Pohle-Pruess on the Sacrament of Holy Matrimony

Pohle-Pruess on the Sacrament of Holy Matrimony

Dogmatic Theology, Volume XI, pp.140-241

I. Definition. — Matrimony (marriage) may be taken to denote the action, contract, or formality by which the conjugal union is formed (matrimonium in fieri) or the union itself as an enduring condition (matrimonium in facto esse). The contract is the basis of the married state, as ordination is the basis of the priesthood.

Unlike the five other Sacraments, Holy Orders and Matrimony were instituted for the preservation of the race (in the supernatural and the physical sense), rather than for the sanctification of the individual.

a) As the Sacrament of Holy Orders consists in ordination, so the Matrimony consists in the contract which effects the marital bond. The latter may be regarded both as res and sacramentum.

Matrimony is defined by the Roman Catechism as the conjugal union of man and woman between legitimate persons, which is to last during life.¹

This definition comprises three essential elements:

o) Marriage is a legitimate contract. Persons who have no right to marry cannot enter into such a contract. Then, again, even between parties who are free to marry each other, not every contract is legitimate. Among baptized Christians the sacramentality of the marriage contract always depends on its legitimacy, and hence the validity of the one is conditioned by the validity of the other.

p) Every true marriage is essentially a maritalis coniunctio, i. e. a union of a man and a woman, entered into primarily for the purpose of begetting and rearing children. This object differentiates marriage from every other kind of union between human beings.

y) Marriage takes place between rational beings, and hence the conjugal union is crowned and ennobled by a  spiritual companionship (“individuae vitae consuetudo”) which connotes the two essential properties of Matrimony, i. e. unity and indissolubility.

b) The objects of Matrimony may be deduced from its nature. They are three, to wit:

(1) The begetting and rearing of offspring in compliance with the divine command to “increase and multiply.”²

(2) Mutual help and assistance, both bodily and spiritual, for God said in creating Eve, “It is not good for man to be alone: let us make him a help like unto himself.”³

To these two objects has been added since the Fall of our first parents a third, namely,

(3) The regulation of the sexual instinct in accordance with the dictates of reason. “For fear of fornication, let every man have his own wife, and let every woman have her own husband.”⁴

The two last-mentioned objects are, however, entirely secondary and subordinate to the first and primary end of marriage. *

From what we have said it does not follow that a marriage between two persons who have resolved to live continently would not be a true marriage. The Blessed Virgin Mary, though living continently with St. Joseph, was nevertheless his true spouse.5

Granted that the third of the objects mentioned above does not appertain to the essence of marriage, and that the second is attainable without conjugal intercourse, the question remains: How can a marriage which excludes the primary purpose of Matrimony, i. e. the begetting of children, be a true marriage?6

There is a clear-cut distinction between a right (ius) and the use of it (usus iuris). The right to conjugal intercourse is essential for the validity of marriage; not so, however, the use of it. A man may become the owner of a house without being obliged to occupy it. Similarly, two persons may acquire the right to conjugal intercourse without being obliged to make use of it. “It is not the destruction of virginity that constitutes Matrimony,” says St. Ambrose, “but the marital contract.”⁷

2. The Blessings of Marriage. — To the three objects of Christian marriage correspond three distinct blessings. By the blessings of marriage we mean those things which make it a source of goodness, thereby rendering it pleasing to God and useful to men.

The three blessings of Matrimony are:

(1) Offspring brought up and educated for God (bonum prolis);

(2) Faith or fidelity of husband and wife to each other (bonum fidei);

(3) The Sacrament, that is, the indissolubility of the marriage tie, which symbolizes the indivisible union of Christ with His Church (bonum sacramenti).

The bonum prolis involves three obligations: (a) the procreation of children; (b) their physical care; (c) their mental and religious training. Against these obligations they sin who (1) prevent conception by unlawful means, such as contraceptives or abortion; (2) who disown or neglect their children; and (3) who fail to have them baptized and instructed in the Catholic religion.

The obligations of the married as regards fidelity (bonum fidei) are to render conjugal rights to each other and to avoid all sins against the sixth and ninth commandments.

The blessings of marriage as a Sacrament are peculiar to Christian Matrimony, which supernaturally ennobles and perfects both the procreation of children and their bringing up, as also the fidelity of husband and wife towards each other, and imparts all graces necessary for the prevention of incontinency. At the same time the bonum sacramenti imprints upon the matrimonial contract the supernatural stamp of Christ’s mystic union with His Church, and thereby elevates the two properties of every ideal marriage — i. e. unity and indissolubility — to the supernatural sphere.⁸

The existence of these blessings proves that marriage is morally licit. This conclusion is confirmed by another consideration. Marriage, being based on the divinely created difference of sex, is a law of nature. It was confirmed by God Himself,⁹ and hallowed by our Lord Jesus Christ when He participated in the wedding feast at Cana in Galilee.

The Catholic Church has an additional reason for regarding marriage as sacred and supernaturally meritorious: in her eyes every true marriage between Christians is a Sacrament.¹⁰

St. Augustine and a few other Patristic writers spoke of marriage as though it involved uncleanness and immorality. But these authors did not mean to deny that Christian marriage is pleasing in the eyes of God. They merely wished to censure inordinate concupiscence, which is an effect of original sin.

3. Division of this Treatise. — Christian marriage is a natural, a moral, and a juridical union, and hence belongs to three separate and distinct theological disciplines, namely, Dogmatic Theology, Moral Theology, and Canon Law. We deal with it here in its dogmatic aspects only.

Besides the Church the State is interested in marriage and has the right to regulate its effects so far as they come within the secular sphere. Hence marriage is to a certain extent subject to civil authority, provided the precepts of God and His Church are duly complied with.

Moral Theology considers marriage in its ethical relations, showing what is permitted and what is forbidden in regard to matrimonial engagements, the reception of the Sacrament, and the married state. Present-day moralists ought to lay greater stress on the advantages of marriage as a nursery of virtue, — an aspect which has, unfortunately, been somewhat neglected.

Canon Law is concerned with Matrimony in as far as it falls under the discipline of the Church.

Dogmatic Theology deals with Matrimony as an object of faith.

The dogmatic teaching of the Church on Matrimony is summarized by the Council of Trent¹¹ in those of its decrees which relate to the sacramental character of Christian marriage, its properties, the power of the Church to set up diriment  impediments, and the superiority of virginity over the married state.¹² Other important doctrinal questions regarding the minister of the Sacrament and the precise nature of its matter and form, have been left open to debate.

General Readings:— Peter Lombard, Sent, IV, dist.26 sqq.— St Thomas, Summa Theol., SuppL, qu.41-68. — Bellarmine, De Sancto Matrimonii Sacramento.— P. Ledesma, De Magno Matrimonii Sacramento, Salamanca 1592. — Th. Sanchez, De Sancto Matrimonii Sacramento, Genoa 1602. — B. Pontius, De Sacramento Matrimonii, 1624. — Chr. Schardt, De Matrimonio, 1734. — Tournely, De Sacramento Matrimonii. — H. Klee, Die Ehe; eine dogrmtisch-arch’dologische Abhandlung, 2nd ed., Mayence 1835. — J. Carriere, Praelect. Theol. de Matrimonio, Paris 1837. — Perrone, De Matrimonio Christiano, 3 vols., Rome 1861.— M. Heiss, De Matrimonio, 5th ed., Rome 1861.— B. Rive, SJ., Die Ehe in dogmatischer, moralischer und sozialer Besiehung, Ratisbon 1876.— ■ Palmieri, De Matrimonio Christiano, Prati 1897.— M. Rosset, De Sacramento Matrimonii Tractatus Dogmaticus, Moralis, Canonicus, Liturgicus et Iudicialis, 6 vols., Fribourg 1896. — A. Devine, CP., The Sacraments Explained, 3rd ed., pp.431-515, London 1005.— W. Humphrey, S.J., The One Mediator, or Sacrifice and Sacraments, pp.223-237, London 1890.— S. J. Hunter, SJ., Outlines of Dogmatic Theology, Vol. Ill, pp.403-423.— Wilhelm-Scannell, A Manual of Catholic Theology, Vol. II, 2nd ed., pp.510-532, London 1901.— A. Lehmkuhl, SJ., art. “Marriage, Sacrament of “in Vol. IX of the Catholic Encyclopedia.

Chapter I

Marriage between Christians a true sacrament

Section I

Nature of the sacrament and its divine institution

Our chief task in this section will be to show from Divine Revelation (i) that marriage between Christians is a Sacrament and (2) that the Sacrament is inseparable from the contract.

Thesis I: The act or formality by which the conjugal union is established among baptized persons is a true Sacrament of the New Law.

This is an article of faith.

Proof. Certain ancient and medieval sects (Encratites, Manichaeans, Priscillianists, Albigenses) regarded Matrimony as immoral. The Protestant “Reformers,” notably Luther, denied its sacramental character and called it “a worldly thing.” Against these heretics the Council of Trent defined: “If anyone saith that Matrimony is not truly and properly one of the seven Sacraments of the evangelic law, instituted by Christ the Lord, but that it has been invented by men in the Church, and that it does not confer grace, let him be anathema.”¹

The Council finds this doctrine “intimated” in St. Paul’s Epistle to the Ephesians,² but bases its main argument on Tradition.

a) In Eph. V, 25-32 the Apostle admonishes husbands: “Love your wives, as Christ also loved the Church, and delivered himself up for it, that he might sanctify it, cleansing it by the laver of water in the word of life.... So also ought men to love their wives as their own bodies.

For this cause shall a man leave his father and mother, and shall cleave to his wife, and they shall be two in one flesh. This is a great mystery, but I speak in Christ and the Church.”³

The Apostle here attributes to Matrimony the three essential notes of a Sacrament, to wit: (1) an external sign, (2) internal grace, (3) institution by Jesus Christ. Hence Christian marriage is a true Sacrament.

The external sign is the matrimonial contract, which is represented by St. Paul as a symbol of the union between Christ and His Church. This mystic union, inasmuch as it “sanctifies” and “cleanses” the Church and all her members, is essentially supernatural and productive of grace, and hence Christian marriage, too, must be supernatural and a means of sanctification for those who receive it.

On no other hypothesis can the phrase, “This is a great mystery,”⁴ be interpreted intelligently. How could the conjugal union between a man and a woman be a great mystery if it did not communicate grace? How could it symbolize the mystic union between Christ and His Church, had not the Lord Himself raised it to the supernatural sphere, in other words, made it a true Sacrament? Thus understood, the term sacramentum regains its primitive meaning.

The argument from Eph. V, 25-32 may be briefly formulated thus: A sacred sign which produces internal: grace is a true Sacrament. Now Christian marriage is a sacred sign which produces internal grace, because St. Paul calls it a great mystery and a symbol of Christ’s union with His Church. Consequently, Christian marriage is a true Sacrament.

As we have seen in a previous volume of this series,⁵ the Sacraments of the New Law, unlike the symbols of the Ancient Covenant, not merely signify and prefigure grace, but actually cause or produce it ex opere operato. Hence, if Matrimony is a true symbol of the mystic union between Christ and His Church, it must cause or produce grace in the souls of those who receive it.

According to Luther and Calvin, St Paul, in speaking of “a great mystery,” meant the mystic union of Christ and His Church, not the matrimonial contract adumbrated in the quotation from Gen. II, 24. But the context excludes this interpretation. The Apostle says: “propter hoc relinquet homo patretn et tnatretn suatn et adhaerebit uxori suae et erunt duo in came una: sacramentum hoc [t. e. coniunctio maritalis] magnum est, ego autem dico in Christo et in Ecclesia [cfe Xpurmv kcu as rijv iKKkrpiav, — that is, in relation to Christ and the Church]

Every legitimate marriage, therefore, is a symbol of the mystic union between Christ and His Church, and hence a great mystery. Adam cannot have meant his own marriage with Eve, as he had neither father nor mother, but evidently spoke with an eye to his future descendants.

Estius objects that if marriage as such symbolized the mystic union of Christ with the Church, it must have been a Sacrament among the pre-Christian Jews and gentiles, or else the Pauline text does not prove it to be a Sacrament at all.

