MARRIAGE LEGISLATION IN THE NEW CODE OF CANON LAW MARRIAGE LEGISLATION IN THE NEW CODE OF CANON LAW BY VERY REV. H. A. AYRINHAC, S.S., D.D.,D.C.L. President of St. Patrick's Seminary, Menlo Park, Cal. Professor of Moral Theology, Pastoral Theology, and Canon Law NEW YORK, CINCINNATI, CHICAGO BENZIGER BROTHERS PRINTERS TO THE HOLT APOSTOLIC SEK fltbll l>etat. ARTHUR J. SCANLAN, S.T.D., Censor Librorum. Imprimatur. I- JOHN CARDINAL FARLEY, Archbiihop nf Nne York. NEW YORK, September 2S, 1918. COPYRIGHT, 1918, BY BEKZIOER BROTHEB8 INTRODUCTION IN THE SURETY that a worthy and useful work is here- with offered to Catholic readers, I authorize and gladly recommend the publication of Dr. Ayrinhac's "Marriage Legislation in the New Code of Canon Law." Coming from the pen of one whose equip- ment combines a technical training at Rome with the growth of twenty-five years of experience in class- work and with the opportunities incident to the func- tion of Vindex Vinculi in our Metropolitan Court, it bears the marks of an authority that professors in the seminary and officials of the chancery will readily recognize and appreciate. It comes, too, at an opportune moment. Tragic events of to-day, the bitter fruit of four centuries of lax thinking among non-Catholic schoolmen and proportionately lax living among their disciples, have shown that the ethical order must be refashioned in the ancient Christian pattern if the race of men is to sustain itself even physically, the more so if there is to be real moral advancement. The world will not come back to Christ, nor be made subject to His reign by any influence the world itself may initiate ; the impulse must be from without the force must come from above. The Church of Christ, which is not of this world, must bring from on high the heavenly grace that will heal the nations. Her mis- sion is to teach, her remedy for the world's distemper is primarily the imparting of the form of sound words 5 6 INTRODUCTION which she has heard in faith, for only to minds that know God and His ways can exhortation to righteous- ness be addressed. In proclaiming anew the system of law whereby her visible life has been erected and directed through the centuries, she inculcates forcibly the notion of moral obligation; she appears before the world as the arbiter of man's conscience, the cus- todian and interpreter of the "shalt" and "shalt not" of right reason ; for she is well aware that knowledge is the first step in the way of salvation, and she takes the step bravely, saying with the voice of au- thority: Hoc fac et vives. If ever men felt the need of such knowledge, of such secure informing of their minds in the right notion of law, they feel it now, when false science and the lawless devices of science are bringing the ruins of civilization crashing at their feet. The sacred institution of marriage has not been spared in the widespread catastrophe. The assault upon its laws, whether in academic literature or civil code, or popular story, has brought the inevitable reaction, and people think lightly or not at all of the bond that binds husband and wife with an eternal and divine sanction. Practical disregard of the moral law has wrought in modern paganism exactly the same para- dox and absurdity that marked the culture of those ancients who changed the truth of God into a lie; their foolish heart is darkened; they serve the crea- ture rather than the Creator. Because the present work sets forth boldly the notion of Christian matrimonial law, it comes as a thing of blessing. The author has given succinctly INTRODUCTION 7 but clearly the several stages traversed by the canons of the Church as they grew to the fulness of form and content in which the Codex now presents them. Throughout, the concept of marriage as a natural legal institution sanctified in the grace of Christ and protected in its sacred character by the enactments of Popes and Councils, is ably delineated and, where necessary, defended. To the exposition of the sev- eral canons Dr. Ayrinhac has brought a wide erudi- tion and a competent practical experience that will make his book invaluable to the clergy in parish work, as well as to the professor and student in the seminary. We pray upon it ardently the blessings that befit so high an effort in the cause of Christian truth and Christian law. ^EDWARD J. HANNA, Archbishop of San Francisco. October 4, 1918. FOKEWOKD Canonists will, no doubt, give us, before long, scientific commentaries on the New Code of Canon Law. Meanwhile, it was thought that a brief ex- planation, incomplete and fragmentary though it be, of that part of the Code which concerns the sacrament of marriage might be of some service to the busy parish clergy who have to apply the law without delay. The changes in the matrimonial legislation, al- though not very numerous, are of real, practical importance; and, in spite of the efforts made by the legislator to avoid obscurity or indefiniteness, the interpretation and application of a new law is never without some difficulties. The following pages are published in the hope of being of some assistance in that work. The text itself of the law is here given in the original, in order that every one may study it for him- self and refer to it as to the only authoritative norm. An English translation is added for the benefit of possible readers who might not be familiar with Church Latin. In the explanations some stress is laid on the his- torical development of the legislation to show the continuity of the Church's discipline under acci- dental changes. It helps also to determine the mean- ing of the new law, to understand its real spirit, and to see how it differs from the old one. Those 10 FOREWORD differences are pointed out briefly without entering into details which all students of Catholic theology are acquainted with or which can easily be found in the familiar text-books. There will soon be decisions of Eoman Congre- gations in answer to questions proposed or difficulties submitted to them. Some of the interpretations or conclusions adopted here may have to be modified. Although not without solid foundation, as it seems, they can, under the circumstances, be only of a provi- sional character. SOURCES : Codex Juris Canonici. Corpus Juris Canonici. Acta Apostolicae Sedis. Acta Sanctse Sedis. Bullarium Komanum, Taurinensis editio, 18581871. Collectanea S. Congregationis de Propaganda Fide, Komse, 18931907. Sacrosancta Concilia ad regiam editionem exacta, studio Philippi Labbei et Gabrielis Cossartii, Lutetise Parisiorum, 1671. Histoire des Conciles, C. J. Hefele. Nouvelle traduction par Dom H. Leclerq. Paris, 1907- 1917. AUTHORS PRINCIPALLY CONSULTED: P. Gasparri, Tractatus Canonicus de Matrimonio. Paris, 1891. F. X. Wernz, S.J., Jus Decretalium, Tom. IV; Jus Matrimoniale Ecclesiae Catholic. Prati, 1911. FOREWORD 11 De Smet, Betrothment and Marriage. Bruges, 1912. Ad. Tanquerey, S. S., Synopsis Theologise Moralis et Pastoralis, T. Ill (A). Tournai, 1907. J. De Becker, De Sponsalibus et Matrimonio. Louvain, 1913. A. Esmein, Le Mariage en droit Canonique. Paris, 1891. PERIODICALS : Nouvelle Revue Theologique, Paris-Tournai. Le Canoniste Contemporain, Paris. II Monitore Ecclesiastico, Roma. The Ecclesiastical Review, Philadelphia. The Irish Theological Quarterly, Dublin. A more complete bibliography will be found in the works of Wernz, De Smet, etc. MARRIAGE LEGISLATION IN THE NEW CODE OF CANON LAW : PLACE AND DIVISION The legislation on marriage in the New Code of Canon Law is found in the third book, which treats of ecclesiastical things, De Rebus, and is divided into six parts, dealing with the Sacraments, with Sacred Times and Places, Divine Worship, etc. The first part has seven titles, devoted one to each sacra- ment. The last one is taken up with the sacrament of marriage. It is subdivided into twelve chapters, preceded by a few preliminary canons. In a short Introduction, the legislator gives the nature, ends, properties, and main divisions of mar- riage; he determines the authority that regulates it and defines the canonical value of betrothals. 12 FOREWORD In the twelve chapters are treated successively, and in a logical order, the following questions : What should be done before celebrating a marriage in order principally to ascertain the freedom of the parties ? The impediments which may be an obstacle to the marriage. Marriage itself: its essential element the consent. The form of marriage. Marriages of conscience. Time and place of celebration of marriage. Effects of marriage. Dissolution of marriage, partial and total. Revalidation of marriage, simple and in radice. Second marriages. CONTENTS INTRODUCTION 5 FOREWORD 9 PRELIMINARY NOTIONS NATURE, END, PROPERTIES, VARIOUS KINDS OF MARRIAGE; AUTHORITY THAT GOVERNS IT; CANONICAL VALUE OF BETROTHMENTS. I. Nature of Christian Marriage . . . . 21 II. End and Properties of Marriage .... 23 III. Marriage Favored by Law 25 IV. Different Kinds of Marriage 26 V. Authority that Regulates Marriage . 28 i. Marriage of Baptized Persons 2. Marriage of Unbaptized Persons VI. Promises of Marriage, Betrothals I. Betrothal as a Natural Contract . II. Betrothals and Canon Law . A. The Ancient Law of the Church 29 31 33 35 36 36 B. Promises of Marriage and the Present Legislation 38 VII. Instructions on Marriage and Marriage Im- pediments . 41 CHAPTER I PRELIMINARIES TO THE CELEBRATION OF MARRIAGE AND PARTICULARLY THE MARRIAGE BANNS. General Principle 43 I. Investigation by the Pastor 44 i. Freedom and Instruction of the Parties 44 2. Baptism and Confirmation . . , , 50 13 14 CONTENTS II. The Banns 51 A. Former Discipline 51 B. The Present Law 53 i. The Law Itself , 53 II. Mode of Publication 53 i. Place 53 2. Time 56 3. Form 57 m. Publications of Mixed Marriages . . 59 " iv. Duty of the Faithful 60 v. Dispensation 61 vi. Notification 63 vii. Sanction 63 III. Results of the Investigation and Publications . 64 i. Delay Required 64 2. Impediments Discovered 65 IV. The Vagi . . 68 V. Instructions to the Spouses 69 VI. Consent of Parents 69 CHAPTER II OF IMPEDIMENTS IN GENERAL; NATURE, SPECIES, POWER TO ESTABLISH, ABRO- GATE, DISPENSE FROM, THEM I. Nature: General Principle .... 73 II. Species 74 l. Prohibitive or Diriment Impediments . 74 2. Public and Occult Impediments . . 75 3. Other Impediments 76 III. Authority to Constitute Impediments . . 76 i. The Supreme Ecclesiastical Authority 76 2. The Power of Ordinaries .... 77 IV. Power of Abrogating, Derogating, or Dis- pensing from, Impediments ... 79 A. Former Discipline_ 80 B. Present Discipline 82 V. Custom and Impediments ..... 82 CONTENTS 15 VI. Classification of Impediments .... 84 VII. Powers of Dispensing Granted by Common Law to Ordinaries and Priests ... 86 i. In Cases of Danger of Death . . .86 A. Powers granted to Ordinaries . . 86 B. Powers granted to Priests ... 88 2. In Cases of Urgent Necessity ... 90 VIII. Dispensations for the Internal Forum . 94 IX. Intervention of the Holy See .... 94 X. Dispensation from Several Impediments in the Same Case 96 XI. Dispensation when One of the Impedi- ments is Reserved to the Holy See . . 97 XII. Legitimation of Children 98 XIII. Error in Dispensations from Consanguinity or Affinity 100 XIV. Implied Dispensation from an Impediment of Crime 101 XV. Obreption and Subreption in Dispensations 103 XVI. Execution of Dispensations by Ordinaries 105 XVII. Taxes and Expenses 108 XVIII. Mention of Delegation when Dispensing . 1 10 CHAPTER III PROHIBITIVE IMPEDIMENTS I. Vow in II. Legal Relationship 113 III. Mixed Religion 113 Preliminary Notions 113 i. Existence of the Impediment of Mixed Re- ligion 114 2. Dispensations from the Impediment . . 117 3. Conversion of the non-Catholic Party . 123 4. Prohibition to Appear before the non- Catholic Minister 124 5. Duties of Ordinaries and Other Pastors of Souls 126 16 CONTENTS IV. Unworthiness 130 i. Unworthiness by Reason of Apostasy or Affiliation with Forbidden Societies . 130 2. Public Sin and Censure . . . . . 132 CHAPTER IV DIRIMENT IMPEDIMENTS I. Age 136 II. Impotency 138 i. Nature and Species of Impotency . . 139 2. Annulling Effect 140 3 Proof of the Impediment . . . . 141 III. Previous and Existing Marriage . . . 142 IV. Disparity of Worship 147 i. Origin of the Impediment . . . . 148 2. Nature and Extent of the Impediment 149 3. Applications 150 4. Conditions for Dispensation . . . 153 V. Sacred Orders 155 VI. Solemn Vows 156 VII. Abduction 158 A. Ancient Discipline 158 B. Present Discipline 160 i. Conditions for the Impediment . . 161 2. Extent of the Impediment . . . 162 3. Dispensation from the Impediment 162 VIII. Crime 163 A. Origin of the Impediment . . . . 163 B. Present Discipline 164 i. Conditions for the Impediment . . 165 2. By Whom is the Impediment In- curred? 166 3. Dispensation from the Impediment 166 IX. Consanguinity 166 i. General Notions 166 1. Nature of Consanguinity or Blood Re- lationships 1 66 2. Determination "and Multiplication of Relationships .,,,,. 167 CONTENTS 17 n. The Impediment . . . . . . . 169 A. Ancient Discipline 169 B. Present Discipline 172 i. Extent of the Impediment . . 172 2. Dispensation from the Impediment 173 X. Affinity 174 A. Former Discipline 174 B. Present Discipline 176 I. Nature of the Impediment . . . 176 II. Extent and Multiplication of the Im- pediment 177 ill. Dispensation from the Impediment 178 XL Public Decency 179 A. Former Discipline 179 B. Present Discipline 181 XII. Spiritual Relationship 182 A. Origin of the Impediment . . . . 182 B. Present Discipline 184 XIII. Legal Relationship 185 A. Origin of the Impediment . . . . 185 B. Present Legislation 186 CHAPTER V OF THE MATRIMONIAL CONSENT I. The Consent Itself; Its Importance and Qualities 189 II. Obstacles to Valid Consent: Ignorance, Er- ror, Simulation, Violence, or Fear . . 191 i. Ignorance 191 2. Error 193 A. Error of Fact as to Person or Quality 193 B. Error of Law as to Properties of Marriage ....... 196 3. Knowledge or Conviction of the Nullity of the Marriage 198 4. Fiction or Simulation 198 5. Violence and Fear . . . . . . 203 18 CONTENTS III. Manifestation of the Consent .... 209 IV. Marriage by Proxy 2 1 1 V. Marriage by Interpreter 215 VI. Licitness of the Foregoing Marriages Through Proxy or Interpreter . . . 216 VII. Conditional Marriage 217 i. Nature and Species of Conditions . . 217 2. Ancient Legislation 218 3. Present Legislation 220 VIII. .Consent in Invalid Marriage .... 226 CHAPTER VI THE FORM OF MARRIAGE A. Former Discipline 229 B. Present Legislation 232 i. General Principle 232 2. Conditions for the Validity .... 233 3. Authorization to Assist at Marriages . 238 4. Conditions for the Lawful Assistance at Marriage 239 5. Exceptions: In Cases of Danger of Death or of Urgent Necessity 245 6. Those Who Are Affected by the Law . 249 7. Rites to be Observed 253 A. In Catholic Marriages . . . . 253 B. In Mixed Marriages 254 8. Registration 256 CHAPTER VII MARRIAGES OF CONSCIENCE I. Nature 263 II. Former Legislation 263 III. Present Law 264 1. Lawfulness of Marriages of Conscience . 264 2. Obligation to Keep Them Secret . . . 265 3. Registration 267 CONTENTS 19 CHAPTER VIII TIME AND PLACE FOR THE CELEBRATION OF MARRIAGE I. Time 269 II. Place 271 CHAPTER IX EFFECTS OF MARRIAGES I. Indissolubility of Marriage ..... 275 II. Relative Rights of the Spouses .... 276 III. Duties of Parents 277 IV. Legitimacy of Children 278 V. Presumed Paternity 279 VI. Legitimation of Children 280 CHAPTER X MUTUAL SEPARATION OF MARRIED PEOPLE ARTICLE I DISSOLUTION OF THE MARRIAGE BOND A. Marriage Ratified and Consummated . . . 284 B. Marriage Only Ratified 284 i. Religious Profession 285 II. Papal Dispensation ....... 286 C. Legitimate Marriage or Marriage of Infidels and Pauline Privilege 288 I. Existence and Object of the Privilege . . 288 II. Interpellations: Necessity, Object, Dispen- sation 292 l. Necessity of the Interpellations . . .291 2.* Object of the Interpellations . . . 291 3. Dispensation 292 4. Form of the Interpellations .... 293 5. Effects of the Interpellations . . . 295 HI. Special Provisions 299 20 CONTENTS IV. Dissolution of the Marriage Contracted in Infidelity 302 v. Presumption in Doubtful Cases . . . 302 ARTICLE II LIMITED DIVORCE, OR SEPARATION AS TO BED, BOARD, AND DWELLING-PLACE 1. General Principle 303 2. Principal Cause of Separation Adultery . . 305 3. Taking Back the Guilty Party 306 4. Other Causes for Separation 308 5. Education of Children 311 CHAPTER XI REVALUATION OF MARRIAGE ARTICLE I SIMPLE REVALIDATION General Conditions 313 Renewal of the Consent 314 Mode of Renewal .314 Marriage Null for Want of Consent . . . 316 Marriage Null for Want of the Required Form 3 1 8 ARTICLE II REVALIDATION IN RADICE i. Its Nature 319 2, When is it Possible? . 321 3. When is it Impossible? 322 4. By Whom is it Granted? 323 CHAPTER XII OF SECOND MARRIAGES INDEX 329 MARRIAGE LEGISLATION IN THE NEW CODE OF CANON LAW PRELIMINARY NOTIONS NATURE, END, PROPERTIES, VARIOUS KINDS OF MARRIAGE; AUTHORITY THAT GOVERNS IT; CANONICAL VALUE OF BETROTHMENTS I. NATURE OF CHRISTIAN MARRIAGE 1. Marriage is a contract by which man and wo- man become irrevocably united for the procreation and education of children. It has its origin in the natural law. God gave it in the beginning a sacred and religious character; and Christ raised it to the dignity of a sacrament of the New Law. The matrimonial legislation of the Church presup- poses, as its foundation, this elevation of the marriage contract to the sacramental dignity; and hence it is especially declared in the first canon : Can. 1012. 1. Christus Dominus ad sacrament! dignitatem evexit ipsum contractum matrimonialem inter baptizatos. 2. Quare inter baptizatos nequit matrimonialis contractus validus consistere, quin sit eo ipso sacra- mentum. 2. 1. Our Lord raised to the dignity of a sacrament the contract of marriage between baptized persons. 2. Hence between baptized persons there can be no valid contract of marriage without there being a sacrament. 31 22 PRELIMINARY NOTIONS 1.* That marriage is a sacrament has always been the belief and teaching of the Church. (Trent, Sesa. xxiv, de Mat., can. 1.) That the marriage con- tract itself constitutes the sacrament has not always been so clearly understood. Without speaking of such writers as Launoy, Nuytz, and others, for whom the sacrament of mar- riage is only an accessory to the contract and consists in the nuptial blessing exclusively, there have been theologians and canonists who, unable to find all the necessary elements of a sacrament in certain marriage contracts commonly recognized as valid, were led to admit a real distinction between the contract and the sacrament, making the latter consist of two elements the contract as the matter and the nuptial bless- ing as the form. (Estius in iv Sent., dist. xxvi, 10, Melchior Canus. ) Some of the Fathers of the Coun- cil of Trent favored this theory as reconciling better the substantial immutability of the sacraments with the power of establishing matrimonial impediments ; and Benedict XIV (De Syn. Dioec., 1. viii, c. 13) still speaks of it as based on very solid arguments; but after the clear declarations of Pius IX (Syllabus prop. 66, 73) and of Leo XIII (Arcanum, Feb. 10, 1880) it was no longer tenable. 3. 2. Nor could it be admitted, with another school (Salmant, Cursus Theologias Moralis, Tract, xi, cap. iii; Billuart; Pontius), that, while there is always a contract wherever there is a sacrament, yet, there can be a contract between Christians without there being a sacrament. _As is explicitly declared in this canon, the contract of marriage between Chris- END AND PROPERTIES OF MARRIAGE 23 tians is so completely identical with the sacrament that one can not exist without the other. Hence two Christians who would have no intention of receiving the sacrament would not make a valid contract. It is not necessary that they should have the sacrament in mind, but if their predominant intention is to ex- clude it, there is no contract; because for Christiana the contract itself must be a sacrament whenevei it exists. 4. 3. For the same reason, if at the time of the marriage the parties were not baptized and they are baptized afterwards their marriage then becomes a contract between Christians and, therefore, a sacra- ment. If only one of the parties is baptized, it is doubtful whether even for him the marriage is a sacrament as, strictly speaking, we have not here a contract between Christians. (Cf. Palmieri, De Matrimonio Christiano, cap. 11, thesis 11; Wernz, Jus Decretalium, vol. iv, n. 44; Catholic Encyclo., vol. ix, p. 713.) II. END AND PROPERTIES OF MARRIAGE Can. 1013. 1. Matrimonii finis primarius est procreatio atque educatio prolis; secundarius mu- tuum adjutorium et remedium concupiscentiae. 2. Essentiales matrimonii proprietates sunt unitas ac indissolubilitas, quae in matrimonio chris- tiano peculiarem obtinent firmitatem ratione sacra- menti. 5. 1. The primary end of marriage is the procreation and education of children ; the sec- 24 PRELIMINARY NOTIONS ondary end, mutual support and the relief of concupiscence. 2. The essential properties of the marriage contract are unity and indissolubility, to which the sacrament gives a special firmness in Chris- tian marriage. 1. The procreation and education of children form the primary aim of marriage, which was insti- tuted by the Creator for the propagation of the human race. But mutual support and the appease- ment of the passions are ends also, although second- ary and subordinate. As will be said later, positive exclusion or even mere ignorance of the primary end would render the marriage null. As long, however, as the primary end is not excluded, marriage con- tracted for one of the secondary ends, or even for any reasonable motive, is both valid and licit. 6. 2. (a) Theologians commonly teach that poly- andry (union of one woman with several men) is con- trary to the primary precepts of the natural law and remained always forbidden. Polygyny (union of one man with several women) is in opposition to the secondary precepts of the natural law: forbidden in the original institution of marriage, it was permitted under the old Dispensation by way of temporary con- cession until Christ brought marriage back to the primitive limits of monogamy. Even among infidels, at least at present, a man can have only one legitimate wife. (6) Likewise the bond of marriage is indissoluble by the law of nature. Under the Mosaic Dispensa- MARRIAGE FAVORED BY LAW 25 tion the law was relaxed by divine authority. It was restored by Christ to its original severity. Excep- tions may be made, but only by God, directly or through His representative the Church. It is not within the limits of any merely human power to dis- solve a marriage which has been validly contracted. (c) In Christian marriage the contract, raised to the dignity of a sacrament, becomes a sacred thing, and its properties are more inviolable. It is more difficult to dissolve it, and polygamy is more repug- nant to it than to a merely natural marriage. III. MARRIAGE FAVORED BY LAW Can. 1014. Matrimonium gaudet favore juris; quare in dubio standum est pro valore matrimonii, donee contrarium probetur, salvo praescripto can. 1127. 7. Marriage enjoys the favor of the law; therefore, in case of doubt, its validity ought to be maintained until the contrary be proved, tak- ing into account, however, the prescriptions of can. 1127. It is a general principle that when an act has been performed it ought to be considered valid until it is proved to be null. This applies in a special manner to marriage, which is a sacrament and indis- soluble by divine law. To pronounce a marriage null without sufficient evidence is to run the risk of "set- ting asunder what God has put together." The burden of proof lies on the one who attacks the marriage. The only exception is in faror of a convert to the Faith. (Can. 1127.) 26 PRELIMINARY NOTIONS IV. DIFFERENT KINDS OF MARRIAGE Can. 1015. 1. Matrimonium baptizatorum validum dicitur ratum, si nondum consummatione completum est; ratum et consummatum, si inter conjuges locum habuerit conjugalis actus, ad quern natura sua ordinatur contractus matrimonialis et quo conjuges fiunt una caro. 2. Celebrato matrimonio, si conjuges simul cohabitaverint, praesumitur consummatio, donee contrarium probetur. 3. Matrimonium inter non baptizatos valide celebratum, dicitur legitimum. 4. Matrimonium invalidum dicitur putativum, si in bona fide ab una saltern parte celebratum f ucrit, donee utraque pars de ejusdem nullitate certa evadat. 8. 1. A valid marriage between Christians is only ratified when it has not been completed by consummation; it is ratified and consum- mated when between the parties has taken place the physical act which the marriage contract has in view, and by which the parties become one flesh. 2. If after the celebration of the marriage the parties have lived together, the marriage is supposed in law to be consummated until the contrary be proved. 3. Marriage validly contracted between un- baptized persons is called legitimate. 4. An invalid marriage which has been contracted in good faith by at least one of the parties is called putative jmtil both parties be- come certain of its nullity. DIFFERENT KINDS OF MARRIAGE 27 9. 1." These divisions and these terms, long in use among canonists, are here sanctioned by the legisla- tor and their meaning is officially defined. A mar- riage is only ratified when it has not been consum- mated, but the term ratified is usually applied to Christian marriage and opposed to legitimate, which designates a merely natural contract. A marriage between two unbaptized persons becomes ratified when both parties are baptized. If it was never con- summated, it will be ratified only. If it was con- summated before Baptism and not after, it will be consummated and ratified; if consummated after, it will be ratified and consummated, which is not quite the same in regard to indissolubility or dispensations. A marriage is said to be consummated when it is followed by sexual intercourse sufficient of itself for the purpose of generation. Onanistic or other incom- plete relations do not consummate the marriage, but only those by which the spouses become one flesh, as said in the text; and they become one flesh per commixtionem seminum vel sanguinum. On the other hand, any sexual intercourse suitable of itself for generation, whether voluntary or involuntary, conscious or unconscious, suffices for consummation. (Gasparri, n. 1064f. ; A. Eschbach, Disputationes Physiologico-Theologicse, Disputatio secunda; J. An- tonelli, Medicina Pastoralis, vol. ii, n. 42.) 10. 2. A marriage contract which is valid with- out being a sacrament is called simply legitimate. When contracted between a baptized and an unbap- tized person, with dispensation, the marriage is con- sidered as ratified in regard to dissolubility (Can. 28 PRELIMINARY NOTIONS 1119), although its sacramental character be not ad- mitted by all; but a marriage between two unbap- tized persons does not acquire all the indissolubility of ratified marriage by the baptism of one of the parties, since it can be dissolved by the subsequent marriage of that party. 11. 3. A marriage although null enjoys several legal privileges and is sufficient for the legitimacy of children, when, and as long as, it is believed to be valid by at least one of the parties. It is then called putative. If it has been contracted with all necessary formalities, but is null because of some secret impedi- ment known to the parties, it is said, by canonists, to have an appearance of marriage. (Wernz, v. iv, n. 29.) V. AUTHOEITY THAT KEGULATES MARRIAGE 1 Can. 1016. Baptizatorum matrimonium regitur jure non solum divino, sed etiam canonico, salva competentia civilis potestatis circa mere civiles ejusdem matrimonii effectus. 12. The marriage of baptized persons is regu- lated not only by divine but also by canonical law, the civil power remaining competent in regard to the civil effects of marriage. All marriages, without exception, are regulated by the natural law; but they may be regulated be- sides by the law of the society, civil or religious, to which the parties belong. J De Smet, n. 215. REGULATING AUTHORITY 29 13. 1. Marriage of baptized persons. It is gov- erned by the divine law, the canonical law, and, in regard to certain effects, the civil law. (a) The divine law. All that is required by the law of nature for a contract and for a marriage con- tract is necessary also for Christian marriage. To this must be added the prescriptions of the divine positive law from which the Church does not and can not dispense. 14. (&) The ecclesiastical law. The Church claims full, independent and exclusive power over the marriage of all baptized persons Catholics, here- tics, schismatics because she has received from Christ supreme authority in religious matters, and marriage is a sacrament; and because by Baptism men become her subjects, whether willing or not. That power is exclusive, "To decree and ordain about the sacrament is, by the will of Christ, so much a part of the power and duty of the Church that it is plainly absurd to maintain that even the smallest particle of such power has been transferred to the civil ruler." (Leo XIII, Ency. Arcanum.) It in- cludes the legislative, judicial, and coercive power; that is, the power of establishing impediments both diriment and impedient, of deciding all matrimonial causes, of constraining married persons to comply with their obligations, etc. ... It has, however, to be exercised within the limits of the natural and di- vine positive law, does not extend to merely civil effects, and should not unnecessarily interfere with the liberty of marriage. To marry is a right which every man has received from nature. It has 30 PRELIMINARY NOTIONS to be respected ; still, it is not absolutely independent in its exercise the common and private good may demand that it be restricted at times and perhaps taken away altogether in some extraordinary cases. Thus the Church might forbid a person infected with a serious contagious disease ever to marry, even un- der pain of nullity. In reality, such a person has no right to marry. Perhaps the prohibition to marry might be pronounced as a punishment for certain crimes, but it should be only for very grave crimes, and even then it could be used only very seldom; at present it is found more expedient to have recourse to other penalties. Possibly also if the number of the vicious and degenerate grew so large that the very safety of society would be endangered and the common good would demand imperatively that measures be taken to prevent the birth of too large a proportion of ab- normal children, the Church might exclude from the privilege of marrying certain persons who are clearly unfit for raising a family. But it will rarely, if ever, occur, that such a measure be necessary, and when- ever another remedy can be found, it ought to be preferred. (De Smet, n. 219.) 