless the con-
trary is proved by evident arguments. Children born
at least six months after the marriage, or within ten
months from the day the conjngal life was discon-
tinued are presumed legitimate."

The first part of the foregoing canon is taken ver-

■Cod. Iur. Can., Can. 1015; see this work, n. 54.
"C. I, 2. 14, X, de jUiui pretliylerorum ordiniouli* vel non, I, 17; c.
2. 4, H, 10, 11, 1.1-15, X, qui plii sint Icffitiffli IV, 17.
"Con. luB. Can., Cbh. 1115.

382 The New Church Law on Matrimony.

bntini from tin? Roman lawv' The declaration tliattW
legitimate husband of the wife is not the father of tie
child to which she gave birth, would not be aecepti'd
by an ecclesiastical court, unless supported by irrel'nt-
aWe, eonclusive proofs." The faet that the mother vas
guilty of adultery, even after her admission of siicli
moral offence, would not clearly indicate the illfgiti-
macy of her offspring. On the contrary, even inidiT
sueii circumstances, the child has tlie right to vindicali'
legitimacy for himself if at least six months elapsed
between the celebration of his parents' marriage ami
liis birth; or not a longer period than teu months
elapsed between the discontinuance of his parents'
matrimonial cohabitation and his birth. Thus a child
is endowed with a presumptive legitimacy if in the first
instance 180, and in the second 300 days passed bctwecu
the periods indicated. Tliis presumption is only ])rf-
sumption of law, whit'li is ef|uivalent to giving the ehild
the benefit of tlie doubt, tlierefore convincing proofs lo
the contrary would disr'stulilish it."

540. The last two canons of this chapter are de-
voted to legislation relative to illegitimate offspring.
The child becomes legitimate, says the new Code, hy
the subsequent marriage of the parents, whether siich
a marriage be real or only putative, newly contracted,
or validated, even if non-consummated, provided the
parents were competent to contract marriage at the
time the child was conceived, or during th» period of
the mother's pregnancv, or at the time of the child's
birth." "

One of the canonical effects of the revalidal

? ch iid'a I

■

•U.. n. 1061"; Db Lroo, D« >«attli<i rt tare. XIII, n
i. lib. Ill, r. 654, 924; Rnn-BNsrl'L, IV. XVU, t
(. IV, XVII. n. 40.
Can. 1116.

Effects of Marriage,

marriage is the automatic legitimation of the off-
spring." The law einhodied in this canon introduces
no Imiovatiun, on the contrary, it approves the opinion
/?f*iierally advocated hy the leading canonists of tlie
past." There are two main classes of eliildren. namely,
spurious and natural. Tlie former are suhdivided into
adulterine, sacrilegious, incestuous and nefarious.'-'
An automatic legitimation by way of validating the
marriage can be effected only in the case of natural
children, namely, offspring whose parents were free to
marry either at the time the child was conceived, or
during the period the mother was with child, or at the
time the child was born. In all such cases by a fiction
of the law the effects of a validated marriage retroacl
to the time the illegitimate child was born.

641. Even if there was an obstacle in the way of the
parents' marriage at the time the child was conceived,
but this obstacle was removed either during the period
of gestation, or at the birth of the fihild, the suhse-
fjaent marriage will not be hindered in effecting the
legitimation of such offspring. To exemplify, let us
BUppose that A. (married) acquired canial knowledge
of B. (single) during the lifetime of his wife. After
the death of his wife, but before a child is born as the
result of his sinful act, he marries B. As long as there
■was no impediment between A. and B. at the time of
the child's birth, the subsequent marriage would effect
its legitimation.

The same would be true if the two contracted mar-
riage in good faith and it was subsequently discovered
that they were laboring under a diriment impediment.
The effect would he the same whether the natural

■C. 1. 6, X. qui fan tint Ugilimi, IV, 17. *

" RwmtNsTr L. IV. XVrt, n. 30; Db AsnQ.js, I, XVII. n. 4;
SCHMllJMRrSKR. IV, XVn. a. 05 ff.

' Pi)r tht iIi'fiuilioD o' Ihe toIe^a^xtg terms consult this work under

384 The New Church Law on Matrimony.

parents entered into marriage before the child was
born, or after its birth, as long as in any of the three
periods indicated above they were free to enter into
wedlock. Even if the parents contracted an invalid
marriage in bad faith, the illegitimate offspring of
such union may be legitimated by the validation of
their marriage, provided the other conditions are the
same as stated above.*'

542. Children whose parents are unknowm, as, for
instance, foundlings, according to the common opinion
are to be reputed as legitimate, for the child is always
entitled to the benefit of the doubt."

The legitimation of the child in canonical discipline
has far-reaching consequences. The law says: Chil-
dren legitimated by subsequent marriage are likened
to legitimate children as regards all canonical effects,
unless the law expressly ordains otherwise.'*' The new
law rules that only legitimate children may register in
a Seminary for the purpose of pursuing theological
studies," but it removes the blemish of irregularity
ex defectu from a child that was legitimated.'^ Ille-
gitimate children though legitimated by subsequent
marriage may not be elevated to the dignity of the Car-
(linalate/* of the Kpiscopate,^^ of Abbot or of Prelate
7iuUius.*'^ Outside these few exceptions the canon law
(Iocs not discriminate between a legitimate child and
()ii(» who was legitimated by subsequent marriage. It
must be borne in mind that an illegitimate child can be
legitimated only under the condition that his natural

" Benedictus XIV, ep. "Eedditae Nobis/* $38. 5 dec, 1744.
'* Benedictus XIV, loc. cit.^ $4.
"Cod. Iur. Can., Can. 1117.
"(>;>. cit.. Can. 1363, $1.
'■ Op. cit., Can. 984.

"0/>. cit., Can. 232, $2, n. 1; SiXTUS V, const. ^^PosUjmm,*' dee., 15S6,
$12.

"O/). cit.. Can. 331, $1, n. 1.
" Op. cit., Can. 320, J2.

Effects of Marriage. 385

ler enteres into marriage with his natural father,
riage between a natural mother and an adoptive
i*r would fail to produce a similar effect.

CHAPTER Xn.

ThB SEPARiLTION OF CONSOBTS.

(Canon 1118— Canon 1132.)

/. Dissolution of the Bond.
1. Absolute Indissolubility.

543. A valid marriage ratified and consmnmaU^^d
cannot be dissolved by any human power, or any can ^^
except death.^

This canon, more emphatically than some other^Bf*
defends the absolute indissolubility of the ratified
consummated Christian marriage. It distinctly pr*
claims that no power on earth can dissolve the hoxr^^
begotten by such marriage, nor can any cause
cept death be instrumental in producing tiie same
feet.

Theologians discuss the question whether God '■t^T
His absolute power can effect the dissolution of sucl»- ^
bond. The answer to this question must be affirmati^i?^ ^'
but it is clear that such a revelation has ne^er be ^^^ ^
made nor has God authorized any institution, not e\r<^^ ^
the Catholic Church, to dissolve under any circux^^^'
stances or for any reasons the bond of such a uniox^^ •

544. The proposition announced in this canon efi- -^^
bo defended by means of every source the Church ha — ^^

* Cod. Tur. Can., Can. 1118.
*0p. eit., Can. 1013, $2; Can. 1110.

' Pesch, op. cit., vol. VII, n. 818 flf.; Tanner, De tnatrimonio, di
VIII, q. 5, dub. 3; Palmieri, De fnatrimonio, p. 202 ff.

386

at her disposal. As has already been stated, natural
law endows niairiage with a relative indissolubility.'
This relative indissolubility becomes absolute if two
Christians contract and consummate marriage, for the
matrimonial bond that springs up between them is in-
vested with sacramental character. The decrees of the
various Councils,'* the pronouncements of the Roman
PontiflfB," and the testimony of the Fathers of tlie
Church and the ecclesiastical writers ' vindicate the
absolute indissolubility of the matrimonial bond be-
tween baptized persons when strengthened by the fact
of consummation. The ruling of the supreme ecclesi-
astical authority in the ea.se of Lothaire, Philip Au-
gustus of France and Henry VIII of Kngland can be
advanced as incontestable historical facts attesting the
tenacious adlierence of the Church t<» the doctrine con-
tained in the canon with which this chapter begins.

545. The foregoing testimony gatliered from vari-
ous ecclesiastical sources is endowed with still greater
force by the authority of the Sacred Scripture." There
are only two passages in Holy Writ which can be ad-
vanced as seemingly militating against the teaching
of the Church on this point. These are found in

'See this work, n. 41 ff.

'Can. VIII, rX.CounoW 0/ ff(i-(ro (300); Can. VIII, the Z/ Sj/fuwi o/
Carlluter (407): Can. VI, Council of Aiigers <435) ; Can. XII, CouiktI

of Nantt ■ ■ —■ " " " • ' - ■ ■ " •

the Arui'
XXIV.

•IKNOCENT I (401-407) to Eruperiaa. Frobut and Viclricia* (Hab-
vov\f, I, eol. 1005, p. fl; eol. 1008; col. 1002) ; ZaCHaev (741-752), op.
rit. poJ. 1902; STePHKK 11 (754), op. eit.. vol. Ill, w>l. 1987-l9fiR;
Ai.BXANPDt III, c. 7, X, dr converaione eonivgatorvm, III, 21; Inno-
cent III, c. 7, S. de divoTlU*, IV, 10; LEO XIII, encycl. "Armitiim."

'Objqin, Comment, in Mntlh., t. XIV, n. 23, Mione, vol. XIII, col.
1246; St. AsnotiUB Auasenus. Bitmetia in locum Evang. »ec. Matlh.,
Mio.VE, P. C, vol. XL, col, 227; St. Auoustine, De conUtgii* aduUerinin,
MiONK. P. L.. vol. XL, toI. 483 ff.; PhirONE, op. Hi., vnl. Ill, p. 219-352;
RobsovAnt, Suppl. ft eidlirrl. monument arum, v(il. I, p. 457 ff.; Pal-
HtEKi, op. eit.. p. 141 ff.

'Murk X, 11; Luke XVI, 18.

388

The. AVif Church Late on Matrimony.

Matthew V, 32," and XIX, 9,'" Should these passages
!«• mterprettHl in the sense in which they are under-
stood by some of our dissentipnt brethren, there would
be a positive contradiction in the Sacred Scripture,
for the parallel passages of St. Mark " and St. Luke "
teach just the contrary. Since we cannot claim the
inspiration of the Holy (ihnst for contradictory state-
ments there must be a clue whereby the two above-
quoted texts of St. Matthew can be reconciled with tlie
statements of the other Kvangelists.

546. St. Matthew quotes our Lord as stating that
from tlie beginning of creation man was not permitted
to put away his wife." Such permission was granted
by Moses "by reason of the hardness of your heart,"
said Christ to His Jewish hearers.'* After these words
the Master announced His doctrine on riiarriagf, which
was to be the law of the New Covenant, If we consult
the parallel passages of the other Evangelists we must
conclude that Christ restored marriage to its pristine
ideality, namely, to an indissoluble bond correlated
with monng>'ny and monandry. It was in this sense
that His words were interpreted by His hearers, for
on the contrary supposition the New Testament would
have introduced no cliange. and the displeasure ex-
pressed by the disciples at the hearing of Christ's new
doctrine would have been entirely out of place."

■ "But I say to you, that whosoever shall put away his wiff, eiMpt-
iag for the tbubp of fornication, iraketh her eommit adultery: and he
that, nha!) marry her that is put away eommitteth adultery."

'•"And I say to you, that whosoever sbBll put anay his wife, exrepl it
be for fornieation, maketh her eommit adultery: and he that shall marry
her that is put away cjimmittcth adollery,"

■' "Whoaoever shall put away his wife and marry nnnlher, roniinjtteih
adullery against her. And if the wife shall put awav her husband, and
be mnrried to another, she rommitteth adultery. {Mark X. 11-12.)

""Every one that putteti away his wife, and marrieth another, pora-
mitteth adultery, and he that marrieth her that is put away from her
huaband, cnmmittPth adiitterv." {Lute XVI, 18.)

'•Uatt. XIX. 8.

•'Matt., (or. cit., and V, 31.

■' Matt. XIX, 10.

fieparaiiun of Consorts. 389

Should it be asserted tiiat adultery ipso facto dis-
solves the matriiiioniai bond, sueh teaching would
prove a very potent ineeutive to sin. Furthermore,
sueh an admission would give rise to a new difficulty
irreeoneilable with .St. Matthew. Ilow are we to ex-
pound the words: "And he that shall marry her that is
put away, conuiiitteth a<lultery," if the moral offeuee
involved in such a crime effects an automatic rlissolu-
tion of the matrimonial bond!

The words "maketh her to commit adultery" can be
interpreted, without taking umlue liberty with the
sacred text, as conveying the meaning that he who puts
away his wife, unless she is guilty of fornication, ex-
poses her to the danger of eonmiitting adultery, and
bj' contributing to that danger "maketh her commit
•dultery"; in other words, should she commit such a
moral offence God would look upon him as sharing her
^ilt. Should he put her away because she was guilty
of adultery, he would not be responsible in the sight
of Ood for the adultery she might oonnnit.

The second text taken from St. Matthew can also be
explained in a sense not disagreeing with the other
scriptural passages. The sentence, as some cxegetes
maintain, is to be considered elliptical, and the ellipsis
must be supplied thus: He who shall put away his wife
(which is lawful only in the case of fornication) and
iBhall marry another, eommitteth adultery. This would
■be equivalent to saying that in the case of fornication
ithe man is justified in putting away his wife; in other
Words, a separation is warranted; hut, St. Paul adds,

if she depart, let her remain unmarried or be rectm-
■ciled with her husband." "•

Another interpretation suggests that in this second
passage Christ stigmatizes as adulterous the man who
Would put away his wife and marry another, but He

/ Cot. VIII, ]1.

390

The New Church Lair

Mair

imony.

refrains from pronouncing a judgment upon a man
who would put away his wife because she is guilty of
fornication. Such a suspended judgnu-nt would have
to be supplied from other passages of Holy Writ, as,
for instance, thosw of St. Mark, St. Luke and St. Paul,
quoted above in foot-notes 11, 12 and 16. ^m

2. Relative Indissolubility. ^H

547. Absolute indissolubility, as explained above,
can be attributed only to ratified and consummated
marriages. A non-consummat<'d marriage, the new
Code says, between two baptized individuals, or be-
tween a baptized and an unbaptized person is dissolved
by the very act of making a solemn religious profes-
sion, or by means of dispensation granted for a just
cause by the Apostolic See at the request of both par-
ties, or of either party even if the other is unwilling."

The two different ways whereby a non-consniii-
mated marriage can be dissolved are: (1) Religious
profession; (2) Papal dispensation. The new law does
not discriminate in this respect between a marriage in
which both parties are baptized, and another in which
one of the consorts is unbaptized.

In the course of the serious controversy, already re-
ferred to in this work, between Peter Lombard with the
school of Paris on one side, and Gratian with the
school of Bologna on the other, Alexander III cut
the Gordian knot by declaring officially that a ratified
and non-consummated marriage is a perfect contract
and a real sacrament, but that the fact of non-consum-
mation makes it dissoluble by religious profession and
by Papal dispensation."

"n>li. ll'K. Can., Can. 1119.

■*('. i. T, .\, ilr rimrFrsione coniugaturum. III, 32; EsuElN,
Till. I. ji, 1S4 (T,

Separation of Consorts.

A. Religious Profession.

548. Besidps Alexander III, Innocent III also ad-
VfK-ated the opinion that a non-consummated marriage
is dissolved by n'ligious profession.'" Tliis doctrine
was subsequently incorporated into the official acts of
the Council of Trent."' Tho doctrine being thus deter-
mined as a dogma of faith, it is inconsequential whether
it follows by virtue of natural or of ecclesiastical law,"
though we do not join the ranks of those who advocate
the former opinion.

The ratified marriage is dissolved as soon as one of
the contracting parties takes a solemn vow of religion,
even if the other party should object to such a step."
The conditions necessary to constitute a solemn vow
are discussed in this work in connection with the
diriment impediment of solemn religious profession.*'

When a solemn religious profession is made validly
and the vow of chastity is taken according to the form
prescribed by the new law, the bond of a ratified and
non-consummated marriage, a fortiori, of a legitimate
non-consummated marriage becomes ipso facto dis-
solved.

The power of the solemn religious profession to dis-
solve the matrimonial bond must not be limited to
marriages contracted originally by two baptized per-
sons or by a baptized and an unbaptized individual.
The effect would be the same even if the marriage was
contracted by two infidels who after the consumma-
tion of their wedlock became converts, or by two infidels
one of whom, after the marriage was consummated in

"C. 14, X, (if. eit.. Iir, 32.

** BcMio XXIV, Df naeramenta mnfrimontt, oan. VI.

"Oarpahsi, op. rii.. n. 10R2; Wesnz, i/p. eit.. n. 69S-. Lehukuhl, np.
rit.. vi.l. II, n. rOH; SrHWArjHJRt'BEii, lib. IV, tit. VI, n. 34.

"PescH, vol. Vn, n. RfM ff., wherp he enumerates several Sainl«
Mrhniie mnrrinee Kan disBolved owinK to surh a prnfemiun.

"Bvf tliis uork, n. 288,

The Xew Church Law on Matrimoni/.

infidi'lity, rcceivfrl baptism in a iioii-Cathulie sect and
bofore a now consummation of the marriage embraced
tlie trm' faith, and subswiuently made a solemn re-
ligious profesKion. Both these hypotheses presuppos'^
tliat after the conversion the marriage was not eonsuni
mated. Thus the new Code terminates a long-standing
eontroversy and endows the solemn religious profes-
sion with the power to dissolve automatically the mat-
rimonial bond arising from the foregoing four kinds
of marriage.

Should the conversion be followed by a new consum-
mation of marriage, whether due to an accident, or to
violence, or even if miintentional. the vow would bf-
conip divested of its nullifying force and the party
remaining in the world would lose his privilege to n-
marriage and would have to live a celibate Hfe."

549. The simple vow of chastity taken by the Scho-
lastics of the Society of Jesus invests one with the re-
ligious status and constitutes a diriment impediment,
but it does not possess the effect " proper only to n
solemn religious vow strictly so called.

The marriage of two infidels who become converted
to the faith without fonsunmiating their marriapc
either in infidelity or subsequently to their conversion,
becomes ratified to alt intents and purposes. Without
any renewal of consent it becomes a sacrament, and the
matrimonial bond would be dissolved should one uf
them emhraee the religious state. It nuist be borne in
mind that the reception of Sacred Orders does not pro-
duce the effect attributed to solemn religious profj^H

^H
B. Papal Dispensation. ^|

550. The new law states distinctly that a papal dis-
pensation granted ex iusta causa dissolves a non-con-

uff.

■

Separation of Coniforts. 393

?unmiated marriage, between two baptized persons or
Iwtween a baptized and an unbaptized person. Thus
the new law terminates a long-standing controversy
and clearly vindicates the right of the Roman Pontiff
to dissolve sut^h marriages provided there is a just
cause. In the absence of such a cause the Holy Sec
could not put into operation such privilege, for the
power invoked by it in the ennteniplatod cases is the
result of delegation embodied in di\ine commission.'"

Examples in which a dispensation from a ratified
and iion-consummated marriage was granted are not
infrequent.'^ Among the causes justifying such a dis-
pensation should he enumerated: (1) The well-founded
fear of great future scandal or of dissension among
consanguineous persons; (2) The well-founded sus-
pieion of impotency combined with the danger of incon-
tinence; (3) A supervening contagious disease; (4)
The danger of perversion in case the Catholic con-
tracted marriage with one who is a serious menace to
his faith; {.5} The attempting of another marriage
from which, though it is invalid, there is no avenue of
ewape; (6) Mutual consent of the two parties to sepa-
rate, provided there is a good cause.*'

551. Besides the presence of a just cause " for sep-
Bxation, the fact of the non-consummation of the mar-
riage must also be ascertained beyond all doubt. The
new law rules that this be done by means of inspect'm
corporis per peritos fticienda '" and by the testimony of
seven witnesses {testes qui septimae manus nutlJnnt)
,addueed by each contracting party," The evidence

■Wosi, op. eil., a. fi99; OASrAWir, »;>. fit., n. losl: S(-HMA[j:aui^tm,
l». IV, m. XIX, n. 5; 8.iNCnra, op. fit., lib. 11. awp. .XV, n, 6.