We answer: Though every legitimate marriage is a symbol of Christ’s mystic union with His Church, Christian marriage alone is a perfect symbol of that union, because it alone produces the grace which it signifies, whereas marriage in Paradise and among the Old Testament Jews and the gentiles of the pre-Christian era was merely an inefficacious symbol.⁶

When did our Lord institute the Sacrament of Matrimony? This question is answered differently by different authors. Some say, at the marriage feast of Cana in Galilee; others, after the Resurrection;⁷ a third group of theologians believes that marriage did not become a Sacrament until our Lord restored its pristine indissolubility, as recorded in Matth. XIX, 8 sqq.⁸

b) The main argument for the sacramentality of Christian marriage is derived by the Tridentine Council from the teaching of the Fathers and early councils, and from the universal belief and practice of the Church.

o) The argument from prescription is contained in the analogous argument for the septenary number of the Sacraments, as developed in Pohle-Preuss, The Sacraments, Vol. I, pp.33 sqq. In particular the following facts should be noted:

No one denies that, since the Protestant Reformation, Matrimony has been regarded as a Sacrament throughout the Catholic world. Going back another century, we come upon the statement of the Council of Florence (A. D.1439), at “the seventh of the Sacraments is Matrimony, which is a symbol of the union of Christ with the Church.”⁹ How Matrimony was regarded at the beginning of the twelfth century is evident from the fact that it was included in the list of Sacraments drawn up at that time.¹⁰

The Scholastics unanimously adopted this list.¹¹ A few glossators and canonists (Gaufridus, Henry of Ostia, Bernard of Pavia) appear to deny the sacramental character of Matrimony; but in reality they merely assert that Matrimony fails to produce sacramental grace if a pecuniary fee is paid to the officiating priest, because in their opinion this involves simony. They do not mean to deny that marriage is a true Sacrament. The objection they raised was solved by the Angelic Doctor as follows: Matrimony is both a Sacrament and an office of nature; to give money for it as an office of nature is permissible; not so, however, as a Sacrament.¹²

As the schismatic Greeks, Russians, and Bulgarians all acknowledge the sacramentality of marriage, this dogma must antedate the great schism of the ninth century. By the same token it can be traced back to the fifth century, because the ancient sects of the Nestorians, Copts, and Armenians, which broke loose from the mother Church as early as 431,¹³ retain belief in the Sacrament of Matrimony. This belief is confirmed by the ancient rituals, e. g. the Sacramentary of Pope Gelasius, who died in 497.¹⁴

As for the first four centuries of the Christian era, they show no trace of a surreptitious introduction of the doctrine. On the contrary, certain representations found in the catacombs prove that “in the second century, Christian marriage was not merely a civil function, but was already regarded as a Sacrament, to be entered upon before the Church, to be united to the offering of the Holy Sacrifice, and the reception of Holy Communion, and finally to be sealed by the benediction of the priest.”¹⁵ On some of the early monuments our Lord is depicted as standing between the bride and the groom, blessing them or crowning them with a wreath.¹⁶

Hence belief in the sacramental character of Matrimony is as old as the Church, which is merely another way of saying that it comes to us through the Apostles from our Lord Himself.¹⁷

P) With the exception of St. Augustine, the early Fathers intimate rather than express their belief in the sacramentality of marriage. But all without exception insist on its sanctity, and hence it is contrary to Patristic teaching to say, as Luther did, that Matrimony is “a worldly thing.”¹⁸

St. Augustine expressly calls Christian marriage a Sacrament and ranks it with Baptism and Holy Orders. “It is certainly not fecundity only,” he says, “the fruit of which consists of offspring, nor chastity only, whose bond is fidelity, but also a certain Sacrament which is recommended to believers in wedlock, wherefore the Apostle says, ‘Husbands, love your wives, even as Christ also loved the Church.’ Of this Sacrament the substance undoubtedly is this, that the man and the woman who are joined together in wedlock should remain inseparable as long as they live, and that it should be unlawful, except for the cause of fornication, for one consort to be parted from the other. For this [principle] is faithfully observed in Christ and the Church, that living together they be not separated by a divorce. And so complete is the observance of this Sacrament in the city of our God, on His holy mountain, — that is to say, in the Church of Christ, — by all married believers, who are undoubtedly members of Christ, that although women marry and men take wives for the purpose of begetting children, it is never permitted to put away even an unfruitful wife for the sake of having another to bear children. . . . Thus between the conjugal pair, as long as they live, the nuptial bond¹⁹ remains, which can be cancelled neither by separation nor by union with another. But this fact tends only to aggravate the crime, not to strengthen the covenant, as the soul of an apostate, which renounces as it were its marriage union with Christ, does not, even though it has cast away its faith, lose the Sacrament of faith [Baptism] which it received; in the laver of regeneration.”²⁰

In another passage the same holy Doctor compares Matrimony with Holy Orders: “The good that is secured by marriage . . . consists in the . . . chastity of the married fidelity, but in the case of God’s people [the Christians] it consists moreover in the holiness of the Sacrament, by which it is forbidden, even after a separation has taken place, to marry another as long as the first partner lives, . . . just as priests are ordained to draw together a Christian community, and even though no such community be formed, the Sacrament of Orders still abides in those ordained, or as the Sacrament of the Lord, once it is conferred, abides even in one who is dismissed from his office on account of guilt, although in such a one it abides unto judgment.”²¹

Other Fathers, while not so explicit in their pronouncements regarding the sacramental character of Matrimony, emphasize its sanctity. Thus St. Ambrose declares that marriage was hallowed by Christ, but its sanctifying power is lost by those who dishonor it. “We know,” he says, “that God is as it were the head and protector of marriage, who does not permit that another’s marriage bed be defiled; and further that one guilty of such a crime sins against God, whose law he violates and whose bond of grace he loosens. Therefore, since he sins against God, he loses his participation in the heavenly Sacrament.”²²

Origen says: “God Himself has fused the two into one, so that they are no longer two after the man has married the woman. Inasmuch, however, as God is the author of this union, grace resides in those who are united by God. Well aware of this, St. Paul declares that Matrimony, according to the word of God, is a grace, just as a chaste unmarried life is a grace.”²³

That marriage was sanctified in a particular manner by our Lord at Cana, is a thought expressed by many of the Fathers. Thus St. Cyril of Alexandria says: “[Christ] was present, not to feast, but to work a miracle and thereby to sanctify the very foundation of human procreation, in so far, namely, as the flesh is concerned.”²⁴

The most ancient Patristic writers treat Christian marriage as a sacred thing. Tertullian writes to his wife: “How shall we describe the happiness of those marriages which the Church ratifies, the sacrifice strengthens, the blessing seals, the angels publish, the Heavenly Father propitiously beholds.”²⁵ St. Ignatius of Antioch (d. about 117) says: “Speak to my sisters that they love the Lord, and be content with their husbands in flesh and in spirit. In the same way enjoin on my brothers, in the name of Jesus Christ, to love their wives as the Lord loved His Church. ... It is right for men and women who marry to be united with the consent of the bishop (jiera yvwfirp rov bruTKoirov) , that the marriage may be according to the Lord, and not according to lust.”²⁶

Thesis II: Among Christians every legitimately contracted marriage is eo ipso a Sacrament, and, vice versa, whenever the Sacrament of Matrimony is received, there is a legitimate nuptial contract.

This proposition may be qualified as “communis et certa.”

Proof. Among the Old Testament Jews and the gentiles of the pre-Christian epoch, marriage was not a Sacrament, but merely a contract, as it still is between non-baptized persons to-day. Between Christians, however, Matrimony is always a Sacrament.

How does the contract become a Sacrament? Is the sacramental sign added to the contract by the blessing of the priest, or is the contract itself intrinsically raised to the rank of a grace producing sign? Christ was free to choose either of these two methods; which one He did adopt can be determined only from Revelation.

If the marriage contract became a Sacrament by the addition of some external sign, it would be possible for baptized Christians to make a marital contract without receiving the Sacrament of Matrimony.

That this is possible was formerly held by three groups of theologians.

(1) The so-called “court theologians” of the Gallican and Josephinist school (Antonio de Dominis,²⁷ Launoy,²⁸ J. N. Nuytz, J. A. Petzek, M. M. Tabaraud, J. A. Theiner, and Th. Ziegler) held that the Sacrament is constituted by the blessing of the priest and that the contract is merely a necessary requisite. This theory was avowedly contrived for the purpose of withdrawing matrimonial causes from the jurisdiction of the Church and handing them over to the State.

(2) Cano,²⁹ Sylvius, Estius, and Tournely regarded the contract as the matter and the sacerdotal blessing as the form of the Sacrament.³⁰ The contract itself, if legitimately concluded, is valid, they said; but it is not a Sacrament until completed by the nuptial blessing of the priest.

(3) Vasquez,³¹ Hurtado, Platel, Billuart, Gonet, Holtzclau (of the Wirceburgenses) and other writers denied that the priestly blessing constitutes the sacramental form of Matrimony. They held that the sacramentality of the marriage contract depends on the presence or absence, in the souls of the contracting parties, of the intention of doing what the Church does. According to this school it is optional with the contracting parties whether, in giving the matrimonial consent, they receive a Sacrament or not.

All these theories are untenable because a marriage contract between baptized persons is eo ipso a Sacrament.

a) This truth is demonstrable from Revelation.

According to St Paul, it is always a great mystery (t. e. a Sacrament)³² among Christians when “a man leaves father and mother and cleaves to his wife,”³³ As this happens in every legitimate marriage, it follows that every legitimate marriage between Christians is a true Sacrament.

Though the Fathers did not treat this question expressly, they taught that marriage between baptized persons is a sacred thing, a great mystery, the most perfect symbol of the mystic union of Christ with His Church, and therefore indissoluble and monogamic; and in so teaching they implicitly inculcated the inseparability of the contract form of Matrimony. Their teaching was scientifically developed by the Schoolmen. “The words in which the matrimonial consent is expressed,” says e. g. St. Thomas, “constitute the form of this Sacrament; not the sacerdotal blessing, which is a sort of sacramental.”³⁴

Melchior Cano (+ 1560) was the first Catholic theologian to assert that the contract is merely the matter of the Sacrament, whereas the sacerdotal blessing constitutes its form. He admitted that his assertion was contrary to the teaching of all his predecessors. In matter of fact it is not only singular, but wrong, as can be shown from the official utterances of popes and councils before and after Cano’s time, — utterances which, though not ex-cathedra decisions, unmistakably indicate the mind of the Church.

b) Thus the Council of Florence (1439) declares: “The seventh Sacrament is that of Matrimony. The efficient cause of Matrimony [i. e. as a Sacrament] invariably is the mutual consent expressed by words in the present tense.”³⁵

From this definition we argue: The “mutual consent” of the contracting parties admittedly constitutes the marriage contract. If this same consent is the efficient cause of the Sacrament, contract and Sacrament must be identical.

This teaching is at least indirectly confirmed by the Council of Trent when, speaking of Christian marriage, it says: “If anyone saith that Matrimony is not truly and properly one of the seven Sacraments of the evangelic law … let him be anathema.”³⁶ Every marriage between Christians is a true Sacrament; consequently contract and Sacrament coincide.

We find this conclusion expressly drawn in a letter of Pope Pius VI. “It is an article of faith,” he says, “that Matrimony, which was nothing but a sort of indissoluble contract before the advent of Christ, after His coming became one of the seven Sacraments of the New Law, instituted by Christ our Lord, as … the Council of Trent has defined under pain of excommunication.”³⁷

Pius IX resolutely defended the proposition that “among Christians there can be no marriage which is not at the same time a Sacrament, … and consequently the Sacrament can never be separated from the marital contract.”³⁸ The contrary teaching of Professor Nuytz of Turin was condemned in the Syllabus.³⁹

Leo XIII, in his Encyclical letter “Arcanum divinae sapientiae,” of Feb.10, 1880, declares that “in Christian marriage the contract is inseparable from the Sacrament, and therefore the contract cannot be true and legitimate without being a Sacrament as well.” He adds: “For Christ our Lord added to marriage the dignity of a Sacrament; but marriage is the contract itself, whenever that contract is lawfully concluded. . . . Hence it is clear that among Christians every true marriage is, in itself and by itself, a Sacrament, and that nothing can be farther from the truth than to say that the Sacrament is a certain added ornament, or outward endowment which can be separated and torn away from the contract at the caprice of man.”⁴⁰

In the light of these authoritative utterances it is plain that the separability of the contract from the Sacrament may no longer be maintained by Catholics.

c) Though the main question is thus decided, theological controversies regarding exceptional cases continue.

a) One of the questions most hotly debated among theologians is whether the marriage of an unbaptized couple becomes a Sacrament when both husband and wife embrace the Christian faith.

Vasquez, Mastrius, Simmonet, and a number of Thomist theologians answer this question negatively on the ground that only the original contract can be raised to the dignity of a Sacrament, not its subsequent approbation.

Capreolus, Henriquez, and Bellarmine, on the other hand, hold that in such a case the original contract becomes a Sacrament by a renewal of consent on the part of the contracting parties, and that this act assumes the functions of the sacramental sign and constitutes a renewal of the contract on a Christian basis.

Sanchez, Tanner, and the majority teach that the reception of Baptism suffices to elevate what was originally a mere marriage of nature to the dignity of a Sacrament. This theory is far more plausible than the other two, for if it were necessary to renew the consent, the omission of this formality would result in a marriage which was not a Sacrament, — a conclusion inadmissible in the light of the Patristic, conciliary, and papal teaching set forth above. Hence the reception of Baptism is sufficient to reconstitute the bond of pagan wedlock and impress upon it the Christian stamp, and such converts receive the sacramental graces of Matrimony together with those of Baptism.

b) The case is more complicated when only one of the two contracting parties embraces Christianity, or when an unbaptized marries a baptized person — presuming, of course, that the diriment impediment of disparitas cultus has been removed by a dispensation. Does the baptized party in such a case receive the Sacrament?

Dominicus Soto, Perrone, Palmieri, Pesch, and others hold that such a marriage is a true Sacrament, for two reasons: first, because the Church claims jurisdiction over it, and secondly, because at least one of the contracting parties is capable of receiving the sacramental grace of Matrimony.

Sanchez, Tanner, Hurter, Tepe, Atzberger, and others deny the cogency of this argument and assert that the matrimonial tie binds both contracting parties in precisely the same way. This seems to us the more acceptable view. (“ Matrimonium non debet claudicare.”)⁴¹

y) Another debated question is whether marriage contracted by proxy or by letter is a true Sacrament. A marriage contracted in either one of these two ways is undoubtedly valid as a contract, and since the contract among Christians is inseparable from the Sacrament, such a marriage is a true Sacrament, and Cano and Cajetan erred in asserting that it requires an oral ratification by the contracting parties to raise it to sacramental dignity. Marriage by proxy has always been regarded as valid under the Canon Law, and the Tridentine Council merely added a new condition when it ordained that the representatives of either party must sign the marriage contract in presence of the pastor and the required witnesses.