15. (c) Civil power. The civil power has no au- thority over the bond itself or what is essential to it, and can establish no real impediment, diriment or impedient, to the marriage of Christians. It has authority over the civil effects. What can be con- sidered merely civil effects it is not always easy to determine, and there is some difference of opinion among canonists on that point. Ordinarily they de- fine civil effects those which concern the temporal REGULATING AUTHORITY 31 order, and are not inseparable from the marriage contract, as what pertains to the dowry, the right of succession, etc. (Wernz, n. 50; Gasparri, n. 278.) The State has legislative, judicial, and coercive power over these (De Smet, n. 220) ; it may require certain formalities, like registration, as a condition for grant- ing legal value to a canonically valid marriage, and punish the omission of those requirements. But even the purely civil effects should not be withheld with- out legitimate cause from a valid contract. And those which, although of a civil or temporal order in themselves, are inseparable from a valid contract e.g., the legitimacy of children or cohabitation should not be denied by the civil courts to marriages contracted in accordance with the laws of the Church. (Wernz, n. 82.) 16. 2. Marriage of unbapiized persons. Our law does not mention them because the Church does not legislate for them. She may, however, have to pro- nounce on their validity, as, v.g., in the case of con- verts, or in the case of infidels seeking to marry Christians after a previous marriage. If that mar- riage had been contracted with an impediment of the natural or divine positive law, it is without hesitation declared null. But the Roman Congregations have also repeatedly pronounced the same decision and permitted a second marriage, when there was no other obstacle to the validity of the first than an im- pediment of the civil law. (S. C. de Prop. Fide, June 26, 1820, n. 744; Wernz, n. 80; Gasparri, n. 281.) From this and from intrinsic arguments it is inferred that the Church recognizes in the su- 32 PRELIMINARY NOTIONS preme civil authority the power of regulating the marriages of unbaptized citizens, of establishing diri- ment and prohibiting impediments, and in general of exercising, with a view to temporal welfare, the same legislative, judicial, and coercive power over non- Christian as she exercises over Christian marriages. This conclusion, commonly admitted till the middle of the nineteenth century, encountered then some op- ponents who seemed to be afraid of granting too much power to the State. In the absence of a general and final decision of the Holy See, it can not be said to be absolutely certain ; but it has the support of the great majority of canonists and is considered certain enough to be acted upon by the Roman Congregations. (Gasparri, n. 281f. ; Wernz, n. 75.) 17. To be valid, civil laws regarding marriage, as other laws, must have a reasonable cause, and they should be in conformity with the divine right. The State, at least as much as the Church, must abstain from establishing those absolute impediments which take away from a person the innate right of marrying that he has from nature. This seems to be forgotten by those legislators who, under the pretext of promot- ing the propagation of offspring sound in mind and in body, would demand for marriage a certain physi- cal perfection, and exclude from it all those who are liable "to bring into the world children suffering from some hereditary taint." 18. It should be observed that a marriage between infidels is not null by the mere fact that it was con- tracted in violation of a civil law. The prohibition may have no reference to the bond itself, but only to PROMISES OF MARRIAGE 33 the civil effects ; or, if it constitutes an impediment, we have to examine whether it is a diriment or a pro- hibiting one; the distinction is not always clearly made by civil legislators. Then we have to see whether the impediment is a reasonable one and bind- ing in conscience. A comparison with the canonical impediments will help to decide that question. (Jean Chabagno, Le mariage des infideles dans ses rapports avec la loi civile en general et la loi Japonaise en particulier, Yokohama Canoniste Contemporain, Sept., 1914.) As in any case it remains somewhat doubtful that civil impediments are binding in con- science, cases of nullity, on that ground, should be treated with caution, and when more difficult should be referred to the Holy See. (De Smet, n. 224 ; De Becker, De Matrimonio, p. 43.) VI. PROMISES OF MARRIAGE, BE- TROTHALS Can. 1017. 1. Matrimonii promissio sive uni- lateralis, sive bilateralis seu sponsalitia, irrita est pro utroque foro, nisi facta fuerit per scripturam subsignatam a partibus et vel a parocho aut loci Ordinario, vel a duobus saltern testibus. 2. Si utraque vel alterutra pars scribere ne- sciat vel nequeat, ad validitatem id in ipsa scriptura adnotetur et alius testis addatur qui cum parocho aut loci Ordinario vel duobus testibus, de quibus in 1, scripturam subsignet. 3. At ex matrimonii promissione, licet valida sit nee ulla justa causa ab eadem implenda excuset, non datur actio ad petendam matrimonii celebra- tionem; datur tamen ad reparationem damnorum, si qua debeatur. 34 PRELIMINARY NOTIONS 19. 1. A promise of marriage, whether uni- lateral or bilateral, that is, sponsalitial, is null in both forums unless it be made in writing, signed by both parties, and by either the parish priest or the Ordinary of the place, or at least by two witnesses. 2. If either or both parties be unable to write, mention of that fact must be made in the document, for the validity of the act, and an- other witness must be added to sign the docu- ment, together with the parish priest or Ordi- nary of the place or the two witnesses spoken of in 1. 3. But a promise of marriage, although it be valid and there be no just cause to excuse from fulfilment, does not furnish ground for an action to demand the celebration of the mar- riage ; it will, however, permit to bring suit for damages if any be due. 20. A marriage may be promised by one party and the promise merely accepted by the other; we have then a unilateral contract, binding, indeed, if made seriously, in justice, or in fidelity according to the intention of the promisor, but binding only on one side, like all gratuitous contracts. Or the promise may be followed by a counter-promise, and we have the bilateral promise of marriage, which is called be- trothal. While not necessary in itself, it may be ex- pedient that betrothal should precede marriage, as a barrier against hasty unions. It was in use among the Jews, the Romans, the Germans; the Christian PROMISES OF MARRIAGE 35 Church always permitted it, often encouraged it, in some places even made it obligatory. (Wernz, n. 88, 91 ; Instructions of the Vicariate of Rome, 1 ; Canon- iste, Sept., 1911, p. 595.) Betrothal is a natural contract and it has been sanc- tioned by canon law. We may consider it here under that twofold aspect. (Tanquerey, n. 944.) I. BETROTHAL AS A NATURAL, CONTRACT 21. 1. Its nature and conditions: (a) Betrothal is a reciprocal promise of future marriage made by a determinate man and a determinate woman, who are not disqualified for it. (&) The contract is constituted by the consent, which must be real, free, simultaneous, and legiti- mate; the contracting parties must have the use of reason, which is not presumed before the age of seven years, and the ability to contract marriage at some future time. (c) ISTo particular formalities are required by the natural law, but only that the consent be clearly mani- fested. 22. 2. Its effects: (a) A grave obligation of jus- tice to marry the betrothed person at the proper time and consequently a prohibition to marry any other as long as the valid betrothal exists; (&) an obligation for the parties to keep the sponsalitial faith and not to render themselves unfit for marriage. Those who without legitimate excuse do not com- ply with their promise are bound to indemnify the other party for the loss inflicted; and even should there be no loss suffered, a compensation may be ex- 36 PRELIMINARY NOTIONS acted from them as penalty for broken faith and a satisfaction for the wrong done. 23. 3. Dissolution: Betrothal is dissolved (a) by the mutual consent of the parties, explicit or implicit ; (6) by a supervening impediment or obstacle which renders the marriage impossible or unlawful; (c) by a breach of the sponsal fidelity ; (d) by a subsequent notable change or the discovering of a grave defect which, if known before, would have prevented the contract being entered into ; (e) by delay in comply- ing with the promise, beyond the appointed or reason- able time; (/) by dispensation granted by the head of the social body, the Pope in the case of the faithful, the civil ruler in the case of the non-Christians. (De Smet, n. 31.) II. BETEOTHALS AND CANON LAW A. The Ancient Law of the Church 24. 1. As to the conditions that are necessary and sufficient for the validity of the contract, the Church accepted the prescriptions of the natural law, complet- ing them only on a few points of minor importance. 2. The effects produced by the natural contract of betrothal were all sanctioned by the ecclesiastical law, which added the diriment impediment of public de- cency, arising between each party and the blood rela- tions of the other in the first degree, provided the betrothal be valid and absolute. By decretal law (Alexander III, Episcopo Pict., cap. 10, de Sponsalibus) die Bishop had the right to compel the betrothed, even by means of censures, to 37 keep their promise; and the unjustly forsaken party could sue the other for damages before the ecclesias- tical court. 25. 3. Formalities: (a) Before 1908 no special formalities were required by the general law of the Church for the validity of betrothals. At the Coun- cil of Trent it was proposed to exact the presence of three witnesses. Bishops asked at various times that some special form be prescribed, but the discipline remained unchanged. Regulations departing from it in diocesan statutes were refused approval. If in 1880 the Holy See declared that a written document and the presence of a notary were necessary in Spain for the validity of betrothals, it was on account of the custom that had prevailed in that country since the beginning of the century. (Gasparri, n. 26.) (&) It was found, however, that clandestine be- trothals were not without serious inconveniences, and Bishops again asked the Holy See for a remedy. Consequently, Pius X in the decree Ne temere, pub- lished August 2, 1907, ordained that "only those be- trothals are considered valid and produce canonical effects which have been contracted in writing, signed by both parties and either the parish priest or the Or- dinary of the place or at least by two witnesses. In case one or both parties be unable to write, this fact is to be noted in the document and another witness is to be added, who will sign the writings as above, with the parish priest or the Ordinary of the place or the two witnesses." From the moment of the enforcement of this law, that is, Easter Sunday, April 19, 1908, no contract 38 PRELIMINARY NOTIONS of betrothal is canonically valid unless the above for- malities are observed ; it is not even binding in con- science, according to the more common opinion. B. Promises of Marriage and the Present Legislation 26. The provisions of the Ne temere are main- tained substantially in the new Code, but completed and modified in a few points. 1. The law will apply now to all promises of mar- riage, not simply to mutual promises or contracts of betrothal; and it is explicitly enacted that the for- malities prescribed here are required for the value of those promises in the internal as well as in the ex- ternal forum. 2. The formalities prescribed, besides what is re- quired by natural law, are the following : (a) The contract must be made in writing, signed by the parties and, besides, by either the pastor or the Ordinary of the place, or by at least two witnesses, if neither the pastor nor the Ordinary sign. It is the pastor or the Ordinary of the place where the con- tract is made who is to sign it, not the pastor of the parties. Only the pastor is mentioned, with the Ordinary, as having that quality of official witness, not the assistants; nor can he delegate his authority, as is implied in the text of the law and was officially de- clared by the S. Cong, of the Council, March 28, 1908. No special qualifications are demanded in the wit- nesses; children, women, non-Catholics, etc., can, strictly speaking, act as such, as long as they have the use of reason and are able to write. PROMISES OF MARRIAGE 39 Nothing is determined as to the precise form or wording of the contract, but a decree of the Congre- gation demanded that it be dated. (S. C. C., July 27, 1908.) (6) If one or both of the parties be unable to write, either because they never learned or for some other reason, the fact has to be noted in the document, to make it even valid; and another witness has to be added who will sign with the pastor or the Ordinary or the other two witnesses according to the case. It does not make any difference whether it is one or both of the parties that can not write ; one additional witness will suffice in either case. But the signature of an additional witness can take the place of that of the parties only when the latter can not write. If they failed to sign the document when they are really able to do so, the contract would be null. (c) Conditional engagements and engagements by proxy were considered as valid and lawful under the decree Ne temere on the same conditions as before. Nothing in the present law implies a change in the discipline on that point. The decree of the Congre- gation (July 27, 1907) demanding that both parties sign the contract at the same time (unico contextu), requires the presence of both, and consequently ex- cludes engagements by letter. 27. 3. Effects. Promises of marriage made ac- cording to the prescribed form will be binding in con- science, but they do not give rise any more to the diriment impediment of public decency, nor to any canonical prohibiting impediment properly so called. 40 PRELIMINARY NOTIONS The obligation itself of contracting marriage can not be juridically enforced. Even under the former legislation it occurred very seldom that ecclesiastical authorities compelled be- trothed parties to marry. Pope Lucius III, asked by a Bishop by what censures a certain woman could be compelled to keep a promise of marriage she had made under oath, answered that as marriages ought to be free, the woman should be warned and per- suaded rather than forced, because forced marriages have ordinarily unhappy results (17, x, iv, 1). Can- onists concluded from those words that coercion should be used, in this matter, only by way of excep- tion. Even those exceptions will not be allowed henceforth. The ecclesiastical courts will not, however, ignore promises of marriage altogether; they may afford ground for an action for damages. Neither is this inconsistent. Similar provisions are found in mod- ern civil legislations. According to English and American law, "engagements can not be enforced in civil courts, but would furnish good ground for a breach-of-promise suit." Even the Code Napoleon, which denies all binding power to a promise of mar- riage, permits "a claim for damages, not on account of breach of promise, which law does not forbid, but in consequence of misdemeanor or quasi-misde- meanor, that is to say, deceit or other like wrong." 4. Dissolution. Promises of marriage, whether unilateral or bilateral, even when made with all the formalities described above, remain dissoluble by INSTRUCTIONS ON MARRIAGE 41 mutual consent, substantial change and other causes as heretofore. VII. INSTRUCTIONS ON MAKRIAGE AND MARRIAGE IMPEDIMENTS Can. 1018. Parochus ne omit tat populum pru- denter erudire de matrimonii sacramento ejusque impedimentis. 28. The pastor shall not fail, prudently, to in- struct the people on the sacrament of marriage and impediments to it. The insistence of the law on this duty of instruct- ing the people shows the importance the legisla- tor attaches to it. Catholics ought to know the doc- trine of the Church on marriage, its nature, its sacredness, its properties. They must have also at least an elementary idea of marriage impediments in order to avoid invalid contracts, which are often due to ignorance and, although not formally sinful, are not sanctified hy the sacramental grace. Prudence is recommended so that anything which might shock the hearers be carefully avoided and in- formation be not given which would be of little benefit and might be simply used to evade the law. CHAPTER I PRELIMINARIES TO THE CELEBRATION OF MARRIAGE, AND PARTICULARLY THE MARRIAGE BANNS GENERAL PRINCIPLE Can. 1019. 1. Antequam matrimonium cele- bretur, constare debet nihil ejus validae ac licitae celebration! obsistere. 2. In periculo mortis, si aliae probationes ha- beri nequeant, sufficit, nisi contraria adsint indicia, affirmatio jurata contrahentium, se baptizatos fuisse et nullo detineri impedimento. 29. 1. Before a marriage is celebrated it must be ascertained that there is no obstacle to its valid and licit celebration. 2. In case of danger of death, if no other proofs can be obtained, it will suffice, unless there be indications to the contrary, to have a sworn statement from the contracting parties, that they are baptized and free to contract mar- riage. 1 30. 1. Respect for the sacrament as well as re- gard for the interests of the family and of society demand that great care be taken to secure the licit- ness and validity of marriages. During the first centuries all proposed marriages had to be referred to the Bishop, who would see that there were no obstacles to their celebration. (St. 1 Gasparri, c. ii; Wernz, n. 129f. 43 44 PRELIMINARIES TO MARRIAGE Ignatius, ad Poly., 5.) When the faithful became more numerous and parishes were established, the duty to watch over marriages devolved upon the par- ish clergy. They were first directed to make a care- ful investigation in each case; and, later on, when this proved insufficient, they were commanded to pub- lish in church marriages about to be celebrated. Both the investigation and the proclamation of banns remain obligatory to this day as means of pre- venting invalid or unlawful marriages. 31. 2. The law mentions one exception : When a party is in danger of death and no other evidence can be obtained, his testimony may be accepted as suffi- cient proof of his baptism and of his freedom to marry. The testimony has to be given under oath and be such that it inspires full confidence. If there be any serious reason to doubt its reliability, the mar- riage can not be permitted without further investiga- tion. Other cases will, no doubt, occur, when it would be very difficult to comply with all the requirements of the law in this matter. The fact that only one ex- ception is mentioned shows, at least, that, in the mind of the legislator, those prescriptions are not to be dispensed with except for really grave reasons. The way to carry them out will be specified more in detail in the following canons. I. ESTVESTIGATIOtf BY THE PASTOR 1. FBEEDOM AND INSTRUCTION OF THE PASTIES Can. 1020. 1. Parochus cui jus est assistendi matrimonio, opportune antea tempore, diligenter INVESTIGATION BY THE PASTOR 45 investiget num matrimonio contrahendo aliquid obstet. 2. Turn sponsum turn sponsam etiam seorsum et caute interroget num aliquo detineantur impedi- mento, an consensum libere, praesertim mulier, praestent, et an in doctrina Christiana sufficienter instruct! sint, nisi ob personarum qualitatem haec ultima interrogatio inutilis appareat. 3. Ordinarii loci est peculiares normas pro hujusmodi parochi investigatione dare. 32. 1. The pastor whose right it is to assist at a marriage ought to inquire carefully before- hand, and in good time, whether there are any obstacles to the marriage. 2. He shall interrogate both the bride- groom and the bride, separately and prudently, inquiring whether they, particularly the bride, give their consent freely, whether they are suffi- ciently instructed in Christian Doctrine, unless this last question be deemed useless considering the quality of the persons. $ 3. It is left for the Ordinary of the place to lay down specific rules for this investigation. 33. 1. It is the pastor who is responsible for the investigation, even when he is not to assist at the marriage personally. If the parties belong to differ- ent parishes, either pastor is competent ; but generally it is better that the investigation be made by the one in whose parish the marriage is to be celebrated, with the co-operation of the other as far as is necessary. The obligation is in itself a grave one, and would seem to exist even when it is morally certain that 46 PRELIMINARIES TO MARRIAGE no impediment will be discovered. This principle holds good for the publication of the banns and should apply also to the investigation. (Gasparri, n. 142.) 34. 2. The pastor has to interrogate the parties. For a long time this was the ordinary means of ascer- taining their freedom. When it was found insufficient, the Fourth Lateran Council (Can. 51, Cap. 3, De Clandestinitate Desponsa.) ordered the publication of the banns of marriage, declaring at the same time that the pastors were not dispensed thereby from in- terrogating prospective husbands and wives; and likewise when Clement X added another formality, the examination of witnesses, the examination of the parties remained obligatory. Benedict XIV strongly insists on its importance and it is maintained in the new Code. Its object is threefold: The possible ex- istence of impediments, the willingness of the parties, particularly the woman, to marry, and their religious instructions. 35. (a) Regarding impediments, merely general questions would frequently not suffice, as the parties may, in good faith, consider themselves free when they are not. What questions should be asked de- pends on the circumstances ; they should refer to such impediments as are likely to be found in the case. The possible existence of a previous marriage de- serves special attention. Ordinarily the pastor ought not to question the parties as to impediments involv- ing infamy and supposing sin. This is rather the confessor's province, unless the crime has become known in the external forum, or at least is strongly INVESTIGATION BY THE PASTOR 47 suspected. The parties should be warned, when they go to confession, to let their confessor know that they are about to be married in order that he, too, may ask the proper questions and give the necessary directions. 36. (&) Willingness to marry. The Church has always insisted on the freedom of the marriage con- tract. In her legislation she has defended the liberty of subjects against the pretensions of princes, that of children against abuses of parental authority, and that of all the faithful in general against undue in- fluences. Through her representatives, the pastors, she wishes to extend her protection to every individ- ual contract, and she refuses her sanction to any that is not entered into knowingly and willingly, by both parties. Free consent constitutes the contract; it is the first condition, then, for the validity of the sacra- ment, the first one to be ascertained. Even at the present day such freedom is sometimes wanting and many a marriage is impugned on that ground. It is not without reason, then, that the law commands us to interrogate the parties on that point, particularly the bride, who is more liable to be unduly influenced. The questions ought to be asked privately and in- dividually; special care should be taken when there are reasons to believe that pressure has been exer- cised ; and there should be no hesitation in supporting children against their parents themselves if the case demands it. 37. (c) Religious instruction. The duty of pas- tors to see that persons about to be married are suffi- ciently instructed in the rudiments of the Christian Faith has been frequently affirmed by Popes (v.g., 48 PRELIMINARIES TO MARRIAGE Innocent III, Clement XI, Benedict XIV), and many rituals contain directions on that subject. The present law renews those prescriptions. Persons about to found a Christian family ought to know at least the principal truths of that Faith in which they are to raise their children. If they do not, and neglect to be instructed, when they can, Benedict XIV declares that they ought to be considered and treated as publicly unworthy. 1 He admits, at the same time, that a rudimentary knowledge suffices when nothing more can be obtained, and that those who are so dull of understanding that they can hardly learn anything by heart and retain it, are "not to be kept indefinitely from marriage, which was instituted for the requirements of nature, and which conse- quently must not be forbidden any one except for his own fault." (De Syn. Diceces., 1. viii, c. 14; III Plen. C. Bait., n. 125.) When the pastor knows already that the party is sufficiently well instructed, there is no need of exam- ination. Warning is given, however, not to presume that instruction too readily, as religious ignorance is very common even among otherwise well enough edu- cated people; and persons who are fairly well in- structed on other points may have incomplete, vague, or wrong views on marriage, married life, the rights and duties of married people. (De Smet, n. 331, 335.) 1 NoxE: The present law does not demand that they be treated as public sinners. Commission of Interpretation, Tune 2-3, 1918. A. A. S., August, 1918, p. 345. INVESTIGATION BY THE PASTOR 49 38. 3. The common law does not enter into any details concerning the method to be followed in the investigation ; it is left for the Bishops to do so. They will be guided in this by the existing instructions of the Holy See. The prescriptions of Clement X are no more obligatory in themselves, but the pains taken to adapt the present law to actual conditions shows that in the intention of the legislator it should hence- forth be observed literally. There is no mention of any power of dispensing granted to Bishops. 39. 4. The ancient law had, besides, what was called the examination of witnesses. It was pre- scribed by several decrees of the Holy Office, particu- larly that of August 20, 1670, approved by Clement X, in vrkich the obligation of the examination is in- sisted on and the formalities to be followed are ex- plained in detail. The examination was to be made in presence of the Bishop, or the vicar-general, or some prominent ecclesiastic specially delegated for it. At least two witnesses had to be interrogated according to the formula given in the decree of 1670 and an instruction of 1890; they were to testify under oath to the free state of each of the intending parties. To have recourse to the suppletory oath in case the evidence was not sufficient required special faculties from the Holy See. When the examination was made in presence of a delegate, the report of the proceedings was to be sent to the Bishop, who de- cided in all cases whether the publication of banns would be permitted. In practice that discipline was observed only in the Pontifical States ; in other places either it was never 50 PRELIMINARIES TO MARRIAGE received or soon fell into disuse. (Bishop Kenrick, n. 193, declares that in the United States it is often impossible to have any other proof of the freedom to marry than the sworn testimony of the parties them- selves; Gasparri, 139; Wernz, n. 133; De Becker, De Sponsalibus et Matrimonio, sectio iv, cap. viii, p. 290.) That the Holy See desired the observance of that law, whenever possible, is proved by repeated declarations ; at the same time, the numerous dispen- sations granted in recent years show that the difficulty to carry out all its prescriptions, at the present day, was fully realized. In the new Code, the examination of witnesses is not mentioned. 2. BAPTISM AND CONFIRMATION Can. 1021. 1. Nisi baptismus collatus fuerit in ipso suo territorio, parochus exigat baptism! tes- timonium ab utraque parte, vel a parte tantum catholica, si agatur de matrimonio contrahendo cum dispensatione ab impediment disparitatis cultus. 2. Catholici qui sacramentum confirmationis nondum receperunt, illud, antequam ad matri- monium admittantur, recipiant, si id possint sine gravi incommode. 40. 1. Unless the parties have been baptized in his own territory, the pastor shall exact a cer- tificate of baptism from both of them, or from the Catholic party alone if the marriage is to be contracted with a dispensation from the im- pediment of disparity of cult. THE BANNS 51 2. Catholics who have not as yet received the sacrament of Confirmation, shall receive it before being admitted to marriage if they can do so without grave inconvenience. 41. 1. An extract from the baptismal register is the official proof of baptism, and should be exacted whenever possible. (Cong. Sac., March 6, 1911.) It will be a means also of finding out what is the age and religion of the parties, and, if the regulations regarding marriage registration have been observed, whether they were married before. The text of this canon implies that it should be demanded of the non- Catholic party in a mixed marriage. The certificate should be recent and given with a view to marriage. It is not required now that it should be authenticated by the Ordinary. 2. The obligation of receiving Confirmation be- fore being admitted to marriage already existed in several places by particular legislation. It is now the common law, from which, however, a grave incon- venience excuses. II. THE BANNS A. Former Discipline 42. The examination of the parties by the pastor, even with the assistance of relatives and neighbors (Wernz, n. 135, note 13 ; Hefele-Leclercq, Histoire des Conciles, tome iii, p. 1110), proved insufficient, and the Fathers of the Fourth Lateran Council thought it necessary to devise some additional meas- ure. For some time previously it had been the cus- tom or even the law, in some places, particularly in France, to publish in church the names of persons in- tending marriage, so that those who knew of any impediments to their union might reveal them, and those who had any reason for opposing the marriage would be given an opportunity to do so. The Coun- cil of Lateran decided to extend that law to the whole Church (1215). Apparently the law was not ob- served everywhere, for several particular Councils find it necessary to insist upon it. They also deter- mine more in detail the mode of its execution; thus some of them command that the banns be published three times. The Council of Trent renewed the law of the Lateran. It is part of the famous decree Tametsi on clandestine marriages, which has been in force to the present day wherever it was published. The clause concerning the banns could be published independently of the one regarding the formalities of marriage; and, moreover, where the decree of Trent was not published the Lateran decree remained in force. In England the First Council of Westmin- ster commanded that the banns of marriage be pub- lished. In the United States the Sixth Provincial Council of Baltimore (1846) expresses the wish that the law of Lateran and of Trent be introduced into all the Dioceses of the Province (p. 244, iii). The First Plenary Council of Baltimore in 1852 made it obligatory after Easter of 1853 (n. 11) and that de- cree was confirmed by the_Second Plenary Council in 1866 (n. 331-333). THE BANNS 53 B. The Present Law. 43. The present law is nothing but the law of Trent with a few modifications which experience had showed to be necessary and most of which had been introduced already by custom or indults. It will have to be interpreted, therefore, in the same sense as the ancient law, except where it is clear that a change has been made; and the existing customs or local legislation are not abrogated unless they are contrary to the new law. I. THE LAW ITSELF Can. 1022. Publice a parocho denuntictur inter quosnam matrimonium sit contrahendum. 