* BcHMALzaitfBEk, lor. eil.. n. 4B; Piwronk, v.)l. III. p. .100 ff.;
nCH, VOL VII. n. Sll (T.

■Db JrsTiB. !I, X. n. 21 34; SaN( HKZ, lib. II. Aity. XVI: Schum.e
iltaK. U>e. eit., n. 53 B.

"Coo. i™. Can.. Can. lurs.

-0;). i-it.. <'Bn. 1076.

"Op. rit„ Cmi. 1075.

304

The Sew Chiirvh Laiv on Matn

thus collected must be submitted to the Sacred Congre-
gation of the Sacraments " and the matrimonial proc-
ess must be regulated bv rules laid dowTi in the new
Code."

552. The question might arise what competence may
the Roman Pontiflf claim over marriages contracted
and consununated in infidelity I It is manifest that as
long as the consorts remain unbaptized they are in no
way subject to liis jurisdiction. If one or both of them
should become converted their marriage would be sub-
ject to the regulation of the Church. Under the scope
of the new law must be included also the marriage of
persons who previously to their conversion contracted
and consummated their marriage in infidelity. In the
past there was a controversy among theologians as to
whether such a marriage could be dissolved as ratum
non-consummatum, it being supposed that after their
conversion it was not consummated. The affirmativf-
side of the question was defended by the majority of
canonists," though the negative side was not mthnut
advocates whose opinions have great weight." The
arguments of the affirmative side are based on the his-
torical fact that dissolution of such marriages was
actually effected by the Roman Pontiffs,'* and on the
principle that nb esse nd posse i^oiet illafio, provided
the axiom is applied to the Roman Pontiff. The bond
nf a marriage contracted and consummated in infidelity
is assuredly stronger when it becomes also ratified

■Op. eil.. Can. 198E.

"Sep lib. IV, tit. XX, Canon 196»— Cnnon 1992.

"Gaspamii. op. eit.. n. IIOR ff.; St. Alphonsus. lib. V\, n. 956; .
Gurt-Ballebtni, torn. II, n. 759, 789; Sanchk, lib. II, disp, XVII^-
n. 82; Whini. np. fit., n. 699; Db Smbt, op. ril., a. 188; D'Axnisa^^—:
vol. Ill, n. 470.

" BBNED1CTU8 XTV, Df SyitoHii THorfmatut, lib. VT, cap. IV, n. 5. pni —

lib. XIII. cap. XXI. n. 4; and alao Quaent. Can.. 54(5; Pkijk. op. eU

n. fi02: St'HMALMRtlBKH. h. (.. n. 5H ff.: Rosspr. op. cit., n. 647.

•• Puts V, deer., 2 aug., 1571; GitirooRius XIII, deer., 25 i

Separation of Consorts.

395

4ifter the conversion of the consorts tlian a ukto nun-
«onsuniniate(l ratified marriage."

Furthermore, the new law conditions the power of
the Roman Pontiff to dissolve such marriages on the
presence of a just cause. If such cause is required for
the dissolution of a mere ratified marriage a fortiori
■would there be an additional reason to exact the same
requirement in the case of a ratified marriage con-
tracted and consummated in infidelity. Moreover, it
Would be an easier task to find a sufficiently just cause
in the former case than in the case of persons who al-
■eady lived in matrimonial relations for some time and
who probably became parents of several children. But
even in such case the presence of a jflst cause being
presupposed the Roman Pontiff may dissolve their
Iwnd, for his right to do so is supported not only by
the practice of the Holy See hut also by the new law."
It is seriously questionable whether the Roman Pontiff
eould, arbitrarily and without just cause, annul such
marriages.

The pages that follow treat on the dissolution of a
marriage legitimate and consunnnated, namely, con-
tracted and consummated in infidelity between persons
of whom one becomes a convert.

C. Pauline Privilege.

553. ' The Pauline Privilege is a special concession
/ virtue of which, on the ground of the words of St.
Paul," a converted infidel, whose consort remains in

" Wekkz eiprpsalr dpiiira that solema ri'ligioua profi'Midn r-uulil (lis*
live the bond of such a marriage. See hia work, n. 7t)!).

**8urh ia the first impreasion cunreyed bj Canon 1119. Siui^a it Una
It been explained jet bv any eanoniat, ve have no nuthorily to quote in

Miyort.

396 The New Church Law on Matrimony.

infidelity and declines to cohabit with him or will not
do so without offering an insult to the Creator {sine
contumelia Creatoris), may contract another marriage,
whereby his first marriage, though it be consummated,
becomes ipso facto dissolved. This privilege does not
obtain in a marriage between a baptized and an un-
baptized person contracted with dispensation from the
impediment of disparity of worship/^ A correct inter-
pr(»tation of the Pauline Privilege is given by Innocent
III in the Decretals of Gregory IX.**

The Pauline Privilege is of divine origin,*' promul-
j^ated by the Apostle of the Gentiles to favor the faith.
It is natural that a married infidel would have been
reluctant to embrace the true faith if he foresaw that
subsequently to his conversion he would have to live
a life of continence owing to the fact that his consort,
remaining in infidelity, would very likely refuse to co-
habit with him peaceably.

554. It is morally certain that St. Paul, in the text
quoted in the foot-note number 39, contemplates the
case of two infidels who contracted marriage in infidel-
ity and one of whom subsequently became a convert to
the faith. Such is the interpretation of all reliable
exegetes and it is, moreover, confirmed by the practice
of tlu* Church, for slie never dissolves wedlock entered
into ])y a Catholic and an infidel when the proper dis-

husband that believeth not, and he consent to dwell with her, let her not
put away her husband. For the unbelieving husband is sanctified by
the believing wife: and the unbelieving wife is sanctified by the believ-
ing husband: otherwise your children should be unclean, but now they
are holy. But if the unbeliever depart, let him depart. For a brother
or .sister is not under servitude in sueh eases. But God hath ealled us in
peaee:' (/ Cor. VII, 12-15.)

*m;od. IiTR. ('AN., Can. 1120.

*1,C. 7, X, de divortii,^, IV, 19.

*>«. C. S. Off., deer. 11, iul., 1886; Benedictus XIV, De Sifjwdo
Vioeeesana. lib. VI, cap. IV, n. 3; Cornely, Comment, in I, Cor., p. 179
ff. ; St. Alpiionsu.s, op. eit., lib. VI, n. 955; Sanchez, op. cit., lib. A'll,
disp. LXXIV, n. 4.

Separation of Conaorls.

397

lusatiou has ht'eii obtained.'" Tliis fact Ik ciiiiihasizt'd
ilso hy the new law."

St. Paul states expressly that if the unconverted con-

irt wishes to cohabit ppaceably the converted party
ahould "not put her away." The context leads one to
beiieve that this is only a personal advice, for he intro-
duces this statement with the words: "For the rest I
spf-ak, not the Lord." If, therefore, a converted con-
Bort leaves the unconverted spouse who is willing to

ihabit peaceably, by virtue oi Pauline Privilege such

marriage would not be dissolved quoad vincuium,
but only a separation a toro et mensa would be ef-
fect^'d."'

555. In order that the Pauline Privilege may be in-
voked the conversion of one of the infidels is a conditio
sine qiut nan. Conversion here implies the reception of
baptism, even if it should be in a heretical or schismatic
.gect." Should a convert to a heretical or schismatic
t make use of the Pauline Privilege by marrying a

Tson who professes membership in the same sect, his
marriage would be valid, but illicit for the reason that
St. Paul promulgated that privilege in order to benefit
ronverts to the true faith. The words of the Apostle
clearly indicate that only a convert may resort to the
privilege, a catechumen would not be permitted to avail
himself of it."

The words "if the unbeliever departs, let him de-

"8. C. Inq., 11 aug,, 1759; aec Pebbone. up. cit,. vol. 11, p. 323.

-Cod. Hm. Can., Can., 1120, ^2.

■St. Thomas. Suppt. llli". p., <\. LIX. art., V, v.; LoUBARDlts. 4.

t., dUt. XXXI.X; SCHMALEGHl'sEH, Pf divorlUt, a. 35; St. Aliuus-

T8, MlflNB, P. L.. Vol. XL, en], 469.

Palhiom. <tp. rit.. Ui. XXVll; Lehmkuhl. t. tl. a. 705; I'ewhinr.
n, p. 319; Ballmuni, Ojiua Mnrale, toI. VI, n. 71H ff.; 8t.

i«AB. Suppl. Illat. p., q. LIX, art. 4; Archiv f. fc. ff.. vol. XLVI,
402; WraNK, op. rtf., n, 702.

S. C. de Prop. Fide, 16 ian„ 1H03; in the Ca\UtU\-nm, n. 1379; an

lei Rhouid not he taken into lhi> (liurrh unli'sc he ennwnta In retain

<«naorl, proi-ided the lalli-r is disiioiu-rt l'> cnhHhil wilh liiiii peni^e-
ily. (8. C. 8. Off., 13 apr., 1908.)

VBOI

■ seel

Htecl
fpcr

398

The Xetc Cliiiich Law iin Mntriinojiif.

part" arc not to bp interpreted only in the sense of
physical departure. There meaning is to be extended
so as to comprise also moral departure which would
take place should the infidel party refuse to cohabit
peaceably with the converted spouse, or should it
(without such refusal) be clear that no such cohabita-
tion can be established without the offering of insult to
the Creator.

The departure of the infidel consort need not neces-
sarily be effected by hatred of religion, nor does it
have to be a discessus malitiosus. It suffices that the
infidel consort is actually, whether mllingly or by ab-
duction, separated from the converted spouse and fails
to return after the interpellations are duly made."
Should the deserting consort subsequently embrace the
true faith, the other consort could not invoke the Pau-
line Privilege in his favor unless his second marriage
preceded the conversion of his consort." The con-
verted party would not forfeit his right to another
marriage even if the other consort should express a
willingness to embrace the true faith, provided she re-
fused to extend to him the privilege of community of
bed and board.""

556. It is immaterial by wliat motive the infidel
party was actuated in his refusal; provided it was not
occasioned by an overt act performed by the converted
party after the reception of baptism, and in itself suf-
ficient to offer the infidel consort a reasonable and just
cause for the discontinuance of cohabitation/' If an
infidel party should repudiate a legitimate consort on

"S. C. Inq., 22 nov., 1871, nnd 8 ial., 1891; sec Cnlleclanea. n. 1.15«
and 1362; D'Annibalb, vol. Ill, n. 475, note 13; Sanchk, lib. VH,
diap. LXXIV, n. 15 ff.

-S. C. 8. Off., 11, 20 iun., 1866, 18 niaii, 1BB2; bm Collectanea, nn.
1353, 1354, and 2185; Innocbnt III, e. 8, X, de AivoTtiia, IV, 19.

" S. C. B, Off., 8 iu!., 18B1 ; see Collertanea, n. 1362.

"8. C. 8. Off., 5 aiiR., 1759; see CoHectOiMW, n. 1312; 26 api
ape Di'w CoUrctonca, n. 2044.

Separation of Consorts, 399

the ground of adultery committed before conversion,
and such guilty party after becoming a convert should
invite the innocent infidel party to cohabitation, tlie
latter's refusal would justify tlie converted consort's
entrance into another marriage.'- But such entrance
into marriage would not be justified should the con-
verted party be guilty of adultery after his or her con-
version."

The words "cuntumelia Creataris" are verified when
the intention on the part of the unconverted consort to
jeopardize the faith of the converted spouse is mani-
fested, whether it be by an attempt to prevail upon her
to renounce her faith,"' or to participate with him in
acts that are sinful." An iTisult to the Creator would
be offered if tlie infidel party should refuse to discon-
tinue the practice of concubinage or should decline to
bring up the offspring in the Catholic faith."

Tlie right of the converted party to resort to the
'aultne Privilege would not be lost even if the infidel
msort should be willing to comply with all the condi-
ions required by law, but is so situated, even if through
no fault of her own, that a restoration of conjugal re-
lationsliip is a practical impossibility. This condition
would be verified if the unconverted party were held
in captivity or sequestration," or even if she were sold
by her uwTi husband, provided the sale had taken place
before his conversion.''' Should the converted party
after the reception of baptism place an act which would
make the re-establishment of marital relations impossl-

re he would forfeit his right to the Pauline Privilege.
The converted party may not presume to benefit by
■B. C, d« Prop. Firle, .10 inn., 1807; see Colteetanea. u. 1332.
■8. C. de Prop. Fido, 18 ian., iTBT; see- Collectanea, a. IHIN,
"8. C. fl. Off.. 29 nov., IS82; nee Collfetanm, n, 1.158,
"a. C. de Prop. Fide, 5 mart., 181«; sev Colhetanea, n. 1323,
-B. C. 8. Off., 11 inl., 1886; see ColUetanra. n. 1353.
"8. C. B. Off., 12 iun., 1830; •« CottretaTira, n. 133H.
■8, C. 8. Off., S iul., 1891; tee VoUeclanea, u. 1362.

KT
nil
m;
on

' Church Law on Matrimony.

tilt- Pauline Privilege if tJie state implied by the words
"conlinni'lia Creatoris" is caused, not by the other
consort, but by her kin."

557. The marriage contracted in infidelity is not
dissolved by the fact of conversion or reception of bajt-
tism.'" It remains valid until the infidel party becomes
^ilty of physical or moral desertion and the converted
party, having complied with the conditions prescribed
by law, contracts another marriage.

The converted party by virtue of the Pauline Privi-
lege would not be at liberty to contract another mar-
riage v^alidly if the infidel party should consent to co-
habit peaceably and should be willing to subscribe to
all conditions required by law, but be unwilling to be
converted. Such liberty on the part of the converted
party is nowhere intimated in the Pauline Privilege,
nor is it in harmony with the former disciplme of the
Church or the teaching of theologians." To maintain
that the Church promulgated a general law by which
the converted spouse was constrained to discontinue
his cohabitation with the infidel spouse, is to advocate
an opinion irreconcilable with the present discipline.
Wernz remarks that such a law would of itself contain
an implicit permission for the converted party to enter
into another marriage, but it can nowhere be shown
that such a law has ever been enforced except in cases
in which the promise of the infidel party to cohabit
peaceably proved fictitious. This opinion is in perfect
accord with the views advanced by the medieval
canonists."

"S. C. de Prop. Fide, 5 mart,, 1816; Bee Collectanea, a. 1323.

""Cum per BBi^rameBtum baplianii non Bolvantur eoniiigia, sad crimina
dimittanlur." ( Innocintius III, c 8. X, df divorliiM, IV, IB.

•' WmNi, op. cit., n. 702, note «3; Pbsch, vol. VII. n. 788; SCHiuu-
□ftUBER. De divortiit, n. 35; St. TnnUAS, Sappl, lllat. p., q. LIX. a. 5;
BoBSET, op. cit., n. eot ff.

"8. C. Inq., 28 nov., 1894; Nee Aeta Sanctae Sedis. vol. XXIX, p. SWj
RossET, "p. Pit., n. 60T and 611. "^^

Separnt'ton of Consorts.

401

It is thert-fore the second marriage bond contracted
in Christianity that dissolves the one contracted in in-
fidelity. After the converted consort enters into a sec-
ond marriage, owing to the absolute dissolution of tlie
fornMT vinculum, the infidel party is also free to eon-
tract another marriage, but not until then. This state-
ment wuuhi apply even if such infidel party should at-
tempt marriage after becoming a convert."

558. In doubtful marriages contracted between an
infidel and a person doubtfully baptized, or between
two infidels, tiie doubt must be settled favorably to the
faith. In this connection one must bear in mind that
a marriage between an infidel and a doubtfully baptized
individual is to be considered invalid," and tliat such a
baptism is subject to the principal of presumption."'
Should the conversion of one consort be followed by
the conversion of the other, provided their marriage
contracted In infidelity was valid, the spouse converted
first should re-establisli conjugal life with the other."
Such an oliligation may be urged only ex caritate. it is
a point of controversy wliether it binds also ex iustiiia.
Needless to say that no such obligation can be imposed
if the spouse converted first has already remarried, or
made a solemn religious profession, or received Holy
Orders. Nor can the second convert be forced to return
to the first if the tatter after his conversion was guilty
of an act which justified the former in discontinuing
commujiity of bed and board even while yet an infidel.
It is advisable that in case dissensions are feared co-
habitation should not be urged, but rather separation
a toro et mensa should willingly be granted.

"8. C. Inq.. IB »ept., 1824; 15 Bcpl., ]H5S: <(v rMi-rlanfa. n. 132R
■nd 1349; gt-HUALZGHrsEK, K r, II. 2>< tr.; BESeDUTVn XIV, Qu.iest.
eamm., S46, n. 12.

-B. C. toil.. 5 ill!., 1853.

" 8w tliu work. n. 23H.

-Feue, op. rit.. n. 499; S. C. Inq., 11 iul., lSfl6, ad 8.

402 The New Church Law on Matrimony.

559. As long as the converted party, whom the in-
fidel party has deserted without reason, remains celi-
bate, the infidel party cannot validly enter into another
marriage. The same would hold good even if the con-
verted party under such circumstances would embrace
the religious state or receive Holy Orders. With re-
gard to Holy Orders all theologians agree, but they are
not in agreement as regards the effect the solemn pro-
fession has on such marriage. No doubt can be enter-
tained should there be question of a marriage which
was not consummated either before or after the bap-
tism of one or both consorts. In that case the dissolu-
tion of such a matrimonial bond would be effected by
the very act of either party taking the solenm vow.*^
But the contemplated cases presuppose two things,
namely, (a) a marriage consununated in infidelity; (b)
departure of the infidel party without a reason. Should
such a marriage be dissolved by the solemn religious
profession of the converted party, and should the in-
fidel be at liberty to marry another, such liberty would
be equivalent to catering to the contumacious infidel
party."'* Since we caimot suppose that the Church or
the Roman Pontiff would wish to offer to the uncon-
verted party an incentive to sin, we are constrained to
adhere to the opinion that such solenm religious profes-
sion, under the given circumstances, does not effect an
absolute dissolution of the matrimonial bond.

560. The perusal of the foregoing statements ought
to make it clear that the converted party after the re-
ception of baptism may not depart from the other con-
sort without warning ''quasi insalutato hospite." To
prevent such an action the present discipline, as well
as the former, pr('scri])ed interpellations to be made by
the eonvert(Hl party. The new law says: Before the

«^CoD. IiR. Can., Can. 1119.
"Wernz, op. cit., n. 702, note 71.

Sepnrntion nf Consorts.

403

convprtrd and baptized consort may contract a new
marriage validly, he is obliged, the provision made in
canon 1125 being observed, tu interpellate the infldel
party as to whether she is willing: (1) To be converted
and to receive baptism; '° (2) At least to cuhahil peace-
ably without offering insult to the Creator. These in-
terpellations must always be made unless the Holy See
declares otherwise.'"

The foregoing canon settles the question Mhether the
interpellatio7i is necessary ad vali^ifaicm sccimili mat-
rimonii in the case of a convert whose first marriage
was consummated in infidelity. Ballerini maintains
that interpellation is prescribed for the purpose of
ascertaining the will of the unconverted consort, but
that the validity of the second marriage depends exclu-
sively on the objective willingness or unwillingness of
the infidel party to cohabit with the converted spouse
sine contumelia Creatoris.'" This opinion can no
longer be advocated, for even the former discipline in-
culcated the necessity of interpellation as a duty origi-
nating from divine precept," and insisted on it even if
tlie infidel party publicly repudiated the converted
consort."

561. The two questions which form the matter of
tlie interpellation are proposed by the converted con-
sort to the infidel party in order to ascertain whether
there is a sufficient reason for the contracting of a sec-
ond marriage. A negative answer to the first question
would not authorize such a step, unless the answer to

•8. C, de Prop. Fide, 16 ian., 1707; sec CoUfcianea, n. 131S, 132H,
SMI.

"Con. ICB. C*K., Can. 1121.