Section II

Matter and Form

I. False Theories. — From what was said in the preceding Section it follows that we must reject all those theories which seek the matter and form of the Sacrament of Matrimony elsewhere than in the mutual consent of the contracting parties.

a) Thus Melchior Cano teaches that the mutual consent of the contracting parties, whether manifested by words or signs, constitutes merely the matter of the Sacrament, its form being the benediction pronounced by the priest.

That this view is false follows from the reflection that, if the sacerdotal blessing were for some reason omitted, there would, in Cano’s hypothesis, be a valid matrimonial contract but no Sacrament. Moreover, the Council of Trent recognized the validity of clandestine marriages contracted in places where the “Tametsi” had not been promulgated. By a clandestine marriage we understand one contracted secretly without the cooperation of the pastor and the required witnesses. The Council says that all such marriages, when freely contracted where the “Tctonetsi” is not published, are “rata et vera,” unless formally nullified by the Church.¹ Note that, according to Tridentine as well as present-day usage, a legitimate marriage among Christians is always a Sacrament, whether blessed by a priest or not. But even in places where clandestine marriages are invalid the words pronounced by the priest, “Ego vos in matrimonium coniungo,” contribute nothing to the validity of the Sacrament This formula occurs in none of the ancient rituals,² and is omitted whenever a marriage is contracted with the merely passive assistance of the pastor. The object of this formula, therefore, is merely to acknowledge the marriage as publicly and solemnly contracted in facie Ecclesiae³ and to declare its sacramental nature.⁴

b) Vasquez does not go quite so far astray as Cano when he teaches that the matter of the Sacrament is constituted by the bodies of the contracting parties, in so far as they are mutually surrendered for the sacred purposes of wedlock. While it is quite true that both the contract and the Sacrament have the bodies of the contracting parties for their object, Vasquez is mistaken in regarding these as the proximate matter of the Sacrament. In reality the proximate matter (materia proxima sive ex qua) is the matrimonial contract itself. The bodies of the contracting parties are merely the remote matter (materia remota sive circa quam).

It needs no special argument to prove that the sacramental form, too, must be contained somewhere in the matrimonial contract. The question is, where? The form might conceivably be sought (though I do not believe any theologian has ever looked for it there) in the formal signification of the words embodying the matrimonial consent, assuming the matter to be contained in the material sound. This assumption would be analogous to that of the Scotists regarding Penance, and equally unconvincing. The same must be said of Navarrus’ view that the matter of Matrimony is to be found in the internal consent and the form in the external assent of the contracting parties.⁵ The external assent is merely the outward expression of the internal consent. Moreover, the matter (as well as the form) of a Sacrament must be perceptible by the senses.

2. The True Theory. — The only tenable theory is that of Bellarmine, Suarez, Sanchez, and other authors, — that both the matter and the form of the Sacrament are contained in the matrimonial contract itself, being the words of consent spoken by the contracting parties, or the signs used instead. These words or signs constitute the matter of the Sacrament in so far as they signify the mutual surrender of the bodies (traditio), and its form in so far as they signify the acceptance {acceptation of the same.

It is easy to see the mutual relation of these two functions. The traditio is something undetermined and receives its determination from the acceptatio. “These two,” says Suarez, “namely, traditio and acceptatio, so concur in the matrimonial contract that the traditio underlies and forms the basis of the acceptatio, which, in its turn, completes the contract. Thus it happens that the mutual consent of the contracting parties . . . has the nature of matter in as far as it, contains the mutual traditio, and the nature of form in as far as it effects the mutual acceptatio.”⁶ Though the words, “I take you for my lawful husband (wife) “directly signify and effect the marital union {nexus maritalis) they only indirectly signify and effect sanctifying grace, because every marriage between Christians, by virtue of the divine institution of Matrimony, is necessarily a symbol of the mystical union of Christ with His Church.⁷

Section II

Sacramental Effects

I. Increase of Sanctifying Grace. — The first effect of Christian marriage is an increase of sanctifying grace.

“If anyone saith,” defines the Tridentine Council, “that Matrimony . . . does not confer grace, let him be anathema.”¹

Whenever the Council speaks of grace conferred by a Sacrament, it means sanctifying grace. Matrimony, being a symbol of Christ’s union with His mystic spouse, necessarily presupposes the state of sanctifying grace, and hence its first and principal effect can be none other than to augment that grace.

It follows that Matrimony is, by its very concept, a Sacrament of the living.

If it is received in the state of mortal sin, there are two possibilities: Either the unworthy recipient is conscious of the state of his soul, or he is unconscious. In the former case he commits a sacrilege by receiving the Sacrament informe or ficte, as it were under false pretences, and thereby deprives himself of its graces, at least so long as the obstacle (obex gratiae) is not removed by an act of perfect contrition or the worthy reception of Penance. In the latter case he is unconscious of being in the state of mortal sin, and hence acts in good faith and may, if he has imperfect contrition, receive sanctifying grace per accidens.

2. The Sacramental Grace of Matrimony. — Besides increasing sanctifying grace, matrimony confers certain special graces. This is evident a priori from a consideration of the great importance of this Sacrament for family, State, and Church, as well as the onerous nature of the duties and burdens which it imposes.

The “sacramental grace “of Matrimony probably consists in a claim based upon and confirmed by sanctifying grace, which claim entitles the recipient to the actual graces (gratiae actuates) necessary for faithfully performing the duties of the married state. The Tridentine Council says: “The grace which might perfect that natural love [of husband and wife for each other] and confirm that indissoluble union and sanctify the married, Christ Himself . . . merited for us by His Passion; as the Apostle Paul intimates, saying: ‘Husbands, love your wives as Christ loved the Church.’ . . . Impious men of this age, in their foolish rage, have not only harbored false notions touching this venerable Sacrament, but, introducing ... a carnal liberty,” etc.²

An analysis of this teaching enables us to distinguish a twofold class of graces conferred by Matrimony: (1) such as impart strength for the faithful performance of the duties of the married state, and (2) such as serve as a medicine against the temptations of the flesh. To the former class belong the perfection of the natural love which husband and wife have for each other, after the pattern of Christ’s love for His mystical spouse; conscientiousness in the begetting and rearing of children; prudence in daily intercourse; patience and trust in God; mutual forbearance, etc. The latter class comprises those actual graces that counteract the threefold concupiscence which human flesh is heir to since the Fall.³

3. The Quasi-Character of Matrimony. — Another effect peculiar to Matrimony is the marriage bond (vinculum matrimoniale), which symbolizes the one and indissoluble union of Christ with His mystic spouse, the Church. This effect strongly resembles the sacramental character imprinted by Baptism, Confirmation, and Holy Orders,⁴ and hence is often called quasi-character.

Bellarmine⁵ and Sanchez⁶ regard the marriage bond as a sort of permanent Sacrament. But this view is untenable. The Sacrament proper (sacramentum tantutn) in Matrimony is the transient act by which the conjugal contract is formed, just as the Sacrament of Baptism is the transient act of ablution. But the bond of wedlock is a permanent effect, bearing a striking resemblance to the character imprinted by Baptism, Confirmation, and Holy Orders, and hence must be regarded as res et sacramentum, and may justly be styled “quasicharacter,” especially in view of the fact that it renders the Sacrament incapable of repetition during the lifetime of both contracting parties. It would be wrong, however, to ascribe to Matrimony a sacramental character in the strict sense. The mark imprinted on the soul by this Sacrament, unlike the character imparted by the other three Sacraments mentioned, is not physical, but purely moral.

From the “quasi-character” of Matrimony flow the two properties of Christian marriage, viz.: unity (wnitas) and indissolubility (indissolubilitas) .

Chapter II

The Properties of Christian Marriage

Section I

Unity

The unity of marriage (unit as matrimonii) consists in this, that a man have only one wife and a woman only one husband. This ideal state is called monogamy.

Opposed to monogamy is polygamy. Polygamy may mean: (i) a plurality of wives or husbands in succession; (2) a plurality of husbands at the same time, more properly called polyandry; (3) a plurality of wives at the same time, which is polygamy in the strict sense of the term.

Successive polygamy, i. e. repeated marriage, is not destructive of the unity of wedlock. The same cannot be said of polyandry, nor of polygamy proper, though here, too, it is necessary to make a distinction. Polyandry (polyandria simultanea) is directly contrary to the law of nature, whereas polygamy (polygamia simultanea) is forbidden by a positive divine law, but not by the law of nature, at least not absolutely. The Catholic teaching on these points can be explained in the form of two theses.

Thesis I: Polyandry, i. e. a plurality of husbands at the same time, is never a true marriage, but a crime against the law of nature.

This may be technically qualified as “propositio certa”

Proof. That polyandry is opposed to the law of nature is so evident that the Church takes the illicitness and invalidity of such marriages for granted.¹

The profession of faith made by the Emperor Michael Palaeologus at the Council of Lyons, A. D.1274, contains this passage: “With regard to Matrimony [the Church] holds that a man may not have several wives at the same time, and that a woman is not permitted to have several husbands.”² Polyandry, i. e. a plurality of husbands at the same time, is forbidden because it frustrates the primary object of marriage, i. e. the begetting of children, and thus destroys the bonum prolis. A woman who habitually has carnal intercourse with several men will rarely conceive.³ Were such a relation permitted, the human race would soon become extinct. If (as sometimes happens) children are born of a polyandrous marriage, their parentage is often uncertain and it is generally speaking impossible to provide properly for their bodily and spiritual training. For these reasons polyandry is held in abhorrence by civilized nations, and even by the majority of uncivilized tribes.

Thesis II: Polygamy proper, i. e. having several wives at the same time, cannot be a valid marriage.

This proposition is de fide.

Proof. While Calvin, in his extreme rigorism, condemned the plural marriages of the Patriarchs as adulterous, Luther and Melanchthon erred in the opposite direction by declaring polygamy to be permissible under the New Testament and allowing the Landgrave Philip of Hesse to marry another woman while his legitimate wife was still alive.⁴ The excesses committed by the Anabaptists of Minister are notorious. Mormonism is a menace to the American Republic.

Against Luther the Council of Trent defined: “If anyone saith that it is lawful for Christians to have several wives at the same time, and that this is not prohibited by any divine law, let him be anathema.”⁵

The unity of Christian marriage can be demonstrated from Scripture and Tradition.

a) Christ Himself restored monogamy, as it had existed in Paradise, and made it the only valid form of Matrimony. Cfr. Matth. XIX, 4 sqq.: “Have you not read that he who made man from the beginning, made them male and female? And he said: For this cause shall a man leave father and mother, and shall cleave to his wife, and they two shall be in one flesh. Therefore now they are not two, but one flesh. What therefore God hath joined together, let no man put asunder.”⁶

When the Pharisees, in response to this declaration, called our Lord’s attention to the fact that “Moses commanded to give a bill of divorce,” Jesus replied: “From the beginning it was not so. And I say to you that whosoever shall put away his wife, and shall marry another, committeth adultery.” ⁷

In the first of these texts our Lord establishes monogamy as the law of the New Testament; in the second, He condemns polygamy as adulterous.

St. Paul always speaks of monogamy as a matter of course (cfr. Rom. VII, 2 sqq.; 1 Cor. VII, 2 sq., 10 sq.; Eph. V, 31).

The Fathers unanimously uphold monogamy and condemn polygamy. Theophilus of Antioch (+ about 186) praises his fellow Christians for faithfully observing the law of monogamy.8 Clement of Alexandria writes:

“In restoring the ancient [practice], our Lord no longer permitted polygamy, . . . but only monogamy, because of the begetting of children and the care of the home, for which the wife is given [to man] as a helpmate.”⁹

In the West, Tertullian valiantly championed the unity of marriage. Minucius Felix describes the domestic life of the Christians of his day as in full agreement with the law of monogamy.¹⁰

The teaching of the later Fathers and ecclesiastical writers differed in no wise from that of their predecessors. The constant practice of the Roman See, therefore, rests upon a solid doctrinal basis.¹¹

b) In demonstrating the Catholic doctrine theologians generally emphasize the fact that the Creator meant marriage to be monogamous from the beginning, and consequently the conjugal union between Adam and Eve in Paradise must be looked upon as the pattern exemplar for all their descendants.

The Christian law of monogamy, as we have seen, is simply a restoration of the original condition of marriage. Hence Pope Nicholas the First, that valiant champion of the marriage bond, was justified in writing: “To have two wives at the same time is repugnant to the original state of the human race, and forbidden by the Christian law.”¹²

The unity of marriage, as established in Paradise, remained in full force up to the time of the Deluge. Lamech, a great grandson of Cain, was the first of the Patriarchs to have two wives. For so doing he was generally regarded as a transgressor of the law. After the Flood, because of the lack of males, God permitted the Jews (and probably also the gentiles) to have several wives. Traces of this dispensation are clearly discernible in the Mosaic law. Hence Calvin was wrong when he denied the licitness and validity of polygamous marriages during this period and accused the Patriarchs and their descendants down to the time of Christ of living in adultery. A divine dispensation in favor of polygamy is plainly evident from Deut. XXI, 15 sqq., where we read: “If a man have two wives, one beloved and the other hated, and they have had children by him, and the son of the hated be the firstborn, and he meaneth to divide his substance among his sons, he may not make the son of the beloved the firstborn, and prefer him before the son of the hated,” etc. The intimate friendship with which Yahweh honored Abraham, Jacob, and David, who were all polygamists, show that He tolerated the practice. The use of the term “concubine” (pellex, irdXXai) in the Old Testament does not prove that a woman so designated was not a lawful wife. It simply indicates that she did not enjoy equal civil rights with her husband’s chief or favorite wife. These “concubines “may be likened to the morganatic wives of modern princes.¹³

That it required a divine dispensation, or perhaps we had better say, toleration, to make polygamy lawful, is expressly stated by Pope Innocent III.¹⁴ We know that the Mosaic concession was revoked by Christ, not only for His faithful followers, but for infidels and pagans as well, and that no polygamist can be baptized unless he dismisses all his wives except one — the first.¹⁵

c) The fact that polygamy was tolerated in the Old Testament raises the question whether, and in how far, the practice can be said to be contrary to the moral law of nature.