44. The pastor shall publish pending mar- riages. This canon is taken from the decree Tametsi; it imposes the same grave obligation and is binding everywhere, in every case, even when it is morally certain that there is no impediment to the marriage. The pastor may discharge his obligation through a delegate, but the delegate himself should be a priest or a deacon, not an inferior cleric still less a lay- man, except in case of necessity. The banns are not required for the validity. (Tanquerey, n. 918.) II. MODE OF PUBLICATION 1. Place Can. 1023. 1. Matrimoniorum publicationes fieri debent a parocho proprio. 54 PRELIMINARIES TO MARRIAGE 2. Si pars alio in loco per sex menses commo- rata sit post adeptam pubertatem, parochus rem ex- ponat Ordinario, qui pro sua prudentia vel publica- tiones inibi faciendas exigat. vel alias probationes seu conjecturas super status libertate colligendas praescribat 3. Si aliqua sit suspicio de contracto impedi- mento, parochus etiam pro breviore commoratione consulat Ordinarium, qui matrimonium ne permit- tat, nisi prius suspicio, ad normaxn 2, removeatur. 45. 1. The banns of marriages ought to be published by the pastor of the parties. 2. If one of the parties has lived in an- other place for six months after reaching the age of puberty, the case shall be submitted to the Ordinary, who, in his prudence, will either demand that the publications be made in that place, or that other proofs or conjectures be gathered regarding the freedom of the party. 3. If there is some suspicion of the exis- tence of an impediment, the pastor shall, even for a shorter residence, consult the Ordinary, who will not permit the marriage until the sus- picion be removed by the means suggested in 2. 46. 1. The parochus proprius who is to make the publications is the pastor of the place in which the parties have their domicile or quasi-domicile, or if it is question of vagi, their residence. If both parties have their domicile or -quasi-domicile in the same parish and have never resided elsewhere for any THE BANNS 55 length of time, the banns are to be published only in that parish. If their domicile or quasi-domicile is in different parishes; or if each one has several domi- ciles or quasi-domiciles, according to the strict letter of the law, the banns should be published in all those places, for the pastor of each one of them is parochus domicilii vel quasi-domicilii. If this offered serious difficulties or seemed altogether useless, dispensation would easily be obtained. 47. 2. Under the new law an investigation has to be made also in all places in which a person is liable to have incurred an impediment, the Bishop being judge of the form the investigation will take. A person is liable to have incurred impediments in any place in which he has spent six months after reaching the age of puberty, that is, 12 for females and 14 for males. Whether the banns of marriage should be published in all those places, the Bishop is to de- cide. In some cases this would be very difficult or of little use, as when a person has been moving fre- quently from one parish to another, or when, owing to the frequent changes in the population, he is en- tirely unknown to the residents of the place. The Ordinary may in such cases insist on the publications or be satisfied with the deposition of reliable wit- nesses. In default of witnesses, every surmise or circumstance must be made use of to obtain the neces sary evidence. Recourse may be had to the supple- tory oath and if the party himself is a trustworthy person his sworn testimony may be accepted as suffi- cient evidence of his freedom to marry, if no other proof can be obtained. 56 PRELIMINARIES TO MARRIAGE 48. 3. When a person has been less than six months in a place there is regularly no need of publishing the banns in that place or of making any investigation. If, however, there was some positive reason to think that an impediment may have been contracted during that short period of time, the investigation should be made as in the preceding case. The merely possible existence of an impediment is not sufficient to make the investigation obligatory; there must be some probability, some foundation, not necessarily very strong, for the belief or suspicion. No information is required from the place of origin as such and consequently none will be neces- sary, outside of the baptism certificate, if that place was left before attaining the age of puberty. 2. Time Can. 1024. Publicationes fiant tribus continuis diebus dominicis aliisque festis de praecepto in ec- clesia inter Missarum sollemnia, aut inter alia di- vina officia ad quae populus frequens accedat. 49. The banns shall be published on three suc- cessive Sundays or feast-days of obligation in the church, during Mass or during any service at which there is a large attendance of people. 1. The Lateran Council did not specify any- thing about the number of publications ; the Council of Trent demanded three ; the present law also. In practice the banns are very seldom published three times, at least in many countries. 2. The publications are to be made on three suc- cessive Sundays, or least-days of obligation. It is THE BANNS 57 commonly admitted that the publications can be made on feast-days formerly of obligation and that those could be three successive days. (De Smet, n. 38.) 3. The "church" has been interpreted as the par- ish church or one used as parish church, like mission churches, chapels of ease, ecclesice filice (S. C. C., 1901), but not public or semi-public chapels. Some thought, however, that considering the end of the law it is not the place that matters most, but the pres- ence of the people, and that therefore the banns might be published in chapels, or even any place in which Mass would be celebrated with a large concourse of people. For the same reason, they would readily permit the publication of the banns, under the same circumstances during some other services than the parish Mass. This latter extension is admitted by the present law, and would seem to imply the former also. The parish Mass and parish church remain the regular time and place for publishing the banns, but it may be done also during other services if the end of the law can thereby be attained. What the con- course of people should be is not determined. If it is as large as it usually is at the parish Mass it muat be considered sufficient. 3. Form Can. 1025. Potest loci Ordinarius pro suo terri- torio publicationibus substituere publicam, ad val- vas ecclesiae paroecialis aliusve ecclesiae, affixionem nominum contrahentium per spatium saltern octo dierum, ita tamen ut, hoc spatio, duo dies festi de praecepto comprehendantur. 58 PRELIMINARIES TO MARRIAGE 50. The Ordinary may in his territory sub- stitute for the publications the public posting of the names of the contracting parties on the door of the parish or other church for a period of at least eight days, so that, however, within that time be included two days of obligation. 51. 1. Heretofore the publications were to be made orally, and this remains the ordinary form, but the new law permits another one. It had been adopted long ago in civil matters when, the people having learned to read, it was possible to reach them otherwise than through the public crier. Even under the ancient discipline, St. Alphonsua admitted that in cases of real necessity the marriages might be published in writing (Lib. vi, n. 991). In some places to the proclamation during Mass was added the posting at the door of the church (Prov. Council of Naples, an. 1669, tit. iii, c. 9; Council of New Granada, 1868, tit. iv, c. 11.) In 1907 the Cardinal- Archbishop of Paris repre- sented to the Sacred Congregation of the Council that in the large parishes of his diocese there were so many banns to be published and so many announce- ments to be made that little time was left for the ser- mon, the people became tired, hardly listened to what was read, and deserted the parochial Mass. Those inconveniences would be avoided and the end of the law better attained, it was suggested, if, instead of reading those announcements from the pulpit, they were posted in some conspicuous place where the faithful could easily read them. It was asked, THE BANNS 59 therefore, that an indult to that effect be granted for the parishes of ten thousand inhabitants or more. After remarking that this would be a departure from the common law, the consultor of the Congregation nevertheless reported favorably on the subject; the request was granted and specially approved by the Sovereign Pontiff, March 28, 1908. The same con- cession was soon after asked for and obtained by the Bishops of Milan, Lyons, Le Mans, and others. Now all Ordinaries may grant permission to publish the banns in writing both in the small and in the larger parishes of their diocese (N. K. T., Nov., 1908). 52. 2. The names must be posted in a conspicuous place at the door of the church for at least eight days, including two days of obligation, two Sundays, or one Sunday and one feast-day. What these publi- cations should include is not stated here in detail ; it must be all that is required to attain the end of the law. The rituals, diocesan statutes, or custom deter- mine the form to be used. Ordinarily it calls for the full name of the contracting parties, their place of origin, and actual residence, etc. ; it reminds the people of their duty of revealing any impediments they might know. (De Smet, n. 39 ; Tanquerey, n. 986.) HI. PUBLICATIONS OP MIXED MABEIAGBS Can. 1026. Publicationes ne fiant pro matrimoniis quae contrahuntur cum dispensatione ab impedi- menta disparitatis cultus aut mixtae religionis, nisi loci Ordinarius pro sua prudentia, remote scandalo, eas permittere opportunum duxerit, dummodo apos- 60 PRELIMINARIES TO MARRIAGE tolica dispensatio praecesserit et mentio omittatur religionis partis non catholicae. 53. Marriages contracted with a dispensa- tion from the impediment of mixed religion or disparity of cult should not be published, unless the Ordinary of the place, in prudent judgment, all danger of scandal being removed, deems it opportune to permit the publications, provided the apostolic dispensation has been previously obtained and no mention is made of the religion of the non- Catholic party. The discipline on this point has not been uniform usually the banns were not published for mixed marriages. A decree of the Holy Office, July 4, 1874, permitted their publication. Now it is left to the prudence of the Ordinary to permit it, if deemed advisable. Regularly it is prohibited. IV. DUTY OP THE FAITHFUL Can. 1027. Omnes fideles tenentur impedimenta, si qua norint, parocho aut loci Ordinario, ante matri- monii celebrationem, revelare. 54. All the faithful are bound to reveal to the pastor or to the Ordinary of the place, the im- pediments they may know before the marriage is celebrated. This obligation is a grave one, and arises from the natural and divine as well as from the ecclesias- tical law. It is binding on all the faithful without distinction, even, or principally, on near relations. THE BANNS 61 To be excused would require a really grave reason, such as sacramental or professional, not merely natural or promised, secrecy, a grave personal injury, etc. (De Smet, n. 44.) V. DISPENSATION Can. 1028. 1. Loci Ordinarius proprius pro suo prudenti judicio potest ex legitima causa a publicationibus etiam in aliena dioecesi faciendis dispensare. 2. Si plures sint Ordinarii proprii, ille jus habet dispensandi, in cujus dioecesi matrimonium celebratur; quod si matrimonium extra proprias in- eatur dioeceses, quilibet Ordinarius proprius dis- pensare potest. 55. 1. It is left to the prudent decision of the Ordinary of the place to dispense his sub- jects, for a legitimate cause, from the publica- tions even when they have to be made in another diocese. 2. If several Ordinaries have jurisdiction in the case, he has the right to dispense in whose diocese the marriage is to be celebrated; if the marriage is to be celebrated outside of their dioceses, any one of the Ordinaries has right to dispense. 1. Under the Lateran discipline no one had power to dispense from the banns except the Pope or his delegate. The Council of Trent, sanctioning per- haps an existing custom, granted that power to the 62 PRELIMINARIES TO MARRIAGE Ordinary. The present law maintains the conces- sion, and, moreover, it authoritatively decides that even when the publications should be made in another diocese the dispensation may still be granted by the Ordinary of the parties. 56. The Ordinary may dispense when it is prudent and there is a legitimate cause. It would not be pru- dent if there existed some positive reason to believe that an impediment may be discovered. If it is morally certain that no impediment exists, the wish of the parties might be a sufficient cause for dispens- ing. (Gasparri, n. 185 ; St. Alphonsus, vi, 1006 ; De Smet, n. 43, after Benedict XIV, would seem more severe.) A graver reason is required to dis- pense from all publications than to dispense from one. (Gasparri, n. 186 ; De Smet, n. 43.) The Or- dinary who has no personal knowledge of the parties or of the circumstances of the case must, for that, depend on the testimony of the pastor. Measures have always to be taken to discover the impediments if there were any. 2. If the parties have domiciles or quasi-domiciles in various dioceses, they also have several Ordinarii proprii. The dispensation would have to be granted by the Ordinary in whose diocese the marriage is to be celebrated. It is an application of the principle: locus regit actum. But if one of the parties had his domicile, for example, in the diocese of San Fran- cisco, the other had a domicile in the diocese of Chicago and a quasi-domicile in the diocese of New York, and the marriage was to take place in the dio- cese of Baltimore, dispensation from the publications THE BANNS 63 conld be granted by the Ordinary of San Francisco, or of Chicago, or of New York. VI. NOTIFICATION Can. 1029. Si alius parochus investigationem aut publicationes peregerit, de harum exitu statim per authenticum documentum certiorem reddat paro- chum, qui matrimonio assistere debet. 57. If another pastor makes the investigation or publishes the banns, he shall without delay send official notification of the results to the pastor who is to assist at the marriage. This is practical when the parties belong to, or have lived in, different parishes. It is not demanded that the report of the pastor belonging to another diocese be authenticated by his Ordinary as long as there is no doubt about the genuineness and official character of the document. vn. SANCTION 58. According to the Lateran Council, priests who disregard the law of the banns should be suspended for three years, and may be punished more severely. The parties who do the same should be given a pen- ance. If their marriage happens to be null because of a diriment impediment it will be harder to obtain a dispensation and their children will be considered illegitimate, even if the marriage had been contracted before the Church, unless, according to some canon- ists, one or both parties had acted in good faith. No 64 PRELIMINARIES TO MARRIAGE penalty is imposed by the Council upon witnesses who assist at such marriage, but diocesan synods have often done so. The Council of Trent did not renew those penalties. Still, they were not considered as abrogated for that reason. There is no mention of them in the present law. III. RESULTS OF THE INVESTIGATION AND PUBLICATIONS 1. DELAY REQUIRED Can. 1030. 1. Peractis investigationibus ct publicationibus, parochus matrimonio ne assistat, antequam omnia documenta necessaria receperit, ct praeterea, nisi rationabilis causa aliud postulet, tres dies decurrerint ab ultima publicatione. 2. Si intra sex menses matrimoniurn contrac- tum non fuerit, publicationes repetantur, nisi aliud loci Ordinario videatur. 59. 1. After the investigation and the pub- lications of banns, the pastor shall not proceed to the marriage before he has received all the necessary documents, and, moreover, except for a grave cause, before three days have elapsed since the last publication. 2. If the marriage has not been contracted within six months, the publications should be repeated unless the Ordinary of the place de- cides otherwise. 1. The documents here referred to are the reports of other pastors, the denunciations of the faithful, or any other information that may be needed or may come as a result of the proclamations. 2. Formerly the publications had to be repeated after two months in some places, after six in others. No reason is explicitly required by the law for dis- pensing from that obligation. 2. IMPEDIMENTS DISCOVEBED Can. 1031. 1. Exorto dubio de exsistentia ali- cujus impedimenta : 1. Parochus rem accuratius investiget, interro- gando sub juramento duos saltern testes fide dignos, dummodo ne agatur de impedimento ex cujus no- titia infamia partibus oriatur, et, si necesse fuerit, ipsas quoque partes; 2. Publicationes peragat vel perficiat, si dubium ortum sit ante inceptas vel expletas publicationes ; 3. Matrimonio ne assistat, inconsulto Ordi- nario, si dubium adhuc superesse prudenter judi- caverit. 2. Detecto impedimento certo: 1. Si imped imentum sit occultum, parochus publicationes peragat vel absolvat, et rem deferat, reticens nomina, ad loci Ordinarium vel ad Sacram Poenitentiariam ; 2. Si sit publicum et detegatur ante inceptas publicationes, parochus ulterius ne procedat, donee impedimentum removeatur, etsi dispensationem pro f oro conscientiae tantum obtentam norit ; si detega- tur post primam aut secundam publicationem, pa- rochus publicationes perficiat, et rem ad Ordinarium deferat. 3. Demum si nullum detectum fuerit impedi- mentum, nee dubium nee certum, parochus, ex- 66 PRELIMINARIES TO MARRIAGE pletis publicationibus, ad matrimonii celebrationem partes admittat. 60. 1. If a doubt arises about the existence of an impediment : 1. The pastor shall investigate the matter more carefully, interrogating, under oath, at least two trustworthy witnesses, provided the impediment be not one of those which can not become known without injury to the reputa- tion of the parties ; if necessary, he may inter- rogate the parties themselves. 2. He may proceed to the publications or complete them if the doubt arises before they were begun or completed. 3. He shall not assist at the marriage, with- out consulting the Ordinary, as long as a pru- dent doubt remains. 2. When it is discovered that an impedi- ment is certainly present: 1. If the impediment is occult, the pastor shall continue or complete the publications, and refer the matter, without mentioning names, to the Ordinary of the place or to the Sacred Penitentiary. 2. If the impediment is public and conies to light after the publications were begun, the pastor shall not go further till the impediment is removed, even if dispensation from it had, to his knowledge, been obtained for the internal forum alone; if that impediment is discovered after the first or second publication, the pastor RESULTS OF THE INVESTIGATION 67 shall complete the publications and refer the case to the Ordinary. 3. Finally, if no impediment is discovered, either doubtful or certain, the pastor must, once the publications are completed, admit the par- ties to the celebration of marriage. The result of the investigation or publications may be that there is probable or certain evidence or no evidence at all of the existence of impediments in the case. 61. 1. It is not lawful to contract a marriage with- out being morally certain that there exists no impedi- ment to it, except in some cases of absolute impedi- ments the sacrament would be exposed to the danger of nullity and the parties would run the risk of form- ing a sinful union. Consequently, as long as there remains a reasonable cause for doubt, the pastor should not take upon himself to decide the case, but should consult the Ordinary, who will see whether or not the marriage may be permitted. Efforts ought to be made to dispel the doubt; one of the means is to interrogate two reliable persons. Meanwhile, the pastor may go on with the publica- tions. 62. 2. If the existence of an impediment is dis- covered and the impediment is occult, the pastor goes on with the publications, as there exists no external reason why he should stop ; and he applies for a dis- pensation, taking care that nothing be said or done which would be calculated to make known the parties concerned. 68 PRELIMINARIES TO MARRIAGE If the impediment is public there is no reason to begin the publications, if they are not yet begun, till the impediment is removed. This would hold even if dispensation for the internal forum alone had been obtained, for such a dispensation has no effect in the external forum. If the publications are already begun, there is no reason not to complete them, at least if the impedi- ment is one of those which can be removed. 3. If there is no evidence of any impediment, the marriage if permitted. IV. THE VAGI Can. 1032. Matrimonio vagorum de quibus in can. 91, parochus, excepto casu necessitatis, nun- quam assistat, nisi, re ad loci Ordinarium vel ad sacerdotem ab eo delegatum delata, licentiam assis- tendi obtinuerit. 63. Except in case of necessity, the pastor shall never assist at the marriage of those who have no fixed abode without referring the mat- ter to the Ordinary or to the priest delegated by him, and obtaining permission. As these cases offer special difficulties, they require special skill and attention. The Council of Trent it- self (Sess. xxiv, de Ref. Mat., cap. 7) had decreed that they be referred to the Ordinary. This was an old rule, dictated by prudence and contained in many rituals. In order that it may more easily be ob- served, the present law supposes that the Ordinary will appoint a priest to attend to those cases if he can not do so himself. CONSENT OF PARENTS 69 V. INSTRUCTIONS TO THE SPOUSES Can. 1033. Ne omittat parochus, secundum diversam personarum conditionem, sponsos docere sanctitatem sacramenti matrimonii, mutuas conju- gum obligationes et obligationes parentum erga pro- lem; eosdemque vehementer adhortetur ut ante matrimonii celebrationem sua peccata diligenter confiteantur, et sanctissimam Eucharistiam pie re- cipiant. 64. The pastor shall not omit to give to the spouses, according to their different conditions, instructions on the sanctity of the sacrament of marriage, their mutual obligations, the obliga- tions of parents towards their children ; he shall strongly exhort them before marriage to make a good confession of their sins and to receive devoutly the Holy Eucharist. 65. 1. Instructions on marriage may be given from the pulpit to the whole congregation or privately to persons about to marry. It is to the private in- struction that this canon has reference. It must be adapted to the individual needs. Some persons may need more, some less. The law supposes that all need some, with possibly a few exceptions. 2. By the general law of the Church, confession or communion are not, strictly speaking, obligatory be- fore marriage. They may be so by particular statute, and in all cases they are strongly recommended. VI. CONSENT OF PARENTS Can. 1034. Parochus graviter filiosfamilias min- ores hortetur ne nuptias ineant, insciis aut ration- 70 PRELIMINARIES TO MARRIAGE abiliter invitis parentibus ; quod si abnuerint, corum matrimonio ne assistat, nisi consulto prius loci Or- dinario. 66. The pastor shall seriously admonish chil- dren, still under age, not to contract marriage without the knowledge or against the reason- able opposition of their parents ; if they do not heed his advice he shall not assist at their mar- riage except after consulting the Ordinary. 1. According to Roman law, children could not contract marriage validly without the consent of their parents. In the countries subject to Roman legislation, the Church, in the beginning, laid stress also on the necessity of parental consent for mar- riage; in some places it became necessary even for the validity of the contract, although there is no proof that this discipline was ever extended to the whole Church by a general law. (Wernz, n. 334; De Smet, n. 250; Esmein, v. 1, p. 153.) Little by little, however, as the matrimonial jurisdiction of the Church was more generally recognized and the ca- nonical legislation became more independent of the civil, the rights of children were more explicitly set forth. By the end of the twelfth century, chiefly under the influence of Peter Lombard and the Uni- versity of Paris, it was admitted that they could con- tract marriage validly and even lawfully, under cer- tain circumstances, in spite of the opposition of par- ents. The revival of legal studies and the influence of legists brought on a reaction in favor of the Roman CONSENT OF PARENTS 71 law, in the latter Middle Ages. Luther and Eras- mus, like the old Roman jurists, taught that it is in the power of parents to annul the marriage of their children. (Gasparri, n. 486.) The Council of Trent anathematized that doctrine, and, moreover, when asked, principally by the representative of the king of France, to decree that children could not marry validly without the parents' consent, it re- jected the request and upheld the principle of the independent right, even of minors, to dispose of them- selves in marriage. Children, however, were directed to consult their parents before taking so im- portant a step, and Bishops considered it in keeping with the spirit of the Council to forbid pastors to assist at the marriage of children who disregarded that direction, without the Ordinary's advice. 67. 2. The present law renews implicitly the deci- sion of Trent and officially sanctions the interpreta- tion which had been given of it, maintaining the right of children, but affirming their duties to parents. It clearly implies that children can marry validly with- out their parents' consent; it does not say that they are strictly bound to obey their command in the choice of the marriage state or of the partner al- though gratitude and love might prompt them to do so but if they choose to marry they should consult their parents. The nature of the relations existing between them demands it. Should the parents rea- sonably oppose the marriage, it should not be per- mitted without the Ordinary's advice. A distinc- tion is made here between reasonable and unreason- able opposition. 72 PRELIMINARIES TO MARRIAGE If the opposition is unreasonable, children, no doubt, remain free; although even then it might be better for them, when convenient, to yield to the parents' desires. If the opposition is reasonable, it would be sinful for children to persist in their deter- mination ; and if they did, they should be treated as persons who do not show the proper dispositions for the sacrament. This, however, does not necessarily mean that the pastor will never be permitted by the Ordinary to bless those marriages ; nor that a dispen- sation is necessary and sufficient to render them fully legitimate, as if want of parental consent was a pro- hibitive impediment properly so called. The Church is simply enforcing here a precept of the natural law, the duty of prudence and of reverence to parents ; and she considers it important enough to require the in- tervention of the Bishop for deciding when it ceases to bind or when its violation may be tolerated. When by reason of their age or other circumstances children are no more, by natural right, under parental author- ity, the Church does not impose upon them the duty of subjection in marriage matters. The law is for the Filiifamilias, legitimate children, under age, who have not been emancipated; in practice it means minors. (De personis, can. 89.) CHAPTER II OF IMPEDIMENTS IN GENERAL. NATURE, SPECIES; POWER TO ESTABLISH, AB- ROGATE, DISPENSE EROM, THEM I. NATURE: GENERAL PRINCIPLE Can. 1035. Omnes possunt matrimonium contra- here, qui jure non prohibentur. 68. All can contract marriage who are not forbidden by law. It is an axiom in canon law that all men have from nature the right to marry. They retain it until it is legitimately taken away from them; they may exercise it unless forbidden, and they are supposed to possess it and to be free to exercise it until the con- trary be proven. This right, however, is not absolute, nor absolutely free in its exercise. Marriage, established primarily for the good of the race and only secondarily for that of the individual, must be under the control of the social authority; it is a contract and, like any other contract, it must be subject to certain regulations which may render it unlawful or invalid. Obstacles to a valid or lawful marriage are called impediments. (Gasparri, n. 244; Wernz, n. 217; De Smet, n. 234; Esmein, vol. i, p. 203; Catholic Encyclopedia, Im- pediments.) 73 74 IMPEDIMENTS IN GENERAL II. SPECIES 1. PROHIBITIVE OB DIBIMENT IMPEDIMENTS Can. 1036. 1. Impedimentum impediens con- tinet gravem prohibitionem contrahendi matrimon- ium; quod tamen irritum non redditur si, non obstante impedimento, contrahatur. 2. Impedimentum dirimens et gravitcr pro- hibet matrimonium. contrahendum, et impedit quominus valide contrahatur. 3. Quanquam impedimentum ex una tantum parte se habet, matrimonium tamen reddit aut illi- citum aut invalidum. 69. 1. A prohibitive impediment renders a marriage gravely unlawful; but, if contracted, the marriage is not invalid. 2. A diriment impediment both gravely forbids a marriage and prevents it from being contracted validly. 3. Even when the impediment exists only on one side it renders marriage illicit or invalid. 1. Laws may have a twofold effect to render an act illicit, or to render it invalid. When an act is invalid it is usually illicit also ; but it may be un- lawful without being therefore null. A man may be simply forbidden to use his power, or the power may be, as it were, taken away from him or so bound that he can not use it. The civil authority can do this in regard to civil contracts; the Church must be em- powered to do it in regard to marriage, which, by being raised to the dignity of a sacrament, became a SPECIES OF IMPEDIMENTS 75 religious contract, but did not lose its nature of con- tract. 2. An impediment may affect only one of the par- ties, as, for instance, a vow or the bond of a former marriage; but even then the contract will be unlaw- ful or invalid for both parties. A person, although free himself, is not allowed to marry one who is not, and if one of the parties is incapable of making the contract, there can be no contract for the other. 