" Qu»T-Bai.LeW!1I, vol. II, n. S79, fool-notP! Pebrosb, vitl. II, p, 323;
fni tba criticism of Uie opmion of D'Annibai.e und ScMERnt, rm> Wehne.
op. cH., n, '03, nute 72.

™8. C. Inq., 12 iuo., 1850; (i«M? Cnllectanr-a, a. ]33!»: FnjE. op. fit.,
487 ff.: fTTTKKa. op. cit.. n. 20l).

"S. C. Av rro|i. Fide, C mart., 1*110; bi.'p CiUfctaTiea, n, 13:;3.

404

I'he Xew Church Law on Matrimoni/.

the socond question be also Tiegative. Sliould the first
question be answered affirmatively and the seeoiid nega-
tively, the converted spouse would be justified in enter-
ing into another niarrlage,provided it should take placi'
before the conversion of the other party. A negative
answer to the first question and an affirmative answer
to tlie second would necessitate tlie re-est«l)lisluueiit of
conjugal life, provided the answer was not fcigin-d.

562, By a special concession of the Holy See the in-
terpellation may be dispensed with either in tolo, in
which case such a dispensation amounts to a dissolution
of the former marriage bond, or in parle, namely, from
Hie first or the second question. By virtue of special
faculties granted to missionaries in infidel countries, a
converted polygamist may be dispensed from the
necessity of interpellating his first and only legitimate
wife in infidelity as to whether she wishes to cohabit
with him peaceably or not. A negative answer given
to the first part of the interpellations, namely, a disin-
clination to become a convert, is in itself a justifying
reason for the baptized consort to enter into a second
marriage with any of his pseudo-wives, provided the
one he selects embraces the true faith."

Ill practice the new law establishes the rule that the
interpellation is always required for the validity of the
second marriage, even if the futility of such an act is
clearly foreseen, unless the Roman Pontiff dispenses
from it. Of the dispensation we shall treat later.

563, The manner of making these interpellations h
clearly stated in the new Code: Interpellations, as a
rule, should he made in at least a summary or extra-
judicial form by the authority of the converted con-
sort's Ordinary, who is also to grant, at the request of
the infidel consort, a time for deliberation with the

•■PvTXH, op. cit.. D. IL'S; Feijc up. eit., n, 481; ColL Miat., n. 3

Separation of Consorts.

405

■warning that after the futile expiration of tlie allotted
period a negative answer will be presumed. Even pri-
vate interpellations made on the initiative of the eon-
verted consort are valid, and also licit, if the foregoing
form cannot be observeil ; in such a case, evidence that
the interpellations have been nmde must be presented
to the external forum and must be eonfirmetl by the
testimony of two wLtucsses or by any other legitimate
juridical process/''

For the lawfulness of the interpellations it is re-
quired tliat they be made after the reception of bap-
tism, though tiieir validity would not be impaired
should they be made before the reception of that sacra-
ment. The course generally to be observed is the same
as that prescribed for any other juridical process,
though it would sufficiently serve the purpose if it were
informal, consisting of merely summary proceedings
instituted by the converted party's Bishop or his dele-
gate." The infidel party must be summoned by the
ecclesiastical court by letter in order that in the pres-
ence of an authorized judge he may give an oral an-
swer to the two questions forming the burden of the
interpellations. The letter should not be lacking in the
formalities required of an official document. The name
of the summoned, of the summoner and of the judge
should be inserted in it, and it should give concise in-
formation as to the nature of the cause to be handled.
The place and date at which the summons was served,
and at which the cited person is to appear must be
clearly stated. The questions are to be asked in the
presence of the judge who represents the converted
party and of two sworn witnesses," If a negative an-

"Con. In. Can., Can. 1122.

"8. C. 8. Off., 11 iul., 1886; WeaNB, op. cU., u. 703; OASPAiu, op.
cU.. B. 1089; 8. C. ile Prop. Fi.le. 21 iul., 1821.

" Putzw, op. fit., n. 126; ZiTEixi, op. Fit., p. 122; Manseu-a, op. «*(.,
p. 430.

406 The New Church Law on Matrimony.

swer is given to the first question, the party should be
asked whether he or she consents at least to peaceable
cohabitation, which is the minimum requirement the
law exacts. After a negative answer to this question
the judge should pronounce the sentence which will de-
clare the converted party free to choose whether he will
contract another marriage or embrace the religions
state or remain celibate. If the infidel party consents
to peaceable cohabitation, the first marriage retains its
force without any necessity of renewing the consent.
The adjudicated case should be recorded and after the
document has been signed by two witnesses and coun-
tersigned by the judge it should be placed in the
archives of the Episcopal Curia for future reference,
should any occasion require such reference."

564. The interpellation once made need not be re-
peated, no matter how long a time may elapse before
the converted party decides to take another consort,
provided the conversion of the other party does not
precede such a step.

The law concedes to the infidel consort the right to
ask for time for deliberation.^® No one but the Ordi-
nary is authorized by law to refuse or to grant such a
wish. Cliarity and justice demand that this right ho
not denied to the infidel party unless the delay occa-
sioned by the granting of the request would seriously
jeopardize the faith and the morals of the converted
spouse. Should the wish be granted, the ease does not
become adjudicated until the time allotted to the infidel
p^rty for reflection has expired. Should the infidel con-
sort neglect to declare his intention before the expira-
tion of the allotted time, his neglect would be construed
as a tacit unwillingness to subscribe even to the mini-

"Conr. Pirn. BiiUim. Ill, p. 287, §45.

^'^S. ('. de Prop. Fide, 27 iui., 1820; S. C. S. Off., 12 iun., 1850.

Separation of Consorts.

407

iniim requirement, namely, to live peaceably and sine
contumelia Creatoris with the baptized spouse.*"

566. The foregoing juridical process may not al-
ways b<? feasible, and may even be impossible, when,
for instance, the cited unconverted party declines to re-
spond to the summons. In such a ease it will suffice
that the converted party either in person or by proxy
interview the unconverted consort in the presence of
two witnesses and ask an answer to the two questions
explained above. The answer nmst be communicated
to the Ordinary or his delegate and after the converted
spouse and the two witnesses have conlinned it by their
oath it will constitute full proof justifying a declaration
favoring a continuance of cohabitation or a separation
■with the privilege of remarrying, as the case may war-
rant. The infidel party may declare his intention by
letter, provided it is corroborated by trustworthy wit-
nesses. If the interpellation is made privately, namely,
without any witnesses, and the baptized consort com-
municates a negative answer to the external forum,
Buch evidence would influence the ecclesiastical court to
deride in favor of the discontinuance of cohabitation
but not in favor of remarriage.

566. If the interpellation by virtue of a declaration
proceeding from the Holy See may be omitted, or if
the infidel, either expressly or tacitly, liad given a neg-
ative answer, the baptized consort has tlie riglit to enter
into new wedlock with a Catholic party, unless subse-
quently to his baptism lie gave to the infidel party just
cauee for departure."

The Roman Pontiff is authorized to dispense from
the necessity of interpellating, that is to say, he may
permit the converted party to contract a new marriage

-Beff. 25. B. /.. in Vt°; c. 10, C. XXVTIt. rj. 1 ; 8. C. 8. OB., instr.
(•d Superior. Mtsginu. Petcumi.), 11 iun., lT(iO.
"Cod, Ilib. C*n., Cbd. 1123.

408

The New Church Law on Matrimony.

with another person without any warning whatsoever
being given to tiie infidel party." Having the power
to dispense from the interpellations in toto, a fortiori
has he the power to dispense in parte from them,
namely, from the first or the second part of the inter-
pellations taken separately." But this extraordinary
facility cannot be resorted to without a just cause. In
the former discipline the dispensation had to be re-
newed if the converted party had failed to contract
marriage withm a year after the granting of the dis-
pensation." Since the new Code does not require such
a renewal, it would seem that a dispensation once ob-
tained would not have to be renewed, but would hold
good until used (the same as with the interpeUaiione»
viva voce peractae) provided in the interim the infidel
party be not converted.

567. The Roman Pontiff would be justified in
granting a dispensation from the interpellation when-
ever: (1) The polygjTious convert does not recollect
which of his infidel wives was the first and legitimate
one ; ** (2) The infidel party's place of residence is not
known; (3) The infidel party resides in distant regions
to which safe access is barred;" (4) It is feared that
the interpellations will be instrumental in causing
serious molestations and persecutions to the converted
party or to the Cliristians residing in that locality;"
(5) There is a serious doubt whether the polygjTious

"QRBOORirs SIII. const. "Fnpulit," 25 ian.. 15S5; Benedictls SIV,
const. "In tupTrma," 16 ian,, 1745; S. C. Inq., 16 aug., 1S95;
in Ada Sanrtae Sfdi*. vol. XXIX, p. 564 ff.; 8. 0. dr Prop. Pide. 3 i»n.,
1T77; Feije, op. HI., n, 488; Gaspahri, op, cit., n. 1094 ff.; PirrtM; op.
dt., n. 130.

-8. C. Inq., 5 aug., 1T5B; 4 iul., 1855; 20 iur
Fide, 26 Bept., 183T.

-8. C. de Prop. Fide, 26 inn 1820.

"Pauuis ITT. ronst. "Altiludo;' 1 iun., 1537.

"GREGOiilrB Xni, mnst. "FupuJtJ," 25 i»n., If

1866; 8. C. de Prop.

18^2.

I. C. Inq., 23 n

Separation of Consorts.

409

qu<

iieophyte has actually given proper matrimonial eon-
ly of his infidel wives;" (G) The first legiti
mate wife is not known and it is diffieult to locate her ; '"
(7) The infidel consort fails to intimate her intention
after the expiration of the stipulated time; (8) There
is a well-founded belief that the promises of the infidel
party were fictitious.

5^. If the Holy See should dispense from the
necessity of interpellating, or if the infidel party
should respond negatively to both or only the second
question, (even if in this hypothesis an affirmative an-
.ewer were given to the first question) the converted
rty would be free to contract a second marriage,
'he new Code states the condition on which this free-
dom is based, namely, provided the selectpd consort is
a Catholic, It is understood that marriage would he
valid and also licit even if a dispensation from the im-
pediment of mixed religion or from disparity of wor-
ship should have to be obtained, the other consort
being a non-Catholic. Such a dispensation, however,
is very seldom given for the reason that the second
marriage in the case would not he altogether in favo-
rcm fidei.

569. If after the reception of baptism the converted
i«onsort was guilty of an offense justifying the deser-
tion by the infidel party, the baptized spouse would not
be free to contract a second marriage. Such a just
cause of desertion would be adultery committed after
baptism. The same moral offense, if committed before
baptism, would not be a just cause, for such guilt is
washed away by the reception of the sacrament.

570. Dispensation from interpellation has the effect
if upholding the validity of the second marriage even

l»):iG; IS n

Piiiitifiru

>. C. Inq., 22 n

410 The New Church Law on Matrimony.

if the subsequent investigation should disclose the fact
that the infidel consort was prevented from declaring
his or her mind, or even if he had embraced the true
faith at the very time the second marriage was con-
tracted.""

The question might be asked : How can such a juridi-
cal effect be attributed to such a dispensation! It is
certain that the Pauline Privilege does not in se justify
such far-reaching results. In answering the proposed
question the authors are divided. Some maintain that
such a dispensation is a mere extensive interpretation
of the Pauline Privilege which the Boman Pontiff has
the right to give by virtue of his supreme ecclesiastical
power. Others contend that he actually dispenses.
The two opinions are seemingly in conflict, but if fol-
lowed to their final analysis they agree, for both admit
the absolute dissolution of the first matrimonial bond
and the validity of the second marriage.

571. It is evident that a dispensation from the in-
terpellation may be given not only by the Head of the
Church but also by his delegate. Needless to say that
in ))()th eases the validity of the dispensation depends
on th(» presence of a just eause.®^

The authors are unanimous in maintaining that the
supreme ecclesiastical legislator has the power to dis-
solve marriages contracted in infidelity but not con-
suinniated either before or after the reception of bap-
tism, regardless of whether both consorts have become
(M^nvorts to the faith or only one of them. This right
(*an 1)(^ claimed on the ground that the bond of such
man-ia^es is not firmer than that of a ratified mar-
riage. If the Roman Pontiflf may dissolve the rtiar-
ria.Gfo bond in the case of a non-consummated Christian

"^("tRFXJORirs XTir, const. *'Popu1ut," 25 ian., 1585; Benedictus XIV,
const. "//{ suprrma rathoUrar,"' 16 ian., 1745; Synodus DweresarM, Yi^-
XIII. i'n|>. XXI, n. ,").

" Wkknz. ()/). cit., n. 704.

Separation of Consorts.

411

marriage, a fortiori may lie dissolve that bond in the
proposed ease. The authors agree that the Visible
Head of the Church would exceed his power should he
attempt to dissolve the marriage of two infidels while
they remain in infidelity, or after their conversion and
subsequent consummation of the marriage.

572. Formerly it was a controverted question
whether the Roman Pontiff has the power to dissolve
a marriage contracted and consummated in infidelity,
but uneonsmnmated after tlie conversion of both con-
sorts or of one of them. Several authors deny him
such a right,"' others again vindicate it."' Thougli
such marriages are consummated in infidelity, pro-
vided no new consummation took place after the con-
version of one party or of both of them, they are to
be regarded as non-consunmiated marriages between
two baptized persons or between a baptized and an un-
baptized mdividual. But the new law states that the
Holy See has a right to dissolve such bonds provided
there is a just cause.

It cannot be denied that such marriages have actu-
ally been dissolved by virtue of special papal decrees,
and since so far-reaching a right is not to be sought in
the Casus Apostoli it must be concluded that it is de-
rived from the plentitude of pontifical j)ower."*

573. The converted consort does not lose the right
to contract a new marriage with a Catholic, and may
resort to it, even if marital relations with the infidel
party were re-established after the reception of bap-
tism, provided the infidel party, having changed his

■PnjB, op. pit., n. 802: Pontius, IX, II; ScHMALZQiit'BEB, IV, IX,
n. BO; VAaquB!. De matr. diap.. II, cap. VI, n. S8: Bbnediotuh XIV.
Quaeit. Can., q. 548; De Synodo Duieeemna, lib. VI, cap. IV, n. 5; lil).
Xm, cap. XX!, n. 4.

"Oaspauu, op. eit, n. 1108; NAViHRoa, Con»U., lib. Ill, D< eonvfrf.
infid., Oonsil. Ill, n. 13 {VcnaliiB, 1621) ; SAHf^HBi. lib. II, disp. X\1I;
St. Alphomsus, lib. VI, n. 958; SoAViNt. Ill, n. 983 et Hiil.

"Wrasz, op. at., n. 705; Gasfarki, up. eil., a. 1109.

412 The New Church Law on Matrimony.

or her mind, subsequently deserts the converted party
without just cause or does not continue to cohabit
peaceably without offering insult to the Creator.**

This law is based on the Pauline Privilege. After
the conversion of one of the infidel consorts matri-
monial relations should be restored provided the other
consort, though remaining in infidelity, promises to
cohabit peaceably. This is a conditio sine qua non of
the re-establishment of former marital relations.
Should the infidel party prove untrue to the promise
the converted party's right to another marriage would
revive, even if after baptism the marriage contracted
in infidelity had again been consummated. In order
that such a right may assert itself, it is required that
the converted spouse should not have given a just
cause for the departure of the infidel consort. The
new Code states furthermore that the other party to
the second marriage must be a Catholic, but this is not
required ad validitatem provided the proper dispensa-
tion has been obtained.

574. Things referring to marriage in the Constitu-
tions of Paul III '' Altitudo^' issued on June 1, 1537;
of Pius V, **Rornani Pontificis/' on August 2, 1571:
and of (Jregory XIII, ''Populis/' on Jaimary 25, 1585,
though intended for particular places are to be ex-
tcMuled also to other regions provided the circum-
stances are the same.®*

The three foregoing Constitutions contain the most
important legislation regarding the extensive interpre-
tion of the Pauline Privilege. In the former discipline
it was questionable w^hether these decrees were to be
applied to all places or only to those places for whose
special benefit they were issued.*"" The new^ law dispels

"Cod. Tur. Can.. Can. 1124.
••Cod. Tur. Can., Can. 1125.
"' W^ERNZ, op. cit.f n. 705.

Separatum of Consorts.

413

all doubt on this subject hy dfclariiig that they are not
conditioned on territory but only on circiimstancfts.
Should the conditions which they relate be present in
all parts di' the world, the law they enforce would hv.
operative everywhere.

575. The Constitution of Paul 111,°' among other
thmgs, says: Whereas the inhabitants of the Western
and the Southern Indies, though unacquainted with
divine law, have rooted out from their liearts and
minds the errors that heretofore guided them and wish
to embrace the truth and the unity of the Catliolic
Church; and, whereas, they desire and intend to live
according to the teachings of that same Church, the
foHowing is decreed by us as regards ttieir marriages:
Those who according to their custom have practiced
polygjTiy before their conversion and do not recollect
who their first wife was, may select after their conver-
sion to the faith one of their former wives and accord-
ing to the law enter with her into marriage. Those
who remember whom they have married first sliouhl re-
tain her and dismiss all others. Furthermore, until the
Holy See ordains otherwise, a relationship in the third
degree of consanguinity or affinity should not he re-
garded as an obstacle to their marriage.

576. The Constitution of Pius V is more compre-
hensive. Because, it says, the Indians, while they re-
main in infidelity, practice polyg>Tiy and repudiate
their wives even for the most trifling reasons, it was
permitted by the missionaries that those who receive
baptism may remain with the wife who sinudtaneously
becomes a convert with the Imsband. Since it happens
very frequently that such a wife is not alwavs the one
they have married first, the Bishops and the priests
were tormented by grave scruples, thinking that no

414 The New Church Law on Matrimony.

valid marriago was contracted under the circumstances.
Since it would be most cruel to separate the Indians
from the wivc^s who have become converted with them,
and since it would be a difficult task to locate the first
wif(s therefore we decree, by the plenitude of oxir apos-
tolic power y that the Indians who were thus baptized or
are to J)e baptized in the future may remain with the
wives who have become baptized or shall become bap-
tized with them, and should dismiss all the others. By
virtues of the tenor of this letter we declare such mar-
riages valid.

577. The Constitution of Gregory XIII is the most
extensive of the three. It is of frequent occurrence, he
says, that many infidels of both sexes, but especially
men, after having contracted a marriage according to
pagan rites in Angola, Ethiopia, Brazil or some other
part of the Indies, are captured by their enemies and
transferred to regions very distant from their country
and their wives. After their conversion the long inter-
v(»ning distance renders impossible the interpellation

of their former infidel consorts as to whether thev are

willing to cohabit with them sine contiimelia Creatoris.
AVhoroas marriages contracted by infidels are not so
ratified that thev could not be dissolved if necessity so
(l(Mnands {ut necessitate suadente dissolvi non posmt)
\vo give permission to the Ordinaries, the parish
pric^sts, and the missionaries of the Society of Jesus to
(lispcMise the converted inhabitants of those places so
tliat if thov should had married before their conver-
sion they may solemnize marriage {in facie Ecclesioe)
Avith any Christian, even if he be of another rite, with-
out requiring the consent of their living consort, and
witlnnit being constrained to await her answer. AVe
furthermore decree that after they have consummated
siidi inarriagi^s they may remain in them licitly, pro-
vidinl it has been ascertained, at least by a summary

Separation of Comforts.

415

extra-judicial process, that the absent consort could
not be legitimately warned or that slie failed to inti-
mate her will within the specified time. Such mar-
riages should never be rescinded but must be regarded
as valid and firm and the cliildren born of them as
legitimate even if subsequently it should be learned
tliat the first infidel consorts were justly prevented
from declaring their will or at the time of the con-
tracted marriage had already embraced the true faith.

The decree of Gregory XIII shows clearly that the
Roman Pontiff exercised a power which far exceeds
the limits of the Pauline Privik'ge, and which presup-
poses the objective dissolution of the matriimmial lioml
begotten by ratified marriages consummated bi'fi)re
conversion but not after.

578, As regards the automatic dissolution of the
marriage bond by virtue of Pauline Privilege the new
law says: The bond of the first wedlock entered into in
infidelity is dissolved only at the time when the con-
verted party actually contracts a new and valid mar-
riage."