Polygamy, unlike polyandry,¹⁶ is not intrinsically immoral, else God could never have permitted it. This consideration has led Catholic philosophers and theologians to unite on the proposition that polygamy is opposed to the natural law, not primarily but secondarily. The meaning is: Though the objects of matrimony may be attained in a polygamous union, they cannot be reached with nearly the same perfection as in a monogamous marriage, and hence the law of nature counsels the latter, while it discountenances the former. It is evident that both the bonum prolis and the bonum fidei can be attained in a polygamous marriage, since one man can cohabit with and be true to several wives and provide for the children born to him. But it is equally patent that a plurality of wives is not conducive to domestic peace and happiness nor to the proper control of concupiscence, and that polygamy degrades the female sex. The most that can be said against polygamy, therefore, is that it greatly impedes the secondary end of marriage, and destroys the symbol of the mystic union of Christ with His Church so completely that the elevation of Matrimony to the dignity of a Sacrament would have been impossible had not plural marriage been definitively abolished.¹⁷

Thesis III: Whenever the marriage bond is broken by death, the surviving partner, under the divine law, is free to marry again.

This proposition may be qualified as “doctrina catholica.”

Proof. Our thesis merely asserts that second or successive marriages, contracted after the death of husband or wife, are not contrary to the divine law. It does not assert that such marriages may not be forbidden by the Church.

In matter of fact the Church has the right to forbid remarriage, though she has never made use of it. While consistently upholding the principle that perfect monogamy is realized only where husband and wife remain faithful to each other, even in death, she has always permitted widowers and widows to remarry. This can be seen from many authentic declarations by popes and councils. Thus the First Nicene Council (325) commanded the converted Cathari to hold ecclesiastical communion with those who had married again (digami).¹⁸ Clement IV (1267) caused to be inserted into the profession of faith demanded of Midiael Pateologus a passage declaring second and third marriages valid and permissible.¹⁹

Eugene IV in his decree for the Jacobites says: “We declare that a man can lawfully pass not only to a second, but to a third and fourth marriage, and to still others, provided there be no impediment,” adding, however, that “It is more praiseworthy to abstain from successive marriages and to lead a continent life.”²⁰ This teaching was reinforced by Benedict XIV in two constitutions issued in 1742 and 1745, respectively.

a) St. Paul writes in his first Epistle to the Corinthians: “I say to the unmarried and to widows: it is good for them if they remain even as I. But if they have not self-control, let them marry; it is better to marry than to be on fire [with passion.]”²¹ And again: “A wife is bound to her husband so long as he liveth; but if her husband die, she is free to marry whom she will; only [let it be] in the Lord.”²²

b) The Fathers taught that second marriage, while less perfect than continence, is not forbidden.

a) St. Ambrose says: “We do not prohibit second marriages, but neither do we praise them if often repeated.”²³ Clement of Alexandria writes: “If the Apostle permits a man to pass to a second marriage because of incontinency, . . . such a one does not sin under the Testament — for there is no law to hinder him — but he fails to attain to that perfect ideal of life which is practiced according to the Gospel.”²⁴ When St. Jerome was criticized for attacking bigamists, he replied: “Let my accuser blush for saying that I condemned first marriages, when he reads that I do not [even] condemn second and third, and, if I may say so, eighth marriage.”²⁵ St. Augustine knows no reason for condemning successive marriages, seeing that they are allowed by St. Paul.²⁶

Tertullian’s Montanistic teaching on this head²⁷ found no defender among the Fathers.

b) It should be noted, however, that second marriages were frowned upon in the Orient. Councils held at Ancyra (314), Neocaesarea (314), and Laodicea, though acknowledging second marriages as valid, imposed a canonical fine on those who contracted them. Athenagoras (+ about 182) calls second marriage “decent adultery,”²⁸ and says that the Christians of his time regarded it as “a sign of incontinence and a violation of the faith pledged to the dead.”²⁹ St. Basil (+379) vigorously denounced second and third marriages³⁰ and demanded severe canonical penalties for those who contracted them. In pursuance of this rigorous policy the Greek Church, under Nicholas I of Constantinople (A. D.920), declared fourth and, under certain conditions, even third marriages null and void. This legislation was approved by Pope John X, but is no longer strictly enforced.³¹

Section 2

Indissolubility

I. State of the Question, — In order to explain the Catholic teaching on the indissolubility of the marriage bond, we must draw a distinction. To say that the vinculum, or marriage tie, is intrinsically indissoluble means that it cannot be dissolved by the contracting partners. To say that it is extrinsically indissoluble means that no earthly authority can annul it.

a) To this twofold indissolubility corresponds a twofold dissolubility.

A contract is intrinsically dissoluble if it can be revoked by those who have made it. “Per quascunque causas res nascitur, per easdem dissolvitur,” says an ancient legal adage. If the marriage contract were intrinsically dissoluble, husband and wife could separate as freely as they married. In matter of fact, the contract, as we shall see, is intrinsically indissoluble, and consequently cannot be revoked by the contracting parties.

It may happen, however, that an intrinsically indissoluble contract can be annulled by a higher law or authority. Such a contract is extrinsically dissoluble. If a marriage is actually dissolved by divine ordinance or by the Pope, we know that this is merely a case of extrinsic dissolubility, which does not affect the intrinsic indissolubility of the bond.¹

b) Before expounding the Catholic teaching on the indissolubility of marriage, we must explain the division of Matrimony into legitimum, ratum, and consummatum.

(1) A legitimate marriage (matrimonium legitimum) is any marriage validly contracted between unbaptized persons (Jews, Mohammedans, pagans). Such a marriage is not sacramental.

(2) A ratified marriage (matrimonium ratum) is any marriage between Christians, whether consummated or not. It is always sacramental.

(3) A consummated marriage (matrimonium consummatum) is any. marriage which has become perfect by conjugal intercourse.

2. Dogmatic Theses. — Marriage between baptized persons, whether consummated or not, is always intrinsically indissoluble, so far as the vinculum is concerned, and after it has been consummated, it is indissoluble also extrinsically, that is to say, no human authority can annul it.

Thesis I: Every marriage between baptized persons, whether consummated or not, is intrinsically indissoluble.

This proposition may be qualified as “saltern fidei proxima”

Proof. The meaning is that a valid marriage , between baptized persons cannot be dissolved by the mutual consent of the contracting partners. For either of them to contract another marriage, therefore, would involve adultery. Not even heresy, incompatibility of temper, or desertion would justify either party to dissolve the marriage. The Tridentine Council declares: “If anyone saith that on account of heresy, or irksome cohabitation, or the designed absence of one of the parties the bond of matrimony may be dissolved, let him be anathema.”² This canon, which was directed mainly against Luther and Bucer, does not, of course, forbid “separation from bed and board.”

a) That marriage between baptized persons is intrinsically indissoluble appears from the fact that our Divine Lord abolished the Mosaic practice of granting a bill of divorce on the express ground that what God joins together no man should put asunder.³ St. Paul teaches: “To the married I give this charge — nay, not I, but the Lord — that a wife depart not from her husband (but if she have departed, let her remain unmarried, or be reconciled to her husband), and that a husband put not away his wife.”⁴

This is not merely good advice, but a divine command, which binds under pain of mortal sin.⁵ Both to the Corinthians and to the Romans the Apostle speaks in general terms and nowhere makes a distinction between consummated and unconsummated marriages.

For the teaching of the Fathers see infra, Thesis II.

The Church has always enforced the indissolubility of the marriage bond between Christians.⁶

b) The allied question as to the matrimonial tie among non-baptized persons may be considered in the light both of positive divine law and of the law of nature.

a) In the former point of view, marriage was made intrinsically indissoluble by a positive precept in Paradise.

Adam, “under the influence of the Holy Ghost,”⁷ uttered the prophetic words: “Therefore a man shall leave father and mother, and shall cleave to his wife, and they shall be two in one flesh.”⁸ Our Lord quotes these words and immediately adds: “What therefore God hath joined together, let no man put asunder.”⁹ When the Pharisees retorted: “Why then did Moses command to give a bill of divorce and to put away? “Jesus said: “In the beginning it was not so,”¹⁰ thereby giving them to understand that marriage is by divine right both monogamic and intrinsically indissoluble.¹¹

If marriage is intrinsically indissoluble by divine right, then only God Himself, or some one commissioned by Him for this purpose, can permit divorce. The Mosaic command to which the Pharisees referred was clearly a divine dispensation. Cfr. Deut XXIV, 1: “If a man take a wife, and have her, and she find not favor in his eyes for some uncleanness {propter aliquant foeditc/tem), he shall write a bill of divorce (libellum repudii), and shall give it in her hand, and send her out of his house (ditnittet) “This text has been variously interpreted. Peter Lombard, St. Bonaventure, Dominicus Soto, Estius, Sylvius, and other writers think that the libellus repudii merely implied a separation from bed and board. Bellarmine, Maldonatus, and the great majority, including practically all modern theologians, on the contrary hold that it meant a true divorce. They base their opinion on three principal grounds.¹²

(1) Our Lord Himself testifies that Moses permitted the Jews to put away their wives because of “the hardness of their hearts.”¹³

(2) The Bible takes for granted that under the Old Law a wife who was put away by her husband in virtue of a UbeUus repudii could remarry, as well as the husband.

(3) Had the libellus repudii not been a real divorce, how explain the Mosaic law which forbade a discharged wife to return to her first husband after having been repudiated by the second, or after his death?¹⁴

What was the “aliqua foeditas “on account of which a man could put away his wife? The meaning of this phrase is not quite clear. The Hebrew term 1?inny , which the Septuagint renders by oox^ov vpayyua no doubt denoted something with which the Old Testament Jews were perfectly familiar. That it meant any reason whatever, e. g. inability to cook, as Rabbi Hillel and his school maintained, is highly improbable. Shamai’s theory that the law referred to a violation of conjugal fidelity, is far more likely.

B) There remains the purely philosophical question whether the matrimonial bond is indissoluble under the law of nature.

It stands to reason that marriage, whether consummated or not, cannot be dissolved by the contracting parties at pleasure. The law of nature inculcates order and virtue no less rigorously than the positive divine law. Pope Pius IX in his famous Syllabus condemned the proposition that “The bond of matrimony is not indissoluble by the law of nature, and in certain cases divorce, in the strict sense of the term, may be sanctioned by civil authority.”¹⁵

Our doctrine is more easily demonstrable of marriages blessed with children than of such as have proved sterile. The bodily and spiritual care of children demands a home and life-long parental cooperation. One cannot advocate divorce without admitting all those serious inconveniences that flow from the principle of “free love,” thereby reducing the human race to the level of the poultry-yard.

The voice of reason is confirmed by experience. History teaches that all pure and strong nations have upheld the sanctity and indissolubility of the marriage tie, whereas the introduction of divorce has always signalized decay. Ancient Rome in its early days and under the emperors affords a good example for both assertions.

Unfruitful marriages, too, are indissoluble: first, because Matrimony by its very nature implies permanent and undivided community of life, and second, because the knowledge that a divorce can be had for the asking seriously imperils the family and the State.¹⁶

As the domestic and social evils of divorce can be greatly lessened by legal control, we have still to answer the question whether the natural law does not empower the State in exceptional cases (sterility, incurable insanity, adultery) to grant a divorce to unbaptized persons. Theologians are at variance on this point. Some¹⁷ concede this power to the State, whereas others hold with St. Thomas¹⁸ that no purely human authority can dissolve the marriage bond because the common good of society is superior to the individual welfare of its members, and the natural law cannot take into consideration accidental evils, but must aim at that which is substantially good and safe.¹⁹ Hence, if a marriage were to be dissolved in a State governed under the pure law of nature, it could be done only by the highest authority, i. e. God, and He would have to exercise this power, dot by a general permission, — because this would open the door to license and anarchy,— but individually in each case in which, for weighty reasons, He is willing to dispense from the secondary demands of the natural law.²⁰

Thesis II: No cause, not even adultery, can justify the innocent, and much less the guilty partner in proceeding to a new marriage.

This is fidei proximum.

Proof. We have here merely an application of our first thesis. Most Protestants regard adultery as a sufficient ground for divorce.²¹ This error is shared by the “Orthodox,” and to some extent even by the Uniate Greeks. Among Latin theologians’ it was defended by Cajetan, Ambrose Catharinus, and Launoy.

The official teaching of the Catholic Church is clearly set forth by the Tridentine Council: “If anyone saith that the Church has erred in that she taught, and doth teach, in accordance with the evangelical and Apostolic doctrine, that the bond of matrimony cannot be dissolved on account of the adultery of one of the married parties, . . . and that he is guilty of adultery who, having put away the adulteress, shall take another wife, as also she who, having put away the adulterer, shall take another husband, let him be anathema.”²²

Though the above-quoted canon, strictly speaking, defines nothing more than that the Church is infallible in her teaching on this point, that teaching itself is so clearly set down as of faith that it cannot be denied without a dangerous approach to heresy. Pallavicini relates that in formulating this canon the Council chose the milder among two proposed phrases at the suggestion of certain prelates who thought it would be unwise to brand the Greeks as heretics.²³

Separation from bed and board, on the other hand, is permitted for good reasons. Eugene IV says in his famous Decretum pro Armenis: “Though it be permitted, because of fornication, to obtain a separation a tore, it is not allowed to contract a new marriage, because the bond of legitimate wedlock is perpetual.”²⁴ This teaching can be proved from Scripture and Tradition.

a) The scriptural argument may be stated in three propositions, to wit:

(1) Whenever Holy Scripture speaks of married people who have separated from each other, it brands the remarriage of either with a third person as adultery (Matth. X, n sq.; Luke XVI, 18).