2. PUBLIC AND OCCULT IMPEDIMENTS Can. 1037. Publicum censetur impedimentum quod probari in foro externo potest ; secus cst occul- tum. 70. An impediment is considered public when it can be proved in the external forum; other- wise it is occult. Canonists explain this distinction in two senses. When it is a question of revalidating a marriage the impediment is considered public if it can be proved in open court, and two or three witnesses are sufficient for that. When it is a question of ob- taining a dispensation from the S. Penitentiary, an impediment is considered occult if it is so both by its nature and in fact. It is altogether occult in fact if it is known only to the parties and the confessor ; and simply occult if it is known only to a few persons (as, v.g., five or six in a small town), without any danger of its becoming more commonly known. The present law calls public those impediments that can be proved in open court, without any distinction ; and 76 IMPEDIMENTS IN GENERAL it is, no doubt, in that sense that "public" and "oc- cult" will have to be understood in the canons which follow. (Gasparri, n. 251; De Smet, n. 235.) 3, OTHER IMPEDIMENTS 71. Impediments are further divided into those of the divine, natural and positive law ; of the ecclesias- tical and civil law; into absolute and relative, per- petual and temporary, certain and doubtful. The meaning of these terms required no definition. III. AUTHORITY TO CONSTITUTE IMPEDIMENTS 1. THE SUPREME ECCLESIASTICAL AUTHORITY Can. 1038. 1. Supremae tantum auctoritatis ecclesiasticae est authentice declarare quandonam jus divinum matrimonium impediat vel dirimat. 2. Eidem supremae auctoritati privative jus est alia impedimenta matrimonium impedientia vel dirimentia pro baptizatis constituendi per modum legis sive universalis sive particularis. 72. 1. It belongs to the supreme ecclesiasti- cal authority alone to declare authentically when the divine law renders a marriage illicit or invalid. 2. To the same supreme authority belongs exclusively the right to establish, for persons baptized, other impediments, prohibitive or diriment, by way of universal or particular law. 1. Which impediments- are of natural or divine positive law, how far they extend, are questions which AUTHORITY TO CONSTITUTE 77 canonists may discuss, but which only the Church, as God's representative and the official interpreter of His will, can decide. And, in the Church, although the Bishops share in the mission to teach, that deci- sion is reserved to the supreme authority, because of its importance and for the sake of uniformity. 73. 2. To the impediments of natural or divine positive law the Church, as said above, may add others, prohibitive or diriment, which are binding on all Christians and on them alone, for the Church has authority over all men who by baptism have become members of Christ's flock; and she has repeatedly manifested her intention that her marriage laws should bind heretics also, unless otherwise stated. Such power may be exercised by way of general law, of particular law, or of particular precept. To exercise it by way of general law requires universal jurisdiction over the whole Church, which belongs exclusively to the Sovereign Pontiff acting either alone or in a General Council. The power of estab- lishing impediments by way of particular law may be within the limits of episcopal authority, as many admit; and Bishops seem to have exercised it in the past, but because of the necessity of preserving uni- formity in this matter, it had long been reserved to the supreme authority, if not by an explicit declara- tion, at least implicitly and practically ; now it is re- served explicitly. 2. THE POWER OF ORDINARIES Can. 1039. 1. Ordinarii loco rum omnibus in suo territorio actu commorantibus et suis subditis 78 IMPEDIMENTS IN GENERAL etiam extra fines sui territorii vetare possunt matri- monia in casu peculiar!, sed ad tempus tantum, justa de causa eaque perdurante. 2. Vetito clausulam irritantem una Sedea Apostolica addere potest. 74. 1. Ordinaries may forbid marriages to all persons in their territory and to their sub- jects also outside the territory, but only in a particular case, temporarily, and as long as a just cause lasts. 2. An invalidating clause can not be added to that prohibition except by the Apostolic See. 75. It was considered as certain that a Bishop could not, even by way of particular precept, forbid a marriage under pain of nullity ; and commonly held that he could forbid it under pain of sin. The law is now clear. That power the Bishops can exercise over their subjects, in or outside of the diocese; and also over strangers who are within the limits of their territory. Locus regit actum. As just causes for such prohibition canonists mention the danger of scandal, the fear of grave enmities, the probable ex- istence of a hidden impediment, etc. If a Bishop should forbid the celebration of mar- riages during the closed time, or after a certain hour in the evening, etc., he would not be establishing pro- hibitive impediments, but regulating what pertains to external discipline and worship. POWER OF DISPENSING 79 IV. POWER OF ABROGATING, DEROGAT- ING, OR DISPENSING FROM, IMPEDIMENTS Can. 1040. Praeter Romanum Pontiftcem, nemo potest impedimenta juris ecclesiastic! sive impedi- entia sive dirimentia abrogate, aut illis derogate; item nee in eisdem dispensare, nisi jure communi vel speciali indulto a Sede Apostolica haec potestas con- cessa fuerit. 76. No one except the Roman Pontiff has power to abolish entirely or partially ecclesi- astical impediments whether prohibitive or diri- ment; neither has any one power to dispense from them unless it has been granted him by common law or by special Apostolic Indult. The impediments of divine origin can not be abro- gated or dispensed from by any human authority, but only interpreted. Canon Law deals here solely with ecclesiastical impediments. 1. Abrogation and derogation. To suppress com- pletely or partially an impediment requires the same power as to constitute it. That power is possessed by, or reserved to, the Roman Pontiff alone. He ex- ercises it from time to time, but as a rule does not delegate it. 77. 2. Dispensations. To dispense is to distribute or to administer. As in the administration or appli- cation of law it was found necessary to make some exceptions, to these exemptions granted to individual 80 IMPEDIMENTS IN GENERAL persons, for special reasons, by a prudent administra- trator, the name dispensation came to be applied. Again, when a law is violated, the common good may demand that obedience to it be insisted on, or that reparation be exacted, or, sometimes, that what has been done unlawfully be sanctioned and thus rendered legitimate. In this last case we have what has been called a dispensation post factum. A. Former Discipline 78. (a) For a long time the dispensations granted by ecclesiastical authority were mostly post factum, although there are found, at a very early date, ex- amples of dispensations regarding the future, ad faci- endum; as, for instance, the permission granted by St. Gregory the Great to the newly converted Anglo- Saxons to marry within the forbidden degrees of con- sanguinity, beyond the fourth. There was no doubt about the power of dispensing, but it was preferred not to use it, and to enforce the law when it was possible. (6) As long as dispensations were little more than acts of a prudent administration demanded by cir- cumstances, they were freely granted by all whose mission it was to apply the law, that is, chiefly the Bishops. When gradually they had assumed a more and more legislative character and had grown more numerous, it became more clearly recognized that they presupposed in their author a corresponding legislative power, that an inferior could not dispense from the laws of a superior. By the end of the POWER OF DISPENSING 81 eleventh or the beginning of the twelfth century it was clearly defined that the Sovereign Pontiff and he alone could dispense from all impediments of the ecclesiastical law; the Bishops, of their own author- ity, could dispense only from those set up by par- ticular law. In practice, however, the application of this prin- ciple offered difficulties. The faithful continued to have recourse to their Ordinaries, and it was not pos- sible to refer to Rome all the cases, particularly those of frequent occurrence and secondary importance or those calling for immediate settlement. The powers of Bishops had to be extended. Some canonists maintained that they would retain the dispensing power they had formerly exercised unless explicitly forbidden. This, however, was not commonly ad- mitted. At the end of the fifteenth century it was generally taught that Bishops had power to dispense from impediments established by common law when there was a custom to that effect, in cases of necessity or great utility, when that power was granted by law explicitly or even implicitly, as when the text of the law mentioned dispensation as possible without stat- ing from whom it should be obtained, and finally in doubtful cases. This had remained the common teaching to the present day. (Ferraris, Prompta Bibliotheca, Dispensatio.) Some authors held also that pastors and confessors possessed by virtue of custom some power of dispens- ing, but others denied it as not proved. (Diction- naire de Theologie Catholique, Dispenses; Thomas- sin, Ancienne et nouvelle discipline de 1'Eglise, p. ii, 82 IMPEDIMENTS IN GENERAL 1. iii, c. xxiv-xxviii; Conferences ecclesiastiques de Paris, t. iii, p. 322 ; Esmein, vol. ii, p. 315.) B. Present Discipline 79. In the present law it is clearly laid down that the Pope, and he alone, can dispense, of his own au- thority, from impediments of the ecclesiastical law. To others the Holy See can grant that power either by general law, in which case it is considered as or- dinary power; or by special indult, in which case it is delegated power. Subsequent canons define the general conditions for dispensations, the dispensing power granted to Bishops and simple priests, and the manner of dispensing. V. CUSTOM AND IMPEDIMENTS Can. 1041. Consuetude novum impedimentum inducens aut impedimentis exsistentibus contraria rcprobatur. 80. Customs tending to introduce a new im- pediment or to abrogate those in existence are condemned. 1. Custom may introduce or abrogate ecclesiasti- cal laws, provided it has the implicit or legal ap- proval of the legislator. In times past it did establish and abrogate impediments both prohibiting and diri- ment. (Wernz, n. 60; Gasparri, nn. 273, 304.) In modern times it has introduced no new impediment strictly so called ; the tendency is rather to disregard those already existing. CUSTOM AND IMPEDIMENTS 83 2. Has it abrogated any? The prohibiting im- pediments which remain for the whole Church could not be abrogated by custom, because of their close connection with the divine law. (Gasparri, n. 305.) For the impediment of mixed religion, in particular, it has been repeatedly declared that any custom against it was corruptela juris, and to be condemned. Customs against purely ecclesiastical diriment im- pediments might more readily have had the consent of the legislator, but here again if the custom was universal it would be known and either approved or rejected; if it was a particular one, the importance attached to uniformity in marriage legislation would render the consent less probable, at least for or- dinary customs of twenty or forty years. Moreover, the Church has for some impediments manifested unwillingness to approve their abrogation by custom, and she refuses likewise to sanction, even implicitly, disregard for her laws by heretics, and customs thereby established. A decree of the Holy Office of March 11, 1868, admitted that the impediment of clandestinity had been abrogated in Japan by a prolonged contrary cus- tom, but it did not admit that the same custom had abrogated other impediments, like consanguinity and affinity. (Gasparri, n. 308; Wernz, n. 60.) The same Congregation declared, July 6, 1892 (A. S. S., vol. xxv, p. 118), that no lapse of time is sufficient to abrogate the law of Trent because of non-observ- ance by heretics. Hence, there remains no foun- dation for the opinion of some old canonists (Schmalz- gruber, Jus Canonicum Universum, 1. iv, t. 4, n. 99) 84 IMPEDIMENTS IN GENERAL that in Protestant countries like England and Ger- many baptized heretics were not bound any more by the diriment impediments which they had not ob- served for a long period of time. Among English Protestants, the impediments of consanguinity and affinity have been considered for several centuries as extending only to the second degree. Still, in the case of converts who had contracted marriage with such impediments in the third or fourth degrees, the Roman Congregations declare the marriage null. 81. 3. In future, there will be no more doubt. No custom, even if it should date from time immemorial, can be considered as in any sense approved by the legislator, and therefore has no value for introducing new impediments or abrogating those in existence. All the impediments sanctioned by the present legis- lation will henceforth be in force everywhere, and those alone, whatever may be the customs to the con- trary. Exceptions to and changes in this matrimo- nial legislation will require a positive intervention of the supreme authority. Cases are now constantly referred to Rome from all parts of the Church ; there is little room for custom, general or particular. VI. CLASSIFICATION OF IMPEDIMENTS Can. 1042. 1. Impedimenta alia sunt gradus minoris, alia major is. 2. Impedimenta gradus minoris sunt: 1. Consanguinitas in tertio gradu lineae col- lateralis ; 2. Affinitas in secundo gradu lineae collateralis ; 3. Publica honestas in secundo gradu; CLASSIFICATION OF IMPEDIMENTS 85 4. Cognatio spiritualis ; 5. Crimen ex adulterio cum promissione vel attentatione matrimonii etiam per civilem tantum actum. 3. Impedimenta majoris gradus alia sunt omnia. 82. 2. Impediments are divided into major and minor. 2. The minor impediments are: 1. Consanguinity in the third degree of the collateral line ; 2. Affinity in the second degree of the col- lateral line ; 3. Public decency in the second degree; 4. Spiritual relationship; 5. The impediment of crime arising from adultery with a promise of, or an attempt at, marriage, even by a merely civil contract. 3. The major impediments are all the others. The diriment impediments which, are called minor annul marriage as well as those which are called major; the difference between them is seen particu- larly in relation to dispensations. Dispensations from minor impediments may be granted by the Un- dersecretary of the Congregation of Sacraments; dispensations from major impediments are granted only by the Prefect or the Secretary. Error in the petition does not vitiate a dispensation from a minor impediment; it may render invalid a dispensation from a major one. (Normae Peculiares, c. vii, art. 3, nn. 19, 20, 21 ; A. A. S. ; vol. i, pp. 91-92.) 86 IMPEDIMENTS IN GENERAL VII. POWERS OF DISPENSING GRANTED BY COMMON LAW TO ORDINARIES AND PRIESTS 83. Being granted by law, those powers are con- sidered as ordinary or quasi-ordinary. They are sub- stantially the same as those which Ordinaries enjoyed before, by custom, the tacit consent of the Holy See, or special decrees, with, however, some notable dif- ferences. 1. IN CASES OF DANGER OF DEATH A. Powers Granted to Ordinaries Can. 1043. Urgente mortis periculo, locorum Ordinarii, ad consulendum conscientiae et, si casus ferat, legitimation! prolis, possunt turn super forma in matrimonii celebratione servanda, turn super om- nibus et singulis imp edi mentis juris ecclesiastic!, sive publicis sive occultis, etiam multiplicibus, ex- ceptis impedimentis provenientibus ex sacro pres- byteratus ordine et ex amnitate in linea recta, consummate matrimonio, dispensare proprios sub- ditos ubique commorantes et omnes in proprio teni- torio actu degentes, remoto scandalo, et, si dispen- satio concedatur super cultus disparitate aut mixta religione, praestitis consuetis cautionibus. In danger of death, Ordinaries may, for the relief of conscience and, if the case demands it, for the legitimation of children, grant dispensa- tion, both from the form of marriage, and from each and all of the ecclesiastical impediments, whether public or occult, even if there are sev- POWERS OF DISPENSING 87 eral, excepting the impediment of priestly Or- ders and affinity in the direct line arising from consummated marriage, to their subjects, wherever they may be, and to all persons ac- tually in their territory, care being taken to avoid scandal, and if dispensation is granted from the impediment of disparity of cult or mixed religion, the usual guarantees being exacted. 84. A decree of February 20, 1888, completed by one of December 13, 1899, had given extensive powers to Ordinaries in case of danger or death. The present canon renews and in several respects extends them. 1. The first condition for the exercise of those powers is that there be danger of death, not very grave, as the decree of 1888 had it, but really grave; it suffices that one of the parties be in danger, nor is it necessary that it should be the one who is directly affected by the impediment. (Holy Office, July 1, 1891.) The decree of 1888 spoke of danger of death from sickness ; here no special cause is specified. 2. According to the decree of 1888 those faculties were to be used in favor of parties who lived in con- cubinage or were married only civilly. A decree of 1909 (A. A. S., vol. i, p. 468) demanded only that the marriage should be necessary, in general, for the relief of conscience, and, if the case demanded, for the legitimation of children. These are also the con- ditions laid down by this canon. Either of them was considered as sufficient. (De Smet, nn. 358, 369 ; Nouvelle Revue Theologique, Aout, 1909, p. 467 ; 88 IMPEDIMENTS IN GENERAL De Becker, De Sponsalibus et Matrimonio, Supple- ment, p. 49.) 3. When those conditions are fulfilled, the Or- dinary can dispense from all impediments of the ecclesiastical law excepting only two even if they are public, even if there are several in the same case ; and this is to be understood, no doubt, of several of the same or of different kinds. The prohibiting im- pediments are not excluded, as they were in previous decrees, and the power of dispensing from the form of marriage is expressly included. 4. Those powers the Ordinary can use in favor of his subjects, wherever they are, and in favor of all persons actually in his diocese or territory. 5. It is asked that proper care be taken to avoid the scandal that might arise from the incautious use of those extraordinary faculties. When dispensation is granted from the impediment of disparity of cult or mixed religion the usual promises have to be ex- acted even at the point of death. B. Powers Granted to Priests Can. 1044. In eisdem rerum adjunctis de quibus in can. 1043 et solum pro casibus in quibus ne loci quidem Ordinarius adiri possit, eadem dispensandi facultate pollet turn parochus, turn sacerdos qui matrimonio, ad normam can. 1098, n. 2, assist! t, turn conf essarius, sed hie pro foro interne in actu sacra- mentalis confessionis tantum. 85. Under the circumstances described in can. 1043, but only in those cases in which even POWERS OF DISPENSING 89 the Ordinary of the place could not be reached, the same power of dispensing is enjoyed by the pastor and by the priest who assists at a mar- riage in accordance with the provision of can. 1098, n. 2, and by the confessor; but this last one in the internal forum only and in the act of sacramental confession. 1. When the Ordinary can not be reached in time, the faculties granted to him in the preceding canon are granted here, in the same circumstances and on the same conditions, to the pastor of the parties, and to the priest who, without being the pastor or the Ordinary or delegated by either of them, can validly assist at the marriage of the parties, in cases of danger of death. The confessor is given the same power, but he can use it only in the tribunal of pen- ance and exclusively for the internal, penitential forum. 2. An assistant pastor or a priest who assists at a marriage as a delegate of the pastor or Ordinary does not possess those faculties, but they may be sub- delegated to him, since they are quasi-ordinary. If the curate of the parish would assist at a marriage under circumstances under which any priest would assist validly, he, no doubt, would enjoy the same privileges as the priest who is a stranger. 3. Since the faculties of can. 1044 are the same as those of can. 1043, it may be inferred that, like the Ordinary, the pastor can exercise them in favor of his subjects wherever they are and in favor of all persons actually in his territory. (De Smet, n. 370.) 90 IMPEDIMENTS IN GENERAL Can. 1046. Parochus aut sacerdos de quo in can. 1044, de concessa dispensatione pro foro externo Ordinarium loci statim certiorem faciat; eaque ad- notetur in libro matrimoniorum. 86. The pastor or the priest mentioned in can. 1044 shall inform the Ordinary, at once, of the dispensation he has given in the external forum ; and he shall enter it in the book of mar- riages. For the sake of order, to prevent possible abuses of those extraordinary powers and to have legal proof of the validity of marriages, it is prescribed that the Ordinary be informed, without delay, of all the dis- pensations thus granted for the forum extemum, and that a record be kept of them in the marriage register. 2. IN CASES OF URGENT NECESSITY Can. 1045. 1. Possunt Ordinarii locorum, sub clausulis in fine can. 1043 statutis, dispensa- tionem concedere super omnibus impedimentis de quibus in cit. can. 1043, quoties impedimentum de- tegatur, cum jam omnia sunt parata ad nuptias, nee matrimonium, sine probabili gravis mali periculo, differri possit usque dum a Sancta Sede dispensatio obtineatur. 2. Haec facultas valeat quoque pro convalida- tione matrimonii jam contract!, si idem periculum sit in mora nee tempus suppetat recurrendi ad Sanc- tam Sedem. 3. In iisdem rerum adjunctis, eadem facilitate gaudeant omnes de quibus in can. 1044, sed solum pro casibus occultis in quibus ne loci quidem Ordin- POWERS OF DISPENSING 91 anus adiri possit, vel nonnisi cum periculo viola- tionis secret!. 87. 1. Ordinaries can, under the conditions laid down at the end of can. 1043, dispense from all the impediments mentioned in the same canon, every time the impediment is discovered when everything is ready for the wedding, and the marriage can not, without probable danger of grave inconvenience, be delayed until a dis- pensation could be obtained from the Holy See. 2. The same faculties hold good for the re- validation of a marriage already contracted, if there is the same danger in delay and there is no time to have recourse to the Holy See. 3. In the same circumstances, the same faculties are enjoyed by all those mentioned in can. 1044, but only for the occult cases in which it would not be possible to have recourse even to the Ordinary of the place, or it could not be done without danger of violating the secret. 88. 1. The urgent necessity for which these fac- ulties are granted is the one described here, which canonists have called the casus perplexus when all is ready for the ceremony, an impediment is discov- ered, and the marriage can not be put off long enough to have recourse to the Holy See. The inconvenience from the delay ought to be a grave one, but it suffices that there be a probable danger of such an inconvenience. Under those 92 IMPEDIMENTS IN GENERAL circumstances the Ordinary has the power again to dispense from all impediments of the ecclesi- astical law, except two, as in cases of danger of death. 2. Ordinaries have the same faculties for the revali- dation of a marriage already contracted, if the same condition of necessity is present ; only here the neces- sity arises in a different manner and may result from different causes. Thus there may be a serious danger of scandal, disgrace, or other grave inconvenience if the parties were separated, and on the other hand there may be an equally grave danger of incontinence if they were asked to live together as brother and sister during the time required for recourse to Rome. By marriage contracted is meant here one which has the "appearance of marriage," that is, which has been contracted invalidly, but with the required formali- ties. Regularly the Church does not recognize the "appearance of marriage" in a merely civil union, still less in concubinage. (De Smet n. 359 ; Putzer, Commentarium in Facultates Apostolicas, n. 16; Wernz, n. 29.) 3. The faculties granted to pastors, confessors, or priests for performing a marriage in case of neces- sity are limited to occult cases, and even for those recourse should be had to the Ordinary, if time per- mits and if it can be done without revealing the impediment or violating any secret. Even with those restrictions, these faculties will facilitate the solution of very embarrassing cases for which there was no provision in the former legislation. They can be used also, under the proper conditions, for POWERS OF DISPENSING 93 the revalidation of marriages already contracted. 1 89. Doubtful impediments. No special faculties are granted to dispense from them, for it is a general principle (can. 14) that when there is a doubt of right the law is not binding, if there is a doubt of fact the Ordinary can dispense in those matters in which the Holy See usually dispenses. 1 More extensive faculties had been obtained by Ordinaries in various countries; a decree of the Consistorial Congrega- tion of April 25, 1918, withdraws most of them and grants, instead, the following ones: (a) The Ordinaries of America, the Philippine Islands, East Indies, Central and South Africa may, for five years, beginning May 18 of the current year, dispense from the minor impediments enumerated in can. 1042 ; all rules about dispensations laid down in that chapter of the Code being observed. They may likewise revalidate in radice marriages null on account of minor impediments; taking care that the prescrip- tions contained in the Code, bk. Ill, Tit. vii, c. xi, be com- plied with, and that the party conscious of the impediment be informed of the effect of the dispensation. (&) The same Ordinaries may also dispense, for five years, from major impediments, whether public or occult, even if there are several of them, provided they be of ecclesiastical institution (excepting those which arise from priestly Or- ders or from affinity in the direct line produced by the con- summation of marriage), and from the prohibiting impedi- ment of mixed religion; when, the petition for a dispensa- tion having been sent to the Holy See, the case becomes urgent before the answer is received. In granting these dispensations, Ordinaries must always bear in mind the ordinances of the Code, bk. Ill, tit. vii, c. 2, 3, 4, regarding impediments in general and in particular; without forgetting the clauses usually added to permissions for mar- riages with Mohammedans or Hebrews. (c) The Ordinaries of France, Great Britain, Germany, Austria, and Poland enjoy the same faculties (a and &), for the duration of the war, whenever it is foreseen that re- course to the Holy See will be difficult or impossible at least for a month. (A. A. Sedis, May 1, 1918; II Monitore Ecclesiastico, 15 Maggio, p. 140; Le Canoniste Contempo- rain, Mai-Juin, 1918, p. 239.) 94 IMPEDIMENTS IN GENERAL VIII. DISPENSATIONS FOR THE IN- TERNAL FORUM Can. 1047. Nisi aliud ferat S. Poenitentiariae rescriptum, dispensatio in foro interne non sacra- mentali concessa super impedimento occulto, ad- notetur in libro diligenter in secrete Curiae archive de quo in can. 379 asservando, nee alia dispensatio pro foro externo est necessaria, etsi postea occultum impedimentum publicum evaserit; sed est neces- saria, si dispensatio concessa fuerat tantum in foro interne sacramentali. 90. Unless the rescript of the Sacred Peni- tentiary ordains otherwise, dispensations from occult impediments for the internal, non-sacra- mental forum are to be recorded in a book kept in the secret archives of the diocese, of which can. 379 speaks, and no other dispensation is needed for the external forum although the impediment becomes afterwards public ; but one is needed if the dispensation has been granted only for the internal sacramental forum. 1. A dispensation granted for the internal forum only does not remove the impediment in the eyes of the public or of the external government of the Church; therefore it is good only for occult impedi- ments. If the impediment which was occult becomes public, regularly another dispensation for the exter- nal forum would be necessary. But the present law, to simplify matters, now ordains that when such a dispensation is granted for the internal forum, pro- vided it be not in connection with sacramental con- INTERVENTION OF HOLT SEE 95 fession, a record of it be kept, so that it can serve for the external forum also in case the impediment be- comes public. 2. That dispensation is to remain secret as long as the impediment remains occult, and for that reason the record is to be preserved in a special book, which is to be kept, not in the parochial but in the diocesan secret archives. In some cases, for special reasons, the Sacred Penitentiary, which grants the faculties for the dispensation, may direct that no record of it be kept. None is ever kept when the dispensation is granted in connection with the administration of the sacrament of Penance. In this last case, should the impediment become public afterward, a new dis- pensation would be required. IX. INTERVENTION OF THE HOLY SEE Can. 1048. Si petitio dispensationis ad Sanctam Sedem missa sit, Ordinarii locorum suis f acultatibus, si quas habeant, ne utantur, nisi ad normam can. 204, 2. 91. If application for a dispensation has been made to the Holy See, Ordinaries should not use the powers they might have, except in accord- ance with the prescriptions of can. 204, 2. It is a general principle that, through seizure by the superior, the inferior loses the power he might have in the case, unless there would be a grave and urgent cause for him to act. 96 IMPEDIMENTS IN GENERAL X. DISPENSATION FROM SEVERAL IM- PEDIMENTS IN THE SAME CASE Can. 1049. 1. In matrimoniis sive contractis sive contrahendis, qui gaudet indulto general! dis- pensandi super certo quodam impediment, potest, nisi in ipso indulto aliud expresse praescribatur, super eo dispensare etiamsi idem impedimentum multiplex sit. 2. Qui habet indultum generale dispensandi super pluribus diversae speciei impedimentis, sive dirimentibus sive impedientibus, potest dispensare super iisdem impedimentis, etiam publicis, in uno eodemque casu occurrentibus. 92. 1. Whether it is question of marriages already contracted or of marriages to be con- tracted, he who has a general indult to dispense from a certain impediment can dispense from it also when it is multiplex, unless there be something expressly to the contrary in the indult. 2. He who has a general indult to dispense from several impediments of a different kind, either diriment or prohibitive, can dispense simultaneously from them all when they occur in the same case, even if they are public. 