This canon does not introduce any new teaching. It
has always been believed that the bond contracted in
infidelity is not dissolved either by the reception of
baptism or by mutual consent, nr by the refusal of the
infidel party to consent to peaoeable cohabitation. It
is the second marriage which causes an absolute sever-
ance of the bond of the first and sets free the infidel
consort.'"" It must be borne in mind that such an ef-
fect follows only upon a validly contracted second mar-
riage, which in turn presupposes that the converted
party has the right to enter into another wedlock.""

-Cob. Iuh. C*n., Can, 1120.

■"Bbnkdictdb XIV, ep. ••Poxiremo mBiwr," 2S Mir., 1747, iT.VIT;
tonal. "Apantohci mtasionarit," 16 sept., 174T.

'•'8. C. 8. Off. (Cochinchin.), 1 auK-, 1759, ad 2, 5; (NaliilJ, 11 iul..
1B66; B. C. C, Fiorentimi, 27 iul, 1726, 2B ninrt., 1727.

416 The New Church Law on Matrimony.

579. In doubtful matters the privilege of the faith
is favored by the law.^®^

By the privilege of the faith to which the foregoing
canon refers is to be understood the freedom of the
converted party to enter into another marriage. In
all doubtful matters connected with the Pauline Privi-
lege the convert is to be favored. If the validity of the
first marriage is questioned, or if it is doubtful whether
the conditions prescribed for the application of the
Pauline Privilege are present, the converted consort
should not be prevented from contracting another mar-
riage. The same is to be said when a doubt is enter-
tained as to whether the act committed bv the con-
verted consort after the reception of baptism was a
sufficient or an insufficient cause for the departure of
the unbaptized consort.*^'*

//. Separation from Bed, Board and DtveUing.
(Canon 1128— Canon 1132.)

580. The first chapter of this article treated of the
al)solute indissolubilitv of a ratified and consummated
marriage as well as of the conditions which justify the
absolute dissolution of the matrimonial bond con-
tracted in infidelity. This article does not concern
itself with the vinciihim, it merely states the causes
which justify the separation of the husband from the
wife, or vice versa, without the matrimonial bond being
broken.

The community of bed, board and dwelling place is
required by the very nature of marriage, but, since it
pertains only to the integrity of marriage and not di-
rectly ad substantiam, the consorts are excused from it

'"^ (^OD. TuR. Can. Can. 1127.

"" S. C. S. Off., instr. (ad Ep. S. Alberti), 9 dec, 1874, n. 13, 18 maii,
1892, ad 1, 2; 19 apr., 1899; instr. (ad Archiep. Quebecen.), 16 sept.,
1824, ad 1.

Separation of Consorts.

417

Trhcnever there is a just cause."" This has been the
discipline of the Church from the tiine of thv
Apostles.'"* Such a just caus(! very often arises by
force of circumstances under which the husband or flic
wife lives and to which tliey both become reconciled.
In other cases certain reasons justify tlie violent sev-
erance of the bond which united the two contracting
parties in a community of bed, board, and dwelling
place, the matrimonial vinculum continuing nndis*
solved. The Clmreh has always claimed the right to
grant to her members a separation from bed and board
whenever there is a just cause; and when her practice
was attacked by the self-eonstituted pseudo-refurniers
she has anathematized them in the Oouncil uf Treiit.'""

581. The just causes of separation may be twofold,
namely, intrinsic and extrinsic to marriage. The new
Code legislating on the former says: On account of
Adultery committed by one consort, the other consort,
though the bond remains, has the right to discontinue
tlie comnmnity of life even permanently, unless he con-
sented to the crime or was its contributory cause, or
«ondonod it expressly or tacitly, or committed the same
crime himself. By a tacit condonation is understood a
spontaneous intercourse with marital affection that the
innocent consort had with the other after he became
certain of the crime of adultery. The tacit condonation
lis presumed unless within six montlis he had banished
or deserted the adulterous consort or made a legitimate
accusation.'"

Adultery taken by itself has always been eonsidered
a just cause for separation. It intrinsically antagon-

*CoD. luR. Can-., Can. 1128.
"Matt. V, 31. 32; XIX. B; T Cnr. VU, U, 12.

"S»^0 XXIV, Dd »aeramenl/> malrinonit. cbii, VHl ; Euokmus TV
{In Cona. Plorpnt.), eonet. "ExuUalf Den," 27 nov., 1439. (10; Bknk-
^ tros XrV, rp. "HupeT ad no*." 16 mart., 1743.
'^COD. Iu». Can., Can. 1129.

418 The Xeic Church Law on Matrimony.

izes the unity of marriage, and it is the only cause
mentioned expressly in the Sacred Scripture.*^' The
Gratian collection contains several ecclesiastical enact-
ments handed down from the early ages of Christianity
which forbid the Christian consort even to cohabit with
the spouse guilty of adulter}\*'** The right to separa-
tion belongs to the innocent consort by virtue of divine,
natural "*^ and positive law."*

582. In order that adultery may be a just cause for
separation, it must be :

1. Formal, not merely material. The consort must
be guilty of adultery in fact."* Should he erroneously
believe that his relationship was with someone else
while in reality it was with his own wife, the act,
though sinful, would not constitute a sufficient cause
for separation.

2. Committed with full consent of the will. There-
fore adulterv to which one was coerced bv violence or
fear, would not suffice."' The same is to be said should
the act be committed in the state of unconsciousness or
semi-consciousness, provided the guilty party did not
resort to such a state for the express purpose of being
(exonerated from the consequences which such an act
entails.

3. Morally certain. A mere circumstantial evidence
would not suffice to pronounce the consort guilty of
adultery unless several other indications should point
to the moral offense and should justify the presump-
tion that it was actuallv committed."*

'"•Matt, V, 19.

'"C. 4, C. XXX, q. 5: e. 2, C. XXXII, q. 1 ; c 18, 19. 21, 22, C
XXXII, q. 5; c. 1, C. XXXII, q. 6; c. 1-8, 10, 17, C. XXXII, q. 7.

"*" Sanchez, op.cit., lib. X, disp. Ill, n. 4; Wernz, op. cit., n. 707.

'" ('. 9, X, de s'ponjialibus et fruitrimoniis, IV, 1 ; c. 19, X, de conver-
sione coniugaiorum^ Til, 32.

"" ('. G, X, de eo qui cognovit cnnsanr/uineam uxoris suae vel sponsae,
IV. ]',].

'"(\ 3 6, (\ XXXII, q. 5.

''*('. 12, X, de praesumptionibus, II, 23; NoLDiN, vol. Ill, n. 666.

Separation of Consorts.

410

4. Consummated, and not merely begun, namely, the
taiioii muRt he such that it is in itself fitted for pro-
creation,"° In doubt such a consummation may l»e pre-
sumed.

5. Against the will of the consort. In olhcr words,
the other spouse should not give his tacit consent by
neplecting to take some means of preventing tlie crime,
when he is in a position easily to do so. Therefore if
the other consort either consented to the crime, or was
its instnmientai cause, or its instigator, he would for-
feit the right to separation.'"

, One-sided, not counteracted by a similar guilt of
the other consort. If the guilt of one consort was
known to the other, and this other committed a similar
ofTense in secret, the party whose crime is secret would
jiave no right to separation in the eyes of the internal
forum, though the external forum would grant such a
right merely on the ground of lack of infonuatinn.'"
7. Uncondoned, namely, neither an express nor a
tacit act on the part of the innocent consort sliould in-
dicate that he has pardoned the crime and is recon-
ciled. If the innocent spouse, notwithstanding the fact
that the moral offense of the guilty consort was known
to her. continues to cohabit with him in marital rela-
tions, her conduct would he interpreted as a tacit con-
donation. A tacit forgiveness is presumed if the inno-
rent spouse refrains from dismissing or abandoning
the guilty consort, or from duly denouncing him within
six months after the crime became kno^^^l to her.""

B3. The common opinion, says Oasparri, permits
tliP innocent consort to separate from her spouse even

GtRPAiuti, op. fit., n. 1112; Weasz, op. HI., n, 707.
C. 6, X, dr en qui ognnvil coiuangnintam uxotU ■hiw vf tiimtuar.
tV. 13.

"•C. n, 7, X, dr iDiutlrriw et Ktvpro, V, Ifi; MiiRINo, Thrnlopia
JfoTolu. vnl. II. n. 812 (NeHpnIi, 1912) ; St. Alphonbus. lib. VI, n. M6.
"•SAMrHBZ, lib. X, disp. IV, n. 10; SchmalzgbI'beb, h. I., n. lOS;
BkiptenetI'l, h. i., n. 71.

420 The New Church Law on Matrimony.

for th(» crime of sodomy or bestiality.**® While it must
be admitted that such an act implies divisionem carnis
cum alio, it is not adultery in the strict sense of the
term. Therefore, since the new law is to be interpreted
strictly, and smce it makes no specific mention of them,
it would seem that such an opinion can no longer be
advocated.

584. The innocent consort, after he has departed
lawfully, whether as the result of a judge's sentence
or by his own authority, is never again bound to admit
the adulterous consort to a community of life, though
he may do so ; or he may recall her unless with his con-
sent she embraced a state incompatible with mar-
riage.*^^

The innoc(»nt consort lawfully separated is never
obliged ex iustitia to re-establish conjugal cohabita-
tion with the adulterous spouse. Her right, however,
to recall him remains intact, and sometimes ex caritate,
or in order to avert some serious public danger, she
might be advised to take back the reformed consort.
Mor(M)ver, such an obligation could even be imposed
on lior if the crime of the guilty consort was counter-
l)alaneod by her commission of a similar moral of-
fenso.^^^ Tlie right of the innocent consort to recall
the guilty one to cohabitation would be forfeited if
with hor consent the adulterous spouse had embraced
the religious state either by the reception of Holy
Orders or by solemn religious profession.*"

585. Adultery is the only intrinsic cause justifying
a perpetual separation. For a temporary separation
a toro, viensa et cohabitatione even extrinsic causes
would suffice. Of these the new Code says: If one of

"• CoNSCi, De separatione tori coniugalis, II, XIII, n. 25 ; Sanchez,
Inc. rif., n. 3 ff.; Wernz, op, cit,, n. 708; Gasparei, op. cit., n. 1112.
"'"•Cod. Ti'R. Can., Can. 1130.
'" r. 3, X, dr aduUerii^ ft .stupro, V, 16.
•"Gasparri, op. cit.^ n. 1114; St. Alphonsus, lib. VI, n. 967.

Separation of Consorts.

421

Uie consorts affiliates hinist>lf with a non-CathoUo sect:
if he rears the t'hild in a noii-Catholic spirit; if he
leads a criminal and scandalous life; if he occasions
grave danger to the soul or body of the other consort:
it his cruelty renders a community of life very diffi-
cult; these and other causes of a similar nature are
just causes for the departure of the other spouse by the
authority of the Ordinary of the place, or even by pri-
vate authority, provided the causes are evident and
tliere is danger in delay. In all these cases, tlio cause
of separation having ceased, the community of life
8)iould be restored. If the separation was declared by
the Ordinary for a certain or indefinite time the inno-
cent consort is not obliged to conjugal relati(ms. ex-
cept by a decree of the Ordinary, or after the expira-
tion of the specified time.'"

No serious difficulty will be experienced as regards
the foregoing causes of separation. It nuist be borne
in mind that these causes are not taxutive. propositae
and there are many others that would justify the same
course. The law makes a wise provision by referring
the aggrieved consort to the Ordinary of the place, who
is to decide whether his grievances would justify a sep-
aration. On his own private authority the offended
party may effect such a separation, but only on condi-
tion that the cause is self-evident, and that there is
danger in delaying until the case is laid before the
Ordinary. Even in such cases the innocent party,
after having withdra^sTi from the guilty consort, should
submit his complaints to the ecclesiastical superior in
order to have his act officially ratified by the Church.

586. The apostasy of which the foregoing canon
speaks must consist in a public enrollment of the con-
sort in a heretical or schismatic or infidel sect. Apos-
tasy must not be confounded with affiliation with a for-

■■CoD. Tub. Can.. Can, 1131.

422 The Neiv Church Laiv on Matrimony.

bidden society or with indifference displayed toward
one's faith. The non-Catholic education of the off-
spring must be actual and continued. If the child were
at liberty to receive both Catholic and non-Catholic
education, no just cause for separation would be af-
forded. Criminal and scandalous living, whether pub-
lic or known onlv to some of the immediate members
of the family, would also be a sufficient cause for sepa-
ration. Such living would be verified in case of
sodomy, or bestiality, or addiction to acts redounding
to the disgrace of the family, or occasioning serious
danger of civil penalty. By grave spiritual danger is
understood an endeavor on the part of the consort to
induce the other spouse to grave sin, like adultery,
onanism, abuse of the marriage rights, theft, etc. To
the grave corporal danger would contribute causes like
fatal contagious disease, insanity, etc. The term cruel
treatment could be applied to very frequent and seri-
ous dissensions, and to the avarice of the husband
denying to the wife the necessary victuals or remedies
in time of sickness.'-* To these could be added the in-
toh»ral)lo prodigality of the consort, an uncalled for
cl(\sortioii, avidity of the husband menacing the private
fortune of the wife, etc. Whatever may be the nature
of the cause for separation the consorts should not
seek it at the bands of the civil court, without having
first consulted the proper ecclesiastical authority.'"'
The causes are not to be judged objectively only. The
subjective disposition of the aggrieved consort must
also be taken into consideration.^^®

587. It nmst be noted that bv mutual consent the

"^Gasparri, op. cit., n. 1117 flf.; CoNsci, op. cit., IT, V, n. 1; San-
chez, lib. X, disp. XVTI; Reiffenstvl, TV, VTII, n. 81; St. Al-
PHONSUs. lib. VI, n. 971; Wernz, op. cit., n. 713; Breitenbacu, />j>
Trennung von Tisrh und Beit, pp. 26, 27 (Luzern, 1908).

'^^ Cone. Plen. Balfimorense, III, ii. 126.

'*• NOLDIN, op. cit., vol. HI, n. 669.

Separation of Consorts.

423

consorts are at liberty to separate for a lime For any
just causo, or ovon for no cause whatever, provided the
danger of incontinence is absent.

"18. After a separation has been effected on ac-
count of the guilt of one of the consorts, the children
are to be reared by the innocent spouse, or, should one
of the parties be a non-Catholic, by the Catholic con-
sort, unless in both eases for the welfant of the chil-
dren the Bishop ordains otherwise, having always at
heart their Catholic education.'"

If the presence of a cause for separation is estab-
lished with certainty in a particular instance, the inno-
cent consort is always to be entrusted with the care of
rearing the children. In case the other consort is non-
Catholic, the Catholic spouse, uotM'ithstanding his
^ilt, should get the preference as regards supervision
over the offspring, for it is naturally supposed that
their rearing in the faith will thus be in safer hands.
Should this supposition fall before a cotitrary proba-
bility, the Ordinary may rule that the children he com-
mitted to the solicitude of the innocent non-Catholic
Bpouse. In taking this step the Bishop must be actu-
ated exclusively by the spiritual and temporal welfare
of the children, always permitting the former to pre-
dominate.'"

Cod. luiu Can.. Can. 1132.

8T. ALPHONsrs, tih. VI, n. 976; Sanchw;. lib. III. ciiap. X.V;
QasPaW, op. fil.. n, 1119: WBRKK, np, nt.. n, 714; Aftn Snn-tnr SfHi*.
.*0L n, p. 138: c. 2, X. de eomrrtionr in;Wr(Mim, III, 33; BcsnucriTB
fflV, eoMt. "Probt;' 15 Aft., 1751, 418.

CHAPTER XIII.

The Validation of Marriage.

7. Simple Validation.
(Canon 1133— Canon 1137.)

589. To validate marriage is equivalent to contract-
ing it anew. The new law classifies the invalid mar-
riages into three categories, namely, according as their
invalidity resulted: (1) From a diriment impediment;
(2) From lack of consent; or (3) From lack of the
proper form. The effects of a validated marriage
when correlated with illegitimate offspring have al-
ready been explained in another part of this book.^

1. Marriage Invalid on Account of Impediment.

For the validation of a marriage whose invalidity is
owing to the presence of a diriment impediment, it is
required that the impediment cease or be dispensed
from, and that the consent be renewed at least by the
si)()uso who is aware of the impediment. The ecclesi-
astical law requires the renewal of consent for validity,
notwithstanding the fact that in the beginning both
consorts have given consent and that their consent was
not revoked subsequently.^

Some impediments cease without the necessity of
liaving recourse to a dispensation, as, for instance, the
im])odimont of age, of abduction, of ligamen, of dis-

' S(H» this work, n. 540 flf.
M'OD. TuR. ('AX., Can. 1133.

424

Validation of Marriage. 425

parity of worship, etc. Other impediments require
the intervention of an autliorized dispenser, such as
that of affinity, ronsangiiinity, spiritual relationship,
etc Tt is immaterial to which of the two classes of
impediments the marriage owes it invalidity; in both
hypotheses, besides requiring that the impediment
either cease automatically or be lifted, the ecclesiasti-
cal law prescribes also a renewal of consent as a
conditio sine qua non for the validation of the mar-
riage.

590. This renewal of consent must be a new act of
tiie will consenting to the marriage which, it has been
discovered, was invalid from the very beginning.'

The required renewal of consent is not imposed hy
virtue of natural law, for if it were .'=0 imposed the
Church could not validate marriages by means of a
nanalio in radice, as this act implies a dispensation
from the necessity of renewing the consent. Ordi-
narily, therefore, the ecclesiastical law requires that
the parties whose marriage is invalid on account of an
impediment should not only be freed from the impedi-
ment (either by its automatic cessation or by dispensa-
tion), but should also renew their consent, thus to vali-
date their marriage by a new act of the will.* This
duty will devolve on them even if their original con-
sent perseveres. By insisting that the renewal of eon-
wnt must be a "novus I'oluntatis actus" the new law
implicitly presupposes that the nullity of the first con-
sent is known to one party or to both.

891. Sliould tlie impediment be public, the consent
is to he renewed hy both parties in tlie form pri'seribed
by law. Should it be occult but knowni to both parties,
it will suffice if both renew their consent privately and

•Coo. It'B. Cav.. C«n. 1134.

■8. C. 8. Off., S iun., lS3fl; (fkichinrhin. Occident.), 13 iun., 1850,

426 The New Church Law on Matrimony.

secretly. Should it be occult and unknown to one
party, it will suffice if only the consort who is aware
of the impediment renew his or her consent privately
and secretly, provided the other party's consent
perseveres/

As regards the first part no doubt can be enter-
tained. A marriage whose nullity is of public knowl-
edge requires a public validation for various reasons,
such as the avoidance of scandal, the protection of the
good name of the parties and of the offspring, and the
sanctity of the sacrament. Such validation implies the
employment of the proper form of marriage prescribed
by canon 1094, and explained under number 452 and
following. The indispensable condition of such form
is the presence of an authorized priest or the Ordinary
of the place and two witnesses. A marriage thus vali-
dated will be accepted by both forums.

592. Since the public validation of marriage is al
ways connected with more or less inconvenience and
very frequently the good name of the reputed consorts
and their offspring is at stake, the Church permits a
private and secret validation provided the impediment
is occult, namely, no one but the contracting parties
having any knowledge of it. The words ''privatim et
secret o'' relieve the consorts of the obligation of re-
newing their consent by having recourse to the form
mentioned above.

Even this requirement is modified should the pres-
en(*e of an impediment be known only to one of the
reputed consorts. In that hypothesis, should it be ad-
visable to leave the other spouse in good faith, as is
generally the case, the renewal of consent need not he
reciprocal. Such was the principle on which the Sa-
cYO(] P(Mntentiaria has acted for a long time before the
priMniil^ation of tlu* new Code. This mode of renew-

H'OP. li'R. Tan., Can. 1135.

Validation of Marriage.