(2) Where there is a just cause for separation (none can be more just than adultery) the Bible knows of but one alternative — the parties must either remain single or become reconciled. (1 Cor. VII, 10 sq.)

(3) The only thing that can dissolve the marriage bond is death (cfr. Rom. VII, 2 sq.; 1 Cor. VII, 39).²⁵

a) This teaching would be contradictory if adultery were a legitimate cause for divorce, and hence the most elementary principle of hermeneutics demands that the two ambiguous texts from St. Matthew, which Protestants quote in favor of divorce, be interpreted in conformity with the Scriptural truths stated above.

The texts referred to are:

Matth. V, 32: “Whosoever shall put away his wife, excepting the case of fornication, maketh her to commit adultery, and he that shall marry her that is put away, committeth adultery.”²⁶

Matth. XIX, 9: “Whosoever shall put away his wife, except it be for fornication, and shall marry another, committeth adultery; and he that shall marry her that is put away, committeth adultery.” ²⁷

Our opponents conclude from these texts, not only that a man may leave his adulterous wife, — which is in conformity with Catholic teaching, — but that adultery dissolves the marriage bond, as if Christ had said: “He who puts away his wife for fornication (adultery) and marries another, does not commit adultery.”

But this interpretation is manifestly false. Logic forbids us arbitrarily to shift a restriction from one member of a sentence to another. The phrase, nisi ob fornicationem, or excepta fornicatione, plainly refers to dimittere, not to ducere aliatn. Were I to say: “Whoever eats meat on Friday, except he have a dispensation, and drinks to excess, commits a sin,” I could not reasonably be understood to mean that he committed no sin, who, having a dispensation permitting him to eat meat on Friday, would drink to excess. To drink to excess is always sinful. If a man, besides drinking excessively, were to eat meat on Friday, he would commit two separate and distinct sins. Similarly, Christ means to say: To put away an adulterous wife is no sin, but to marry another is adultery, while if a man were to put away his innocent wife and then marry another, he would be guilty of double adultery, — that is to say, he would be responsible for the adultery committed by his wife (facit earn moechari) and commit the same crime himself. Hence, when our Lord speaks of dismissing a wife for fornication, he does not mean divorce, but merely a separation from bed and board, and the sense of the two texts is: “Whosoever shall put away his wife (which is justifiable if she be guilty of adultery), and marry another, commits adultery.”²⁸

The interpretation we have given is the only one that fits into, nay is demanded by, the context. The object of the whole passage (Matth. XIX, 3-9) is to revoke the Mosaic law permitting divorce, and to restore Matrimony to its pristine indissolubility. Had our Lord excepted adultery as a cause for divorce, He would have stultified Himself, for He says (Matth. XIX, 19): “He that shall marry her that is put away, committeth adultery.” How could this be if the adulterous woman did not remain the wife of her first husband?²⁹

If we were to grant Protestant interpretation for argument’s sake, what would be the result? Would Matrimony be elevated from its former state of degradation to a position of security and permanence under the New Testament? No; on the contrary, it would sink beneath the level of the Mosaic law, for the adulterous wife as well as her husband would be empowered to contract another marriage, whereas a woman innocently put away by her husband would, according to 1 Cor. VII, 10 sq., be obliged to remain single unless she became reconciled to her husband. This would be putting a premium upon adultery and making the New Testament inferior to the Old, which punished adultery in both male and female with death.³⁰ To ascribe such legislation to Christ would be to deny His wisdom and holiness. The Apostles evidently did not understand our Lord’s words in the sense which modern Protestants put upon them, for they said to Him: “If the case of a man with his wife be so, it is not expedient to marry,”³¹ that is, if a man may not put away his wife for adultery, it is better not to marry.

B) This interpretation of the disputed texts is so evident and incontrovertible that we need not devote much space to certain other theories which have been suggested by Catholic theologians. Cardinal Bellarmine, e. g., explains the clause nisi ob fornicationem in a purely negative sense, as if our Lord meant to say: “Whosoever shall put away his wife, — I am not now concerned with the case of fornication,— and shall marry another, committed! adultery.”³² This interpretation fails to do justice to the context

Other writers suggest that the two Scriptural passages under consideration refer to marriage among the Jews, who under the Mosaic law rightly regarded adultery as a sufficient ground for divorce. This interpretation is plainly untenable.

The same must be said of Dollinger’s theory that the term “fornication “(vopvua) means unchaste conduct before marriage³³ If this were so, Christ would have made a sin committed before marriage a diriment impediment.

Patrizi interpreted fornicatio literally and explained the disputed passages in St. Matthew’s Gospel as follows: “No marriage can be dissolved, even by adultery, except the quasi-marriage of those who live in concubinage.”³⁴ This suggestion is unacceptable: first, because fornicatio is a generic term which includes adulterium as a species, and second, because Christ expressly calls the alleged concubine “wife,”³⁵ and brands her second marriage as “adultery.”³⁶

b) The Latin Fathers are unanimous in teaching that adultery is no ground for divorce, and we may therefore confine the Patristic argument to the Greek Fathers, in order to show that the lax practice of the schismatic Orientals belies their own past.

We begin with Hermas, because he wrote in Greek. “If a man have a faithful wife in the Lord,” says the “Shepherd,” “and finds her out in some adultery, does the husband sin if he lives with her? ... ‘What . . . shall the husband do if the wife remain in this disposition?’ ‘Let him put her away,’ he said, ‘and let the husband remain by himself (ty* cavT©>). But if he put his wife away and marry another, he also commits adultery himself.”³⁷

St. Justin Martyr says: “Whoever marries a woman that has been put away by another, commits adultery.”³⁸

Clement of Alexandria writes: “When Sacred Scripture advises [a man] to take a wife, and never allows a withdrawal from marriage, it openly lays down the law: Thou shalt not put away thy wife except for adultery. At the same time, however, [the Bible] declares it to be adultery if a person marries another while his or her partner is still alive. ... It says: Whoever marries the wife that has been put away, commits adultery.”³⁹

Of such pseudo-marriages Origen says: “As the wife who has been put away is an adulteress, though she seems to be married to another man during the lifetime of her husband, so our Saviour has shown that the man who has seemingly married such a woman, is not to be called her husband, but rather an adulterer.”⁴⁰

St. Gregory of Nazianzus condemns the unjust divorce laws of his time as follows: “In this question I behold most people ill advised, and their law unjust and illogical. What justifies them in putting a curb on the woman, while they leave the husband unmolested? The wife that has disgraced the marriage bed of her husband is branded with the mark of adultery and punished with the severest penalties, whereas the husband who is unfaithful to his wife goes scot free. I do not approve of such a law, I do not commend such a custom. Men made this law, and therefore it is directed against the women.”⁴¹

St. John Chrysostom composed a homily on the Mosaic bill of divorce, in which he says: “What is that law which Paul has given to us? The wife, he says, is bound by the law, and consequently may not separate from her living husband, or take another man besides him, or contract a second marriage. And behold how carefully he has weighed his words. He does not say: ‘She shall cohabit with her husband as long as he lives,’ but: ‘The wife is bound by the law as long as her husband lives.’ Hence, even if he gives her a bill of divorce, and she leaves his home and lives with another, she is bound by the law, and an adulteress. . . . Do not cite the [civil] laws made by outsiders, which command that a bill be issued and a divorce granted. For it is not according to these laws that the Lord will judge thee on the last day, but according to those which He Himself has given.”⁴²

Thesis III: A consummated marriage between Christians is both intrinsically and extrinsically indissoluble.

This proposition may be technically qualified as “propositio certa.”

Proof. A marriage may be intrinsically indissoluble, yet extrinsically soluble.⁴³ A consummated marriage between unbaptized persons can be dissolved if one party embraces Christianity and is baptized, while the other either refuses to live with the baptized party, or will not cohabit with him or her in peaceful wedlock without injury to the Creator. (This is called the Pauline privilege or casus Apostoli, of which we shall have something more to say later on.)⁴⁴ A marriage legitimately contracted between baptized Christians, but not yet consummated (matrimonium return iantum), can be dissolved either by solemn profession in a religious order or by decree of the Sovereign Pontiff.⁴⁵ We are dealing in this thesis with a consummated marriage (rattm et consummatum) between Christians, and we assert that such a marriage cannot be dissolved by any earthly power. We advisedly say, by any earthly power, because God could dissolve it, though we hold that He never does so.

The argument for our thesis may be briefly stated as follows: Had God meant to empower any earthly authority to dissolve a validly contracted and consummated marriage, He would surely have given this privilege to His Church, and not to the State, which in all probability cannot even dissolve purely natural marriages. But the Church denies that she has this power. Consequently, no earthly authority can dissolve a consummated marriage between Christians.

Canon Law is full of provisions showing the mind of the Church in this matter. Even where the situation of the innocent party is almost unbearable, the Church forbids second marriage as adulterous if it is certain that the first marriage was both ratified and consummated. Pope Alexander III declares: “What the Lord says in the Gospel, that a man is not allowed to put away his wife except for fornication, must according to the true interpretation of Sacred Scripture be understood of those whose marriage has been consummated by carnal intercourse.”⁴⁶

The reason for this absolute indissolubility is that only of a properly consummated Christian marriage can it be said in the full sense of the phrase that husband and wife are “two in one flesh,”⁴⁷ and that their union is a perfect symbol of Christ’s mystic union with His Church, consummated by the Incarnation.⁴⁸

Section 3

Extrinsic dissolubility in exceptional cases

We have seen that Matrimony can be dissolved neither by mutual agreement nor by any human agency. The question arises: Can it be dissolved by a divinely constituted authority? The answer is: Yes, in certain exceptional cases.

Marriage between baptized persons, provided it has not yet been consummated, can be dissolved (I) by a dispensation from the Supreme Pontiff, and (2) by solemn profession in a religious order.

Marriages among pagans or infidels, whether consummated or not, can be dissolved by virtue of the Pauline privilege when one party becomes converted to the true faith and the other refuses to receive Baptism or to live in peaceful wedlock.

We shall explain this teaching in three separate theses.

Thesis I: The Pope can for important reasons dissolve an unconsummated marriage between Christians.

Proof. In the Middle Ages the doctrine embodied in this thesis was upheld by the canonists against the theologians, but to-day it is regarded as “sententia communis et certa” by all.

About the middle of the sixteenth century Ruardus Tapper (+ 1559) censured Cardinal Cajetan for defending this papal prerogative “against the common view of theologians and the express teaching of St. Thomas.”

Among later divines Tournely, Drouin, Collet, and Berlage took the same attitude, while canonists quite generally held the affirmative. Among the earlier theologians there was a sort of dissensus negativus, as they did not treat this subject at all. However, it has been proved from history that unconsummated marriages between Christians were occasionally dissolved by papal decree,¹ nay, more, — a long series of popes, from Martin V to Leo XIII, expressly claimed and exercised the prerogative of dissolving such marriages, and hence it is no longer permissible to speak of mistakes committed by individual popes. The Conduct of the Holy See in this matter is so constant and so deeply touches faith and morals that it cannot possibly be attributable to error. Consequently, the power of dissolving unconsummated marriages between Christians must be a legitimate function of the primacy.

Some writers deduce this prerogative from Matth. XVI, 19: “Whatsoever thou shalt loose on earth, it shall be loosed also in heaven.” But this text proves too much and therefore proves nothing. Were we to allow the interpretation pint upon it, we should have to admit that it proves the power of the Pope to dissolve consummated as well as unconsummated marriages, which is false.

Hence we prefer to rest the argument on a different basis. The papal prerogative asserted in our thesis is not contrary to Scripture, Tradition, and the natural law; and, according to the unerring belief of the universal Church, belongs to the Sovereign Pontiff by virtue of the primacy.

There is nothing in Sacred Scripture or Tradition to prove the absolute (intrinsic and extrinsic) indissolubility of Christian marriage before it is actually consummated.

The law of nature merely says that the marriage bond cannot be dissolved except by God or by a divinely constituted authority.² But the Pope, being the vice-gerent of Christ on earth, exercises his primatial power in the name of God, and the Church not merely tolerates this practice, but expressly approves of it. Surely the episcopate would have protested had the Holy See usurped a power to which it had no just claim. It is incompatible with the dogma of the Church’s infallibility to assume that the entire Church, both docens and discens, grievously erred in such an important question of faith and morals, and hence we must conclude that the Supreme Pontiff actually has the power to dissolve unconsummated marriages between Christians.³

Thesis II: An unconsummated marriage between Christians is dissolved by the solemn profession of either party in a religious order.

We are here dealing with an article of faith.