1. Under the former discipline one who dispensed in virtue of ordinary powers could dispense simul- taneously from several impediments as well as sep- arately. But if he acted in virtue of an indult, unless he had received special faculties, which were called faculties for cumulating, he could not dispense DISPENSATION RESERVED 97 the same person from several impediments simultane- ously, at least if they were of a different kind, even though he had powers to dispense from every one of them in particular. Thus an Ordinary having fac- ulties to dispense from impediments of consanguinity and of mixed religion could not use his faculties when the two impediments occurred in the same case, unless he had the indultum cumulandi. 2. The rule laid down here is that whether there are in the same case several impediments of the same or of different kinds, as, for example, an impediment of consanguinity which is multiplied or an impedi- ment of affinity and one of mixed religion, whether the impediments are diriment or prohibitive, public or occult, he who has a general indult to dispense from every one of them separately can dispense also simultaneously from all of them. This, however, would not apply if one would dispense by virtue of faculties granted only for a particular case, nor if in the general indult it was explicitly stated that the various faculties can be used only for each impedi- ment separately. XI. DISPENSATION WHEN ONE OF THE IMPEDIMENTS IS KESEKVED TO THE HOLY SEE Can. 1050. Si quando cum impedimenta seu im- pedimentis publicis super quibus ex indulto dispen- sare quis potest, concurrat aliud impedimentum super quo dispensare nequeat, pro omnibus Sedes Apostolica adiri debet ; si tamen impedimentum seu 98 IMPEDIMENTS IN GENERAL impedimenta super quibus dispensare potest, com- periantur post impetratam a Sancta Sede dispensa- tionem, suis facultatibus uti poterit. 93. If, together with one or several public impediments from which one can dispense in virtue of an indult, there occurs another from which he can not dispense, recourse must be had to the Holy See for all of them. If, how- ever, the impediment or impediments from which he can dispense are discovered by the Ordinary after petitioning the Holy See for the dispensation, he will be allowed to use his faculties. The meaning of this rule and the reason for it are sufficiently clear. It will be noticed that it applies only to impediments that are public and dispensation from which could be granted by virtue of an 'indult If the Bishop can lispense by virtue of his ordinary power, he may do so even if there be another impedi- ment in the case from which the Holy See alone can dispense. If the impediment from which he can dis- pense is not a public one, he may likewise use his ordinary or delegated powers. Recourse to the Holy See for all is obligatory when together with a public impediment, which the Bishop could dispense from by virtue of an indult there is another, occult or pub- lic, no distinction is made here, which is reserved to the Pope. XII. LEGITIMATION OF CHILDREN Can. 1051. Per dispensationem super impedi- mento dirimente concessam sive ex potestate ordin- LEGITIMATION OF CHILDREN 99 aria, sive ex potestate delegata per indultum gener- ate, non vero per rescriptum in casibus particulari- bus, conceditur quoque eo ipso legitimatio prolis, si qua ex iis cum quibus dispensatur jam nata vel con- cepta fuerit, excepta tamen adulterina et sacrilega. 94. By a dispensation from a diriment im- pediment, granted in virtue of ordinary power or of power delegated by general indu.lt, not by rescript given for particular cases, is granted at the same time the legitimation of the off- spring if any was conceived or born to the dis- pensed parties, provided it be not adulterine or sacrilegious. 1. Illegitimate children are those born out of real or putative wedlock. They are called, in canon law, natural, if at the time of their conception or birth, or between these two terms, there could have been a valid marriage between the parents. They are called spurious if at that time there existed a diriment impediment to the marriage. If the impediment was that of a previous marriage they are adulterine; if that of Sacred Orders or solemn religious vow, they are sacrilegious; if consanguinity or affinity, they are incestuous. 2. Canon law, at least since the time of Alexan- der III, has accepted the principle of the Roman law, that children are legitimated by the subsequent mar- riage of the parents. But this applies only to natural children, in the sense defined above. For the spuri- ous a dispensation is required. It has been for a long time an accepted rule that a general power of dispensing implies also power of 100 IMPEDIMENTS IN GENERAL legitimating the children, excepting such as are adul- terine or sacrilegious. (S. Poenit, July 1, 1859.) Rescripts granted for particular cases contain that power, only when expressly mentioned. Formerly the legitimation had to be pronounced formally. This does not seem to be required by the present law, since legitimation follows ipso facto the dispensation. XIII. EKROK IN DISPENSATIONS FROM CONSANGUINITY OR AFFINITY Can. 1052. Dispensatio ab imp e dim en to consan- guinitatis vel affinitatis, concessa in aliquo impedi- ment! gradu, valet, licet in petitione vel in conces- sione error circa gradum irrepserit, dummodo gradus revera exsistens sit inferior, aut licet reticitum fuerit aliud impedimentum ejusdem specie! in aequali vel inferiore gradu. 95. A dispensation from an impediment of consanguinity or affinity, granted for a certain degree, is valid, even though in the petition or concession there be an error about the degree, provided that the degree really existing and which should have been mentioned be inferior to the one which was mentioned. It is valid also although an impediment has been omitted, pro- vided it be of the same species and of an in- ferior or equal degree. Thus, if the dispensation was asked or granted for an impediment of consanguinity in the second degree of the collateral line and in reality it was in the third, IMPLIED DISPENSATION 101 <_ the dispensation is valid. It is likewise valid if the dispensation was granted for one impediment of con- sanguinity in the second degree of the collateral line and there were two, one in the second, the other in the third, or even in the second degree. But the dis- pensation would not be valid if it had been granted for an impediment of consanguinity and there was also one of affinity which was not mentioned in the petition. This canon is concerned only with dispensations from the impediments of consanguinity or affinity. XIV. IMPLIED DISPENSATION FROM AN IMPEDIMENT OF CRIME Can. 1053. Data a Sancta Sede dispensatio super matrimonio rato et non consummate vel facta per- missio transitus ad alias nuptias ob praesumptam conjugis mortem, secumfert semper dispensationem ab impedimento proveniente ex adulterio cum promissione vel attentatione matrimonii, si qua opus sit, minime vero dispensationem ab impedimento de quo in can. 1075, nn. 2, 3. 96. A dispensation granted by the Holy See from marriage ratified and not consummated, or permission given to contract a new marriage because of the presumed death of the other spouse, always imply a dispensation from the impediment arising from adultery with promise of, or attempt at, marriage, if there be need of it; but not dispensation from the impediment of can. 1075, n. 2, 3 ; that is, from the other two 102 IMPEDIMENTS IN GENERAL impediments of crime which arise from adultery and conjugicide or conjugicide alone. 97. 1. In 1912 it was represented to the Congrega- tion of the Sacraments that frequently parties would obtain a dispensation from a marriage ratified and not consummated without obtaining also the dispen- sation from the impediment of crime which they had incurred by contracting a civil marriage before the first one was dissolved, or again, parties who have contracted a civil marriage before the death of the other spouse is clearly established, obtain afterward from the Holy See, for the satisfaction of their con- science, a declaration of their freedom and permis- sion to marry, but without thinking of the impedi- ment of crime which they have incurred if the first marriage was not dissolved when the second one was attempted, the result being that those marriages are not revalidated, but remain null. To remedy those evils and prevent their recurrence it was decreed, June 3, 1912, with the approval of the Sovereign Pontiff, that for the past all marriages that had re- mained null for the above reasons were revalidated, and for the future the dispensation and permission to marry granted by the Holy See in such cases should always be considered as containing the dis- pensation from the impediment of crime. The pres- ent canon reproduces that part of the decree which concerns the future. 98. 2. It should be noted (a) that it has refer- ence only to dispensations or permissions to marry granted by the Holy See; (6) that it applies exclu- sively to the impediment of crime arising from adul- OBREPTION AND SUBREPTION 103 tery and promised or attempted marriage, not to the one arising from conjugicide ; (c) that the dispensa- tion from crime is implied only in a dispensation from a non-consummated marriage or in the permis- sion to contract a new marriage, not in any other dispensation, nor in a declaration of nullity. (Nou- velle Kevue Theologique, Nov., 1912.) XV. OBREPTION AND SUBREPTION IN DISPENSATIONS Can. 1054. Dispensatio a minore impedimento concessa, nullo sive obreptionis sive subreptionis vitio irritatur, etsi unica causa finalis in precibus exposita falsa fuerit. 99. A dispensation from a minor impediment is not vitiated by obreption or subreption, even though the only final cause alleged be false. 1. There is obreption in a petition for dispensa- tion when it contains false statements; subreption when something which should have been expressed is omitted. 2. Formerly the rule was that any error in the supplied, obreption or subreption, if due to bad faith, always rendered the dispensation invalid, even when the error was of minor importance, provided it would have some bearing on the dispensation. If the obreption or subreption were committed in good faith, the dispensation was invalid if the error was substantial that is, bearing on the impediment itself, or on a necessary circumstance, or on the final, 104 IMPEDIMENTS IN GENERAL determining cause. It was valid if the error was only accidental, affecting circumstances required only for the lawfulness, or an impulsive, not final cause. 100. 3. In the special rules for the Congregation of the Sacraments, published September 29, 1908 (A. A. S., vol. i, p. 90), a distinction was made be- tween impediments which were called minor and those which were called major; and it was ordained that henceforth dispensations granted by the Holy See from the minor impediments would have the same force as if they were granted ex motu proprio et certa scientia, and would not be liable to challenge on the ground of obreption or subreption. The present law retains that distinction and lays down the same rule; no error or deceit, in the sup- plica, whether due to bad faith or not, whether sub- stantial or accidental, will annul a dispensation from a minor impediment; the dispensation must be granted by the Holy See. 101. Note : In can. 66, it is laid down as a general rule that power of dispensing includes power of ab- solving from censures which would be an obstacle to the efficacy of the dispensation. Persons who have incurred censures or other ecclesiastical penalties are not entitled to the Church's favors and should be absolved before receiving them. This, formerly, was necessary for the validity of the favor. Since the reorganization of the Curia it is generally required only for the licitness. The Normos Peculiares, c. iii, art. i, n. 6, provide that "favors and dispensations of every kind granted by the Holy See are valid and legitimate, even for those under censure, except for EXECUTION OF DISPENSATIONS 105 such as are excommunicated by name or suspended a divinis by the Holy See." (De Smet, n. 393.) The absolution from censures should, however, be given before dispensing, as in the sacrament of Penance it precedes absolution from sin. The new law supposes that it will be given, only it ordains that the power of giving it is always contained in the power of dis- pensing. Those absolutions are called ad effectum, because their efficacy does not go beyond what is necessary to obtain a certain effect. XIV. EXECUTION OF DISPENSATIONS BY ORDINARIES Can. 1055. Dispensationes super publicis impedi- mentis Ordinario oratorum commissas, exsequatur Ordinarius qui litteras testimoniales dedit vel preces transmisit ad Sedem Apostolicam, etiamsi sponsi, quo tempore exsecutioni danda est dispensatio, relicto illius dioecesis domicilio aut quasi-domicilio, in aliam dioecesim discesserint non amplius rever- suri, monito tamen Ordinario loci in quo matrimon- ium contrahere cupiunt. 102. Dispensations from public impediments, entrusted to the Ordinary of the petitioners, shall be executed by that Ordinary who has given testimonial letters or who has forwarded the petition to the Holy See, even if the parties, at the time the dispensation is to be executed, have left their domicile or quasi-domicile in Ms diocese and gone to another diocese without in- tention of returning, due notification being 106 IMPEDIMENTS IN GENERAL given to the Ordinary of the place in which the marriage is to be celebrated. (Holy Office, Feb- ruary 20, 1888.) 103. 1. Dispensations are said to be granted in gracious form, forma gratiosa, when they are applied to the petitioners directly by him who grants them; they are in commissorial form, forma commissoria, when he who grants them entrusts to another their execution and application to the parties. Apostolic dispensations are generally in the com- missory form, except, at times, the dispensations in radice. Bishops usually dispense in the gracious form ; they could not use the commissory form when they act in virtue of delegated powers which they are not allowed to subdelegate. The question here is about Apostolic dispensations. 2. When dispensations are for the internal forum their execution is usually entrusted now to the pastor of the petitioner or to the confessor, chosen or to be chosen by him and approved by the Ordinary. If the petition had been sent to the S. Poenitentiaria through the Ordinary, the dispensation would be directed to him with instructions to forward it un- opened to the confessor or pastor. 104. 3. Apostolic dispensations from public im- pediments are to be committed for execution to the Ordinary of the petitioners or the Ordinary of the place, according to the decree of February 20, 1888, and the present canon, which is taken from it almost literally. "Ordinary" means, as is defined in that document, not only the Bishop but also the Vicar- General or the Official and the Vicar-Capitular or EXECUTION OF DISPENSATIONS 107 the Administrator. The Ordinary of the petitioners is the one through whom the request has been made, who has endorsed the petition or sent it to Rome. Usually application for dispensation is made through the Ordinary of the place of domicile or quasi-domicile, but it may be made also through the Ordinary of the place of origin. Again, it may be the Ordinary of either party, although it is proper that it be that of the bride, or that of the Catholic party, if the impediment is an absolute one and affects him directly. (De Smet, n. 379.) The faith- ful may also write to Rome themselves. In the Nor- mce Communes, c. x, n. 1, it is stated that : "Each of the faithful has free access to the Congregations of the Holy See, the proper form being duly observed, and his business can be dealt with di- rectly." The Ordinary can execute the dispensation even if in the meantime the parties have lost their domicile or quasi-domicile in his territory; only he should notify the Ordinary of the place where the marriage is to be celebrated. The decree of 1888 added "if he thinks it expedient to do so." Our canon does not contain that clause. According to the same de- cree, the Ordinary was to execute the dispensation himself; he was allowed to subdelegate only another Ordinary, particularly the one in whose territory the parties actually lived. He could not subdelegate the pastor, except for the verification of the facts and the examination of the petitioners unless he had received special faculties. The present law has not those re- strictions. 108 IMPEDIMENTS IN GENERAL XVII. TAXES AND EXPENSES Can. 1056. Excepta modica aliqua praestatione ex titulo expensarum cancellariae in dispensation!- bus pro non pauperibus, locorum Ordinarii ebrumve officiates, reprobata quavis contraria consuetudine, nequeunt, occasione concessae dispensationis, emo- lumentum ullum exigere, nisi haec facultas a Sancta Sede expresse eis data fuerit ; et si exegerint, tencn- tur ad restitutionem. 105. Unless the permission has been ex- pressly granted by the Holy See, the local Ordi- naries or their officials, all customs to the con- trary notwithstanding, can not at the occasion of the granting of a dispensation, exact any compensation; and, if they have exacted any, they are bound to make restitution; excepting, for dispensations granted to those who are not poor, a small compensation for chancery ex- penses. 106. 1. The Council of Trent decreed (Sess. xxiv, c. 5, De Reformatione Mat.) that marriage dispensa- tions, if granted at all, should be granted gratuitously. The same rule has been laid down repeatedly in in- structions of Popes and Congregations and in par- ticular indults. The Congregation de Propaganda Fide reminds the Fathers of the Second Plenary Council of Baltimore of the law which forbids de- manding any compensation for marriage dispensa- tions, on any title whatsoever, except when the Holy See says to impose some alms on the petitioners. The S. Poenitentiaria, renewing that prohibition in a de- TAXES AND EXPENSES 109 cree of April 26, 1861, allows only a moderate tax as a compensation for chancery work unless a special in- dult has been obtained. The Congregation of the Council, June 10, 1896, would seem to make a little concession. It permits a tax for the dispensations provided a uniform rule be adopted by the Bishops of the province and it be submitted to the Congregation as an experiment. In practice there was a great variety of customs more or less in conformity with the above directions. (De Smet, n. 386; De Becker, p. 333.) 107. 2. This canon abrogates all those customs. Not only should there be no charge for the dispensa- tion itself, but the granting of it should not be for Ordinaries or their officials an occasion for exacting a remuneration as a compensation for work done or under any other pretext. Any money thus obtained would have to be restored. All that is permitted is a small retribution for chancery expenses, and the poor are dispensed from it. No doubt postal and agency expenses are to be defrayed by the petitioners. But "the tax for the support of the officials and for the various expenses connected with the chancery office is legitimate only if it remains within the limits just defined." It is the practice of the Holy See, in certain cases, to impose upon those who are not poor what is called a componenda (alms), which it is per- missible to apply to pious works, and which serves as a reparation for the non-observance of the law. Or- dinaries may follow the same custom, but they need for this, as for any departure from the present rule, a special authorization from the Holy See, 110 IMPEDIMENTS IN GENERAL XVIII. MENTION OF DELEGATION WHEN DISPENSING Can. 1057. Qui ex potestate a Sede Apostolica delegata dispensationem concedunt, in eadem ex- pressam pontificii indulti mentionem faciant. 108. Those who dispense in virtue of a dele- gation from the Holy See shall mention the Apostolic Indult when using it. The delegate acts, not in his own name, but in the name of the principal, and he is asked to declare by whose power he is dispensing, in order that the rights of the superior be maintained. This is re- quired only for the licitness, not for the validity, of the act. CHAPTER PROHIBITIVE IMPEDIMENTS 1 109. Ancient canonists speak of several prohibitive impediments which have been abrogated long since, like catechism, various crimes, public penance. Re- cent authors usually count eight : The Church's pro- hibition ; forbidden time ; vow ; betrothal ; mixed reli- gion; opposition of parents; unworthiness by reason of sin, censure, or ignorance; omission of banns. Several of these are not impediments in the strict sense; betrothal does not produce any canonical im- pediment any more. The new law has only : Vow ; legal relationship, where it is an impediment by civil law; mixed religion; unworthiness resulting from apostasy, affiliation with condemned societies, censure, or public sin. I. VOW Can. 1058. 1. Matrimonium impedit votum simplex virginitatis, castitatis perfectae, non nu- bendi, suscipiendi ordines sacros et amplectendi statum religiosum. 2. Nullum votum simplex irritat matrimonium, nisi irritatio speciali Sedis Apostolicae praescripto pro aliquibus statuta fuerit. 110. 1. Marriage is rendered illicit by the simple vow not to marry, the vow of virginity and perpetual chastity, the vow to receive 1 Tanquerey, n. 1015 ff. HI 112 PROHIBITIVE IMPEDIMENTS Sacred Orders or to embrace the religious life. 2. No simple vow renders marriage invalid except by special enactment of tbe Holy See. 1. In relation to marriage, vows begin to be distinguished, by the end of the fourth century, into private and public. They are public by the mere fact that they are made known by the putting on of the religious habit and, for women, of the veil. In the twelfth century a somewhat different distinction was introduced by the school of Bologna and then received in canon law : Vows were simple or solemn. Whatever be the real foundation for that distinction, about which there are several opinions, only those vows are now and have been for a long time recog- nized as solemn which are taken in a solemn religious profession made in an Order strictly so called. Vows made in the world, in a Religious Congregation, or in an Order strictly so called but previous to the solemn profession or in place of it, are all simple vows. 111. 2. Simple vows, such as those enumerated in this canon, do not regularly render marriage invalid, but they render it unlawful, because they are abso- lutely or morally incompatible with the married state or with full married life. The Holy See can, however, attach annulling power to certain simple vows. It was done by Greg- ory XIII in the Constitution Ascendente Domino of May 25, 1584, for the simple vows taken by the scholastics of the Society of Jesus after two years' novitiate. They can invalidate marriage as long MIXED RELIGION 113 as the scholastics remain members of the Society. (De Smet, n. 284; Catholic Encyclopedia, Religious Life, Vow.) Sanchez and others maintained that the vow taken in the world by a wife whose husband has received Sacred Orders invalidates marriage also. If there was any law to that effect it must have been abrogated by Boniface VIII in Cap. un. de Voto, lib. iii, tit. 15, in Sexto. In the absence of any clear text an exception to the general rule is not to be presumed. (Ojetti, Synopsis, vol. ii, n. 1858, Divortium.) II. LEGAL RELATIONSHIP Can. 1059. In iis regionibus ubi lege civili legalis cognatio, ex adoptione orta, nuptias reddit illicitas, jure quoque canonico matrimonium illicitum est. 112. In those countries in which relationship resulting from legal adoption is a prohibitive impediment by civil law, it is so also by canon law. (Cf. can. 1080.) III. MIXED RELIGION PBELIMINAEY NOTIONS 113. (a) The impediment of mixed religion as distinct from that of disparity of cult arises from diversity of religious profession and exists between two parties, one of whom is a Catholic, the other a baptized non-Catholic, whether a heretic or a schis- matic. (6) By heretic or schismatic is to be understood here one who is affiliated with some heretical or schismatic sect, not one who would simply have fallen into some heresy secretly, or even one who would have 114 PROHIBITIVE IMPEDIMENTS publicly renounced the Faith without joining any sect. This was the interpretation given by the Holy Office in the decree of January 30, 1867, and others, and it is retained by the present legislation, as can. 1065 clearly implies. In other matters, as when it was question of the law of clandestinity, public apos- tates were assimilated to heretics (Gasparri, n. 971 ; Answer of Holy Office to the Bishop of Monterey, Oct. 15, 1865; Gasparri, n. 481) ; likewise when it is question of incurring the irregularity ex haresi (Gasparri, De Sacra Ordinatione, n. 464). Under the decree Ne temere, art. 11, and under the present legislation, can. 1099, f alien-away Catholics, even after joining a heretical set, are still considered as Catholics, and obliged to observe the form of mar- riage; but this is a special rule, made for this case, as can. 1099 shows, and is implied in can. 1065. (c) Who are to be considered as affiliated with a sect? The Holy Office, in an answer of April 6, 1859, enumerates the following: (1) those who, hav- ing been baptized in the Catholic Church, have been brought up in heresy before the age of seven and still profess it; (2) those who have been brought up by heretics rather than in heresy; (3) those who have fallen into the hands of heretics in their infancy; (4) those born and baptized in heresy. (De Smet, n. 251; Collect., n. 1174.) 1. EXISTENCE OP THE JMPEDIMENT OP MIXED RELIGION Can. 1060. Severissime Ecclesia ubique prohibet ne matrimonium ineatur inter duas personas bap- MIXED RELIGION 115 tizatus, quarum altera sit catholica, altera vero sec- tae haereticae seu schismaticae adscripta; quod si adsit perversionis periculum conjugis catholici et prolis, conjugium ipsa etiam lege divina vetatur. 114. The Church most severely forbids every- where marriages between two baptized persons one of whom is a Catholic, the other a member of a heretical or schismatic sect ; if there is dan- ger of perversion for the Catholic party or the offspring, the marriage is forbidden also by divine law. 115. 1. From the days of St. John and St. Paul, who forbade association with heretics (2 John 10, 11 ; 1 Cor. v. 11; Tit. iii, 10), the Church has always forbidden mixed marriages. The first Council of which we possess the disciplinary decrees (Elvira, 300) forbids marriage with heretics unless they are willing to enter the Church. Similar enactments are found in the Councils of Laodicea (343-381, c. 10, 31) ; Hippo (393, c. 16), and others. In the Coun- cil in Trullo (692), marriages with heretics are pro- nounced null, but that law was never universally re- ceived in the West. (Esmein, vol. i, p. 218.) In the Middle Ages there were few heretics, and they were dealt with so severely that the question of mixed marriages was seldom raised. (Boniface VIII, cap. 14, De Hseret, v. 2, in Sext. ; Council of Posen, 1309, c. 8; Synod of Pressburg.) With the Reformation it became more practical. (Wernz, n. 576 ; De Smet, n. 258.) In the sixteenth century many Councils and synods in various parts of Europe renew the 116 PROHIBITIVE IMPEDIMENTS ancient prohibitions. Popes condemn marriages with heretics in the strongest terms, particularly Ur- ban VIII, Clement XI, Benedict XIV, Pius IX, and Leo XIII. (Tanquerey, De Matrimonio, n. 1027; Wernz, n. 576.) 116. 2. The principal reason for that prohibition is the danger of perversion for the Catholic party and for the children. As long as the danger remains somewhat proximate the divine law itself condemns a mixed marriage, and no power on earth can give a dispensation. But even when the danger has become remote and the requirements of the divine law are, strictly speaking, satisfied, there is still the ecclesias- tical law, which forbids mixed marriages under all circumstances and which is binding in all cases, be- cause it is based on a presumption of general danger, not simply of fact. A mixed marriage is never with- out some danger or some other inconveniences. 3. Neither can custom prevail against that law. The contrary opinion of some theologians of the seventeenth and eighteenth centuries was condemned by the Sovereign Pontiffs. "Although for a long time past the opinion had spread that mixed mar- riages may be licitly contracted without the dispensa- tion of the Holy See, that opinion, whatever be the custom to the contrary, can not be tolerated." (Holy Office, January 3, 1871; Collect., n. 1434 ad 2 1 " 1 ; Wernz, n. 576.) It is declared that Catholics who contract marriage with heretics without dispensation are guilty of grave sin. Pastors are forbidden to assist at such marriages, except in a few extraordi- nary cases, when passive assistance is tolerated to MIXED RELIGION 117 avoid greater evils; as when the civil law compels pastors to assist. (Inst. of Card. Lambruschini to the Bishops of Hungary, April 30, 1841 ; Pius VIII to the Bishops of the province of Cologne, March 25, 1830; Instruction of Card. Bernetti to the Bishops of Bavaria, September 12, 1834; Gasparri, n. 347.) That assistance is merely passive and does not mean approval or consent, for the marriages remain illicit. 2. DISPENSATIONS FROM THE IMPEDIMENT Can. 1061. 1. Ecclesia super impedimento mixtae religionis non dispensat, nisi: 1. Urgeant justae ac graves causae; 2. Cautionem praestiterit conjux acatholicus de amovendo a conjuge catholico perversionis periculo, et uterque conjux de uni versa prole catholice tantum baptizanda et educanda; 3. Moralis habeatur certitude de cautionum im- plemento. 2. Cautiones regulariter in scriptis exigantur. 117. 1. The Church grants no dispensation from the impediment of mixed religion, unless : 1. There be just and grave causes ; 2. The non-Catholic party give guarantees that the danger of perversion for the Catholic party will be removed, and both parties promise that all the children will be baptized and brought up only in the Catholic faith; 3. There be a moral certainty that the promises will be fulfilled. 2. Regularly the promises should be de- manded in writing. 118 PROHIBITIVE IMPEDIMENTS 1. Once the danger of perversion is removed, and no other serious inconveniences are feared, there re- mains only the ecclesiastical impediment from which the Church can and does dispense. At first it was only on condition that the heretic would enter the Church. Benedict XIV testifies that this was the practice of his predecessor, Innocent X. In the seventeenth century dispensations began to be granted without that condition, but rarely and only for reasons of common good. In the course of the eighteenth and nineteenth centuries they became more common, particularly in some countries. 118. 