427

ng consent presupposes that the consent of the other
tarty, who is ignorant of the impedimetit, perseveres.
The authors suggest various ways to facilitate the re-
lewal of consent under such cireuinstances." These
pays are very seldom practicable for they are lialile
o arouse suspicion in the unsuspecting consort.
Pherefors the new law legislates wisely when it says:
^'Satis est nt sola pars impedimenti conscia consensum
privatim et secreto renovet." Such a private and
(ecret renewal of consent would be effected by the
soujugal act performed with matrimonial iuteiit, with
Jie consort whose consent persevpres."

3. Marriage Inimlid for Want of Consent.

693. A marriage wliose invalidity is owing to want
it consent is validated if the party who has failed to
sonsent gives his eon-sent, provided the consent given
)y the other party perseveres. If the want of consent
Iras merely intenial, it suffices that the party who did
iot consent should consent internally. If tlie want of
sonsent was external also, it is required that tlu* eon-
lent be manifested externally also, cither according to
Ihe form prescribed by law, if the want of consent was
^blic, or in some other private or secret way, if it was
>eeult.'

The foregoing canon treats of the hypothesis from
irhich want of consent may result. Consent, being
Ihe essence of marriage, begets the marriage contract
md without it no contract can exist, for no power can
mpply a consent that is wanting. For this reason the
■w of the Church insists tliat a marriage null for want
»f consent cannot he validated unless the party who

WnNE, op. «■(.. n. 651; Noldin, vol. Ill, n. 059; Uk Smit, op. ei"(.,

410.

'C, 7, X, (Jr ro, <7ui daxlt in
rimn, IV, 7; 8. C. 8. Off., 12 ii
'Coo. lUR. Can., Cnn. 1I3B.

quam potlvil prr adul-

428

The Neiv Church Law on Matrimoni/.

withheld his fionsent at the time the marriage took
place should ratify it subsequently by aotually and
freely consenting to it." Until tliis is done the mar-
riage is invalid, and even if it should be done the mar-
riage would be null unless the other party's consent
perseveres.'" If the consent was given only externally,
as, for instance, on account of fear or violence, or
fictitiously, or erroneously, in all these suppositions
the marriage would be invalid for want of internal
consent. In that case the validation of marriage would
require an internal renewal of consent, on the part of
the consort who bad failed to consent internally at tin*
time the marriage was solemnize<l. If the want of in-
ternal consent can be traced to both parties, then both
have to give such a consent. If the proper consent
given by one party ab initio perseveres unrevoked and
the other party consented only externally, the marriage
cannot be validated, unless the latter supplies the
necessary internal consent as a minimum requirement
In this case the new law does not demand that the
party who is in good faith should be infonnod of tlie
nullity of marriage."

It is to be noted that the consent is not regarded as
witliheld unless such an intention is manifested by a
positive a^t of the will. An interpretative withlioldinp
of consent has no force in the eyes of the ecclesiastical
tribunal."

594. Should the want of consent be external its re-
newal will depend on whether it is a pulilic or an occult
fact. In the former case the consent cannot be sup-
plied except by resorting to the prescribed form of

■Wbeni!, op. ci(.. n. 648; Qaspariu, op. cit., n. 1H5.

•'C. 2, 4, X, de eoniugU) gervvrum. IV, 9; 8. C. 6. Otf., instr. (»d
Vic. Ap. OcflaniBe), 6 apr., 1843; 8. C. C, FigUieji., 23 ian„ i:{ iul„ 22
sept., 1725.

" C. 21, 30, X. df sponsalib-us et mafrimoniu, IV, 1; Knje. op. dt~
n. 700; GASPAaar, op. ctt., n. 1143.

■'NOLDIN, lip. nl., Tfil. Ill, n. C57.

Validation of Marriage,

42«J

marriagf. It' the want of external ronspnt is occult it
may be siipi>lied privately and secretly regardless of
whether both or oidy one party liaf> t'aile<l to give till'
proper consent."

k3. Marriages Invalid for Want of I'roper form.
695. A marriage whose nnlUty is owing to the lack
f proper form, in order to become valid, nnist be con-
tracted by means of the prescribed form.'*

The general law contained in the foregoing canon is
not to be interpreted in the sense that it brook.i no ex-
ceptions. The requirement is only relatively neces-
sary, for in certain instances the Church dispenses
from the necessity of baring reoonrse to the proper
form. The insistence on this form can be gathered
from the various decisions of the Holy See.'* ]f the
lacic of proper consent is a public fact the renewal of
consent must also be public, namely, it nmst take place
in the presence of the authorized priest or the Ordinary
of the place and two witnesses. Should it be an occult
fact, the same mode should be used, but the renewal of
consent may take place secretly. In the former in-
stance the proclamation of banns should precede such
a marriage, unless for a just cause a dispensation be
obtained. Such a dispensation should always be
granted if the fact of the lack of the projwr form is
occult.

Not infrequently it happens that the renewal of con-
sent by any of the preceding modes is either imprac-
ticable or even impossible. The sanatio in radice pro-
rides for such cases, to whose consideration will be de-
voted the pages that follow.

"S. C. S. Off., innir, (nA Vic. Ap. Oreanij
-l^OD. Irn, Can.. Can. U37,
••8. C. v.. 2 nuR.. 19(17: Pilnnuir. 13 nov.,
17 marl., 1830.

e), II nrir., 1843.

103S; Sci-ift. SUtus, instr.

430 The New Church Law on Matrimfymtj.

II. Sanatio in Radice.

696. Th<» sanalio of marriage in radice is its valitia-
tioii, ciirryiiiK with it, beKidos dispfnsation fronu ^r
(M*HHati()ii ofy an irnp(HlinH*nt, diKpc^nsation from th^* law
nMjiiirinK a r(»rH*wal of (Mmseiit, and (by a fiction of th»*
law) a retroaction to the past, as regards canonical
efTectn. The validation takes place from the moment
the favor is granted, the retroaction goes back to the
very beginning of the marriage, unless the law ex-
jireHHly ordains otherwise. Dispensation from the law
recjuiring thc^ renewal of consent may be granted
wliether only one of the parties or both are unaware
of the inipecliment.**

Tliis mode of validating a marriage w^as resorted to
first by Bcmifaee VIII (1301), and the principle on
whicli sneh a validation is founded was clearly defined
by (Mem(»nt V." (Jregory XIII, Clement XI and Cleni-
(»nt XII, made us(^ of the sanatio in radice and toward
the end of the eighteenth century such favors were ex-
tended not only to individuals but even to w^hole dio-
ees(»s and extensive territories.^'

i. The Nature of a Sanatio in Radice.

697. TIh» main difference between a simple dis-
IxMisalion aii<l a sanatio in radice consists in the mode
whereby a marriage which is invalid ah initio is vali-
dated. In tlie first instance the renewal of consent i?
n(»e(»ssary. Whether such renewal should l>e requir^i
of l)()th i)arties or only of one, whether it should be pri-
vate or ]mblic, external or internal, will depend en-
tirely on whether onlv one or both parties -withhe).:
tluMr cons(^iit at the time the marriage was celehraTt-c
whelluM' th(^ withholding of their consent was a v-uhly

'M'oi>. IrR. Can., ('an. 1138.

"('. nil. lir imviunHatr rcvlrsiarum. 111, 17, in Clem.

'•Wh-RNZ. "/». ('it., n. 654; Perrone, op. cit., vol. II, p. 167 f.

Validation of Mnrriuge.

431

r an occult act, and whether their consent was given
iternally hut not externally, or vice versa.

A renewal of t-ousent prescribed for only one con-
jrt presupposes tlie continuance of the other party's
uisent. On the strength of this continued eonsf^nt the
arriage can he validated hy means of stin/itio in rtulice
ithuut tlie renewal of such unrevoki'd consent. In the
ise of a simple dispensation the Church does not go
ny further than to remove the ohatacle whicli stands
1 the way of the validity of the marriage. In the second
■stance besides lifting tlie impediment the Church au-
tmatically confirms the continued consent, endows it
ith a retroactive force, and invests it with such jurid-
al and canonical effects that the vitiated acts which

begut formerly become ipso facto ratified.

i. By the concession of a sanalio in radice the
arriage becomes valid ex nunc, namely, from the nui-
icnt the grace is conceded. The canonical effects of
loh validation begin ex tunc, namely, with the time
le marriage was contracted. The most important ol"
ie«e effects is the legitimation of offspring. All chil-
ren are ipso facto legitimated except those stigma-

»h1 as adulterine and saerilegious." These efTects

e the natural consequences of a sanatio in radice
niess a provision in the rescript ordains otherwise in
articular instances.

Every santitiv in radice carries with it a dispensa-

pn from the necessity of renewing the consent, for

ich necessity is prescribed only by ecclesiastical and

t by natural law. The sanatio in radice, however,

nd the renewal of consent are not mutually exclusive

ad the Church very frequently gives the former with

) insistence <m the latter as a matter of penalty, in the

le, for instance, where one ur both parties were in

i faith when they attempted marriage. Should

■*8*e tbia ntirk. n. 173.

432 The Neiv Church Law on Matrimony.

such a condition be contained in the rescript its fulfiD-
inent would be required ad validitatem^^

599. Dispensation from the renewal of consent may
be given without the knowledge of both or of either
of the contracting parties." Should such a dispensa-
tion be granted the objective validity of the marriage
would depend on the answer one could give to the ques-
tion : Does the presumed or alleged consent of the two
consorts actually persevere or notf

2. Conditions Under Which a Sanatio in Radice is

Granted.

600. Any marriage entered into by both parties
with a consent naturally sufficient but juridically inef-
fective on account of a diriment impediment of ecclesi-
astical law or on account of the want of the legitimate
form, may be validated in the root provided the consent
perseveres. A marriage contracted with an impedi-
ment of natural or divine law, even if later the impedi-
ment should have ceased, the Church does not validate
in radice, not even from the moment when the impedi-
ment disappeared."

On the strength of this canon the conditions under
wliieh a sanatio in radice is possible are :

1. A consent naturally sufficient but juridically in-
eflfeetive. This consent, as has already been explained,
must be free, deliberate, internal, personal, outwardly
manifested, legitimate, absolute, and mutually simul-
taneous.-^ Should the consent be lacking in any char-
acteristics necessary to the validity of marriage, no
sanatio in radice should be resorted to. The sanatio

■•NOLDIN, vol. Ill, n. 662; Benedictus XIV, De Synodo Dioecesana,
lib. XITT, cap. XXT, n. 7; Lehmkuhl, op. cit,, vol. II, n. 828.

'»S. C. S. Off. (Taponiao), 11 mart., 1868; instr. (ad Ep. S. Adal-
berti), 9 dec, 1874; 22 aiig., 1906, ad 4; Secret. Status, instr. 27 mart.,
1830.

^CoD. lUR. Can., Can. 1139.

** See this work, n. 397.

Validation of Marriage.

433

1 radice oould be applied it' both parties give their
consent in good faith and with tlie firm conviotion ihat
their marriage is valid; or give the proper consent
even if they were morally certain of tlie invalidity of
their marriage. The new law distinctly states that the
knowledge of the objeetive invalidity of a marriage can
co-exist with the giving of a consent naturally sufficieiit
to constitute marriage." The possibility of a sanatio
radice would therefore depend exclusively on
whether a natural marital consent was actually given
and continues unrevoked, or whether it was not given.
A sanatio in radice would be given even in case one of
the consorts cannot be induced to renew his consent
but there is no reason to fear that his consent was
withheld ab initio or, if given at that time, was after-
wards revoked.'"

2. The lack of effectiveness of the consent must be
due to the presence of a diriment impediment of ec-
elesiastical law. or to the non-comptiaiice with the
proper form of marriage. Any impediment of iv^-lesi-
astical origin can he lifted by a sanatio in radice, and
in case the proper fonti was disregarded the same dis-
pensation can supply it. Marriages null on account of
an impediment whose nature or origin is a matter of
controversy cannot be validated by a sanatio in radice,
BUch would be the invalid marriage of persons related
beyond the first degree of lineal or in the first degree
of collateral consanguinity.

3. Another requisite without which the marriage
eaimot be validated in radice is the presumed persever-
ance of the consent given at the time the invalid mar-
riage was contracted." Under ordinary circuniBtanccs

"Cob. lua. Can., Can. ima.
■Pbu«, op. eit., n. 76T.

■a C. 8. Off. (laponiae), U mart.. 1868; 12 spr., 189fl; 2fl Bug.,
6. ad 3; 8. C. de Pru[>, fide. litt. (ad Coadiut. Superior, Miwiioa. In
on Coromandelj, S iul,, 17SS.

434

The New Church Lair on Matrimony.

the contimiance of such consent is presumed (pn
sumptione iuris tantum). Its revocation would Iiavel
result from a positive act of the will, an interpretatij
act of the will would not suffice. Actions from whl
the discontinuance of the consent could legitimately |
inferred aro, a civil divorce, a separatio a toro J
mensa, etc. It is not required that the consent orii
nally given should persevere morally; its virtual c
tinuance suffices. Such continuance would be implkfl
in continued cohabitation under the same roof .
in conjugal relations. The invalid marriage of i
ceased persons can be validated by means of sanalioi
radicp but only seamdum quid, namely, it may he <
dowed with juridical effects, such as the legitimalJ
of cliildren.''" Such a validation presupposes the viir
tual perseverance of the consent to the moment of
death. If it had been revoked before that time the
sanaiiii in radice, would be void of all objective j
ical value.

4. Sanatio in radice is not applied to invalid i
riages attempted by parties laboring under an imp
ment of natural or divine law, no matter whether t
were in good or in bad faith. The Church does i _
validate such marriages, not even from the momaj
the impediment has ceased.*'

As regards the first proposition it is clear that 1
Church lias not the power to validate a marriage whi
invalidity results from a higher law, like that of i
ural or di\'ine law. After the impediment has ceaw
provided the consent of the parties persevered, stri
speaking the Church couhl apply a sanatio in ra*
but only back to tlie time at which the impediment c
appeared. As a matter of fact the Church has b

"Wehnz, op. (■»., n. 856; Qaspabri, ip. ril.,
cit.. p. eoa.

'., a mart., 1900; 2 niart., 1904,

Validation of Marriage. 43j

donp this in a casp in which the iiiipcdinient of lignmen
(which was thi? cause of thf nullity ol' the tnarriagc)
canip to an pnd " after the dcatli of tht- first husband.
Siic-h a disppnsation would be a sanatio in rndice im-
propria or relaltva, for the period prccediuK the cessa-
tion of the impeditnent would in no way be affected hy
it, nor would the children horn during that time be
legitimated. In this case the words snnatio ex tunc
are to he applied to the moment the impediment of
natural or divine law has ceased. Formerly a sanatl'i
under such circumstances was very seldom granted and
the new law inaugurated a ruling wliich intimates that
the Church does not intend to make use of her power
to validate in this way a marriage entered into witli
Buch an impediment. Should only an ecclesiastical Itu-
p<'diuieiit interfere with the validity of the marriage at
the time it was attempted, and should the impediment
of perpetual and incurable impotency arise subse.
quently to the birth of a child, such a marriage could
bo validated but only secundum qui4. namely, as re-
gards its effects (legitimation of children) up to the
inception of the impediment of natural law. Such
.vanaiin would legitimate the offspring but would fail
to validate the marriage for the future, hecaus<' the
contracting parties were laboring under an inability to
contract it. Feije advocates the absolute validation
even of such future marriage but forbids its use.^"

This case must not be confoundf'd with another in
which a mere concubinage on which tlie impediment of
impotency supervened was followed hy an attempted
marriage. Un<ler such circumstances the remedy of a
swiatio in radice rould not be applied because the
marital and conjugal consent, given in the invalid mar-
riuge, was preceded by an impediment of natural law,"

I. 25 apr.. IHPfl.

436 The New Church Law on Matrimony.

5. The authors generally demand a proportionately
grave cause for a recourse to sanatio in radice. They
hold that in the absence of such grave cause recourse
to sanatio in radice would be inexcusable. Such grave
causes are: (1) If one consort cannot be induced to
renew his consent and yet washes to live in marriage;
(2) If only one spouse is conscious of the impediment
whose existence could not be revealed to the other
without grave inconvenience; (3) If both parties are in
good faith and cannot be apprised of the nullity of
their marriage; (4) If a number of marriages is to be
validated and recourse to the sanatio in radice w^ould
be the most practical method.'^

601. Should one or both parties fail to give the con-
sent the marriage cannot be validated in radice^
whether the consent w^as w^anting from the very begin-
ning, or whether it was given in the beginning but re-
voked subsequently. Should the consent be wanting in
the beginning but given later, the marriage can be vali-
dated in radice from the moment the consent was
given.''

If the consent is given at the beginning of an at-
tempted marriage and it perseveres, the marriage can
be validated in radice. If at the beginning the consent
was wanting but it was given later, the marriage can
be validated from the time the consent w^as given.
If it was given at the beginning but subsequently
revoked, the validation of marriage is an impos-
sibility. If the marriage was attempted and from
the very beginning an impediment of natural or divine
law interfered with its validity, it cannot be validated
7H radicCy except from the time the impediment has
ceased. But the Church does not intend to extend the
favor of a sayiatio under such circumstances. Should

"NOLOIN, vol. TTT, n. 663; Wernz, op. cit, n. 659, note 35.
>*roD. liR. Can., Can. 1140.

Validation of Marriage. 437

such an impediment arise after a certain period of co-
habitation with matrimonial consent, the marriag«
eould be validated as regards its effects up to tlie end
uf that period. If a marriage was null ab initio (on
account of an impediment of ecclesiastical law) and
then an impediment of natural or divine law super-
vened, a vonviiiidatio matrimonii secmutum quid can
be effected up to the period at which the impediment
of natural law arose. This kind of validation would
have the effect of legitimating the offspring bom of
such union during the period' referred to above, but it
would be void of all subsequent effects.

602. The granting of a sanaiio in radice may be a
]mblic or an occult act. If it is a public act the sanatio
should be applied publicly. If it is an oc<?ult act it is
to be applied in the tribunal of penance, though no spe-
cial formalities are prescribed by law. Should the im-
pediment for wliich an occult sanatio was granted be-
come public, a public dispensation must also be ob-
tained. An occult sanatio should be procured and ex-
ecuted secretly by the confessor. lie is to have direct
recourse to tht> Sacred Penitentiaria. His petition
should contain full information as to the consent of the
parties, namely, whether it was given ab initio and is
unrevoked; whether in the beginning it was deniinl but
supplied subsequently; whether it was given in good
or bad faith. The petition must reveal also the causes
which actuated the petitioner, as well as the name and
the correct add.'-ess of the confessor. It is generally
suggested that the confessor should apply the sanaiio
in radice in the tribunal of penance after the sacra-
mental absolution and before the prayer " Passio
Domini."'*

"The ttitm luualljr sug^eitpd runi thus: Ego aactoritate Aposlolicn
mihi eaiif«ssa mslrimoniuni a le eontractum runi N. in radirv cius sunu
et prolem nuweptBm Ugitiiuam deeluro. In nomrae Patris, etr.

43S The \ew Church Law on Matrimony.

603. Sanatio in radice can be conceded only bv the
Apostolic See.*^

The purpose of this canon is not to derogate from
the principle which holds that personal juridical rights
art* ciunuiunicable.** It is a well-known fact that the
Holy See not only may but actually does delegate the
pi>wt*r to dispense by means of sanntio in radice. The
Sacreil Consistorial Congregation decreed that the
Bishops of America should enjoy the faculty of dispens-
ing from any minor impediment mentioned in canon
1042 and also of granting a sanatio in radice for mar-
riages whose invalidity resulted from the presence of
an impeiliment therein mentioned. This faculty is to
last for five vears from the date of concession.^^ The
same faculty authorized the Bishops to dispense for
five years even from the impediments of major grade,
whether public, or occult, or even multiple, provided
they originate from ecclesiastical law (with the excep-
tion of the impediments arising from the Order of the
Holv Priesthood and from lineal affinity when the mar-
riage liad been consummated), and provided the peti-
tion is Si»nt to the Holy See and urgent necessity for
(lisptMisiiig arises l)efore the answer is received. This
last coiulition {si petitio di.^pen.^ationis ad S, Sedem
missa sit e( ur(jens necessitas dispeyisandi supenenerif,
pendente recursu) was subsequently suspended for the
duration of the war. The present faculties of the
Bishops extend over all impedient and diriment im-
pediments of ecclesiastical law (excepting the two nit-n-
tioned above) and they may also grant a samifio in
radice to validate a marriage whose invaliditv was
caused by the presence of a diriment impediment

"Cod. Tl'R. Can.. Can. 1141.