Proof. This exception from the rule of indissolubility was manifestly made in favor of the religious state, which, as such, is superior to wedlock.⁴ Examples of marriages dissolved by solemn religious profession can be traced to the early days of Christianity. Theoretically our dogma was defined by the Council of Trent, as follows: “If anyone saith that Matrimony contracted, but not consummated, is not dissolved by the solemn profession of religion by one of the married parties, let him be anathema.”⁵ Hence solemn profession in a religious order stands in the same relation to unconsummated marriage as death does to consummated marriage. It is a kind of spiritual death, a relinquishment of the world and worldly things.⁶ Note, however, that the marriage bond is not dissolved by mere entry into a religious order, but only by the act of solemn profession.

a) The proof of our thesis rests entirely on Tradition. In the twelfth century, what had long been a practice was embodied in a decretal of Alexander III, and in the thirteenth, was confirmed by a decision of Innocent III. Both documents form part of the Corpus Iuris Canonici.⁷

Pope Alexander III recalls the example of certain saints who left their wives to embrace the religious state. As Alexander wrote in the year 1180, these saints must have lived before the twelfth century. St. Bede has preserved an early example in the story of Queen Edilthryda, who flourished in the seventh century.⁸ Still more ancient is the story of the two courtiers related by St. Augustine in his Confessions.⁹ The older Fathers¹⁰ tell how St Thecla abandoned her husband to serve God in the state of virginity.¹¹ Though the Acts of Paul and Thecla are not history but “a highly romantic work of imagination,”¹² the reflexions based upon her supposed conduct by the Fathers prove that the primitive Church regarded the act of leaving a husband or wife for God’s sake as a new and higher spiritual marriage with the Divine Spouse. It was this belief, no doubt, which led to the opinion that the new bond dissolved the older and weaker one, provided the latter had not yet become indissoluble by carnal intercourse.

b) There is a lively controversy among theologians as to whether the dissolution of an unconsummated marriage by solemn religious profession is based on the natural law, the law of the Church, or the divine law.

a) St. Thomas,¹³ Bellarmine, Habert, Drouin, and others hold that it is based on the law of nature. They argue that so long as there is no violation of the rights of a third party (which is impossible when a marriage has not yet been consummated), the more perfect abolishes the less perfect state. However, this view is untenable for several reasons. In the first place it would seem that the married state, being prior to the religious state, negatives the latter. Second, the marriage bond and the religious state are by no means mutually exclusive, but may coexist, as e. g. when a father enters a religious order with the consent of his wife. Third, a truly religious life may be led not only in the regular orders, but likewise in approved congregations which demand no solemn profession. Thus the Society of Jesus, according to a constitution of Gregory XIII,¹⁴ is a true religious order despite the fact that many of its members take only simple vows, which do not dissolve the bond of an unconsummated marriage. Fourth, the episcopate vies in perfection with the religious state, and yet episcopal consecration does not dissolve the marriage tie.

B) Suarez, Lessius, Sardagna, Lehmkuhl, Tepe, and other theologians hold that the dissolution of an unconsummatcd marriage by solemn religious profession is based entirely on ecclesiastical law. The Church, they say, has the power to clothe any religious profession with the character of solemnity. “Voti soletnnitas ex sola constitutione Ecclesiae est inventa,” says Pope Boniface VIII.¹⁵ Hence it is the Pope who, by virtue of the primacy, and acting through an ecclesiastical law, dissolves the marriage bond whenever one party to an unconsummated marriage makes solemn profession in a religious order.¹⁶

Against this theory stands the fact that the dissolution of the marriage bond by solemn religious profession is more ancient than the papal book of decretals and the Canon Law of the Church. The law is merely a positive formulation of a practice which existed in the primitive Church, and hence cannot be of purely ecclesiastical origin. Moreover, there must be some unalterable dogmatic truth underlying the Tridentine canon. If the law dissolving marriage in the case of solemn religious profession owed its existence to the Church, it could be revoked by the Church, which no theologian will dare to assert.

y) Hence it is more probable to hold with Sanchez, Tournely, Billuart, Benedict XIV, Perrone, Palmieri, and De Augustinis, that the law by which an unconsummated marriage is dissolved when one of the parties makes solemn profession in a religious order, is of divine institution and that the Church has no other power with regard to this law than to determine the conditions under which it takes effect.¹⁷

Thesis III: A marriage between infidels ** mm* baptized persons, even though consummated* may bt dissolved by virtue of the so-called Pauline privilege if one party is converted to the faith, while the other refuses to live with the baptized in peaceful wedlock.

This doctrine may be qualified as “sententia communis et certa”

The “Pauline privilege,” or “casus Apostoli” as it is commonly called by canonists, applies only to marriages contracted between unbaptized infidels, Jews or pagans. As soon as one of the parties embraces Christianity and receives Baptism, even though the other remain unconverted, such a marriage falls under the jurisdiction of the Church. However, Baptism as such does not dissolve the marriage bond,¹⁸ but merely gives the baptized party the right to contract a new marriage with a Christian, which latter ipso facto dissolves the previous marriage.¹⁹

Before the converted party to such a marriage can invoke the Pauline privilege, he or she must ascertain, (i) whether the unconverted party is willing to embrace the Christian religion, in which case the bond remains intact; (2) whether he or she is willing to live in peaceful wedlock without injury to the Creator (sine contutnelia Creatoris). Only if both these questions are answered in the negative may the Pauline privilege be made use of and a new marriage contracted. Such a dissolution of the marriage bond takes place “in favor of the faith “and by divine right.²⁰

Proof. — a) The famous privilegium Paulinum is promulgated in 1 Cor. VII, 10 sqq., where the Apostle says:

“Iis autem, quimatrimonio [Christiano] iuncti sunt, praecipio non ego, sed Dominus, uxorem a viro non discedere; quodsi discesserit, manere innuptam aut viro suo reconciliari, et vir uxorem non dimittat. Nam ceteris 8* Aomm) ego dico, non Dondnus: Si quis frater uxorem habet inHdelem (amarov) et haec consentit habitare cum illo (oweu&oKu ohcdv fier’ oiiw), non dimittat Mam* Et si qua mulier Udelis habet virum infidelem et hie consentit habitare cum ilia, non dimittat virum. . . . Quodsi infidelis discedit, discedat («* * faum* x*>p% €TaL 9 x 4 ^**^): non enim servituti subiectus est (MovXmtoa) f rater aut soror in huiusmodi; in pace (*> & “pfao) aut em vocavit vos Deus”

Anglice (according to the Westminster Version): “To the married I give this charge — nay, not I, hut the Lord, — that a wife depart not from her husband (but if she have departed, let her remain unmarried, or be reconciled to her husband), and that a husband put not away his wife. But to the rest, it is I who speak, not the Lord: If any brother hath an unbelieving wife, and she is content to live with him, let him not put her away. And the wife that hath an unbelieving husband, who is content to live with her, let her not put away her husband. . . . (But if the unbeliever depart, let him depart; the brother or the sister is under no bondage in such cases, but God hath called you unto peace),”

That St. Paul in this passage concedes to the baptized party under certain conditions the right to dissolve the old and pass to a new marriage, is evident from the fact that he expressly puts the marriage of unbelievers in opposition to marriage between Christians.

Among Christians, he says, if a wife depart from her husband, she must remain unmarried or be reconciled to him. In other words, Christian marriage is indissoluble. Not so among the unbaptized. If one party receives Baptism, and the other refuses to dwell peacefully with him or her, “let the unbeliever depart,” — for “the brother or the sister is under no bondage in such cases,” — that is to say, is free from the marriage bond, and consequently can contract another marriage. For if the neophyte remained bound by his former marriage, he would enjoy no privilege but, on the contrary, be condemned to lead a celibate life, like the separated parties to a Christian marriage.

St. Paul does not expressly discuss the case where the unconverted party is willing to dwell peacefully with the converted party, not, however, sine contumelia Creatoris, i. e. without injury to God and his or her own soul.²¹

But the very purpose of the Pauline privilege sufficiently indicates that such unsatisfactory cohabitation would be morally equivalent to a discessio and consequently could not stop the effect of the x*>/H’£«r&u for the baptized party.²²

Moreover, in such cases it is not true that “the unbelieving husband is sanctified in the wife, and the unbelieving wife is sanctified in the believing husband.”²³

b) Whether or not the unconverted party is willing to live with the converted party,²⁴ can only be ascertained by an inquiry.

This inquiry, technically called inter fellatio, is imposed by the Church as a strict obligation.²⁵ Whether its omission makes a new marriage invalid, is a controverted question. The affirmative view is championed by Brancatius and Perrone. Against them Ballerini maintains²⁶ that the mere fact that the unconverted party refuses to dwell peacefully with his or her converted partner is sufficient to render a new marriage valid, just as the mere fact that a husband or wife is dead is sufficient to insure the validity of a second marriage.

c) What if the inquiry demanded for the Pauline privilege is either physically or morally impossible, as e. g. when the unconverted party is a prisoner of war or has removed to unknown parts? Is the baptized party in such a case condemned to lead a single life? According to Canon Law the Holy See has the power to dispense from the duty of interpellation if the unconverted party cannot be found.²⁷

a) The Third Plenary Council of Baltimore (1884) decrees: “One who has contracted Matrimony with an infidel in the state of infidelity, and then becomes converted to the faith and baptized, cannot pass to a new marriage without first interrogating his infidel spouse concerning her (or his) will to live with him (or her) peacefully and without injury to the Creator. If the infidel party cannot be interpellated in accordance with the law, the Holy See must be asked for a dispensation.”²⁸ A peculiar feature of this practice is that a new marriage contracted with papal dispensation is valid even if it turns out later that the unconverted party was ready at the time to dwell peacefully with the converted party or had himself embraced the faith. As this case is not covered by the Pauline privilege, some theologians (Benedict XIV, Perrone, Hurter, Braun) hold that in such circumstances the Pope can extend the Pauline privilege because in exceptional cases, which St. Paul did not foresee, there must exist a supreme authority which adapts the divine law to concrete conditions.²⁹

B) However, the practice of the Apostolic See in granting such dispensations can be more satisfactorily explained on the assumption that the Pope is not only empowered to interpret the Pauline privilege authentically, but likewise, by virtue of the primacy, to dissolve the legitimate marriages of infidels when either one or both parties embrace Christianity. That such a power is really vested in the Holy See may be inferred from the declaration of Urban VIII that “the marriages of infidels are not so firm that they cannot be dissolved when necessity urges,”³⁰ and from the fact that a convert who has several wives may, if the first refuses to be converted, with papal permission retain any one of them who will embrace the faith.³¹

Readings:-*Gfesf*rri, Trait. Canonicus de Matrimonid, 2 vols., Paris 1891. — Bauer, Die Naturehe in ihrem VerhdltnAs zur paradiesischen, vorchristlichen und christlich-sakramentalen Ehe, Ratishoti 1884— <€. Boedcefthoff, De Individuitate Matrimonii, Berlin — Didon, Die UnauAdsHchkeit der Ehe und die Ehescheidung, Ratisbon 1893.— AL Cigoi, Die UnauAoslichkeit der christl. Ehe und die Ehescheidung nach Schrift und Tradition, Paderbom 1895.— J. Fahrner, Die Geschicffte der Ehescheidung im kanonischen Recht, I: Geschichte des UnauHdslichkeitsprinzips und der twllkontmenen Scheidung der Ehe, Freibdrg Scharaagl, Das feierlicke GelUbde els Ehehindemu in seiner geschichtiichen Entericktoug, Freiburg 1908.

Chapter III

The Minister

The contracting parties to a marriage administer the Sacrament to each other. The priest is merely the minister of the (accidental) celebration and the representative and chief official witness of the Church. This explains why his presence is prescribed by ecclesiastical law.

a) That the contracting parties administer the Sacrament to each other is evident from the fact that contract and Sacrament coincide¹ and that both the matter and the form of Matrimony are contained in the contract.²

Contract and Sacrament being identical, he who makes the contract eo ipso administers the Sacrament. Again, as matter and form of the Sacrament are contained in the contract, whoever furnishes the matter and form, effects the Sacrament. It is the express teaching of the Church that the Sacrament of Matrimony is effected solely³ by the mutual consent⁴ of the contracting parties. Consequently the contracting parties are the sole ministers of the Sacrament. It is on this assumption that the Tridentine Council declared clandestine marriages (i. e. marriages performed without a priest and the required witnesses) to be vera et sacra, provided the Church does not enjoin a special form of celebration as a condition of validity.

Berlage’s opinion⁵ that the priest is the ordinary, whilst the contracting parties are the extraordinary ministers of the Sacrament, is untenable, (1) because the form of a Sacrament cannot be arbitrarily changed, and (2) because Nicholas I and Innocent III have expressly declared that the only thing required for the validity of marriage, and hence of the Sacrament, is the consent of the contracting parties. Very properly, therefore, is Matrimony called “the lay Sacrament.”

b) If, as we have seen, the sacramental form of marriage does not consist in the benediction given by the priest, the priest cannot be the minister of the Sacrament.

How, then, are we to regard the part which he takes in the celebration of marriage?

(1) The priest is the official representative of the Church, to whose external forum Christian marriage belongs on account of its juridical effects;

(2) He is the official chief witness (testis autorizabilis), upon whose presence, since the Council of Trent, both the licitness and the validity of marriage ordinarily depend;

(3) He is the (sole) minister of the solemn ceremonies with which the Church surrounds marriage, not only the ecclesiastical recognition (solemnizqtio matrimonii), which he expresses in saying, “I join you together in Matrimony; “but also the nuptial blessing, which is one of the Church’s most beautiful and significant sacramentals.