2. The power of dispensing belongs to the Sovereign Pontiff alone and to Bishops only by dele- gation. Until the eighteenth century it was very seldom delegated. At the present time, in countries where heretics are few, Bishops usually receive facul- ties for only a limited number of cases (10, 15, 50) at a time, and they are to use them only when it is not possible to have recourse to the Holy See. In countries where heretics are more numerous, as in the United States, faculties were granted without those limitations but for only a certain number of years (ad triennium, ad quinquennium), and Ordinaries had to report the number of cases in which they had used them. Moreover, the Holy See asked from time to time (v.g., in 1888, 1913), for a more complete report stating, as far as can be ascertained, how many mixed marriages were contracted in the diocese with- in a certain period of time, say the previous ten years ; how many with, how many without, the neces- MIXED RELIGION 119 sary guarantees and dispensation; what had been their results, etc. (Circular of Card. Rampolla, Sec- retary of the Holy Office, August 13, 1913.) A recent decree of the Consistorial Cong, with- drew those general faculties, April 25, 1918. Cases have to be referred to Rome ; if, meanwhile, an urgent necessity arises, the dispensation can be granted. (A. A. S., May, 1918.) 119. 3. CONDITIONS FOR THE DISPENSATION : (A) Just and grave causes. A dispensation granted with- out cause by delegated power would be null. What causes will be sufficient? At present, reasons of a private character are accepted, particularly in coun- tries where the Catholics are relatively few. The fear lest the parties should go and be married by the civil officer may be a sufficient reason for the Ordi- nary to grant the dispensation, but the parties them- selves are guilty of grave sin for obtaining it by such means. (Lehmkuhl, casus n. 911.) 120. (B) Guarantees, (a) Their object. The divine law forbids mixed marriages as long as there is danger of perversion for the Catholic party or the offspring. The Church, before granting a dispen- sation, demands that the danger be removed and moreover, that guarantees to that effect be given un- der the form of explicit promises made before a repre- sentative of the ecclesiastical authority. A mere hope or even a moral certainty founded only on the good will of the parties is not sufficient. (S. C. Inq. ad Episcopos Hungarise, July 21, 1880.) The non- Catholic party has to promise that the Catholic's 120 PROHIBITIVE IMPEDIMENTS faith will not be in danger; both parties have to promise that the children will be baptized in the Catholic Church and not in any other, that they will receive a strictly and exclusively Catholic education. It will be observed that these are the only two prom- ises exacted by common law as a necessary condition for the dispensation; they constitute what is called the cautiones in the strict sense. That the Catholic party should strive to convert the non-Catholic one, that the marriage should not be celebrated before a non-Catholic minister, is decreed in the following canons, but it is not the object of a formal promise, by common law. Particular indults may demand it ; their clauses have to be studied carefully and strictly observed. 121, (&) Necessity of the guarantees. It is based on the divine law itself, and hence they can never be positively dispensed from. The practice which had prevailed in Germany during the eighteenth cen- tury and the first part of the nineteenth of not exacting them was strongly condemned by the Popes, particularly Benedict XIV, Pius VI, Pius VIII, Gregory XVI. (McCaffrey, History of the Church in the Nineteenth Century, vol. i, ch. 11, p. 95; G. Goyau, L'Allemagne religieuse, vol. ii, p. 136.) They should be insisted on even in articulo mortis, and the Catholic party should not be left in good faith (Holy 'Office, January 3, 1871; March 18, 1891), whether it is question of a marriage in contemplation or one already contracted, whether the dispensation is to be granted by the Holy See or by a delegate. MIXED RELIGION 121 In Prussia the civil law of August 17, 1825, pro- vided that in mixed marriages the education of the children should be left to the father, and priests were forbidden to demand any promises. Pius VIII in his letter of March 25, 1830, granted permission to pastors to assist in a merely passive manner at mar- riages contracted under those conditions; but there was no dispensation from the promises, the marriage remained unlawful; pastors were simply permitted to witness an unlawful action in order to avoid greater evils. (Gasparri, n. 454.) If the Catholic party was well disposed and prom- ised to fulfil all the clauses to the best of his ability, but the non-Catholic party could not be induced to make any promise, might not a dispensation be granted to the former in a case of very urgent neces- sity, that is to say, when the eternal salvation of the party would depend on it, supposing that there would be no danger of perversion for him or for the chil- dren ? The concession has been made for the revali- dation of marriages already contracted and "might perhaps be made also in the case of a marriage to be contracted in very urgent necessity." (De Smet, n. 254; Putzer, o. c. n. 220; Nouvelle Revue Theolo- gique, January, 1913, p. 11.) In reality, there would not be a dispensation from the promises; the party who refuses to make them receives no permission to marry. It is granted only to the one who does make them, for very urgent reasons. That concession, however, could regularly be made only by the Holy See, for a dispensation granted by a Bishop is not 122 PROHIBITIVE IMPEDIMENTS valid unless all the conditions laid down in the indult are fulfilled, and exacting the promises is one of them. 1 If there was no time for recourse to Rome, the rules formulated in can. 1043-45 might find their application. (Putzer, n. 220 ; Decrees of June 12, 1912; N. R. T., January, 1913; Answer to Bp. Elder, A. S. S., vol. xxx, p. 381 ; Indult in Eccl. Rev., March, 1914; Collectanea, nn. 1263, 1271, 1273; Holy Office, April 12, 1889 ; De Becker, De Sponsali- bus et Matrimonio, p. 242.) 122. (c) The promises ought not to be a mere formality, but they must be made sincerely and con- stitute a real guarantee that the required conditions will be fulfilled. In what form they should be made was not till now determined by any general law. Particular law or custom could demand that they be made in writing, or on oath or in presence of wit- nesses. Several canonists expressed the view that a mere oral promise on the part of the non-Catholic 1 Some few Bishops of the United States, not without insistence, have obtained from the Holy See a general indult, which enables them to grant a sanatio in radice in marriages contracted with the impediment of mixed religion or disparity of worship before a civil magistrate or a non-Catholic min- ister. The ordinary promises are demanded of the Catholic party. (Eccl. Review, June, 1916, p. 717.) Those faculties are usually granted for cases in which the non-Catholic party refuses to appear before the priest. Ac- cording to a decree of the Holy Office of December 22, 1916 (A. A. S., January, 1917, p. 13), if the non-Catholic party consents to appear before the priest, but refuses to give the promises, recourse should be had in that case also to a sanatio in radice rather than receive the renewal of the consent in a merely passive manner. But special faculties should be ob- tained for that from the Holy See. MIXED RELIGION 123 party would ordinarily not be sufficient. (Wernz, n. 587, note; Gasparri, n. 453.) The Holy Office de- clared, December 10, 1902, that the assertion of the Catholic party, even confirmed by oath, that the non- Catholic has made the necessary promises, would not of itself and generally be sufficient. (Coll., 2155.) The Council of South America held at Rome in 1899 required a written and sworn promise. The Second Plenary Council of Baltimore demanded a solemnis promissio coram Deo. The common law now de- mands that the promises be made in writing, as a rule. 3. CONVERSION OP THE NON-CATHOLIC PARTY Can. 1062. Conjux catholicus obligatione tenetur conversionem conjugis acatholici prudenter curandi, 123. The Catholic party is bound prudently to procure the conversion of the non-Catholic party. This is the best, often the only, means of removing all danger of perversion. In itself, however, it is only a duty of charity following upon the marriage already contracted, and not, like the removing of danger of perversion, a condition intrinsically neces- sary for the lawfulness of the marriage. Hence com- mon law does not demand here a formal promise made beforehand; but some particular indults do, and then it has to be exacted at least for the licitness of the dispensation and probably for the validity. (Canoniste Contemporain, Juillet, 1912, p. 502.) 124 PROHIBITIVE IMPEDIMENTS 4." PROHIBITION TO APPEAB BEFORE THE NON- CATHOLIC MINISTER Can. 1063. 1. Etsi ab Ecclesia obtenta sit dispensatio super impedimento mixtae religionis, conjuges nequeunt, vel ante vel post matrimonium coram Ecclesia initum, adire quoque, sive per se sive per procuratorem, ministrum acatholicum uti sacris addictum, ad matrimonialem consensum praestan- dum vel renovandum. 2. Si parochus certe noverit sponsos hanc legem violaturos esse vel jam violasse, eorum matri- monio ne assistat, nisi ex gravissimis causis, remoto scandalo et consulto prius Ordinario. 3. Non improbatur tamen quod, lege civili jubente, conjuges se sistant etiam coram ministro acatholico, officialis civilis tantum munere fungente, idque ad actum civilem dumtaxat explendum, eff ec- tuum civilium gratia. 124. 1. Even when a dispensation from the impediment of mixed religion has been obtained from the Church, the parties can not, either before or after their marriage before the Church, go, whether personally or through a representative, before a non-Catholic minister, in the exercise of his office, for the purpose of giving or renewing their matrimonial consent. 2. If the pastor knows for certain that the parties are to violate that law, or have violated it already, he shall not-assist at their marriage, except for very grave reasons, all danger of scandal being removed and the Ordinary hav- ing been consulted. MIXED RELIGION 125 3. It is not, however, forbidden for the par- ties, when the civil law demands it, to present themselves before a non- Catholic minister, act- ing as a civil magistrate, solely to comply with a civil formality, for the sake of civil effects. 1. Permission to marry a heretic does not imply permission to give or even to renew the marriage con- sent before a heretical minister. Marriage is a reli- gious contract, and to seek for it the sanction, under any form, of a heretical or schismatic society, is to make profession, externally, of heresy or schism ; and this is against the law of Christ as against the law of the Church, and is punished with excommunication. A promise to observe that law is demanded by some indults as a condition for the dispensation. 125. 2. If the pastor was informed by the parties that they have appeared or are to appear before the non-Catholic minister, or if he was asked for permis- sion to do so, he could not give his consent implicitly or explicitly and should refuse to assist at the mar- riage. Should he know otherwise of the intention of the parties, regularly he could not remain silent but should remind them of the Church's law, and if they persisted in their determination he should not assist at their marriage. This rule, however, is not so absolute that exceptions can not be permitted for very grave reasons. In an instruction of the Holy Office it is said that the pastor should keep silence if he foresaw "that his admonition would certainly be unsuccessful and even harmful, inasmuch as it would cause the material sin to become a formal one." 126 PROHIBITIVE IMPEDIMENTS (February 17, 1864; December 12, 1888; Collect., n. 1444; February 17, 1864; Collect., n. 1431; Gas- parri, n. 466.) Care has to be taken to avoid scandal, and, because of the gravity of the matter, the Ordi- nary should be consulted. If the pastor had only a probability or a suspicion of the intention of the par- ties to go before the minister, the obligation to re- fuse his co-operation would not be the same, and prudence might often recommend silence in such cases. 126. 3. What is forbidden is to go before a non- Catholic minister acting as such, not if he was acting as a purely civil magistrate. If he acted at the same time as the representative of a religious body and of the civil authority, recourse to him would not be per- mitted. A minister of religion must generally be considered as acting in the former capacity when he is in church or vested in the insignia of his office. If he received the parties in his house or some such place, and without any religious vestments on, and addressed to them words of congratulation, of advice, having no confessional character, so that the visit on both sides would be little more than one of polite- ness or of friendship, there would seem to be in this no violation of the law of the Church, but again scandal ought to be avoided. (Gasparri, n. 467.) 5. DUTIES OF OBDINABIES AND OTHER PASTOBS OP SOUJLS Can. 1064. Ordinarii aliique animarum pastores : 1. Pideles a mixtis nuptiis, quantum possum, absterreant ; MIXED RELIGION 127 2. Si eas impedire non valeant, omni studio cur- ent ne contra Dei et Ecclesiae leges contrahantur ; 3. Mixtis nuptiis celebratis sive in proprio sive in alieno territorio, sedulo invigilent ut conjuges promissiones factas fideliter impleant; 4. Assistentes matrimonio servent praescrip- tum can. 1102. 127. Ordinaries and other pastors of souls shall: 1. As much as they can, deter the faithful from contracting mixed marriages. 2. If they can not prevent them, they shall do all in their power to have them celebrated according to the laws of God and of the Church. 3. When a mixed marriage has been con- tracted, whether in their territory or outside of it, they shall watch over the faithful fulfilment of the promises. 4. In assisting at those marriages they shall follow the prescriptions of can. 1102. 1. The Church considers mixed marriages as an evil and makes it a duty for pastors of souls to pre- vent them, not simply under this or that circum- stance, but whenever it can be done. The Third Plenary Council of Baltimore gives the same direc- tion, and points out the means that may be used. (n. 133.) 2. If they can not be prevented, pastors should do all they can to render them less harmful by endeavor- ing to obtain a faithful observance of the laws of the Church on the matter. 128 PROHIBITIVE IMPEDIMENTS 128. 3. After a mixed marriage has been con- tracted by one of his parishioners, whether it took place in his territory or elsewhere, the pastor or Ordinary is bound to see that the conditions are fulfilled as far as depends on him; not that the non- fulfilment of the promises would affect the marriage already contracted, but for other obvious reasons. That obligation is a grave one, as is explicitly de- clared in an instruction of the Propaganda to the Archbishop of Baltimore, June 25, 1884; and an instruction of the Sacred Congregation of the In- quisition adds that as, in a matter of such impor- tance, nothing should be left to the discretion of the pastors, the latter should be requested to report to the Bishop as soon as possible every mixed marriage in contemplation, giving all the information about the place, the persons, etc., and both Bishop and pastor should watch over the faithful observance of the promises. (Gasparri, n. 472.) 129. It is supposed here that the marriage was con- tracted validly and lawfully, (a) What should be done if it had been contracted unlawfully v.g., without a dispensation? As long as the marriage is not invalid, the parties may live together. The Catholic party, however, is guilty of grave sin, from which absolution can not be obtained unless the neglected formalities be now complied with. More- over, if the marriage was contracted before a non- Catholic minister, an excommunication reserved to the Bishop has been incurred. (Inst. of Holy Office, January 3, 1871; De delictis et poenis, can. 2319; Gasparri, n. 468; Wernz, n. 588; Putzer, n. 139.) MIXED RELIGION 129 (6) If the marriage was also null because of the impediment of clandestinity, as will frequently occur under the new legislation, or because of some other diriment impediment, the parties ought either to separate or to have their marriage revalidated. To have it revalidated they must obtain the dispensation from the impediment of mixed religion, make the necessary promises and renew the consent in the proper form. It may happen that the non-Catholic party is not willing to go before the priest and renew the con- sent. The remedy then would be a dispensation in radice, as will be explained later. If the Catholic party being ready to comply with all the require- ments, the non-Catholic one refused to make the promises, and on the other hand the separation was very difficult, dispensation might be granted by the Holy See or, in some cases of necessity, by the Bishop, as said above can. 1043-1045. (De Smet, n. 258.) According to the Holy Office (December 22, 1916 A. A. S. January, 1917, p. 13), rather than to have the marriage contracted before the Church without the promises, a dispensation in radice should be ob- tained from the Holy See. Some Bishops have faculties to dispense in certain cases. (Inqui., April 12, 1899 ; Ecclesiastical Keview, March, 1915 ; June, 1916, p. 717.) When, as a matter of fact, the non-Catholic party has fulfilled the conditions, the children have been brought up in the true Faith, and the Catholic party has been left entirely free to prac- tise his religion, there is not the same need of formal promises, (Putzer, o. c. n. 220.) 130 PROHIBITIVE IMPEDIMENTS 4. For the manner of assisting at mixed marriages we are referred to canon 1102. IV. UNWORTHINESS 130. Several causes of tmworthiness are enumer- ated by canonists: sin, censure, affiliation with for- bidden societies, insufficient knowledge of catechism, etc. Two kinds are considered here: 1. UNWORTHINESS BY REASON OF APOSTASY OB AFFILIATION WITH FORBIDDEN SOCIETIES Can. 1065. 1. Absterreantur quoque fideles a matrimonio contrahendo cum iis qui notorie aut catholicam fidem abjecerunt, etsi ad sectam acatho- licam non transierint, aut societatibus ab Ecclesia damnatis adscript! sunt. 2. Parochus praedictis nuptiis ne assistat, nisi consulto Ordinario, qui, inspectis omnibus rei ad- junctis, ei permittere poterit ut matrimonio intersit, dummodo urgeat gravis causa et pro suo prudent! arbitrio Ordinarius judicet satis cautum esse catho- licae education! universae prolis et remotioni peri- culi perversionis alterius conjugis. 1. The faithful shall be deterred also from contracting marriage with those who have no- toriously renounced the Catholic faith without, however, joining a non-Catholic sect, or with those who are notoriously affiliated with socie- ties condemned by the_ Church. 2. The pastor shall not assist at such mar- riages, except after consulting the Ordinary, who, everything being considered, may permit it, provided that there be a grave reason for UNWORTHINESS 131 doing so, and the Ordinary judge, in his pru- dence, that sufficient provision is made for the Catholic education of all the children, and against danger of perversion for the other party. Several times, particularly in recent years, Rome had been asked what was to be done in those cases, which were becoming more and more frequent, of Catholics wishing to marry members of condemned societies or persons who, without joining any other re- ligious organization, had practically ceased to be mem- bers of the Church and had fallen into indifferentism, rationalism, unbelief. The answers given were only for particular cases and of a provisional character. Pastors were directed to see in each case what was more prudent and, if grave difficulties would arise, to consult the Congregation, until a general rule would be promulgated by the Holy See. (Gasparri, n. 481.) That rule we have now in this canon. 131. 1. The apostates and members of condemned societies come under this law only when they are notorious, when they have renounced the Faith or joined the societies, and this is publicly known. Mar- riage with them is dangerous and should be dis- couraged. 2. If the faithful do not heed the advice, they are guilty of grave imprudence and the pastor should not co-operate in their sin by assisting at their mar- riage. Exceptions to that rule should not be made without consulting the Ordinary. He may permit a priest to assist at such marriages, but a grave rea- 132 PROHIBITIVE IMPEDIMENTS son is required ; and the danger to the children or to the Catholic party must be removed. No dispensa- tion is required, because unworthiness is not, strictly speaking, a canonical impediment. No formal promises are exacted. This is the common law, but particular legislation may be more exacting, as it has been, in the past, in some places. 2. PUBLIC SIN AND OENSUBB Can. 1066. Si publicus peccator aut censura notorie innodatus prius ad sacramentalem confes- sionem accedere aut cum Ecclesia reccnciliari re- cusaverit, parochus ejus matrimonio ne assistat, nisi gravis urgeat causa, de qua, si fieri possit, consulat Ordinarium. 132. If a public sinner or one notoriously un- der censure, refuses to go to Confession before- hand or to be reconciled with the Church, the pastor shall not assist at his marriage, except for grave reasons, about which he shall, if pos- sible, consult the Ordinary. The priest who assists at the unworthy reception of the sacrament of marriage co-operates, although remotely, in the sacrilege thereby committed, and this is to be avoided except for proportionately grave causes. If the unworthiness is known only through confession, it can not be taken into account in the external forum. If, although known outside of the confessional, it remains of a private character, or occult, it may be a reason for the pastor to strive, on moral grounds, to prevent the marriage. But canon UNWORTHINESS 133 law is concerned only with what pertains to the ex- ternal social order in the Church with public sins and public censures. A sin is public de jure when it has been proved juridically, in court; de facto when it has been committed in public or has become known to a large number of people. (Gasparri, n. 477.) A censure is public or notorious when one has been, for example, excommunicated by name, or has been denounced as such, or when it is generally known that he has incurred the censure. As in those cases the guilt is publie, the reparation ought to be also of a public character, before the pastor may, in the name of the Church, openly sanction by his presence the marriage of the party. An internal act of contrition would not suffice; the reception of the sacrament of Penance or absolution from censures are required by the Church. The presence of the priest at the marriage of one who would refuse to comply with these prescriptions would, however, be only a material and remote co-operation and it can be permitted for grave reasons. St. Alphonsus gives as sufficient the danger of death or great evils affect- ing the community. Other authors add the danger that if assistance is denied by the priest, the parties will go before the civil magistrate, or, in general, that greater evils are likely to follow from refusing than from consenting to assist at the marriage. But as those are difficult questions to decide, in which also some uniformity of action in the diocese is very desirable, the pastor should, even when the reasons appear sufficient to him, consult the Ordinary if it be possible. (Gasparri, n. 477; De Smet, n. 117.) CHAPTER IV DIRIMENT IMPEDIMENTS 133. Many canonists count eighteen diriment im- pediments, which they divide into three classes: (1) those which directly affect the consent error, con- dition, insanity, violence, and fear; (2) those which affect directly the contracting parties, the persons and their capability of marrying, and are in the nature of inabilities age, impotency, previous marriage, disparity of worship, Orders, vow, abduction, crime, consanguinity, public decency, spiritual and legal re- lationship; (3) one concerns the form of the contract and is known as clandestinity. Strictly speaking, however, only those of the second class are matri- monial impediments properly so called. (D'Anni- bale, vol. iii, 208 ; Gasparri, nn. 248, 490.) Those of the first are impediments to any contract and not so much impediments to the contract as the want of one of its constitutive elements. This is the view taken by the legislator, who treats of them not under the heading of impediments but in the chapter on marriage consent. The form prescribed by the Church does not constitute an incapacity to marry, since it depends on the parties to observe it. It be- longs to a distinct order of things and is the object of a distinct chapter. To marry validly one must be willing to do so, observe the proper formalities, and not be bound by any impediment. The Council of Trent reduced the impediments in number and in extent, because, it said, on account of 135 136 DIRIMENT IMPEDIMENTS the multitude of prohibitions, people would, through ignorance, form illegitimate unions which can not be persevered in without sin nor dissolved without scandal. (Sess. xxiv, cap. 11, de Kef. Mat.) The need of further reductions was often felt in modern times and several vota in that sense were presented by the Fathers of the Vatican Council. What it was not possible for the Council to do has now been done by the new legislation, which thus continues and completes the work of the Council of Trent. I. AGE 134. There are two impediments arising from bodily incapacity age and impotency. Can. 1067. 1. Vir ante decimum sextum aetatis annum completum, mulier ante decimum quartum item completum, matrimonium validum inire non possunt. 2. Licet matrimonium post praedictam aetatem contractum validum sit, curent tamen animarum pastores ab eo avertere juvenes ante aetatem, qua, secundum regionis receptos mores, matrimonium iniri solet. 1. Males who have not completed their sixteenth and females who have not completed their fourteenth year can not marry validly. 2. Although marriage contracted after that age be valid, pastors of souls shall take care to deter from it young people who have not reached the age at which, according to the cus- toms of the country, marriage is usually con- tracted. AGE 137 1.' No age is required by the natural law for validly contracting marriage, but only sufficient dis- cretion to give a matrimonial consent, which may exist post septennium, according to canonists. (De Becker.) 135. 2. Formerly the law of the Church re- quired, besides sufficient discretion, puberty or the power of procreating, and both were supposed to exist at the age of twelve in females and of fourteen in males, not before, unless the contrary was proved. Hence marriages contracted before that age were considered as null unless it could be proved that the parties possessed both sufficient discretion and pu- berty; contracted after that age, they were consid- ered as valid unless it was proved that one or both parties wanted the necessary discretion. The present law introduces two changes the reason of which is easy to perceive: (1) The legal age for marriage is now 14 and 16. (2) Marriage con- tracted before that age, without dispensation, will always be null, and there will be no occasion for inquiring whether "precocity supplies the defect of age." 136. 3. The ecclesiastical impediment of age may be dispensed from and it is not binding on un- baptized persons, even when contracting marriage with Christians. Provided the unbaptized party possesses the discretion demanded by the natural law and the baptized one is of legal age, the contract may be valid. The provisions of the civil law would also have to be taken into account with regard to the un- baptized. 138 DIRIMENT IMPEDIMENTS 4.* The Church, in determining the age required for the validity of marriage, must have in view con- ditions and customs prevailing in the various parts of the world; in some, marriage is contracted at a much earlier age than in others. But, if the age of 14 and 16 respectively is recognized as sufficient everywhere for the validity, it is not always so for the licitness and expediency. In cold climates, says Lehmkuhl (v. ii, 748), it will hardly be lawful and seldom expedient to marry before the age of 18 and 20 or even later. Pastors are directed to use their influence to prevent premature marriages, which ordi- narily are entered into without sufficient deliberation or physical maturity, and are detrimental to both soul and body. On the other hand, the Church does not approve of unreasonably late marriages. The age of 24 is considered as cetas superadulta in a wo- man, with regard to marriage, and for that reason accepted as a canonical reason for dispensation. II. IMPOTENCY Can. 1068. 1. Impotentia antecedens et per- petua, sive ex parte viri sive ex parte mulieris, sive alteri cognita sive non, sive absoluta sive relativa, matrimonium ipso naturae jure dirimit. 2. Si impedimentum impotentiae dubium sit, sive dubio juris sive dubio facti, matrimonium non est impediendum. 3. Sterilitas matrimonium nee dirimit nee im- pedit. 137. 1. Impotency anterior to the marriage and perpetual, whether in the man or in the IMPOTENCY 139 woman, whether known to the other party or not, whether absolute or relative, annuls mar- riage by the very law of nature. 2. If the impediment of impotency is doubt- ful, whether the doubt be one of fact or of right, marriage ought to be permitted. 3. Sterility renders the marriage neither invalid nor illicit. 1. NATUBE AND SPECIES OP IMPOTENCY Authors do not agree as to what constitutes real impotency, and the legislator has avoided settling the controversy. Impotency differs from sterility. The latter is not, of itself, even a prohibitory impediment, as has always been the common teaching and is here explicitly declared ; the former is a diriment impedi- ment. Sterility is defined impotentia generandi; impotency, impotentia coeundi, inaptitude for con- jugal relations, or for those acts which of their na- ture, per se> intrinsically are apt for generation. For some this inaptitude exists only when normal sexual relations, which consist essentially in the "immissio membri virilis in vaginam mulieris cum seminis ef- fusione," are not possible, as in the cases of aphro- disia, anaphrodisia, at times of hypospadias and epis- padias; of eunuchs, spadones; also of persons who have undergone the operation of vasectomy, according to many. These authors would not consider as impo- tent persons who, although capable of normal sexual relations in the sense defined above, are wanting in some organ or condition essential for fecundation, such as women who have undergone the operation 140 DIRIMENT IMPEDIMENTS of ovariotomy or fallectomy. For others, whenever one element necessary for fecundation is wanting there is not simply sterility, but impotency, even if sexual relations are possible, as in women without ovaries. (Eschbach, Disputationes Physiologico- Theologicse, Disp. 2, pars. 2; Antonelli, Medicina Pastoralis, vol. ii, p. 154.) Impotency may be anterior or posterior to the mar- riage; absolute or relative; temporary, when it can be cured by natural and ordinary means ; permanent, when it can not be cured naturally or could be cured only by means which would be extraordinary or dan- gerous or unlawful. 