""Potest quia per aliiiin, qiiotl potest faeere per seipsum.'' Jir^
LXVIII, 7?. /., in VT°.)

*' S. ('. Consistorialis, 25 apr., 1918. See, Acta Apostolwae StdU, Vv.;
X, n. 5, p. 190-192.

Validation of Marriage. 439

from which they have power to dispense, whether it
be of minor or of major grade.'®

In a subsequent decree the same Congregation has
granted a concession by virtue of which these faculties
are to remain in force for the period of six full months
following upon the signing of the peace terms by the
nations presently at w^ar/®

*" Sacra Congregatio Consistorialis, 2 aug., 1918. Sec Acta Apos-
tolitae Sedis, vol. X, n. 9 ; p. 363 and 364.

■•S. C. C, 4 mart., 1919; in the Acta Apostolicac Sedis, vol. XI,
p. 120; ib., **Monitore Ecclesiastico,*' ser. IV, vol. I, p. 106.

CHAPTER XIV.

About Second Nuptuls.
(Canon 1142— Canon 1143.)

604. Though chaste widowliood is moro lumorabl
yet second and further nuptials are valid and licit,
prescription of eanon 1069, %2, being observed.'

The clause of the foregoing canon refers to the
pediment of ligamen of which the new law as
Though the first marriage was null or dissolved for
whatever cause, another should not be contracted until
the nullity or dissolution of the first is legitimately and
beyond all doubt ascertained. This provision makes
it clear that successive polygyny or polyandry is per-
mitted but only on condition that the first marriage has
been legitimately dissolved, either by the death of the
first consort or by a declaration of nullity proceeding
from the supreme ecclesiastical legislator.

605. The law expressed in this canon conforms
the general law of the Church promulgated by
Paul.- Hermas (first or second century) testifies thaf
such was the law of the Church in the early ages of
Christianity." Similar testimony is proffered by Cleni-
ent of Alexandria, Origen, F^piphanius and others.'
The condemnation hurled by the Council of

'Cod. Iuk. Can.. Can. 1142.

'"But I saj to the unmarried. aii<I to Ihe ividutrs: II is Kood for tl
if tbej continue even as I. But if the? do not contain tbemtekes,
them maiTj, for it is better to mam than tfl bo hunit,'' (I. Cor, ^
S, 10.)

•Hermas, lib. II, Mandat. ir, n. 4,

• Wbhni, op, fit., n. 719.

440

About Second Nuptials.

441

gainst thd Slontanists and Novatians is another evi-
ence wc can adduce to corroborate the foregoing con-
Bntion." The bitter vituperation sot in motion by the
eclesiastieal writers of the early fcnturies against
hose who entered into second nuptials does not war-
'ant any further conclusion than that the Church dis-
sountenanced such a step and that it was generally
ooked upon with disfavor.

606. The Oriental Chureh took nutre drastic nieas-
■I's to suppress the tendency to contract second nuji-

ials and went so far as to brand theni with the stigma
if unlawfulness, but not with that of invalidity.* TVHiat-
iver punishments were meted out in the penitential
looks to those wlio indulged in successive polygyny or
lolyandry. fell into desuetude in the time of Oratian,'
Roland * and Beniardus Papiensis."

The legal infamy with which the Roman law branded
ihose widows who entered into second nuptials before
t least one year elapsed after the death of their first
fflsband,'" was not generally approved by the Church,
lie forty-fourth canon of the Council of Paris (829)
ermits a widow to enter into second nuptials thirty
[ays after her first husband's death, and in the twelfth
sentury all vestige of such a stigma was removed,"

607. As regards the nuptial blessing the new law
■ules : A woman to whom the solenm l>les.siiig was once

nparted is not permitted to receive it again in tlie
Allowing nuptials,"
Whether in the new law the second nuptials will re-

•Can, Vn, Cone. Nitaenvm.

*ZBI8Man. op. cit., p. 435; Frbiskn, np. Ht.. p. 6fi3,

•Diet. Qrat., post r. 7, C. XXXI. q. 1.

* Hagiiter SoUmdu*, Sumtna, p. iSG.

tot. inf., lU, S; L. E, Cod. de lec. nupl..

, X, de »eeviidi« nupliv. IV, 31; Ikswibnt IFT, c.

442 The New Church Law on Matrimony.

c(uv(» tho soloiim blessing or not will depond on whethor
th(» prospective wife received such a blessing before or
not. If she was never married, or if at her first mar-
riage the blessing was omitted, or if the first marriage
was invalid, she is entitled to a solemn blessing on the
occasion of her second nuptials. If at her first mar-
riage the blessing is given, she cannot receive that
blessing at her second marriage. Therefore a man
who enters into wedlock with a widow whose first mip-
tials were blessed would not have the right to receive
the blessing on the ground that this is his first mar-
riage.*'^ But, on the other hand, a widow whose first
nuptials were not blessed would be entitled to have her
second nuptials blessed even if the widower whom she
marries had received a solemn blessing at his first mar-
riage. In the former case the Missa pro Sponso et
Sponsa could not be celebrated.** In the latter case
that Mass would be proper."

608. It must be noted, finally, that the Church does
not encourage the second nuptials though they are not
brand(»d as invalid or illicit. This conclusion is based
on tho now law by virtue of wliich among irregnlares
(w (Jcfectn are classed all pc^rsons who may bo cliar-
aot(»rizo(l as bigamists, in tho sense that they have con-
tracted two or more valid marriages successively.^*'

" Rknedictus XIV, const. "FAsi pastoralis,** 26 mail., 1741; $VII.».
4; RiTUALE ROMANUM, tit. VI I, c. 1, dc sacramrnto mafrifnonii, n. l^'):
S. C. C, MUeten., mcnso febr., 1590, ad 6; S. R. C, Aqucn.. 3 mart..
1761. ad 1; dorr. gen. 30 iun., 1896, n. VT.

'*S. R. C, 3 mart., 1761.

" Gasp.vrri. op, cit., n. 1042.

'*('0D. TUR. Can.. Tan. 984, n. 4.

INDEX.

References contained in this Index allude to numbers placed at the

beginning of paragraphs.

(Ibduction, impediment of, 291-
300; definition and meaning,
291; when does it arise, 292;
its history, 293 flf.; new law,
295 ff. ; dispensation, 298; pen-
alty against those guilty of,
299 flf.

A.doptioii, impe<lient impediment
of, 185 flp.; diriment impedi-
ment of, 388 ff.

A.dalt, i>er8ons with regard to
doubtful baptism, 95.

Hdulterine children, 173.

Adultery, such as required: to con-
stitute the imi>ediment of
crime, 304; for i)ernianent sep-
aration from community of bed,
board and dwelling, 581 ff.;
does not dissolve conjugal bond,
546; committed after conver-
sion deprives one of the right
to Pauline Privilege, 569.

A^ffinity, impediment of, 348-370;
reckoning the degrees of, 349;
multiplication of, 350; history
of the imi>ediment, 351 ff. ;
different kinds in the former
dis(^-ipline, 353 ff.; derivative
force of the inipe<liment, 355
ff. ; in the Oriental Church,
3.'*9; when contracted in infidel-
ity not an impediment in mar-
riages entered into before the
reception of baptism, 357 ; dis-
pensation from the impediment.

360 ff. ; penalty against those
who knowingly without dispen-
sation contract marriage with
their affinea, 363 ff. ; civil legis-
lation, 369; ex])osure of imped-
iment, 365.

Age, impediment of, 204 ff.; re-
quired for valid marriage, 205;
as regards civil legislation,
206; of puberty, 100.

Apoitatyi cause for separation,
586.

Arrogatio, 186.

Artificial fecundation does not con-
summate marriage, 53, 213.

Aasiitance of a priest at mixed
marriages, 197; at any mar-
riage in order to be valid, 453
ff.; at the marriage of a public
sinner, 202; at the marriage
of vagi, 118.

Attempted marriage, 59; penalty
if before a minister, 270.

Authority over matrimonial con-
tracts of infidels, 9; over the
marriages of baptized persons.
13.

Banns, proclamation of, 97; to be
proclaimed by the proper pas-
tor, 99; of vagi, 99; of a
mixed marriage, not to be pro-
claime<l, 196; where to be an-
nounced, 101; when and how
to be announced, 102 ff.; dis-

443

444

Index.

pensation from, 105 if.; new
mode of proclaiming, 107; of
mixed marriage, 108.

Baptism, the source of the sacra-
mental character of marriage,
17; meaning of words: Catholic
baptism, 222 ff.; when doubt-
ful and correlated to marriage,
2a2 flf.

Baptismal certificate to be pro-
cured before marriage, 95.

Betrothment, see Es])ou8al8.

Bishop, see Ordinary.

Bond, of marriage, relatively in-
dissoluble by natural law, 41
ff.; absolutely so in Christian
marriages, 543 ff.; how dis-
solved by Pauline Privilege,
553 ff.

Care of children imposed on par-
ents by natural law, 536.

Casus Apostoli, see Pauline Privi-
lege.

Casus perplexuSf when does it arise,
164; who may dispense under
the circumstances, 165 ff.

Causes justifying: dispensation
from the ])r(H*Iamation of
hainia, llMi; marriage of con-
science, ()2; a dispensation
from the iinpediinent of mixed
roligion, 190; from the ini])eili-
nient of disparity of worshi]),
245; militating against matri-
monial consent, 398 ff. ; excus-
ing one from tlie form of mar-
riage enforced by the new law,
49;") ff. ; justifying a di8i)ensa-
tion from interpellation, 567
ff. ; justifying a temporary se})-
aration of the consorts, 5S5 ff.

Cdutionrs, in urgent danger of
death, 160, 189 ff.; in mixed
marriages, 242 ff.

Catholic bajjtism, meaning of, 222;
a])])lie<l to the impediment of
disparity of worship, 222 ff. ;

to x)6rsons bound by the form of
marriage promulgated in the
new Code, 502 ff.

Celibacy, not in conflict with nat-
ural law, 19; extolled in the
Sacred Scripture, 273.

Censure, as an impedient impedi-
ment, 203.

Ceremonies, of the sacrament of
matrimony, 506.

Cessation of an impediment, does
not in itself validate marriage,
renewal of consent necessary,
589; how to renew conseDt,
590 ff.

Children, illegitimate, how to be
legitimated, 156; spurious and
natural, 173; to whose care to
be committed in case of separa-
tion of the consorts, 588 ; legiti-
mated by subsequent marriage,
540 ; by sanatio in radices 598.

Christian Doctrine, instruction in,
to be given before marriage, 92.

Church, to it alone belongs the
right to regulate marriages of
the baptized, 13; and to intro-
duce imi)ediments for the faith-
ful, 140 ff.; under certain con-
ditions by means of jjapal d's*
])en8ation, 550; or solemn re-
ligious profession, 548, and of
Pauline Privilege, 553, it has
the power to dissolve marriage
contracted in infidelity.

Church (parish) is the place for
the proclamation of banns, U>1;
for the contracting of marriage,
528 ff.

Civil authority: correlated to mat-
rimonial contracts, 9; to the
civil effects of marriage, 64 ff.;
law on the ira]>ediment: of
adoption, 185, 186; of age. 206;
of impotency, 213; of dispar-
ity of worship, 271; of con-
sanguinity, 346; of aflSnity,
369.

Index.

Coeic

lid

sgaiii

Camnuiiitr of ImiI. Iionrd au<l
L duelling pprtain iinly lu tlio iu-
H^legrily of marriage, 8, 5NI).
mbfnponenda, for inntrimnniul dia-

pensation. 170.
Computing the drgrets of con son -

euinity, .137; of affinity. IHH.
Cancubin&ie, when does it runxti-
m tulo sn impnlimiint. of ptihlir
b propriety, 376.
BUition placiSl in entering into
F-uairUge, 430 B.; plored in
■ marriagpH that t.hp mundtwa

i;ontractB by proiy, 23 ff.
ConfeHion before marriage, 120.
ConfesBOr'a jwwer over impedi-

mento in nrgent danger of
l«l IT.; in nwu pcr-

Couocil of Trent, u
of niatriniuuy, 1
and celiliBpy

tlffj-.!

1«H.

Confirmation nlnmld In? rereiviwl he-
m torn the fUKrauiont of niatri-
Lwooy, B.'i If.

MMDCninit]', impediment of, deS-
Bsition of, ;I2I; varions kinds,
B'MS; Kistory of the impediment,
HxSa ff.; in Ule Oriental Chureh,
HbkS (T.; mode of computation,
V'.SET; multiplication, 328; dia-
gram* and Genealogical Tree,
328; motivea of the impedi-
ment, 320; to what extent it is
founded on natural law. 330 ff.;
diapensation from the impedi-
ment, ;ofi ff.; eauRea justlfy-
ing Bueh a dia]>enBation. 341;
ecdniaitical penalty and ex-
poDUre of the im|iediment. 343
ff.; civit legislation on the im-
pediment. 340 ff.
Cnudence, msirriage of. 61, 51S
ff.; rnusei justifying snrh niar-
liage, fli
Conatuninated marriage, 49, 5n, 53.
Contract of marriage, 3.
Contract! (matrimonial I of unl>n[i-
red I'ersunH, U.

10.

Crime, iiniiedim^nt of, defitiitlon,
301 ; bistory of the imiieiiimctit.
301! ; as arising from ailullery
combined with the iiromise of
marriage, 304 ff.j characteris-
tics of the adultery and tbe
promise of marriage fluch na
required to beget this impedi-
ment, 303, 304; as arising from
adultery combined with attempt
at marriage, 307 ff. ; t^ird
phase of the impediment aris-
ing from adultery rombinml
with the murder of one's

1 this

I the

murder must have certain char-
acteristics, 309 ; controver«y
whether it is necessary to man-
ifest one's matrimoninl inten-
tion before the murder is rom-
mittefl. 310; last phase of the
impediment as it arises from
poniuffieidium. 311; mulli|dlca-
tion of the impediment, 312;
tbe imiiedimeot is of ecclesi-
astical law, 313; ignorance of
the (■enalty does not free one
from incurring the impediment,
315 ff.; dispensation from the
impediment, 317 ff. ; penalties
incurred, 320.

Cumnlating, faculty of, 170 ff.

Cnitom cannot Introduce a new iai-
pediment, 144.

Danger of death ; disiieusation
from preliminaries to marriage
in. 83; from impediments, 151

Defect in ruppliat or rescript does
not invalidate the rescript when

446

there is queslinn of n
iiieut of minor grftclc,

17fi,

Degrees nf ronnanKiiinily. how to
he. computed, 327; of affimtf,

Delegatian to witiioxn marriagp,
4>tH; iisBislnnt iiripfltH ouly may
receive Kenersl dcli^ation, 4fi!).

Derivation of the word ' ' Diatri-

Dlfference hHween marriaRe coH'
trai!tii and other coutrantH, 6.

Diriment impediments. 131 ff.

DispenMtion; from impedime'nts.
H6 IT.; Porrelated with re-
Brripta, 148 IT.; from baniiB, 105
ff. ; from impedimenta In urneiit
danger of death, 151; from the
form of marriage, 15S; from
the impediment of consanguin-
ity. 3.16 ff.; from theimjiedi-
mcnt of ofBnity, .160 tf.; from
the impediment of disparity of

worship, 242 ff.. 189 IT.; from
a ratified non-consummated
marriage, or on a<^connt of the
presumed death of the other
consort, 175; taxes or pompo-
nmda for, ]"" ft.; from the
impediment of Holy Orders.
SSI ; from the impediment of
Solemn Religious Profession,
22R ff. ; from the impediment nf
alidurtion, 398; from the im-
t>ediment of crime, ;118; from
the imgyediment or spiritual re-
lationship, SSS ff,; of legal re-
lationship, S95.
Disparity of worship, impediment
of 2IS tf.; history and nature
of the impediment. 128 tl.; per-

I the I

law, meaning tonveyed by the
words "Catholic B&ptiam,"
222 IT.; donbtfiil baptism, 232
ff. ; diapensntion from the im-
pediment, 242 ff. ; injunrtiong
relative to mixed marriaBes.

\l'tb ff. ; eeclesiajitical p«mftlty,

270 ff.
Disease conlau'lous. cause for aep-

nralJon, 5M.
Discretion, want of, militatinx

aeainst nrntrimuniol <?on»cnt,

:i9i).

Domicile ajid (tuasi- domicile. 4

Effects nf marriafce, 28, 531 1

End of marriage, 29 ff.

Engagement, see EsiHinsals.

Error, when does it invalidate I
riage, 402 ff.

Eipousali, new law

70; invalid if enntraifted hy
IwrsonH laboring imder an im-
pediment, 74; obligations aris-
ing from, 76 ff.; right of tlio
(iffKrieved eaptiusi«d parly. SI.

Essence of the marriiuce conlriLct,

Faculty for cumulatinK, 170 ff.

Fear and eoercion. when do thej-
invalidate marriage, 415 ff.

Fecundation, artilicial, do«<s not
conBiimmate marriage, .'i.1. SI3.

Fom, of the sacrament of matri-
mony, 27; to bo observed in
the celebration of marriatc*. *50
ff.; persons bound by thf Calh.
olic form of marriage. 502;
(limliflcatinns of the wilneAses,
the pastor and the Ordinnry for
valid assistsjice, 453 ff . ; ao-

riage, 4ftR ff. ; renniremenls for
licit assistance. 478 ff.; rirrum-
slanccB Hnder which tht- ftrm
of marringe does not ol.l!g«-.

thel- I

49S tt.; rights to be obscrrail
in the celebrBlion of mBrri&ge.
SW B.; reKiatraliou of luar-
tiHt», 513 ff. ; diHpeiiBatioD
from the form of nuurioKe >■>
nrgeot danger of do&th, 1S1 IT.
nun, (leSuition of, and dia|>«iiiiR-
tioa given by the interual
forum. l&S,

larry, hnw lo be ucer-
taliied, »'t tl.

^■l0tical Tree, :I2B.

Koilmolher. apirituat re-
Utiooship, :i82; qualiflcatioiia
_ required on tbe iiert of god-
, pannta, 383.

Wk Cfttholirs not iMiund by the
form of marriABc enforced by
the new Code, uiileas tbey
marry Calholica belungiiiK lo
tlie Latin rile. 502 ff.

■7, eauM of tempornry aepn-

ition, 586.

uphroditei, 312.

Idde, wlieii doea it eongtilute

t impediment, 3DS.

IgBOtance of Christian Doetrine,
rlt^n ia it an obatacle to mar-
iage, 92.

Ignotance of nullifying or disquali-
fying law does not eicuse from
Incurring an im|)ediHient, 31(1.

Illcgitimale rhildren, nee Children,

Inipedinient; must be revealed by
Itie fiiithfnl, 100 ff.; history of,
124 fT,; definition of. 129; vari-
oiiB kinds of, 129 fF.; public and
ori^ult; 132; of natural or of
divine law. 133; relative and
absolute, 1 34 ; certain and
iloiiblfid. Kl.'i; perpetual and
lemporury, 136; diapenaable

and non-dispenaalde, 137; ante'
cedent and subitequeDt 1.1S;
correlated with natural law,
HO; right to iulrodnce intpedi*
niuits. 141; tlie Ordinsriea may
intrwiuoe imjiedient im]>eili-
inents. I4S; cannot be intro-
dnced by rustnni, 144; can be
of minor and of major grade.
145 ; iKiwer of Bi^ops and
priestt over matrimonial ini-
IKMlimenta, 151 ff.; that may be
diapensed urffrnfe murlw peri-
fnUo, 1G8 ff. ; by whom diaponsed
in urgent nee*ssity when all
preparationg for nuptials have
been made, 164 ff.; of consnn-
gtiinity and affinity, when a dis-
penaatiun ia grontoil, ITS; of
simple vows. 1S4; of adoiHiuu.
IHS; of mised religion, I^T: of
unworthuieaa, 199; of a(ce. 204;
of imputency, SOT; of ligamen.
214; of disparity of worship,
21S: when doea the impediment
of disparity of worship pease
to bind, 341; of Holy Orders,
272; of Bol«mn Religious Pro-
fession, 283; of abdnction, 291 ;
of erime, 301 ; of eonaanguinity,
321; of affinity, 349; of public
propriety, 371; of spiritual re-
lationahip. 379; of legal rela-
tionship. .388.