Yet all these ceremonies are non-essential, as appears from the fact that they may, nay under certain conditions must, be omitted and that they have varied in different ages and countries. In the primitive Church the bride concealed her face under a red veil to symbolize her fidelity and submission to her husband, just as nuns wear a white veil as an emblem of fidelity and obedience to their mystic spouse.⁶ The very word nuptiae is derived from nubere, to veil or conceal. At one time it was customary for the bridal couple to carry burning candles as a sign of conjugal chastity.⁷ The bride, if she was a virgin, wore a crown of flowers, which later developed into the bridal wreath. Among the Greeks, in consequence of this custom, marriage is still called “the crowning of the bride.”⁸ Another ancient custom was to tie the bride and groom together with a ribbon as a warning that they must not break the bond of conjugal unity.⁹

This is still done in some dioceses, only that the stole is used instead of a ribbon. The blessing of the wedding ring, too, is an ancient ceremony. St. Isidore of Sevilla says that “the wedding ring is worn upon the fourth finger because a vein is believed to run from that finger to the heart.”¹⁰

Chapter IV

The Recipient

The contracting parties are not only the ministers, they are also the recipients of the Sacrament. The conditions of valid reception are four:

(1) The recipients must be baptized;¹

(2) They must be of different sex.²

(3) There must be no diriment impediment in the way of their marriage;

(4) They must have the intention of doing what the Church does, i. e. contracting a Christian marriage.³

In order that a marriage be licit as well as valid, the Church furthermore requires:

(1) Freedom from forbidding impediments (impedimenta prohibentia);

(2) Compliance with all other ecclesiastical precepts;

(3) The state of sanctifying grace.⁴

The detailed explanation of these requirements belongs to Moral Theology and Canon Law.

a) Are all men obliged to receive the Sacrament of Matrimony?

If Matrimony were necessary for salvation, all men would be obliged to marry, regardless of whether Matrimony were a Sacrament or not. However, no such obligation (praeceptum matrimonii) can be proved either from the law of nature or from the positive divine law.

The law of nature obliges a man to do those things, and those only, which are necessary to attain his final end. Marriage is not necessary for this purpose, except per accidens, e. g. for those unable to live chastely outside of the married state.

But does not the individual owe it to the community in which he lives, to the State, to society, — to marry and beget offspring? The duties we owe to society, we owe to existing society, not to the society of the future. Marriage serves to beget future citizens, towards whom we have no duties because they do not yet exist.

True, the State has an interest in marriage because without a sufficient number of marriages the human race would become extinct. But the State has no right to compel any individual to marry in order to forestall such a calamity. Marriage is a matter of the heart, and compulsory legislation would lead to tyranny and rouse popular opposition.

Sanchez says: “Formerly, when men were few, [God] obliged individuals; now that they have multiplied, he merely obliges the State in a general way to compel its subjects to marry in case of necessity.”⁵ This assertion is untenable. How could the State make marriage obligatory? It is simply impossible. Nor is anything gained by attributing this right to the law of nature in the abstract. For to say that the obligation of marrying does not bind all men, but merely some (a restriction demanded by the inequality in the number of men and women) is equivalent to saying that nobody in particular is obliged to marry, or at most the community at large, which, as such, cannot marry.

We may add that a law compelling people to marry would be utterly superfluous. The sexual instinct is so strongly developed in the majority of men, and marriage offers so many advantages, that it is morally impossible that all men should prefer a single life.⁶ As a matter of fact the face has steadily multiplied from Adam and Eve down to the present day without any law compelling people to marry.

b) But how about the positive divine command (Gen. I, 28): “Increase and multiply and fill the earth”? These words were obviously addressed, not to our first parents alone, but to all their descendants. As an argument for compulsory marriage, however, they prove nothing. Our Lord Himself and St. Paul frequently extol virginity above marriage.⁷ God would contradict Himself if He recommended the single life to some after imposing the obligation of marriage cm all. Hence if, as some believe, Gen. I, 28 contained a universal command, that command must have lost its obligatory force as soon as the Creator’s purpose in giving it was attained, that is to say, as soon as the earth became peopled with human beings. In matter of fact God’s words to Adam and Eve were meant as a benediction; they form part of the general blessing pronounced upon all living creatures. The words “Increase and multiply “are on a level with “subdue the earth and rule over the fishes of the sea,” etc. They embody a vocation, not a command. For our first parents, of course, this vocation involved the duty of marrying, because their failure to do so would have frustrated the express purpose of the Creator. This does not, however, apply to all their descendants.

What if the human race were threatened with extinction, — would marriage in that case be obligatory on all? This question is purely theoretical because such an eventuality is not likely to occur. Without attempting an answer, we will simply call attention to St. Augustine’s⁸ declaration that there would be no universal obligation to marry even if the human race were about to die out, but that even in that case it would be more advisable for men to lead a virginal life in order that the predestined number of the elect might be attained as soon as possible.

Readings: — I. Pleyer, De Ministro Sacramenti Matrimonii, 1759. — Th. M. Filser, Debet den A us spender des Ehesakramentes, 1844. — A. Fischer, Der Spender der sakramentalen Gnade bei den unter Christen geschlossenen Ehebundnissen, 1845. — W. Sulercyski, Wer ist Minister bei dem Sakrament der Ehe? 1881.

Chapter V

The Church’s control over Christian Marriage – Impediments

In this chapter we purpose to show, (i) that the Church possesses control over Christian marriage; (2) that this control is based on a positive divine law and can be exercised independently of the secular power; (3) that the Church has the exclusive right to establish diriment impediments.

Section I

The Church has control over the Sacrament of Marriage

i. The Dogma. — The contracting parties, the officiating priest, and the required witnesses are by no means the only persons who have a part in the administration of Matrimony. The Pope and the bishops, as representatives of the Church to whom our Lord has entrusted the administration of all the Sacraments,¹ also play an important role.

One of the palmary rights of the Church in connection with marriage is to establish and to dispense from diriment impediments.

Luther and Protestants generally admit those impediments which are mentioned in Leviticus, but deny that the Church has the power to establish others. This attitude is entirely consistent on the part of men who do not regard Matrimony as a Sacrament.

Against the Protestant Reformers the Council of Trent defined: “If anyone saith that the Church could not establish impediments dissolving marriage, or that she has erred in establishing them, let him be anathema.”² Luther’s pet theory is expressly condemned in canon 3 of the same Session: “If anyone saith that those degrees only of consanguinity and affinity which are set down in Leviticus can hinder matrimony from being contracted, and dissolve it when contracted, and that the Church cannot dispense in some of those degrees or establish that others may hinder and dissolve it, let him be anathema.”³

2. Proof of the Dogma. — The Church is infallible, indefectible, and holy; and hence, if she attributes to herself and exercises a right, that right undoubtedly belongs to her. Now it is a fact that, constantly asserting her claim, she has established diriment impediments since the fourth century. Consequently, she had the right to establish such impediments.

a) The major premise of this syllogism belongs to Apologetics or Fundamental Theology. The minor must be proved from history.

The Council of Elvira, A. D.300, regarded the defect of Baptism (disparitds cultus) as a diriment impediment.⁴ The Council of Neo-Caesarea, 314, mentions affinity among the diriment impediments.⁵ St. Basil (+379) says no man can marry a woman with whose sister he has had illicit intercourse.⁶ Pope St. Leo the Great (+461) ordained for the diocese of Rome that no deacon should marry, and that if a man espoused a slave, mistakenly thinking her to be free, the marriage should be null and void (impedimentum conditionis).⁷ Gregory the Great (+604) forbade marriages between first cousins, which were permitted under the Roman law.⁸ Spiritual relationship arising from Baptism was made a diriment impediment by the Council in Trullo (692).⁹ A synod held at Mayence, in 813, prohibited marriage in the fourth degree of consanguinity and designated the spiritual relationship arising from Confirmation as a diriment impediment.¹⁰ Pope Zachary testified at the Roman Council of 743 that the archbishops and princes of Germany had asked him for instructions with regard to marriage.¹¹

Pope Nicholas I (+ 867), in confirming the diriment impediments of consanguinity and spiritual relationship, cited “the sacred canons, and especially the decrees of Pope Zachary.”¹²

b) In order to understand how the Church can invalidate the Sacrament of Matrimony without changing its matter and form, we must consider that the validity of the Sacrament is conditioned by the validity of the matrimonial contract.¹³ By nullifying the contract, the Church deprives the Sacrament of its basis. The validity of the contract does not depend solely on the free will of the contracting parties; it depends also on the will of God, which may manifest itself in a threefold manner: through the law of nature, through a positive law, or through an ecclesiastical precept.

Hence there are three distinct classes of diriment impediments:

(1) Impediments flowing from the law of nature (e. g. impotency, error, violence);

(2) Impediments set up by a positive ‘divine law (e. g. the bond of an existing marriage);

(3) Impediments established by ecclesiastical law (e. g. clandestinity, difference of religion, affinity).

No matrimonial contract is valid if the contracting parties are incapacitated for marriage by the law of nature, by a positive divine law, or by the law of the Church.

Persons thus incapacitated are technically known as inhabiles. A marriage entered into with such a person is null and void because there can be no true and binding consent between inhabiles. These considerations explain why the Church can establish diriment impediments without altering the matter and form of the Sacrament. Both matter and form of Matrimony consist in the valid consent of the contracting parties. Where there is no valid consent, there can be no valid marriage, and hence no Sacrament.¹⁴ Conversely, the Church can, by establishing impediments, render a marriage unlawful, but she cannot prevent it from being sacramental if the underlying contract is valid.

3. Two Functions of Ecclesiastical Authority. — As the Church has the power to regulate Christian marriage, she must also have the power of dispensing from diriment as well as forbidding impediments {pot est as dispensandi) and of haling matrimonial causes before her judicial tribunal {potestas iudicialis).

The potestas dispensandi is exercised both in foro externo and in foro interno, and extends to all impediments, except where the natural or a positive divine law form an insuperable obstacle; it may also validate an invalid marriage in radice.

The potestas iudicialis is the power to pass definitive judgment on all matters pertaining to the essence of Matrimony, e. g. the dissolubility or indissolubility of the bond,¹⁵ matrimonial engagements (sponsalia) 9 separation from bed and board, etc. In regard to the latter, the Tridentine Council declares: “If anyone saith that the Church errs in declaring that, for many causes, a separation may take place between husband and wife in regard of bed or cohabitation, for a determinate or for an indeterminate period, let him be anathema.”¹⁶ As matrimonial laws bind the universal Church, the Pope is the only competent authority for the definitive adjudication of marriage cases and the granting of dispensations, and no bishop can do anything without his consent.

A dispensation is a special exemption granted from the requirements of a law or rule.¹⁷ What is the extent of the papal power of dispensing from diriment impediments to Matrimony?

The diriment impediments at present in force are enumerated in the following hexameters:

Error, conditio, votutm, cognatio, crimen, Cultus disparitas, vis, ordo, ligamen, honestas, A etas, afiinis, si clandestine et impos, Raptave sit mulier, parti nec reddita tutae: Haec socianda vetant connubia, facta retractant

Of these fifteen impediments, five are based partly on the natural and partly on positive divine law. They are: (1) ligamen, i. e. the impediment of existing marriage; (2) error, i. e. a mistake as to the person married, either before or at the time of the marriage; (3) wor metus gravis, i. e. grave fear, unjustly caused, for the purpose of extorting matrimonial consent; (4) consanguinitas, i. e. blood relationship within certain degrees; (5) itnpotentia, i. e. an antecedent incapacity to perform the functions of the married state. From these impediments not even the Pope can dispense. With regard to the impedimentum ligaminis, note that the dissolution of the marriage bond in certain cases¹⁸ is not effected by a dispensation, properly speaking, but either by divine law or in virtue of the loosing power exercised by the Supreme Pontiff in the name of Christ.

The impedimentum voti arises from the solemn vow of chastity taken by religious. Being based upon a promise made directly to God, rather than to the Pope or the Church, this impediment is of divine right, but as it is selfimposed and a matter of free choice, there is no contradiction involved when the Pope, for weighty reasons, after lifting the solemnitas voti, which is of purely ecclesiastical institution, dispenses from the simple vow of chastity just as he can and does dispense from a promissory vow (iuramentum protnissorium).

All other impediments are of purely ecclesiastical institution, and it needs no argument to prove that the Church can dispense from laws of her own making.

The only difficulty arises in connection with the dispensation technically known as sanatio in radice, by which a marriage invalid from the beginning is made valid just as if there had been no ecclesiastical impediment. How can the Church do this? Are we to assume that the Pope is able to undo past deeds or that his power is retro-active?¹⁹ Nothing of the kind. The sanatio in radice is simply a fictio iuris, by which an invalid marriage, besides being made valid by a dispensation (ex nunc), is juridically regarded as if it had been valid from the beginning (ex tunc). The principal effect of this measure is to legitimize children begotten before the revalidation.²⁰

Section 3

The Church’s control over Christian marriage is of divine right and independent of the state

I. Heretical Errors vs. the Dogmatic Teaching of the Church. — Antonio de Dominis was the first to maintain that the Church derives her power over matrimonial causes from the State.¹ He was followed by Launoy² and the court theologians of Austria, France, and Italy.

In 1786, the Jansenist Council of Pistoia put this teaching into practice by formally requesting the Archduke Leopold II of Tuscany, a brother of Emperor Joseph II, to abolish the two matrimonial impediments of spiritual relationship and public propriety and to limit the impediments of consanguinity and affinity to the second degree.

This impudent act led Pope Pius VI to condemn the principle espoused by the court theologians as heretical.³ His decision merely confirmed and emphasized the teaching of the Tridentine Council.