2. ANNULLING EFFECT 138. Impotency annuls marriage by the divine and not simply by the ecclesiastical law, as some had thought (Gasparri, n. 526, 7; Santi, iv, xv, n. 7), because it means the absence of the object of the marriage contract itself. It has that effect whether it is absolute or only relative, on the part of the man or of the woman ; whether the healthy party knows the infirmity of the other and consents to the mar- riage in spite of it, or not. To annul the marriage, impotency must be anterior to it, for the contract, once validly made, is indissoluble ; and perpetual, for if aptitude for conjugal relations is to be possessed some day it can form the- object of a valid contract; only conjugal relations are not permitted as long as the impotency lasts. IMPOTENCY 141 3. PROOF OF THE IMPEDIMENT 139. Impotency is difficult to prove, because it is difficult in theory to determine its conditions and in practice to find out whether the conditions are ful- filled or not; particularly whether the impotency is anterior and perpetual. A special form of trial is prescribed by the Church for those cases. (Gasparri, n. 1197; Benedict XIV, Const. Dei Miser atione, n. 15 ; Inst. Aug. 22, 1840 ; June 20, 1883 ; Quemad- modum, art. v) Often impotency will remain doubtful. If it is question of a marriage to be contracted, doubtful impotency will not prevent it, whether the doubt be one of right or one of fact, as explicitly stated by the law, because no person is to be supposed abnormal unless he be proved to be so. Thus the Church per- mits marriage to women whose ovaries have been totally amputated, although according to many it would constitute perpetual impotency. If it is ques- tion of a marriage already contracted, it will be held as valid until all reasonable doubt is removed. Ordi- narily, if the impotency is probable and the marriage has not been consummated, the Holy See will grant a dispensation super matrimonium ratum et non consummatum. If the marriage had been dissolved on the supposition that the impotency was perpetual and later on it was cured, the parties would have to resume cohabitation unless the dissolution of the first marriage could be obtained as ratum et non consum- matum. 142 DIRIMENT IMPEDIMENTS III. PREVIOUS AND EXISTING MARRIAGE Can. 1069. i. Invalide matrimonium attentat qui vinculo tenetur prioris matrimonii, quanquam non consummati, salvo privilegio fidei. 2. Quamvis prius matrimonium sit irritum aut solutum qualibet ex causa, non ideo licet aliud con- trahere, antequam de prioris nullitate aut solutione legitime et certo constiterit. 140. 1. Marriage is rendered invalid by the bond of a previous marriage, even only ratified, excepting the privilege of the faith. 2. Although the first marriage be null or dissolved for whatever reason, it is not lawful to contract another one before the nullity or dissolution of the first be established legiti- mately and certainly. 1. This impediment is implied in the divine law of the unity of marriage, which now binds all men, whether baptized or not, and which admits of no exception. A person, then, who was married before can not be permitted to marry again unless the first marriage be null or has been dissolved. The privi- lege of the faith forms an exception to that rule only in so far that the first marriage is dissolved, not before, but at the very moment the second one is contracted. 141. 2. A marriage may be null for a number of reasons want of consent, existence of a diriment impediment. When freedom to marry is claimed on that ground the nullity has to be recognized and pro- PREVIOUS MARRIAGE 143 nounced by the ecclesiastical court. It is even neces- sary, ordinarily, that there be two sentences for the nullity before it is officially established and a new marriage be permitted. (Can. 1986-1989.) By a decree of the Holy Office of June 5, 1889, there are three cases in which one sentence will suf- fice, and the Ordinary will not have to follow all the formalities of a regular trial as prescribed by Bene- dict XIV: (1) When the nullity is due to an impedi- ment of disparity of worship and it is evident that one of the parties was baptized and the other was not. (2) When it is due to the existence of pre- vious marriage and it is certain that the first partner is still living. (3) When it is due to impediments of consanguinity, licit affinity, and spiritual relation- ship which are proved beyond possibility of reason- able doubt. If the evidence was not quite clear, two decisions would be required, as was declared by the Holy Office, March 27, 1902. One is always neces- sary, and if it is admitted as sufficient it is simply because in such cases there is little danger of error. The present law maintains those provisions and adds the impediments of Sacred Orders and solemn vow (Can. 1990-1992) to those of consanguinity, affinity, and spiritual relationship. 142. 3. Dissolution may be by solemn vow, pon- tifical dispensation, or, more commonly, the death of the former husband or wife. In the first two cases an authentic document showing the existence of the vow or of the dispensation will constitute a legitimate proof, and no further formalities will be required. If the death of the former husband or wife is well 144 DIRIMENT IMPEDIMENTS known in the locality or proved beyond doubt, a formal decision by the court is not necessary. If it occurred in some distant place, sufficient evidence has to be secured to avoid danger of error or fraud. Ab- solute certainty is often impossible to obtain and the Church does not exact it, but moral certainty is de- manded ; and if there remains a serious doubt the case should be referred to the matrimonial court for an authoritative declaration. How that certainty can be obtained and when the evidence may be consid- ered as sufficient can not be denned in the abstract, but we have to guide us numerous decisions of par- ticular cases by the Roman Congregations and sev- eral instructions of the Holy See, particularly the instruction of Clement X, August 21, 1670; and that of the Holy Office of May 13, 1868, inserted in the Acts of the Third Plenary Council of Balti- more, p. 258, and reproduced in the A. A. S., vol. ii, an. 1910, p. 199 seq. 143. Here is a summary of the directions con- tained in the last mentioned document: (1) Pro- longed absence is not, in itself, a sufficient proof of death. (2) A certificate taken from the registers of the parish, hospital, or army should be obtained if possible. If it can not be obtained from the ecclesi- astical it should be obtained from the civil authori- ties of the place in which the party died. (3) If that document can not be secured, a substitute for it may be the deposition of witnesses. There must be at least two, worthy of credit, acquainted with the de- ceased, testifying, on oath, as to what they know personally and agreeing with one another on the PREVIOUS MARRIAGE 145 time, cause, and other circumstances of the death. If they were relations, companions, or associates of the deceased, their testimony has still greater weight. (4) Although the testimony of one single witness be not ordinarily admitted as sufficient to constitute a full proof, in this matter, in order that a person may not be unnecessarily condemned to remain a celibate against his will, the Congregation does not reject it provided the witness possesses the qualifications men- tioned above, that he be unexceptionable, and that his testimony be confirmed by other serious circum- stantial evidence ; or, if such confirmation be wanting, that there be nothing inconsistent or improbable in his deposition. (5) The testimony of hearsay wit- nesses may be accepted as sufficient when nothing else can be had and it fits in with the circumstances of the case. (6) At times it is not possible to have even one such witness; then every possible conjec- ture, clue, or surmise should be used, with the great- est care and prudence, to constitute a proof, so that, when all available evidence has been collected and duly weighed, a prudent man may consider the death as established with very great probability if not moral certainty. (7) The conjectures or presump- tions which may be used are, amongst others, the fol- lowing: Did the person in question lead a good re- ligious life? Was he devoted to his wife? Had he any motive for hiding himself? Did he have any property, or expect any? Did he go away with the consent of his wife and of his relations ? What was then his age his state of health? Did he write? Did he manifest his intention of returning? Was 146 DIRIMENT IMPEDIMENTS he in a place of danger? (8) Common report may also constitute a proof, on condition that it be sup- ported on oath by at least two reliable witnesses who assign a reasonable cause for such report, state whether they have it from the greater and better part of the community, and believe in it themselves. There must not be reason to fear that the rumor was started by interested parties. (9) The investigation might be made also through the newspapers. Proof accepted as sufficient for the civil would not neces- sarily be so for the ecclesiastical authority. When there remains a serious doubt the matter must be re- ferred to the Holy See. By a decree of the Holy Office of July 20, 1898 (A. S. S., vol. xxxi, p. 252), Bishops were authorized to declare free the wives of the Italian soldiers who had taken part in the battle of Adona, provided it was certain that they had really taken part in the battle and that the investigation made by the government had revealed no trace of them. A decree of December 16, 1910 (A. A. S., 1911, p. 26), contains a similar decision with regard to Russian soldiers who took part in the battle of Muk- den in the Russo-Japanese war. With regard to the victims of the Messina earthquake the Congregation of the Sacraments demanded that each case be inves- tigated separately in accordance with the rules laid down in the instruction of 1868. 1 (March 12, 1910; A. A. S., vol. ii, p. 196.). 1 An application of the same rules may be found in a case decided by the Congregation of the Sacraments, January 22, 1909. (II Monitore Ecclesiastico, July, 1909, p. 200; Nouvelle DISPARITY OF WORSHIP 147 IV. DISPAEITY OF WOESHIP Can. 1070. 1. Nullum est matrimonium con- tractum a persona non baptizata cum persona bap- tizata in Ecclesia catholica vel ad eandem ex hae- resi aut schismate conversa. 2. Si pars tempore contract! matrimonii tan- quam baptizata communiter habebatur aut ejus bap- tismus erat dubius, standum est, ad normam can. 1014, pro valore matrimonii, donee certo probetur alteram pattern baptizatam esse, alteram vero non baptizatam. Can. 1071. Quae de mixtis nuptiis in canonibus 1060-1064 praescripta sunt, applicari quoque debent matrimoniis quibus obstat impedimentum dispari- tatis cultus. Revue Theologique, Dec., 1909, p. 736; see also two cases de- cided Nov. 28, Dec. 18, 1914; A. A. S. 22, Jan., 1915, p. 40; II Monitore Ecclesiastico, Marzo, 1915, p. 102; Canoniste Contemporain, Jan., 1915, p. 45; Ecclesiastical Review, Au- gust, 1915.) Bruno Buttera left Italy for Brazil at the age of about 50. During the first year he wrote almost every month to his wife and told her that he intended to go back soon. Then he ceased to be heard from. Four months after her last letter a fellow-workman of his wrote announcing his death, and he died himself the same year. Now, after twenty years, Buttera's wife wishes to marry again. No further evidence of his death can be obtained, and his letters, as well as that of his friend, are lost, but it is commonly believed that he is dead. Considering that Buttera would be now 70 and that he was not very strong; that his death was affirmed by a friend who had no interest in deceiv- ing; that his silence can not be accounted for otherwise, as he loved his family and wrote frequently during the first year; that he had manifested his intention of coming back; that none of those who went into that country later heard of him; and that for these reasons all his acquaintances were convinced that he was dead, the Sacred Congregation decided that his wife might be allowed to marry again. 148 DIRIMENT IMPEDIMENTS 144. 1. A marriage is null when contracted between a person baptized in, or converted to, the Catholic Church and an unbaptized person. 2. If the party, at the time of the marriage, was commonly considered as baptized, or if his or her baptism was doubtful, the marriage is to be held as valid until it is proved with cer- tainty that one party was baptized and the other was not. Can. 1071. What is prescribed by canons 1060-1064 for mixed marriages must be applied to those also to which there is an impediment of disparity of worship. 1. ORIGIN OP THE IMPEDIMENT In the first centuries of the Church, marriages of the faithful with infidels were forbidden in very much the same terms as marriages with heretics. They were unlawful, but generally valid. Some early Spanish or Gallic Councils seem to declare them null, but these were particular laws and did not re- ceive universal recognition. There was a tendency, however, to make a difference between marriages with heretics and marriages with infidels ; and the custom of treating the latter as invalid spread gradually, particularly from the seventh century onward. It had become universal and obtained force of common law towards the twelfth century, if not much earlier. (Dictionnaire de Theologie Catholique, Disparite de culte, p. 1417; Wernz, n. 504.) When in the six- teenth century the question was asked whether the impediment was in force, even in those missions, DISPARITY OF WORSHIP 149 like China and Japan, where the custom had never been received, the Holy See answered in the affirma- tive. 2. NATUBE AND EXTENT OP THE IMPEDIMENT 145. Under the former discipline, the impediment of disparity of worship existed whenever one of the parties was baptized, no matter in what Christian church, and the other was unbaptized, whether he belonged to a Christian sect or not. It was based exclusively on the reception and non-reception of Baptism, not, as the impediment of mixed religion, on the diversity of religious profession. Henceforth it will be based on both. It will exist only between a Catholic and an unbaptized non-Catholic, but no longer, v.g., between a baptized Protestant and an infidel or an unbaptized Protestant. By "Catholic," as expressly stated, is to be understood any person baptized in the Catholic Church or converted to the Catholic Faith, whether actually a member of the Church or not. As for clandestinity, the rule holds here: Once a member of the Church, always subject to her law. Likewise, non-Catholics are af- fected by the law only when they marry Catholics. This important change in the discipline was rendered necessary by the increasing number of Protestants who are not baptized, and the consequent multipli- cation of invalid marriages among them. In future, fewer marriages will be affected by the impediment and, as they are marriages which ought to be cele- brated before the Church, the dispensation will be secured when needed. 150 DIRIMENT IMPEDIMENTS 3. APPLICATIONS 146. (1) In the application of this law, canon- ists universally admitted the principle supported by many Roman decisions: In relation to marriage, a doubtful baptism is a valid baptism. Does the rule hold under the new legislation? It certainly does when at the time of the marriage the baptism was considered as certain or doubtful, Nor is there any distinction made between a doubt of fact and one of law, nor between a doubt which remains after serious investigation and one about which there has been no investigation at alL The marriage will be presumed valid when contracted with the doubt as well as when the doubt arises after. On the other hand, it is certain that the presumption in favor of the marriage is not an absolute one, as held by some canonists, but it yields to truth. There will be no occasion for applying the prin- ciple in cases of marriage between a certainly un- baptized and a doubtfully baptized Protestant, or a doubtfully baptized Protestant and an infidel; they do not come under the law. Will it now apply in the case of a marriage between a doubtfully baptized Catholic and a certainly unbaptized non-Catholic, and, therefore, should such a marriage be declared null ? It would not seem so, although the legislator may not have had that case in view ; for the marriage is "to be held as valid until it is proved that one of the parties was baptized and the other unbaptized." It is rather the more general principle that prevails here; marriage is presumed valid until the contrary is proved, and this is also in accordance with the DISPARITY OF WORSHIP 151 intention of the legislator, which is to reduce the number of invalid marriages. 147. (2) Is a marriage between a Catholic and a doubtfully baptized non-Catholic, without dispen- sation from the impediment of disparity of wor- ship, lawful as well as valid ? The question may not be a very practical one, and the law does not con- sider it, but the general rule is that it is not lawful to contract marriage with a doubtful impediment, and there is no obvious reason for admitting an exception in this case. The doubt should be removed or the baptism administered again sub conditions, or a dispensation obtained. A dispensation from the impediment of mixed religion would not suffice to remove the impediment of disparity of worship if it happened to exist. This has been declared several times by the Congregation (April 29, 1842, 1890), and the contrary opinion has no probability. The practice of granting, ad cautelam, the dispensation from disparity of worship whenever it is granted from mixed religion, has been reproved also, because Rome demands that each case be studied individ- ually and that power of dispensing be used sparingly. (Letter of Card. Ledochowsky to the Bishop of Helena, May 11, 1900; De Becker, 1. c., p. 240; Nouvelle Revue Theologique, 1902, p. 204; De Smet, n. 290.) 148. (3) In practice, the difficulty often arises from the want of evidence, in regard to the existence or the validity of the baptism of Protestants. As these will be affected by this law only when they marry Catholics, and as their marriage has, then, to 152 DIRIMENT IMPEDIMENTS be contracted in presence and with the sanction of the parish priest, there will not, in future, be so many complications post factum. However, when a doubt arises, whether before or after the marriage, about baptism, each case has to be investigated in particular and the doubt removed as far as is pos- sible. To guide us in that investigation we have, as before, the general principles of law on evidence and proofs, and the special instructions of the Holy See, particularly the instruction of the Holy Office to the Bishop of Annecy, November 17, 1830, the instruction of December 20, 1837 (Second Plenary Council of Baltimore, p. 317), and the instruction to the Bishop of Savannah, August 1, 1883 (Third Plenary Council of Baltimore, p. 246). Baptism is a fact, and facts are not presumed, but must be proved. On the other hand, the validity of an act is presumed unless there be some proof to the contrary. To establish the fact of baptism, the law admits the testimony of a single witness, provided he be unexceptionable, there be no reason to suspect his truthfulness, and no danger of injury to a third party; even the testimony of the party concerned may be accepted. (Canon 179, de Baptismo.) In default of positive proofs, we may go on presump- tions. The rule laid down by Innocent IV (c. 3, x, iii, xliii) that the fact of being born of Christian parents and brought up in Christian surroundings constitutes, in favor of baptism, a presumption which amounts to certainty, would not necessarily apply at the present time if it was question of Protes- tants or very negligent Catholics. For non-Catholics DISPARITY OF WORSHIP 153 the instructions prescribe an examination of the teachings of the sect to which the parties and their parents belong, as also the religious habits of the parents themselves. If in the sect baptism is held as obligatory and a valid matter and form ordinarily used; if, on the other hand, the parents were strict adherents of their religion, the baptism may be pre- sumed. On the contrary, if the parents belong to a sect which does not administer baptism, or if they were very careless, there is no presumption in favor of baptism. When no evidence can be obtained one way or the other, particularly if the question bears on the validity of a marriage already contracted, tho case should be referred to Rome. (Inst. of 1883 ; The Catholic Encyclopedia, Disparity, p. 38.) The Holy Office, June 2, 1910, upheld as valid the mar- riage of a Protestant about whose baptism it was only known that the practice of his family was to have all the children baptized. (De Smet, n. 290, p. 119.) 4. CONDITIONS FOB DISPENSATION 149. (a) The conditions for dispensation are the same as for the impediment of mixed religion. The danger of perversion must be removed, there must be a grave reason, and the promises must be exacted, regularly; they can never be positively dispensed from. Here, however, even more readily than in mixed religion, because the validity of the contract is at stake, the Holy See may, for very urgent reasons, in favor of a well-disposed Catholic who makes the required promises on his or her side, grant the dis- pensation, although the promises are refused by the 154 DIRIMENT IMPEDIMENTS non-Catholic party ; always on condition that there is no danger of perversion ; for when such danger exists, the dispensation is never granted, not even to re- validate a marriage already contracted. The Catho- lic party may, for very serious reasons, be left in good faith, but the marriage remains null. Thus, a decree of the Holy Office of June 3, 1892, granted faculties to the Archbishop of Cincinnati to dispense, in the name of the Holy See, in the case of a Catholic woman who had married a non-baptized Protestant and could not obtain from him the promise that the male children would be baptized Catholics. (A. S. S., vol. xxx, p. 382.) (6) A decree of April 6, 1890, published June 21, 1912, declares that dis- pensation from this impediment is never granted by one having faculties from the Holy See unless the promises are made explicitly (nunquam concedi) ; and another decree published the same day adds that if the promises had not been made either because they had not been exacted or because they had been re- fused, the dispensation and subsequent marriage would certainly be null. (A. A. S., July, 1912, p. 443; Nouvelle Revue Theologique, Jan., 1913, p. 9.) From the absoluteness of those declarations, some canonists (De Smet, n. 291; Besson in 1ST. R. T., 1. c., p. 10) concluded that a Bishop could never "make use of his indult in favor of a well-disposed Catholic if the unbaptized party refused to observe the conditions." He could not even dispense in arti- culo mortis or in urgent necessity in virtue of can. 1043-1045. Others, however, observed that previous decrees had been very absolute also, and still grave SACRED ORDERS 155 canonists continued to maintain that there might be cases in which a Bishop would be allowed to use his indult although the non-Catholic party had not made the promises. (Putzer, n. 220.) The Holy Office, in answer to a question from the Archbishop of Cin- cinnati, stated that a dispensation granted because of urgent necessity, without the promises from the non- Catholic party, was valid, and that the indult could be used in that case potuisse uti facultatibus. (A. S. S., xxx, p. 382.) Special faculties have been granted to some Bishops of the United States, allow- ing them to dispense, on certain conditions, from either mixed religion or disparity of worship, with the promises from the Catholic party alone. (Eccle- siastical Review, March, 1915, p. 355.) 150. Nota. 1. Dispensation from the impediment of disparity of worship implies for the Catholic party dispensation from all the relative impediments, which are not binding on the unbaptized and from which it is customary for the Church to dispense. 2. The rules for the celebration of these marriages are the same as for mixed marriages, with this differ- ence, that if dispensation had not been obtained, even passive assistance would never be permitted, since the marriage would be null. V. SACRED ORDERS Can. 1072. Invalide matrimonium attentant clerici in sacris ordinibus constituti. 151. A marriage is invalid when attempted by clerics in Sacred Orders. 156 DIRIMENT IMPEDIMENTS In the Latin Church the Major Orders are the priesthood, the diaconate, and the subdiaconate, and they constitute a diriment impediment to mar- riage, at least since the Second Lateran Council in 1139, on condition that they have been received freely. There would be want of freedom if one was forced to submit to ordination and also if Orders were received without, at least, a confused knowledge of the obligations they impose. The ordination in such cases might be valid, but the cleric thus ordained would not be bound by the law of celibacy unless he would freely accept it afterwards, "after reaching the age of sixteen," said the ancient texts, a clause which is not inserted in the new law. (Can. 214.) This impediment is of ecclesiastical origin, and can be dispensed from. Dispensation is granted, al- though rarely, to subdeacons and deacons ; very rarely ' to priests and only for reasons of common good; as existed after the English Schism (1554), or after the French Revolution (1801). There have been a few cases of Bishops who were permitted to return to the lay state, but there seems to be no example of any one being dispensed from the obligation of continency. (Tanquerey, n. 1076.) VI. SOLEMN VOWS Can. 1073. Item invalide matrimonium attentant religiosi qui vota sollemnia profess! sint, aut vota simplicia, quibus ex special! Sedis Apostolicae prae- scripto vis addita sit nuptias irritandi. 152. Marriage is null also when attempted by Religious who have taken solemn vows, or SOLEMN VOWS 157 simple vows which have that annulling power by special disposition of the Holy See. The diriment power of the public vow was clearly and formally decreed for the first time in the Second Lateran Council, held in 1139. (Wernz, n. 377; Esmein, vol. i, p. 274.) By "public vow" was then understood any vow taken before the Church (in conspectu Ecclesia), but in the course of the twelfth century that conception was modified and only those vows came to be called "public" or, rather, "solemn" which were taken in a religious profession. That distinction was officially sanc- tioned in a decretal of Boniface VIII, who declares that "only that vow is to be considered as solemn and diriment of marriage contracted hereafter, which is taken solemnly in the profession, whether express or tacit, made in one of the Orders approved by the Holy See." (Cap. uni. Ill, 15, in VI.) In the days of Boniface VIII all the Religious Orders approved by the Holy See were Orders strictly so called, and all religious professions were solemn professions. It is only much later that Congregations with simple vows were instituted. Permission was first given to schol- astics of the Society of Jesus to make only simple vows or a simple profession before they were admitted to the solemn profession. The concession was ex- tended to other Orders, and many of the modern ones have only simple vows, particularly Orders of women. Dispensation from this impediment is regularly granted only by the Holy See. 158 DIRIMENT IMPEDIMENTS VII. ABDUCTION A. Ancient Discipline 153. In the Mosaic legislation there is no special enactment against the crime of abduction, although we can not doubt that it was severely punished. (Deut. xxii., 22.) The ancient Roman law dealt rather leniently with it the abductor was allowed to contract marriage with the abducted if she was will- ing. Constantine, under the influence, no doubt, of Christian ideas, forbade such marriages ; and Justin- ian punished abduction with death and the confisca- tion of property. There was no ecclesiastical legisla- tion on the subject during the first three centuries, as St. Basil tells us; the need of it was not felt. But when in the fourth and fifth centuries disorders mul- tiplied, the Church joined her efforts to those of the Christian emperors to stamp out the evil, and she pronounced excommunication against abductors with- out, however, absolutely forbidding them to marry their captives. Among the Germanic nations the penalties for the crime of abduction had nothing of the Roman severity. They consisted principally in pecuniary compensations to parents or guardians. 154. 2. With the fall of the Roman empire be- gan that period of violences and disorders which lasted for several centuries ; it was then found neces- sary to take severe measures for the protection of women and the liberty ef the marriage contract. Hence, in some particular Councils of the sixth and following centuries, and in civil legislations as well, do we find very stringent laws against wife-captors. ABDUCTION 159 It is only in the ninth century, however, that abduc- tion becomes clearly an impediment to marriage. Then, in some places, the abductor is absolutely for- bidden to marry the abducted woman, or even, in certain cases, any other woman. (C. 11, c. xxxvi, q. 2; c. 34, c. xxvii, q. 2.) The law applied to abduction by seduction as well as to abduction by violence, and the impediment was, according to many, diriment. 155. 3. That severity was due to the special cir- cumstances of the time; as soon as they changed, a reaction set in, and the tendency, always existing in the Church, to favor the freedom of marriage, again asserted itself. In the twelfth century the principle that marriage is constituted by the consent of the parties having become more universally recognized, the opposition of the parents ceased to be a real im- pediment and consequently also abduction by seduc- tion. Furthermore, Innocent III decreed that when- ever dissent on the part of the abducted woman would change into willingness, the marriage could take place, even, as was commonly interpreted, if the woman was still under the power of the captor. Thus abduction by violence was no more an impediment so long as the abducted party consented to the mar- riage and there remained no impediment of abduc- tion distinct from that of violence or fear. The law continued unchanged till the sixteenth century, but disorders and abuses had multiplied again, and the Council of Trent deemed it necessary to return to the severity of the former discipline. (The Catholic Encyclopedia, Abduction.) It decreed, therefore, 160 DIRIMENT IMPEDIMENTS that "between the abductor and the abducted woman there can be no marriage as long as she remains in his power." The present law simply renews the Tridentine de- cree, completing it and officially sanctioning some interpretations given of it by canonists or by Con- gregations. B. Present Discipline Can. 1074. 1. Inter virum raptorem et muli- erem, intuitu matrimonii raptam, quandiu ipsa in potestate raptoris manserit, nullum potest consistere matrimonium. 