Impotency, iminNiiment of. nature
and deflnition, 207; kinds of
imiiotency, 208; wh«n ia it
verified, 211 ; doubtful im[io-
teney not an obatacle to msr-
riage, 212; civil law, 213.

IndiMolubility of nmrriajtc, 41 ff..
543 II.

Infocroatian wliich the faiUifiil are
obliged to give in order to re-
veal impediments of which they
are awnrp. I'lH ff.

Injnnctioiii relative lo mixed mar-
riages, 193 ff.

448

Index.

Inqniry to be made to ascertain the
free state of the eontraeting
parties, 85 ff .

Instmctioiis to be given by the
pastor on the new law on mar-
riage, 82; to be directed to par-
ties about to be married, 119.

InterjMllations: in the ease of
Pauline Privilege, 560 ff.; dis-
pensation from, 562; how to be
made, 563; once made need not
be re])eated, 564; when made
privately, and their validity,
565 ; causes justif 3ring a dispen-
sation from them, 566 ff.; when
is the converted party free to
contract marriage, 568 ff.

Interpreter, marriage through, 22.

Irregularity incurred by bigamists,
608.

Jurisdiction of the Church over
marriages, 64; of the state, 9,
64.

Killing of one 's consort constitutes
an impediment of crime, 311 ff.

Kinds of marriage, 49 ff.

Knowledge of the accomplice's
inarrie<l state necessary in order
that adultery may become a
partial contributory cause to
the impediment of crime, 304;
of ])eiialty not a necessary
retjuisite for the incurring of
an iini)e<liment, 316.

Legitimate marriage, 49, 52; chil-
dren, see Children.

Letter, marriage by, 22.

Li<]^amen, ii!i])e<liment of, nature
and definition of, 214, ff. ; when
does it cease, 216; decree, how
to ascertain the death of the
former consort in doubtful
cases, 217.

Mandana, see marriage by proxy,
22.
iagCi see Matrimony.
pro Sponso et Sponsa^ when
may it be said, 525 ff.

Material object of marriage, 4.

Matrimony: meaning of the word.
1 ; as a mere natural contract,
3; its material object, 4; as a
contract and sacrament, 11;
proofs that it is a sacrament,
12; contract and sacrament in-
separable, 13; by proxy, pro-
curator, interpreter and letter,
22; must be regarded as valid
until the contrary is proved, .45
ff.; ratified, ratified and con-
summated, legimate and puta-
tive, 49; putative, 54; presump-
tive, 56 ; clandestine, 57 ; publie,
58; attempted, 59; morganatir,
60; of conscience, 61, 518; as
regards its effects, 64 ff. ; in-
struction on marriage, 82, 119;
of vctgif 118; form of mar-
riage, 450 ff.; valid assistance
at marriage, 453 ff.; rites of
marriage, 506 ff. ; registration
of marriage, 513 ff. ; time of
marriage, 524 ff . ; i)lace of mar-
riage, 528 ff. ; mixed marriage
(ceremonies and place), 5.i0
ff. ; effects of marriage, 531 ff.;
validation of marriage, oS9 ff.

Matter of the sacrament of matri-
mony, 27.

Ministers of the sacrament of mat-
rimony, 18.

Mixed marriages, ceremonies and
place of, 530 ff.

Mixed religion, impediment of, na-
ture of the impe<liment, isT ff.;
dispensation from the inipoH-
ment, 189 ff.; causes justify-
ing a dispensation, 190; can-
tiones, 191 ; certainty is r--
quired that the cautioncs will

Index.

of
1 32

be complied with, W2: nbliga-
tion of the Catholic parly lo
procure the ronveraion of Iho
dlBsentient consort, 19:i ; the
■pooBM not pernildal to pre-
MDt thprnsetvea before a Hon*
Catholic minister, 1II4; i]ulies
of the OnlinaripB and lh« pas-
torn as regarils mixed mar-
risgefl. 105: banns of ini^e<t
marriaKea auil place in whiph
they are to bo Felebrnted, \W;
aiaiatanee of the pastor al aurh
marriagm, 197; excommiinira.
tion if attemptpd bffore a non-
Catholic miDidtfr, 1<IS.

HonofTny, -IT IT.

Multiplication of tho imperlinient

of afBnity, li.W; of spir-
itual relationship, 380.

>p«dinienl of crime, ;iOS ff.

IT.

Natural children, sev Children.

Ifatnral law. with regard to right
of marriage, 20; correlated to
the unity of the mBtrimonial
bond, 3*! ff.; correlated to ir-
dlMolubility. 41 ff-; demands
Ihe reTciation of impediments,
110; right to interpret it with
T6gtrd to matTlmoninl impedi-
menta. 140; forbids mixed mar-
riage*. 188.

N«fariona children. 173.

Non-CallioliCf not subject lo Ihe
Catholic form of marriage, 502
ff.; do not incur the imjiedi-
ment of disparity of worship
wh«t they contract marriage
with an infidel. 220.

Nuptial blessing, when forbidden,
,524 ; when may tlie Ordinary
anthorixe it in forbidden time,
52.T tr. ; when may it be given.

L 807.

Nuptials, second. 604 ff. ; irregu-
larity incurred by |>ersona who
contract two or more valid mar-
riages successively, 608.

Oath, tl« effects when added lo
espousals. 79; of an adult is to
be regarded as a proof of his
baptism when no other evidence
can be procureil, 95.

Obligation arising from valid
espousals, 76 IT.

Obligation of parents with regard
to their children. 37, 42. 536.

Obreptioo in the Avppliea does not
invalidate |>etition when there
is question of an impmliment
of minor grade. 176.

Orden, impediment of Holy, defi-
nition and nature of the imped-
iment, 272; basis of the im-
pediment. 273; history. 274 (T.;
its existence in the Orienlnl
Church, 27*, 275; in the West-
ern Church. 277: ordination un-
der coercion and fenr, 279 ft.;
origin of the impediment, and
dispensBtion from it. 281; pen-
alty against clerics attempting
marriage, 282,

Ordinary may <1ispense from banns,
111; how is pro|ier Ordinary ac-
<]uired, 112; may introduce a
temporary imiiedient impedi-
ment, 142; who ii included un-
der the term, 157; his facultien
in urgenti mortu prricvln, 151
ft.; he may dispense in rtum
perplearn, 164 ff. ; is not to nac
his faculty to diaiiense if the
petitioner had recourse lo tho
Holy Bee, 169; may disiiense
from impe<limenta if delegated.
146.

Orientali with regard tn the tni-
pediment of cunsanguinity. 325
ff.; of affinity, 359; of Holy

450

Index.

Orden, 274; to Catholic form
of marriA^, 502 ff.

Pareatt, their duties toward their
children, 37, 42, 536; their ob-
jection to their children's mar-
riage, 121.

PaatOFy conditions under which he
may assist at the marriages of
vagi, 118; his power over the
matrimonial impediments in ur-
gent danger of death, 161 ff.;
his power over the same impedi-
ments when all preparations for
the nuptials have been made,
453 ff.; what pastor is to pro-
claim the banns of marriage,
97 ff.; his duty to explain to
his flock the new law on matri-
mony, 82; his duty to instruct
persons about to be married,
119; his obligation to dissuade
his parishioners from entering
into mixed marriage, 195 ff. ;
his assistance at mixed mar-
riages, 197; he must make in-
quiries to ascertain the free
state of the person to be mar-
ried, 85 ff.; he may grant a
general delegation to his assist-
ants to assist validly at all
marriages to be contracted
within the limits of his parish,
469; how is he to assist at the
marriage of a public sinner,
202.

Pauline Privilege, nature of, 553
ff. ; meaning of words '*Con-
tumelia CrcatoriSj* 5o6; when
is the marriage contracted in
infidelity dissolved by means of
such concession, 557; interpel-
lations, 560 ff.; dispensation
from interpellations, 562; how
the interpellations are to be
made, 563; once made need not
be repeated, 564; private inter-

pellations and their validity,
565; causes justifying a dis-
pensation from interpellations,
566 ff.; when is the converted
party free to contract another
marriage, 568 ff.

Penalty, ecclesiastical, against per-
sons attempting marriage be-
fore a minister, 270; against
persons contracting marriage
with the agreement to educate
their children outside the
Church, 270; against clerics in
major Orders attonpting mar-
riage, 282; against persoiu
bound by solenm vows attempt-
ing marriage, 290; against
those guilty of abduction, 299
ff.; against those guilty of
adultery, successive bigamy,
homicide, attempt at marriage,
320; against individuals at-
tempting to marry consanguine
ous persons, 343; or afftna,
363; against persons attempt-
ing to marry individuals with
whom they contracted the im-
pediment of public propriety,
378 ; against pastor 's disregard-
ing licit assistance at marriage,
493.

Persons bound by the Catholic
form of marriage, 502 ff.

Place of marriage, 528 ff.

Polyandry and polygyny forbidden.
36 ff.; both absolutely prohib
ited in the New Testament, 214.

Pope, see Roman Pontiff.

Porro operation, 207.

Power of Bishops and priests over
matrimonial impediments, 151 ff.

Preliminaries to marriage, 85 ff.

Presumption, principle of, in doubt
ful baptism, 238 ff.

Presumptive marriage, 56.

Primary end of marriage, 29 ff.

Principle of presumption regarding
doubtful baptism, 238 ff.

Ptirilege of the faith, i
vilege.

1 Paulin

PtocUmAtiaii of baons, 97 fF.; in
what parish to be made, 09; by
whom, 97; where to be mado,
101 ; time regulatiiiK the (irocla-
mation of. 103; diHt>^ni>atian
from. 105 ff, ; causi™ justifyinK
■ diB|«naBtion from, 106; made
by posting the names at the
church duor, 107; not to be
made in cawi of mixed rnar-
riageB. lOS; when to be re-
pealed, 114; what course to be
followed when a doubt arises
oc to the presence of an im-
pediment. 115.

Proerutioii, the primary end of
marriaite. S2.

PTOCUrator, marriage by, 22.

ProfcMlon, Solemn Religious, dis-
solves the bond of a non-fon-
aummated marriage, 54H fT.;
{solemn ) , impediment of, na-
ture of the impediment. 2R.^;
history of the impediment,

1284; new law on solemn vow,
2S5; how a solemn vow may
affect marriage, 28fl ; what
simple vow eonatitutes a diri-
ment impediment, 387; condi-
liona required for a vow in
order that it may give rise to d
diriment impediment. 2Sg; dis-
penaatiun from the impediment,
280; penalties against those
who attempt a marriage though
bound by a solemn vow, 290.
PrOKtiM of marriage, such aa re-
quired in order that it may be-
come a contributory eanse to
the impediment of crime, 315.
Proxy, marriage by. 22.
Puberty, age of, in case of male
ehildren 14 years completed, in
rase of female children 1 2
years completed, thus correct,
100.

Publics tie D of banns, see Procla-
Public marriage, 68;

. . . at their

riage, 202.
Putative marriage, 54.

Quaal-domicile, 48:; ff.

Ratified and consummated mar-
riage, meaning of, 49 ff. ; such
marriage is absolutely indis-
soluble. 543 ff.

Kefistration of marriage, 513; of
marriaKe ot conscience, 63.

Kelationship, see impediment of
consanguinity, of aSinity, of
adoption, of spiritual relation -

ReliEioiu Profession, see Profes-

Seoewal of consent, SS.I ff.

Rescripts, with regard to disiiensa-
tion, 149 ff.

Residence for a month in a place is
likened to quasi-doniicile tn ur-
dine ad malrimonium, 487.

Requirements for valid assistance
at espousals, 70 ff.

Revalidation of marriage, see vali-
dation.

Right acquired by espousals, SI;
to establish impe<1iments, civil
law, 9, 185, 368; Chur«h law,
140 ff.; power of the Ordi-
nsriee in this respect, 142 ; to in-
terpret natural law with regard
to matrimonial impediments,
140; to marriage, 20, i:!9,

Rites to be observed in the celebra-
tion of marriage, 50(1.

Romas Pontiff alone may sdd a
cIwMuIa irrildTM tn an impedi-
ent impediment introduced by
the Ordinarj-, 142 ; he alone
may abrobnle imi>ediment8 of

4S2

orrUmMtical law. 143; may A'm-
{■ente frpm impedimenta or delp-
KBt« hU ]iower, 144: may dia-
pnwe in non -consummated mitr-
ringra, 550: ma; graDl tanalin
m roffiM-, or RUthorute olht-rs In
do M, 603.

Sacrament, matrimony is a, II S.;

aepftrable. l.t.

SacrikciaBi children, 173.

Sanalin in radict. dPH ff.; nature
of turh Mnalia, 597 ff.; eondi'
tion under which granted, SOO
(f. ; when does the marriage to
which Mnatw is applied become
valid, S9S; how la validate
marriage in whi^h the conaent
was withheld in the boginninfC.
601 : where and how to be ap-
plied, 602 ; by whom may it lie
granted, 603.

Secondary end of marriage, 33 ff.

Separation from community of
bed, board and dwelling, per-
manent Reparation ou arcount
of adultery, 581 ff. ; lemiKirftry

aepai

. of 1

1, 5S5 ff.

Simulation, how does it affect mar-
riage, 410 ff.
Simple inv. nee Vowa.
Siaueia, public, assistance al their

marriage, 202.
Societiea forbidden by the Church,

impediment of un worthiness,

200 ff.
Solemn vow, see Impediment of

Profession (solemn).
Spurious children, I7.t.
Subreption in lapptica, I'G.

T.
Taxes fur disiiensation, 178.
Time of marriage, 524; forbidden.

5'ii ff.; for the proclamation

of the banns, 102 ff.

Unity of the marriage bond, .16 IT.

Dnwocthineu, inip«^iment of, on
what is it based. 109; duty of
the pastor to discourage inar-
rittge with an unworthy person,
2on : societies condemned by Ihp
Church, 300; publicnesB of sin
is the contributory cause towanl
this impediment, 201; doty of
the paatoT who in ashed to assist
at such marriages. 202; jiersoni
against whom a cennure is fill-
miiiated are also unworthy, 2nx.

Usoticide, constituting impediment

nf rrime .111 ^

ragi, their bnnoB, 99;
at their marriages, 11

Valid espousals reiiuirements foi,
70 ff.

Violence, see Fejir.

Virginity, not in conflict with n»r-
uraJ law, 19.

Vow of virginity, impediment of,
181; of perfect chnstit.y. ISS;
of celibacy, 182; to receiw
Holy Orders, 183; to embrace
the religious state, 183; dii-
penstition from private vows,
184.

Validation of marriage, 589; when
the marriage is invalid for woat
of consent, 593; on account of
the jireaence of an impedimenl.
589 ; when invalid for want of
the proper form, 595.

Witnessei to be ailduced to prow
the jiarties' free state, 87 ff.;
necessary at marriage, 453 ;
marriage contracted without thl
presence of witnesaes, 500.

BIBLIOOBAPHY.

sullcil in the prepars-

A. Sources,

Acta Apoftnlicuf Sedit. Roma. I90l)-191t).

Aeta el Decreta Cone. Flen. Ameriaat Lalinae (1899). Romat^, 1»0U.

Acta et DecTcta Cone. Flen. Quebecemit I (190d). Quebec, 191!^.

Acta Sanctaf Sedin. Roma, IS6S-1900.

Andecta Eccletiattica. Romtt, 1893-1908.

Analfcta lurit Pontifieii. Konm, 18S5-18H8.

Bullarii Komani Cont. Prati, 1S4£.

Codex lurii Canonici Pii X Ponlificit Uaxtmi, BeHtilieti XV AnctoritaU

Proinulgatua. Bonme, 1917.
CoUeetifMa 3. Coiig. de Prop. Fide. Roma, IX4.t.
Colleetia Omnium Coneluatonuni et BeMolutivnum S. Concilii Tridenlini.

Bomae, IS 79.
Corptu /uru Canonu^i (Ricbter). Lipsiae, 1839.
Decreed Cone. Pleit. BaltimoremU II (1886). Ballimarau, 1H68,
Decrela Cotic. Flen. Baltimi,rcnti» III (1884). Bnltimorne, 1886.
Deerrtalea Gregorii Fnptte JX. Romae, 156E.
Detiretuni Gratiani, Roma, 1682.

Hansi, Ainpiitiima Coll. Concil. Parie and Leipzig, 1901-1913,
Synodiu Alexaadrina Coptorum (Cairi in Aegvptu, 1898). Rumae, 1899.
SyHodut Seiarfeimu Syrurum (in Monlt LibODO, 1888). Bomae, 1898.

B. Books Containing General Tnfokmation.

AJCHNR, Cnmpeadium /um EcclciUiatki. Brixinae, 1887.
AU'HONHDS, Theologta Moralu. RotiBbonBe, 1846.
Amikicav Ecclesiastical Rbvibw, T\t New Can

Atpert*. Philsdplpbia. 1918.
A NDRfc- Wagner, Dietionnaire de Droit Canriniqu
AntONBLi.1, Diieiplina Medieinatit in umm Conf

Beeleiiastiairum. Bomae, 1905.
AsNn, Cantanguineout Marriagei in the Ame

Doetorate DiasertatinD.) Columbia University, 1908.
AvousTlNVS. De Ch'itate Dei. Lipiiae, 1867.
Bacbofen. Da* Mutlerrecht. Stuttgart, 1861.
Babufpalpo. Ad Bitvale Rovmnum Commentaria. Florenliae, 18'
Benedict XIV, Bullarii Komani Cont. (i vols.). Prati, 1645.
Benrdict XIV. De Synodo Dioecetana. Pomiae, 1T64.
Capeluann, Uedicina Faitiiralit. AquiaKrani, 1890.
Captello, De Curia Eomana. Bomae, 1913.
Casteleik, Broil .VniureJ. /Droit Dometttque). Nainur, 1903.
453

Paris. 1901.

. Popiilatiu

454 Bibliography.

CATHOtic Enctci^Pedia, Art. "Marriage," "Coiuan^umily," "Jjpiii^

etc
Cathkun, Moralphito*ophir. Freiburg, 1904.
CfcoNiM, ScUnee of Ethici. New York. 1917.
D'ANMBAJ-E, Stimma Thtologiar Uoraltt. Rom&e, 1891.
De Anoews, Praeleetionct luris Canoniti. Romae, 1872.
Db Lcca, Svmma Praelertionujn in Libroa Drcretalium. Prali.
Devinb. The Lam of •Chrittian Uarriaoe Aecording to the Tt

a%d Diteipime of the Catholic Church. London, 1909.
Encycu>pa]0)Ia Britannica (Eleventh Edition;, Art., "Marriage'

■anitjr (Cotuwnguinily}," etc.
EsoTL-UiPtniE, Li OUMDE. Art., "Coiaangmnitt," "Mariagr,"

Parii.
BscHBACB, Coiui Ae Feminea Impotenlia. Romae, 1899.
EscHBACH, DUputationet PhjitiolagUm-theologicae. Bomae, 1901.
PAGNANtrs, lut Canonieam, <ice Commentaria abtolitlittima

Lit/rot Deerelalet. ColoniBe. 1676-1682.
Fbuabib, Frompta Bibliothefa. Homae, 1899.
Fekbikbs. Imtiiutionet Canonieae. Barcinone, 1917.
Oennar], Quittiotii Canotiiche. Bomae, ISOS.
Oeknaki-Boudikbon, CotuuUatiaiu de iiorate, dr Droit Cnnoniqte,

de Litvrgie. Paris, 1907.
Qiraldi, Expoaitio lurU Fontififii. Korna*. 1829.
HERGENRt^BEK-HoLLWECK, Lehrburh de» kalholi«i-hfn KtrchmTrckU.