Launoy’s interpretation of the Council was arbitrary. We will give but one example. The Council declares: “If anyone saith that the Church could not establish impediments dissolving marriage, or that she has erred in establishing them, let him be anathema.” Launoy claims that “Church “here means the Ecclesia discens, or community of the faithful as represented by the State, to which the Ecclesia docens owes whatever powers she. enjoys in matrimonial affairs. Launoy further maintained that the Tridentine canons possess no dogmatic authority, but are purely disciplinary, and therefore revocable. As a matter of fact the Council expressly meant to define that the Church has the power to establish diriment impediments, and that she is infallible in exercising this power. No such infallibility resides in, or has ever been claimed by, secular rulers. Besides, the Tridentine Council had in view mainly the heresy of Luther, who denied jurisdiction in matrimonial matters to the Holy See, not to the State. The Council proved its independence of the secular power by establishing a new impediment (clandestinity), by limiting the scope of certain traditional impediments, and by refusing the urgent request of the King of France and other monarchs to declare the marriage of children without parental consent invalid.⁴

2. Proof of the Dogma. — a) To refute the court theologians it is sufficient to point out that their teaching is contrary to dogma. No Catholic is permitted to doubt that the Church has the God-given right to control the administration of all the Sacraments, including Matrimony.⁵ Now the control of the matter and form of this Sacrament, which consist in the matrimonial consent of the contracting parties,⁶ is merely a function of the legitimate administration of Matrimony. Moreover the establishment of diriment impediments involves actual control over matter and form, and hence the Church has the right to establish such impediments and to condition upon them the validity of the matrimonial consent, which is inseparable from the Sacrament. This fundamental right comprises the power of granting dispensations and other acts of jurisdiction. It follows that the Church has received her prerogatives and rights, not from any monarch, nor from the secular power as such, but directly from Jesus Christ.

b) A sufficient argument from Tradition is furnished by the demonstration that the contrary thesis has no foundation in history.

a) When did the State confer upon the Church the power to regulate matrimonial causes? This cannot, in the nature of things, have happened during the era of the persecutions, which ended with the edict of Milan, 313. Did it perhaps occur after the reign of Constantine, at the beginning of what we are wont to call the Middle Ages? Impossible. The court theologians themselves emphasize, with no small degree of satisfaction, that the secular princes who ruled during this epoch (Theodosius, Justinian, et al.), far from relinquishing their alleged rights in favor of the Church, set up and abolished diriment impediments without her consent, nay contrary to her will.⁷ The Middle Ages are marked by many sharp conflicts between the papacy and the rulers of the Holy Roman Empire, and the Church was often compelled to defend her rights against usurping princes. Nor does modern history furnish a single fact or document to prove that the Church derives her matrimonial jurisdiction from the State. Hence the assertion of the court theologians is groundless.

B) We can go a step farther and show that, in establishing certain impediments, the Church either had no precedent on the part of the State, or paid scant attention to existing civil laws. Take e. g. the impedimentum voti.

This is one of the most ancient ecclesiastical impediments of which we know. As early as the third century St. Cyprian (+258) declared that young women who married after taking the vow of chastity excommunicated themselves.⁸ When the Church was recovering from the terrible persecutions of the first three centuries, a Spanish council held at Elvira (A. D.300) refused to admit such women to the Sacraments except on condition that they abstained from conjugal intercourse.⁹ St. Basil (+379) testifies that marriages of this kind were regarded as invalid in the Eastern Church.¹⁰ Pope Innocent I (+ 407) distinguishes two classes of virgins, veiled and unveiled, and says that the former cannot be absolved until after the death of their guilty partners.¹¹ St. Jerome (+420) declares that virgins who marry after taking a solemn vow of chastity are “guilty of incest rather than adultery.”¹² Gelasius I (+ 496) brands the attempted marriage of virgins who had dedicated themselves to God by a solemn vow of chastity as sacrilegious.¹³

The Church proceeded with similar independence in determining the forbidden degrees of consanguinity and affinity,¹⁴ in recognizing the diriment impediment of disparitas cultus (defect of Baptism), which was not generally enforced until after 1000,¹⁵ in establishing the impedimentum criminis, for which civil legislation offered no precedent, and so forth. To these and other canonical laws Christian rulers bowed in obedience without ever claiming that their own rights were being usurped.¹⁶

Section II

The Church’s exclusive right to establish diriment impediments.

I. The Teaching of the Church. — Abstractly speaking there is nothing contradictory in the assumption that the State, too, has the right to establish diriment impediments to marriage. In matter of fact there have been some theologians who held this to be the case.

Prominent among them were Peter Soto, Ambrose Catharinus, Tournely, Collet, and Carriere. “Kings and secular princes,” says e. g. Tournely, “possess the innate right to establish impediments which render marriage forbidden or invalid.”¹ Gregory of Valentia, Gonet, Henno, and especially Th. Sanchez² thought it prudent to modify this thesis. They said the State originally did possess the right to set up marriage impediments, but this right was taken away by the Church in the legitimate exercise of her potestas indirecta in temporalia. To-day it is doctrina certa that the State has no jurisdiction over matrimonial causes so far as they (directly or indirectly) relate to the Sacrament. The Tridentine Council declares: “If anyone saith that matrimonial causes do not belong to ecclesiastical judges, let him be anathema.”³ Pope Pius VI authentically interpreted this synodal canon as meaning that “all matrimonial causes belong solely to ecclesiastical judges.”⁴

The correctness of this interpretation is evident. The proposition condemned as heretical by the Council, viz.: “Matrimonial causes do not belong to ecclesiastical judges,” must mean either that “not all matrimonial causes belong to ecclesiastical judges,” or that “all matrimonial causes do not belong to ecclesiastical judges.” The contradictory of the first proposition would be: “All matrimonial causes belong to ecclesiastical judges;” and of the second, “Some matrimonial causes do not belong to ecclesiastical judges.” But to assert this would afford no guidance to Catholics. Hence the Council can only have meant what Pius VI says it meant, or, to employ the Pontiff’s own words, “The terms in which the canon is clothed are so general that they comprehend and contain all (matrimonial) causes.”⁵ If we further consider that the reason why matrimonial causes belong to the ecclesiastical jurisdiction is that Matrimony among Christians is a Sacrament, it follows that they belong solely to the jurisdiction of the Church.⁶ Were we to grant for argument’s sake that some matrimonial causes belong to the State, we should be at once confronted with the question: Do they belong to the State independently of the Church or dependency? To say that they belong to the State independently of the Church would be to deny the Tridentine teaching that “all matrimonial causes belong to ecclesiastical judges.” To say that they belong to the State dependency of the Church would be to admit her exclusive jurisdiction in principle.

For the rest, the Council of Trent acted in perfect accord with the above-quoted interpretation of its twelfth canon when it declared clandestine marriages to be truly sacramental so long as the; Church does not expressly declare them null and void. Hence it is doctrina certa that all matrimonial causes belong exclusively to the Church.⁷

2. Proof. — A legitimately established diriment impediment produces two distinct effects:

(1) remotely, it renders certain persons incapable of contracting a valid marriage (inhabilitas personarum); (2) proximately, it nullifies any attempted marital consent on the part of such persons (inefficacitas consensus). The State cannot do either of these things. For if it were empowered to declare baptized persons incapable of contracting marriage, it would possess the right to regulate the administration of the Sacraments, which belongs exclusively to the Church. If it could render the matrimonial consent null and void, it would necessarily also possess the right to determine the matter and form of the Sacrament, which is equally inadmissible. Consequently, the State cannot establish or grant dispensations from diriment impediments, nor can it claim jurisdiction over matrimonial causes.

This argument derives strength from the philosophical consideration that no two tribunals can claim independent and supreme jurisdiction over the same class of cases.

Had the State equal jurisdiction in matrimonial matters with the Church, it might happen that the Church, by virtue of her divine prerogatives, would establish a diriment impediment which the State refused to recognize, or vice versa. In that case a marriage might be valid and invalid, licit and illicit, legal and illegal at one and the same time, and there would be no end of trouble between the two powers, while the faithful subjects of both would be sorely embarrassed; — all this not because of some human weakness or imperfection, but in consequence of a positive divine ordinance. Since it cannot be the will of God to bring about such an intolerable state of affairs, we must conclude that the control of Christian marriage belongs either to the Church or to the State. Matrimony being a Sacrament, its control belongs to the Church, and hence the State has no jurisdiction whatever over matrimonial causes.

In claiming jurisdiction over all matrimonial causes among Christians, the Church is not actuated by an immoderate desire for power, or by jealousy, but purely and solely by obedience to the commands of her Divine Founder. “Due weight must be attached to the sacramental dignity,” says Leo XIII, “by the addition of which the marriages of Christians have become far the noblest of all matrimonial unions. To make laws and regulations with regard to the Sacraments is, by the will of Christ, so much the privilege and duty of the Church, that it would be plainly absurd to maintain that even the smallest part of such power has been transferred to the civil rulers.”⁸ This principle underlies the constant practice of the Church.

3. Rights of the State. — It would be wrong to deny, however, that the State has some rights with regard to marriage. A wide field is open to civil jurisdiction in regulating the marriages of unbelievers and exercising a certain control over the civil effects of the marriages of Christians.

a) Some modern theologians assert that the State has no jurisdiction over the non-sacramental marriages of the unbaptized. These writers (Perrone, Martin, Feije, Zigliara, Chr. Pesch, and others) argue as follows:

(1) The so-called marriage of nature was originally intended to symbolize Christ’s mystic union with His Church and thereby withdrawn from all purely human jurisdiction.⁹

(2) Marriage is older than civil society. The State found it in existence and incorporated it into its own organism. This explains why even to-day marriage is regarded primarily as a natural and only secondarily as a civil contract.¹⁰

Nevertheless the great majority of Catholic divines adhere to the traditional opinion that the secular rulers of non-baptized subjects undoubtedly possess the right to uphold and enforce the diriment impediments flowing from the natural law, and to establish new impediments of a purely civil character.

This power is, however, subject to two limitations, (a) The State cannot arbitrarily dissolve validly contracted marriages between unbaptized persons, and (b) a non-Christian, and a fortiori a Christian ruler cannot make purely civil impediments binding upon his baptized subjects. For the marriages of Christians are in no way subject to the jurisdiction of the State.

To prevent misunderstanding it may be well to note that the power of the State over the marriages of its non-Christian subjects is preeminently a religious prerogative, which owes its existence to the fact that in the purely natural order the secular ruler is the supreme representative of religion and unites within himself both political and religious jurisdiction.¹¹

b) With regard to baptized persons, the State must confine itself to the regulation of the socalled civil consequences (effectus civiles) of marriage.

Christian marriage is a Sacrament, and whatever concerns it as a Sacrament, e. g. the validity of the contract, the indissolubility of the bond, separation from bed and board, betrothments and the public celebration of marriage, the legitimacy of children, etc., belongs exclusively to the jurisdiction of the Church. The civil effects or consequences over which the State has control are such nonessential matters as property, dowry, and inheritance.

By virtue of her right to enforce the effects of marriage in foro externo the Church has established certain external consequences analogous to the effectus civiles, such as the incapacity of bigamists to receive Holy Orders.¹²

c) A word about civil marriage. Civil marriage (matrimonium civile), in the sense of a true marriage between baptized persons, under State control and without regard to the laws of the Church, is contrary to the divine law. Under the influence of the Lutheran view that marriage is “a worldly thing,” and of the French Revolution, civil marriage was introduced by Napoleon I in France, whence it made its way into nearly all countries of Europe and North America and into some of the South American republics.¹³ It has been repeatedly condemned, by Pius VII, Pius IX,¹⁴ and Leo XIII.

When civil marriage cannot be regarded as an ecclesiastically valid clandestine marriage, it is neither a true marriage nor a Sacrament, nay, according to a decision of the Holy Office of March 13, 1879, it is not even equivalent to a valid betrothal.

In some countries civil marriage is essential to the validity of the conjugal union before the civil law (matrimonium civile obligatorium). In others, e. g. the United States, it is merely one of several ways in which marriage may be contracted (matrimonium civile facultativum). In still others it is provided for cases in which a marriage for some reason, e. g. the lack of a dispensation from an ecclesiastical impediment, cannot take place in church.

Where the State conditions the civil effects of marriage upon the fact of its being contracted before a civil magistrate, or where it refuses to recognize as legitimate children born of a purely ecclesiastical marriage, Catholics have no choice but to submit, nay they are in duty bound to do so, since civil marriage in such cases is nothing but a legal form.¹⁵

Readings: — A. Roscovany, Matrimonium in Ecclesia Catholica Potestati Ecclesiasticae Subiectum, 2 vols., Neutra 1871. — J. Schneemann, S.J., Die Irrtumer uber die Ehe, Freiburg 1866. — Heuser, De Potestate Statuendi Impedimenta Dirimentia Ecclesiae Propria, 1859.— J. Becamel, Tract, de Matrimonio et Dispensation nibus Matrimonii, Paris 1889. — De Becker, De Sponsalibus et Matrimonio, Bruxelles 1896. — J. Pompen, Tract, de Dispensationibus et de Revalidatione Matrimonii, Amsterdam 1894. — F. X. Feije, De Impedimentis et Dispensationibus Matrimonialibus, Louvain 1890. — F. Huszir, De Potestate Ecclesiae circa Matrimonium, Rome 1900. — J. Hollweck, Das Zivileherecht des burgerlichen Gesetzbuches im Lichte des kanonischen Rechtes, Mayence 1900. IB Cfr. Benedict XIV, De Syn. Zivilehe vor dem Forum des Rechtis Dioeces., 1. IV, c.7; A. Visek, Die und des Gewissens, Prague 1884.

Schnitzer, Katholisches Eherecht, Freiburg 1898.— F. Heiner, Grundriss des katholischen Eherechtes, Munster 190a — M. Leitner, Lehrbuch des katholischen Eherechtes, Paderborn 1902. — * F. X. Wernz, S.J., lus Decretalium, Vol IV, 2nd ed., Ius Matrimoniale Ecclesiae Cafiholicae, Rome 191 1. — De Smet, Betrothmemt and Marriage. A Canonical and Theological Treatise xvith Notices on History and Civil Law, tr. by W. Dobell, 2 vols., Bruges 1912 and 1913.