Freiburg 1. B., 1905.
Leoa, Praelectianet de ludieUi Ecfleiiiatitiei*. Romae, 1905.
MiRTfiNB, De Jntiquit Etxletiae Ritibiu. Botomagi, 1700.
McLennan, Stvdifi in Ancient Hittory. London, 1B86.
Metek, fnctttutioTiM iuru NatunHit. Priburgi BrUgoviae, 1900.
M1CHEL.BTTI, Jiu Piamum. Augustae Taurinorum, 1914.
HiLASCK, Dim Kirchenrecht der morgenliindiarhrn Ktrehe. Mosliir,

1905.
MoBQAN, AncUnI Society, London, 1877.

Ojetti, SSTioptit Bervm Moralivm et Ivria PontifieiL Romae, 1911.
Paoli, Etude HIT let origiaee et la nature du nariage eivU, mil t»

regard de la doctrine eathoHqtm. Psria, 1890.
Papp-8eil^oyi, Enchiridion Jiirit Eccletiae Orientali* Catholieat.

Magna Varadini, 1862.
PooBBAT, La Thiologie Sacramentaire. Potib, 1009.
pBOBBT, SacTamente und Saoramfnlalien in lien dn^t eriten ehriitliekm

Jahrhvnderten. Tiibingen, 1872.
BBirrBN'ST^nL, Itu Canonieum Univemm. Venetiia, 1726.
SAOnC'iiEB, Lehrbueh del iatholitchen Kirchenrechts. Priburgi Br..

1909.
8a LMA NT] CENSES, Cuf'iw Thtologiae Moralit. Tractatut de Matrinioniii.

Lugduni, 1879.
SANroBD. Pattaral Medi/^ine. New York, 190S.
SANTi-LEITNm. Praeteptionea Ivri* Canoniei. Ratisbonae, 1904.
SCHWALEaBt'BES, IiM EceJetiatlicvm rnivertum. Romae, 1845.
Schmidt. Thetaumi Juris EccletiattUi. Heidetbergae. 1772.
BOHiipr, Hatidbuch de» kathaliechen Eirchmrechlt. Schaffha
BCBi'cH, Handbueh der Pattoraltheolagie. Innsbruck, 1910.
BSBABTIAHEUJ, Praelectionei Itiru Canoniei, Romae, 1905.

, 1861.

Bibliography.

SiLBEBKAOm:, Fcrfanming und ge.genwartiffer Betlartd tdTnllicher Kir-

chen dcf Orients, Begpniburg, 1904.
Smith, EUmenU of Eccle»iaatical Law. New Tork, 1S7S.
SOUABN, ilemento de TMologie Morale (A I'usagu dee MiraioDairea).

Puis, 1»0T.
SuBBLD), La Uorale dang «<■* Eapporis avrc la Mcdrcine el I'/Jjitfitite.

P&ru, i89e.
Tadntok, The Law of the Church. Loudon. 1906.
TBBINEX, Acta Genuina SS. Oeewn. Com^. Tride-ntitii. Zagrebiae

(Crotiae).
Thouas, Samma Divi Thomae Aquinatit. Bomae, 1894.
TOPAI, De yecciHIale uteri in gmieralione et i« Matrimonio. Hoinae,

1903,
VACANT' Ma NO ENOT, Dietxonnaire de ThSologie Calhotigue. Art., "Oti-

pariti de Culte," "Farenti Natarellf," "AJpnitf" Ptr. Paria, 1903.
VeccHiom, Inttitulionct Canonicae. Augustae Taurinorum, 19()S.
VSUNO, Lehrbaeh dca Icalholia f hen, orientatitctwa and prott'Slanlischen

KirchenrechtB. Freiburg, i. B., 1893.
Von Scrouk, Handbuch dea KirchrnTechtt. Orai, 1898.
Wernz, Jus Decretalium. Bomac, 1905.
WBTS^-WELTB'a KwcHBNLKXlKON, Art., "She," "Venuandttehaft,"

etc. Freiburg i. B., 1882.
Zhjsmak, Da* Eherecht der Onenlaii«ehen Kireke. Wien, 1B64.
ZiTBo.!, Apparatit* Ivrit Ecele*ia»tici. Butisbonae, 1903.

C. Books Containing Particular Information.

AUifiOU, ImpedimentoTMm MatnmonioTvm Synopeit. Paris, 1S89.
AVOOAUM). Teorica deW ittiluzione del MatrtmiKiii. Torinn, 1861.
Atbikhac, Marriage Legiglalitm in the .Vcw Code of Canvn Law. New

York, 1919.
BaKqen. Inatmctio Practica de SpoMalibiu rt Vatrimoitio. Monaaterii,

1868.
Basdevant, Deg Kapportt de I'Eglite et de I'Etat da»» la Ligialati^n du

Mariage. Paris, 1900,
Bassibet, Le Mariage devant Ui TribHtuiux eeclttioitiquet. Paris,

1899.
BlNDBs, Handbuch det kath. Ehereehtt. Preiburg im Bresgau, 18B1.
Binqbah. Chrittian Marriage. New York, 1900.
Bishop, Marriage, Divorce and BeparatioK. Chicago, 1893.
BouBiNHOs, Le Mariage et let Fiain:aitlra, PurU, 1908.
BttKTSKLL, in tbe Catholic Encyclopedia. Art., "Comangninitii," "Af-

CAXKi^aE, Fraelectionea Teologicae de Matrimonio. PariHiii, 1837.

CbsaQH, a Commentary on the Decree "t/e Temrre." Baltiinore, 1908.

CWTCinj>w, The Form* of Betrothal. Baltimore, 1903.

Gbonin, The nem Trutfrimontal legUlation. Iioadoa, 1909.

Daniel, Le Mariage Chritien el U Code Hapolton. Paris, 1870.

Da Beckk, De Sponaalibut et Matrimonio. Bruieltis, 1896,

Di JuSTis. De Ditpenmtionibiu Malrimonialibut. Lucac. 1691.

Dl Shet. De Spotualibiu el Vnlrimonu). BruKis. 1909.

DasuoND, The Church and the Law. Chicago, 1S98.

Biblioffrapht/.

Devas, SiudUi (n Family Lift. I.uDdon, ISBO.
Devine, Tht Law of Chrittian Uarriage. New York, 1B08.
EsMDN, Le Uaruigr en Dniil Conunu/ur. farla, ISBl.
EvERfli.EV, The Law and Domratie Rrlatians. I^ndon, 1906.
Farbn^, Gftrhithte der Ehrteheidung im kanonitchen Recht.

burg. 1903.
Feije. f>r /nifWintrnfLu ft Ditpciuationibtm MalTimiinitilibiia. Lofi

187*.

Fkrbekes, Lot Etpontaies y el Matrimonio. Msdriil, 1909.
Freisen', Geaehiehte Art kammi»{then EhererhU bis rvm Verfalt dtr

Glaii»fnlilteratiiT. Paderborn, 1893.
Pu.vK, Cfilibat und PTiriterehe »m chrUtltehen Altrrthum.

gpsrhivhtliche Abhandlungen und Untersuchuagen. Psderl

draa I

Lris, loai-
.. 1905.

OhSPMiMS, Tractatus fononu-us l)r Ualriituntin. Pnris, 1
Okaht, Uarriage and Family Eelatiiitu. Ijondon, 1S92.
OK-vestal. Hitt'iiTr df la Ifgilimation des eufantt nai

eaiutnique. Paris, 1905.
Obnicot. Theologiue Uoratis Iiutitiitionea (vol. 11. De JUalrtnxiitw.

pp. 480-630). Lovanii, 1905.
OioviKK. I>( DMp«nmtliontb«« MatrimonialibM* Co-nMHU<xt\one» Canonieae.

Nwipoli, 1863.
OmArD-TcULOH, Let Origiw* rfu Mariage eC de la FamUle. Paris, 1831.
Hbinis, GrundriM dn Jtatholiarhen EherechU. MQnater i. W.. 1905.
Hribs, De Matrimoniii Traclatv* Qvinqae. MooBehii, 1861.
Het'BES, De Fnlrgtate ttaturndi intpedimmta dirimentia, pr

nuitrtmoniu loli Eccleiiae prnpria. LovHnii, 1853,
Hn-LIHa. Die Bomitehe Curie. Paderborn, IflOB,
HoLLWBCK, Die Kirektie\en StrafgeteUe. Mainz, 189fl.
Hou.WKCK. Dat CivHehereeht de§ BUrgertiefien OetrUbuelu, dargtttm

im Liehte de» hattoniteken Ekerei-hlt. Mninz, 1900.
HUHBAREK VON HstNLElH. Die bedingte Ehegchlieaiiung. Wien. 1892.
HuTH, The Marriage of Near-Kin contiderrd with Tetpeel to taw of

nationx. the resvlU of experienee and the teaehinga of bio'

London, 1875.
JODER, Formulaire Matrimoniale. Paris, 1991.
LeCLERCq, La Liginlation eoncitiaire relative an eelibnl erflffiattii

in the Dietionnaire d'Areh^nlogie chrftienn', 1910.
LEFravBE, Lefone d^ introduction gfnirale d I'hiatiiire du driiit

muniai franfoit- Paris, 1900.
Lbhmkuhl, Teologia Moralis {vol. II, De Matritnoi%ia, pp. 480-C

FriburRi Brisgovi&e. 1910.
Lkhr, Le Mariage. le Divorce et la SfparaUnn dr corps dans let f

paux pays civSitit. Paris, 1899.
Leitnbk. Die tridentinitche Ehetehlietaungtforfn nach der fofulifn

PtiM X. •'Provida." Y^geaaharg. 1908.
LBWAreE. Le Mariage Civii. Paris, 1901, ^^_

Leo XIII, Eni-vflirnl "Arcanvm Divinae" (Ppbniarv 10, 18H0), Leonit

XIII. Acta, vol. II, pp. 10-40. Bomae, IggE.
Ldiot, La Religion det Primitift. Paris. 1909.
LrcKOCK. The History of Marriage, Jeviith and Chrittian. in relation to

1 forbidden degrees, London, 1895,
Mathaeun, Casus de Ualrimonio. Paria, 1893.

Bibliography,

Manskli.a, De Impedtmentui Malrimonivrn dirimenUbtu af de Proecaau
Ivdictali. Romae, IBHl,

iSiZZZt, I)e Matrimonio Conteientiae. Bonue, 1766.

McLknnan, Kxogamy and Endogamy, Id the FoTlnigkttji Bevlrw, vol.
XXI, p. 884 ff.

McNiCHOLAS, The aew tegulalioH oh engaemacnU and marriage. Phil-
adelphia, 1908.

Helodv. Uarriage and Kear Kin. In the Catholic Univeriily Bvlletin
(January. 1903, pp. 40-60]. Washington, D. C.

Metnui., Le Mariage opr^a lea invojiiona, Paris, 1898.

MlPSVD, La Deroga all' imprdimtnto de clandeitmiiA. Roma, llfDl.

Mot, Daa EherecM der Chriflm in dtr morgentandiichn und abend-
landitrhfn Kirche t/is mr Zcil Karta dra Groiarn, HeKi'nxburg, Mi^'i.

MuBRAV, The Law relating la the Property of named Peraont. OUi-

goK, isgs.

Neustadt, Eritiaehe Studien zvm Familienrecht de» biirgerlichen

Geaettbucha. Berlin, 1907.
NoLDIN, ^umnut Tkeologiae MoratU (vol. III. De MntrimuHU). pp. 572-

786). Oenipontp, 1912.
Ojnn. De Somana Curia. Romae, 1910,
OjDTTi. Iiu Antepianum et Pianum ex deereta "Ne Trmere." Rumae,

1908.
Ortolan, Diaparitf de rvlte. In the Dv^tiannaire de TMologie Catho-

liquf. ParU, 1903.
Palmiew, Tractatua de Uatrimanw Ckrutiono. Romae, 1880.
pKSBONE, Df Matrimimio ChrislioKO. Leodii, 1861.
Planchasd, Diapenaet Ualrimonialea, AnKOuldme, 1882.
PoMPBN. Traetatvt de Diapentationibaa et de revaiidatione Uatritnonii.

Anutelodami, 1897.
Pimtts, Commentarinui in FacMltalet Apn»t<iti«a*. Neo-Eborsri. 1893.
BosrovAmt, Supple-menta ad CoUrctione* monumentorum el LUteraturae

de Malrinonui. Nilriw. 1S87.
BOSSBT. Dt Sanrammto MalritnonH, traelatua dagmalieua. moral it,

omonicut, litnrgicua et indieiaritia, Partsiia, 1895-1896.
ROSBI, de Comenau Matrimriniali, Romae, 1911.
BOSBI, De Impedimenta Impotentiae. Botnae, 1910.
SABKm-BARRtn-r. Compendium Theologiae Horalia. (De Mtilfinuinio.

pp. 796-970). Neo-Ebornei, 1916.
Banchbz, Diaputaliontim de Sancto Matrimonii Sacramento lomi Irci.

Antverpiae, 1626.
SCRNCTEEK. Kalh«liache» Kherecht. Freiburg i. Br.. 1898.
SCBULTE, llandb\ich dea kathaliaehen Eherechla. Oiesaen, 1S5G.
Sl^tek. a Manual of Moral Theology. Marrvige <vol. II, pp. SSl-3e6),

New York, 1908.
Surm, The New Uarriage Law. In the Month. 1908, pp. S37 ff. ; and

633 ff.
STAPr, PaatoToiunterrioht iiber die Ehe. Frankfurt am Main. 1829.
Thiolooia Mbchuniensib, Traetatua dr Sponaalibua el Malrimonio.

Mechliniae. 1911.
Thomae ab Aroentjna Cuninientaria in Senlentiia. (Lib. IV, Dist.

XXVI-XLIIl. Venetiis, 1564.
^ TRovas, Summa Throingiae, De Sarramrnia Matrimonii (Tertiae Partis
^ Supplcmtntum qq. XLI-LXVIII). Romae, 1894.

458 Bibliography.

TOUKNBA.U, The Evolution of Marriage and of the Family. New York,

1891.
Tbxnta, La Nnova Diseiplina nUla CelebroMtone degli Sponsali e del

Mairimonio, Aseoli Pieeno, 1909.
Van di Bubot, Traetaiue de diepensationibue matrimonialibus. Sjlvae-

Duels, 1865.
Van db Bumt-Schakpman, Traotatue de Mairimonio. Ultrajeeti, 1908.
Vbcchiotti, De Mairimonio. Auguttae Taurinorum, 1905.
Vkntuba, n Mairimonio Critiiano. Napoli, 1859.
Vblmkdlbch, De Ccun Apostoli. Brugis, 1911.
Vbkmkbsch, De Forma Sponealium ae Mairimonii. Brugis, 1908.
Watkins, Holy Matrimony. London, 1895.
Wblnz, lue Mairimoniale Eeeleeiae Caiholieae (Lib. IV, Tub Deer.).

Romae, 1904.
Wkste&marck, Oeechichie der menscklichen Ehe. Yena, 1893.
Wood, Marriage. Maneheeter, 1887.
WouTBS, CommeniariMS in Deoreium **Ne Temere." Amstelodami,

1910.
Zimmblman, Der Prieeier-Colibai. Kempten, 1899.
ZiTKLLi, De dispeneaiionibue Mairimonialibus. Bomae, 18S7.

Universitas Cathouca Americas

Washinotonh, D. C.

S. Facultas Theolooica

1918-1919

No. 6

TITULI

459

DEUS LUX MEA

TITULI

QUOS

AD DOCTORATUS GRADUM

lURE CANONICO

Apud Universitatem Catholicam Americae

CONSEQUENDUM

PUBLICE PROPUGNABIT

JOSEPHUS JULIUS PETROVITS

SACERDOS DIOECBSIS HARRISBURGENSIS

SACRAE THEOLOGIAE DOCTOR

ET
JURIS CANONICI LICENTIATUS

IIORA X A. M. DIE XXXI. MAII A. D. MCMXIX

4S1

P Tituli. 463 ^M

De rescriptis (Can. 36— Can. 62). ^H

II.

De pnvilegiis (Can. 63— Can. 79). ^H

III.

De dispeiisationibus in genere (Can. 80 — Can. ^^M

IV.

De personis relate ad domicilium et quasi-donu- ^^M

cilium (Can. 91— Can. 95). ^H

De clerieorura adscriptione alicui dioecesi (Can. ^^1

111— Can. ^H

VI.

Dc electione Episeoporum in Statibns Foederatis ^^H

Americae .Scptentrionalis. ^^^H

VII.

De potestate ordinaria et delegata (Can. 196— ^^H

Can. 209). ^^H

VIII.

De baptismo et de ministro et subiecto baptism! ^^H

( Can. 737— Can. 754) . ^H

IX.

De significatione vcrborum "Persona baptizata ^^H

in Bcclesia catholiea" relate ad impedimentum ^^H

disparitatis pultus et formam matrimonii. ^^H

De ritibuH et oaeremoniis baptismi et de patrinis ^^^|

in baptismo adhibitia (Can. 755 — Can. 769). ^^H

XI.

De miniatro, aubiecto, tempore et loco confirma- ^^H

tionis et de patrinis in confirmatione adhibitis ^^H

(Can. 782— Can. 797). ^H

~ XII.

De ministro et subiecto saerae communionis ^^^|

(Can. 845— Can. 866). ^H

xin.

De reservatione peccatorum, de subiecto sacra- ^^H

menti poenitentiae et dc loco ad confessioncs ^^^|

audiendas (Can. 893— Can. 910). ^^M

XIV.

De ministro, subiecto, ritibus et caeremoniis ex- ^^^|

tremae unctionis (Can. 938— Can. 947). ^^M

XV.

De lis f|uae sacrae ordinationi praeire debent ^^H

(Can. 992— Can. 1001). ^^M

XVI.

De natura matrimonii eiusque divisione (Can. ^^H

1012 et Can. 1015). ^H

XVII.

Do ftnibuR matrimonii eiusque essentialibus pro- ^^H

prictatibus (Can. 1013). ^^H

XVIII.

De competcntia et differentia potestatis ecclesi- ^^^|

aslicac et civilis in rebus matrimonialibus ^^H

(Can. 1016). ^^1

XIX.

Dc spansalibu.s (Can. 1017). ^^H

464

Tituli.

XX.

XXI.
XXII.

XXIII.

XXIV.

XXV.

XXVI.

XXVII.

XXVIII.

XXIX.

XXX.

XXXI.

XXXII.
XXXIII.
XXXIV.

XXXV.

XXXVI.

XXXVII.

XXXVIII.

XXXIX.

XL.

De iis quae matrimonii celebrationi praetermitti
debent praesertim de publicationibus matri-
monialibus (Can. 1019— Can. 1034).

De impedimentis in genere (Can. 1035 — Can.
1042).

De potestate ordinaria Episcoporum et alionim
sacerdotum in urgenti mortis periculo et in
easibus quando impedimentum detegitur **cum
iam omnia sunt parata ad nuptias*' (Can.
1043— Can. 1046).

De dispensationibus matrimonialibus (Can. 1047
—Can. 1057).

De impedimentis impedientibus votorum simpli-
eium et adoptionis (Can. 1058 — Can. 1059).

De impedimentibus mixtae religionis et indigni-
tatis (Can. 1060— Can. 1066).

De impedimento aetatis (Can. 1067).

De impedimento impotentiae (Can. 1068).

De impedimento ligaminis (Can. 1069).

De impedimento disparitatis cultus (Can. 1070
—Can. 1071).

De impedimentibus Ordinis Sacri et Professionis
Religiosae (Can. 1072— Can. 1073).

De impedimento raptus (Can. 1074).

De impedimento oriminis (Can. 1075).

Dc impedimento consanguinitatis (Can. 1076).

Dc impedimento aflfinitatis (Can. 1077).

Dc impedimento publieae honestatis (Can.
1078).

De impedimento eognationis spiritualis et de im-
pedimento dirimenti adoptionis (Can. 1079 —
Can. 1080).

De consensu matrimoniali (Can. 1081 — Can.
1093).

Dc forma celebrationis matrimonii (Can. 1094 —
Can. 1103).

De matrimonio conscientiae (Can. 1104 — Can.
1107).

Dc tempore et loco celebrationis matrimonii