2. Quod si rapta, a raptore separata et in loco tuto ac libero constituta, ilium in virum habere con- senserit, impedimentum cessat. 3. Quod ad matrimonii nullitatem attinet, rap- tui par habetur violenta retentio mulieris, cum nempe vir mulierem in loco ubi ea commoratur vel ad quern libere accessit, violenter intuitu matri- monii detinet. 156. 1. Between the abductor and the woman abducted with a view to marriage there can be no marriage as long as the abducted per- son is in the abductor's power. 2. If the abducted woman, having been separated from the abductor and restored to a place of safety, consents to have him for a hus- band, the impediment ceases. 3. In regard to the nullity of marriage we must assimilate to abduction the violent deten- tion of a woman, when, namely, a man violently ABDUCTION 161 detains her, with a view to marriage, in the place where she resides or where she has come of her own accord. 1. CONDITIONS FOE THE IMPEDIMENT (a) It must be the abduction of a woman by a man. The words vir and mulier used in the text re- move all possible doubt on that point, whatever may have been the opinion of some canonists in the past. It does not matter who the woman is, or what is her character. (6) The abduction must be by violence, not simply by seduction. The words raptus, raptor imply the idea of violence. When the legislator speaks of "de- tention," which is equivalent to "abduction," he uses the qualificative, "violent" ; if it is not used with raptus it is that there was no need of it. This was the interpretation of the law of Trent. The violence may be physical carrying off a person by force ; or moral using threats and fear. Fraud and deceit are also admitted to suffice, because it is always true that the woman has been taken away against her will. 157. (c) For abduction properly so called the person should be removed from one place to another ; and this was generally considered as an essential con- dition for the impediment, but the present law ex- tends somewhat that of Trent and assimilates to ab- duction the violent detention of a woman in the place of her residence or in a place where she came freely. Here we have no removal or no violent removal from one place to another. It suffices, then, that the woman be in the power of the abductor, detained by 362 DIRIMENT IMPEDIMENTS against hei will in a place which is not safe for her. The interpretation of that condition, removal from one place to another, had given rise to many difficul- ties for which there will be no occasion any more. (d) The abduction or detention must be for the purpose of marriage. That condition had not been explicitly formulated by the Council of Trent, but it was always understood by canonists and Congre- gations. Now it is required expressly by the law. (e) The impediment continues as long as the ab- ducted woman remains in the abductor's power, even if she would freely consent to marry him, and in this the impediment of abduction differs from that of fear. It ceases when the woman is separated from the abductor and restored to a place of safety. It is not enough that she should be able to go away; she must really be separated from him and no more under his influence or that of his friends. (Gasparri, n. 559.) 2. EXTENT OF THE IMPEDIMENT 158. The impediment of abduction as distinct from that of fear, is one of the ecclesiastical law, and consequently it does not affect infidels directly, but only indirectly when they contract marriage with Christians. There will, in this case, be an impedi- ment whether the baptized party was abductor or ab- ducted, according to the common interpretation. 3. DISPENSATION FROM THE IMPEDIMENT 159. The Church can dispense from this impedi- ment and allow the woman to marry the abductor if CRIME 163 she wishes , but the Holy See rarely does so and still more rarely does it delegate the power to do so. Even more, when faculties are granted to dispense from another impediment, the clause is often added, "pro- vided that the woman was not abducted for the pur- pose of marriage." If the woman had been ab- ducted, the faculties could not be used, even though the woman would, at the time, have been restored to a place of safety so that there would be no more im- pediment of abduction. (Gasparri, n. 561.) In those cases the circumstance of abduction should be mentioned in the petition for dispensation Abductors incur excommunication. (De delictis, can. 2353.) VIII. CRIME A. Origin of the Impediment 160. It has always been felt that there was some- thing unbecoming in an adulterer marrying his accomplice, or a murderer marrying the wife of his victim. Such crimes call for punishment, and the hope of marriage should not be an incitement to sin. The Roman law under Augustus forbade the woman con victed of adultery ever to contract marriage with any person whatsoever. Under Justinian those mar riages were declared null. An ancient canon as- cribed in the Decretum to St. Gregory the Great con- tains the same prohibition (c. 22, c. xxxii, q. 7) ; but other canons inserted likewise by Gratian in his "Decree" (c xxxi, q. 1) forbid marriage only be- tween the adulterer and his accomplice or even for- 164 DIRIMENT IMPEDIMENTS bid it only until proper penance has been done. Simple adultery, then, does not seem ever to have been a canonical diriment impediment, and at the end of the ninth century it had ceased to be a pro- hibitory one. It was different when to adultery was added another crime. A Council of Meaux in 845 decrees that an adulterer can not contract mar- riage with his accomplice if either of them had any part in the death of the first husband. This is sub- stantially the impediment of adultery with conjugi- cide, only its conditions are not clearly defined as yet, and they remain undefined for some time. The Council of Tribur in 895 strongly condemns and apparently annuls a marriage contracted after adul- tery with a promise to marry. The decree of Gratian mentions that impediment also. Thus two kinds of impediments of crime were already admitted one resulting from adultery with conjugicide; the other from adultery with a promise of, or an attempt at, marriage. Celestine III (1191-1198) established a third one the impediment arising from conjugicide alone. The conditions for incurring those impedi- ments were determined with greater precision as time went on, but the legislation on that point has re- mained substantially the same from the twelfth cen- tury to the present day. B. Present Discipline Can. 1075. Valide contrahere nequeunt matri- monium : 1. Qui, perdurante eodem legit imo matrimonio, adulterium inter se consummarunt et fidem sibi mu- tuo dederunt de matrimonio ineundo vel ipsum CRIME 165 matrimonium, etiam per civilem tantum actum, at tentarunt; 2. Qui, perdurante pariter eodem legitimo matri- monio, adulterium inter se consummarunt eorum- que alter conjugicidium patravit; 3. Qui mutua opera physica vel morali. etiam sine adulterio, mortem conjugi intulerunt. 161. 1. There can be no valid marriage be- tween : 1. Those who during the same legitimate marriage have committed adultery and prom- ised marriage to one another or attempted it, even by a merely civil act. 2. Those who during the same legitimate marriage have committed adultery together, and one of them conjugicide. 3. Those who by mutual co-operation, phys- ical or moral, even without adultery, have caused the death of a partner. 1. CONDITIONS FOB THE IMPEDIMENT (a) The impediment of crime arises, in the first place, from adultery with a promise of, or an attempt at, marriage. The adultery must, as before, be real, not merely putative, consummated, and, according to the common interpretation, formal on the part of both accomplices. By an attempted marriage is un- derstood one invalidly contracted "by words express ing consent or by some other sign involving a promise of consent" (S. C. de P. F., Jan. 14, 1844.) Con- cubinage is not considered as an attempted marriage, but civil marriage is, according to a decree of the 166 DIRIMENT IMPEDIMENTS S. Congregation of the Sacraments, June 3, 1912, and the present law. (A. A. S., iv, p. 403.) (fc) The impediment arises also from adultery with con- jugicide, and (c) from conjugicide alone when the death results from the effective co-operation, physi- cal or moral, of the two parties. 2. BY WHOM IS THE IMPEDIMENT INCUBRED? 162. The impediment does not affect the unbap- tized except when they contract marriage with the baptized who on their side have incurred it. There is nothing in the law implying that ignorance ever excuses from the impediment of crime. 3. DISPENSATION FROM THE IMPEDIMENT 163. (a) The Holy See dispenses and grants to Bishops power to dispense from the impediment of crime without much difficulty, except when it arises from conjugicide, in which case a very serious rea- son is required, particularly if the conjugicide is publicly known. IX. CONSANGUINITY I. GENERAL NOTIONS 1. NATUBE OF CONSANGUINITY OB BLOOD EELATION- SHIP 164. Relationship is of three kinds blood re- lationship or consanguinity, spiritual relationship, and legal relationship. CONSANGUINITY 167 Consanguinity is the bond that unites persons of the same blood, i.e., persons who descend from one common stock or one from the other within certain limits. The stipes, stock, is the person from whom the related parties descend; the line is the series of persons who come from the same stock. It is direct when the persons descend one from the other; it is called collateral, transversal, oblique, when the per- sons descend, not one from the other, but all from one common stock two cousins are related in the collateral line. In that case there are two series of persons, one on each side of the common stock. If James and John are second cousins, there is a series of persons or line connecting James, and another connecting John with their great-grandfather, who is the common stock. The lines may be equal or un- equal. The degree is the measure of the distance between the persons who are related to one another. 2. DETERMINATION AND MULTIPLICATION OF BLOOD RELATIONSHIPS Lib. II, De Personis, Can. 96. i. Consangui- nitas computatur per lineas et gradus. 2. In linea recta, tot sunt gradus quot gencra- tiones, seu quot personae, stipite dempto. 3. In linea obliqua, si tractus uterque sit aequ- alis, tot sunt gradus quot generationes in uno tractu lineae: si duo tractus sint inaequales, tot gradus quot generationes in tractu longiore. 165. 1. Consanguinity is computed by lines and degrees. 168 DIRIMENT IMPEDIMENTS $ 2. In the direct line there are as many de- grees as there are generations, or as there are persons, not counting the common stock. 3. In the collateral line, if both sides of the line are equal, there are as many degrees as there are generations on one side; if they are unequal there are as many degrees as there are generations on the longer side. (a) Determination of relationships. To define a relationship it is necessary to state whether it is in the direct or oblique line, simple or multiplex, and in what degree. The degree is determined by the num- ber of generations or of persons forming the line. In the direct line there are as many degrees as there are persons, not including the common stock, or as many degrees as there are generations grandfather and grandchild are in the second degree. In the collateral line, according to the way of reckoning of the Eoman law, of modern civil law, and also of the Eastern Church, there are as many degrees as there are generations, or as there are per- sons, on both sides of the line, the common stock not included thus, second cousins would be in the sixth degree. According to the Teutonic way of reckoning, adopted by the canon law of the Latin Church, there are as many degrees as there are generations on one side, or as there are generations between one of the parties and the common stock, or as there are persons on one side of the line, not including the common stock; and if the two sides of the line are unequal it is the longer one which determines the distance of CONSANGUINITY 169 relationship. However, in those cases the Roman Curia usually demands that the distance on either side be indicated. Thus, between uncle and niece the distance is of two degrees on one side and one on the other; this is expressed by stating that they are in the second degree of the collateral line mixed with the first or joining the first, iangente primum. 166. (&) Multiplication of relationships. When- ever two persons descend from several common stocks, there are between them several relationships, they derive common blood from several sources. Under the former law, even when there was only one com- mon stock there were several relationships if the parties were connected with it in several ways, or through different lines the common blood reaching the parties through several channels. This may happen when parties have contracted marriage with relations, or when a person would marry successively two parties related among themselves, or when two parties related among themselves marry parties who on their side are related among themselves. The children in those cases are liable to be connected in several ways to the same persons. Under the present law there are several relationships only when there are several common stocks. II. THE IMPEDIMENT A. Ancient Discipline 167. The Mosaic law commanded Israelites to marry within their own tribe and kindred (Num. xxxvi., 7, 8) ; at the same time it forbade any 170 DIRIMENT IMPEDIMENTS man to "approach her that is near of kin to him," and specified that marriage is prohibited between parents or grandparents and their children or grand- children, between brothers and sisters, aunts and nephews (Lev. xviii, 6-20). Nothing is added to that legislation in the New Testament. The ancient Eoman law seems to have forbidden marriage be- tween relatives generally, but this was too severe and did not last long. Under the emperors, marriage was forbidden in the direct line indefinitely and in the collateral line to the third degree according to the Roman way of reckoning, i.e., between brothers and sisters, nephews and aunts, but not between first cousins. The Church, growing up in the Roman empire, accepted the provisions of the Mosaic and Roman laws without adding any prescriptions of her own for a long time. It is only in the fourth and fifth cen- turies that we find indications of an independent can- onical legislation. Christian sentiment, however, was against marriages between near relatives, and the tendency grew stronger and stronger to apply more severely the prohibitions of Leviticus. St. Augus- tine saw in this a means of fostering a spirit of char- ity and multiplying the bonds of friendship. 168. After the fall of the Western empire the Councils took the matter in hand more and more. In the sixth century they _extended the impediment of consanguinity to the sixth degree according to the Roman way of reckoning. (Clermont, 535, c. 10). Some time after, it was extended to the seventh, be- cause Leviticus forbids marriage between relations, CONSANGUINITY 171 and relationship in Roman law, when it is question of successions, extends to the seventh degree. (Rome, 721, c. 8, 9.) In. the course of the eighth and ninth centuries, the Church, brought into close contact with the Germanic races, adopted their way of counting the impediments. About the same time, under the influence of circumstances which are imperfectly known, custom and popular practice extended the im- pediment to the seventh degree according to the Ger- manic way of counting, which would be the four- teenth according to the Roman way. That discipline was not introduced without difficulty nor did it meet everywhere with the same success, but in the begin- ning of the twelfth century it is spoken of as the common law. Probably the impediment was not a diriment one to the remotest degree, but even so it extended too far; and the Lateran Council, in 1215, limited it to the fourth degree in the collateral line. The Lateran law remained in force to our own times. Several of the Fathers at the Council of Trent asked that the impediment be reduced to the third degree ; the same desire was expressed in the Vatican Council without any change being obtained. Dispensations from the fourth and third degree had become very frequent and it was felt that there was not, at the present time, the same social reason for the impedi- ment as existed in the Middle Ages, when communi- cations were so difficult and relations so limited; hence it has been decided to reduce it to the third degree. 172 DIRIMENT IMPEDIMENTS B. Present Discipline Can. 1076. 1. In linea recta consanguinitatis matrimonium irritum est inter omnes ascendentes et descendentes turn legitimos turn naturales. 2. In linea collateral! irritum est usque ad ter- tium gradum inclusive, ita tamen ut matrimonii impedimentum toties tantum multiplicetur quoties communis stipes multiplicatur. 3. Nunquam matrimonium permittatur, si quod subsit dubium num partes sint consanguineae in aliquo gradu lineae rectae aut in primo gradu lineae collateralis. 169. 1. In the direct line consanguinity in- validates marriage between all ascendants and descendants, whether legitimate or natural. 2. In the collateral line marriage is invalid to the third degree inclusively, but the impedi- ment is multiplied only with the multiplication of the common stock. 3. Marriage shall never be permitted when there is a doubt that the parties are related in some degree of the direct line or in the first degree of the collateral line. 1. EXTENT OF THE IMPEDIMENT In the direct line marriage remains forbidden in all degrees of relationship,, and this by the natural law itself at least more probably. In the collateral line the impediment extends only to the third degree, to second cousins not to third cousins, as it did before. We are thus going back to the discipline of CONSANGUINITY 173 the early Church. The legislation which reached the highest point of severity in the twelfth century has gradually become more lenient. 2. DISPENSATION FROM THE IMPEDIMENT 170. Dispensation may be obtained from the third and second degree in the collateral line, or the second mixed with the first, between first cousins or between uncle and niece. The first degree in the direct line is certainly, the others are probably, im- pediments of the natural law, as well as the first de- gree in the collateral line; and for that reason the Church never gives a dispensation from those im- pediments. If a marriage had been contracted with such an impediment v.g., between brother and sister, as may happen among pagans or in cases of illegitimate re- lationship it is probable that the marriage could not be revalidated ; but it would also be probable that, if both parties are unbaptized, it is valid ; and, there- fore, no other marriage is permissible. In practice, if the impediment is public, the parties ought to be separated, at least to avoid scandal. In any case, to permit them to remain together it would be necessary to refer the matter to Rome; and likewise to allow a new marriage, unless the former one had been dis- solved by the application of the Pauline Privilege or by Papal dispensation. What has been said suffices to show how far un- baptized persons are bound by the impediment of consanguinity. Civil codes have the same impedi- 174 DIRIMENT IMPEDIMENTS ment, but usually it does not go beyond the third Koman degree. X. AFFINITY A. Former Discipline 171. (a) The law of Moses prohibited marriage between a man and his daughter or grand-daughter- in-law, between a man and his deceased brother's widow or the widow of his father's brother. (Lev. xviii, 8-18; xx. 20.) Under the Koman law, affinity was an impediment only in the direct line, and, moreover, it arose not from carnal intercourse but from marriage as such. (Wernz, n. 429; Esmein, v. i., p. 375.) (6) There is no record of any ecclesiastical legis- lation on this point during the first centuries. The Church conformed to the civil prescriptions and also probably to those of the Mosaic law, because they were in conformity with the demands of the natural law. When St. Basil the Great forbade a man to marry the sister of his deceased wife, to those who objected to his ruling he answered that this had always been the law at Ceesarea. Several particular Councils successively sanctioned that law. In the sixth and seventh centuries the impediment of affinity began to extend beyond the Mosaic regulations; but so far it continued to arise as in the Roman law from true marriage as such. Oniy about the eighth cen- turies did affinity come to be looked upon as the result of carnal intercourse, licit or illicit, on the principle laid down by St Augustine and by St. Paul AFFINITY 175 himself (1 Cor. vi, 16) that sexual relations make parties one flesh. Then, following the same develop- ment as that of consanguinity, the impediment of affinity was extended by custom as far as the seventh degree. 172. (c) Moreover, to the affinity which exists be- tween a person and the blood relations of the one with whom he or she had intercourse, was added a second kind which existed between one party and the relations by marriage of the other ; and a third kind existing between the blood relations of one of the parties and the blood relations of the other ; and even a fourth kind existing between the kin of a first hus- band and the children born of a. second marriage. The Fourth Later an Council (c. 50 ; c. 8, x, tit. xiv.) maintained only the first kind of affinity as defined above, and reduced it to the fourth degree, at least in the collateral line, without making any distinction between licit and illicit affinity. (d) The Council of Trent further reduced the im- pediment of illicit affinity to the second degree in the collateral line; in the direct line, affinity, whether licit or illicit, continued to extend to the fourth de- gree and, some say, indefinitely. There was no more change in the legislation down to the present day. In the Vatican Council some Bishops asked that the impediment of illicit affinity be abolished altogether, and that of licit affinity be limited to the first degree. Others asked only that one be limited to the first, the other to the second or third. Those desires are now satisfied, at least in part. 176 DIRIMENT IMPEDIMENTS B. Present Discipline I. NATUEE OF THE IMPEDIMENT 173. As for consanguinity, it is in the introduc- tory canons of the second book, De Personis, that we find the definition of affinity and the rules for its determination. Can. 97. 1. Affinitas oritur ex matrimonio va- lido sive rato tantum sive rato et consummato. 2. Viget inter virum dumtaxat et consangui- neos mulieris, itemque mulierem inter et viri con- sanguineos. 3. Ita computatur ut qui sunt consanguine! viri, iidem in eadem linea et gradu sunt affines mu- lieris, et vice versa. 174. 1. Affinity arises from valid marriage, whether ratified only or ratified and consum- mated. 2. It exists only between the man and the blood relations of the woman, and likewise be- tween the woman and the blood relations of the man. 3. It is reckoned in this wise that the blood relations of the man are related to the woman by affinity in the same line and the same degree, and vice versa. 1. The present law brings back the original con- ception of affinity, for which only valid marriage was considered, not carnal relations. Henceforth affinity will be produced by every marriage provided jt be valid, even though not consummated; but it is AFFINITY 177 not produced by any carnal relations outside of mar- riage and there will be no question any more of illicit affinity. 2. As has been the case since the Lateran Council, there is only one form of affinity, and the principle still holds: Affinitas non parit affinitatem. It does not exist, for example, between the brother of the wife and the sister of the husband. 3. The husband and wife are considered as one flesh, so that the relations of the husband are related by affinity to his wife in the same manner as they are related to him by blood. H. EXTENT AND MULTIPLICATION OP THE IMPEDI- MENT Can. 1077. 1. Affinitas in linea recta dirimit matrimonium in quolibet gradu; in linea collateral! usque ad secundum gradum inclusive. 2. Affinitatis impedimentum multiplicatur: 1. Quoties multiplicatur impedimentum consan- guinitatis a quo procedit ; 2. Iterate successive matrimonio cum consangui- neo conjugis defuncti. 175. 1. Affinity in the direct line annuls marriage in any degree; in the collateral line it annuls it to the second degree inclusively. 2. The impediment of affinity is multiplied : 1. Whenever the impediment of consanguin- ity from which it proceeds is multiplied. 2. By successive marriages with blood rela- tions of the deceased spouse. 178 DIRIMENT IMPEDIMENTS 1. It is now certain that affinity invalidates mar- riage in all the degrees of the direct line ; in the col- lateral line it invalidates in the first and second de- grees, not in the third or fourth, as was the case up to the present. 2. There are only two causes of multiplication of affinity under the present discipline : (a) Multiplication of relationship ; thus when the husband is related by blood in two ways to a certain person, the wife is related by affinity to that same person in two ways also. (6) Successive marriages; if a man married suc- cessively two sisters he would contract a twofold im- pediment of affinity with a third sister. IH. DISPENSATION FEOM THE IMPEDIMENT 176. Under the former legislation dispensation from the impediment of affinity was usually not granted in the first degree of the direct legitimate line. Some canonists even maintained that dispen- sation could not be granted in that degree ; in reality it was granted, very rarely, but still a few times. (S. Poen., Dec., 1911 ; N. R. T., 1912, p. 528.) This is sufficient to prove that the impediment of affinity is purely ecclesastical in all its forms and degrees, and therefore not binding on the unbaptized ; at least as long as they remain unbaptized, for if they become Christians they have the impediment. The same principles hold under the new law. PUBLIC DECENCY 179 XL PUBLIC DECENCY A. Former Discipline 177. The Roman law forbade the son to marry the betrothed of his father, and the father to marry the betrothed of his son. Still, it is doubtful if we have to look here for the origin of the canonical impedi- ment. Its sources are obscure and difficult to trace. It is unknown to writers of the ninth century like Hinkmar of Eheims and Benedict the Levite. (Wernz, n. 48; Esmein, vol. i, p. 146.) It is posi- tively rejected by the author of a decretal ascribed to Pope Benedict. (C. 18, c. xxvii; q. 2.) Other texts, on the contrary, which are inserted in the Decretum and ascribed, some to St. Gregory the Great, others to a Council of Rome (c. 11, 14, 15 ; c. xxvii, q. 2), clearly show the existence of the impedi- ment at the time the decree was compiled; for, al- though their origin be uncertain, they represent the discipline of the Church in the eleventh and the twelfth century. At first, the impediment of public decency was not clearly distinguished from that of affinity. It was recognized that the union existing between husband and wife establishes such close relations between the husband and his wife's kin that it seemed unbecom- ing and dangerous for morality to permit marriage between them. But for some that union was com- plete only when the mai-riage was consummated ; for others it existed substantially as soon as the marriage was contracted ; and for others, again, the contract of betrothment, which was then generally celebrated 180 DIRIMENT IMPEDIMENTS with so much solemnity, had almost the same effects as marriage itself. When it was settled that affinity was produced by the consummation of marriage or carnal intercourse, public decency could become a distinct impediment, arising from the contract of marriage or of betroth- ment as such. Its foundation was the union of wills implied in the mutual consent which made the parties morally one and hence bound each one to the blood relations of the other, thus making marriage between them unbecoming. This development in the theory of the impediment was reached in the twelfth century. It remained to define its conditions and extent. Some texts would seem to imply that it existed between the husband and all the blood relations of the wife and vice versa; and that it admitted of the same forms as affinity itself. The Fourth Lateran Council limited it in the same manner as affinity. The Council of Lyons, in 1274, threatened to go further and even to suppress the impediment alto- gether. The question came up again in the Council of Trent. Boniface VIII had decreed that the impedi- ment would not arise from betrothals that would be uncertain, conditional, or null for want of consent. (C. unicum, in Sexto, IV, 1.) The Council decided that invalid betrothment, whatever the reason for the nullity, would not produce the impediment, and that from valid betrothment would arise an impediment only in the first degree. The impediment arising from ratified marriage continued to extend to the PUBLIC DECENCY 181 fourth degree, and it continued also to be produced by invalid marriage as long as the nullity was not due to want of consent. The change introduced by the new law in the con- cept of affinity implied a change also in the concept of public decency. B. Present Discipline Can. 1078. Impedimentum publicae honestatis oritur ex matrimonio invalido, sive consummate sive non, et ex publico vel notorio concubinatu; et nuptias dirimit in primo et secundo gradu lineae rectae inter virum et consanguineas mulieris, ac vice versa. 178. The impediment of public decency arises from invalid marriage, whether consummated or not, and from public or notorious concubi- nage; and it annuls marriage in the first and second degree of the direct line between the man and the blood relations of the woman and vice versa. 1. Betrothals produce no canonical impediment, at present ; valid marriage, which produced formerly the impediment of public decency when it was only ratified, now produces the impediment of affinity. Public decency now arises from two causes : (a) From invalid marriage. Even if consum- mated, invalid marriage produces the impediment, not of affinity, as before, but only of public decency. It does not make any difference what the cause of the nullity was, except that there must have been an 182 DIRIMENT IMPEDIMENTS attempt at marriage, the contract although invalid must have the figura matrimonii in the sense ex- plained before. (fe) From public or notorious concubinage. Occa- sional sexual relations do not produce the impedi- ment, either of affinity, as they did formerly, or of public decency. Even concubinage, to produce the impediment, has under the present law to be public or notorious. A purely civil contract of marriage constitutes a state of public concubinage. 179. 2. The impediment of public decency is com- puted like that of affinity, and exists between the man and the blood relations of the woman and vice versa ; it does not extend to the relations by marriage or to the affines. Henceforth it will annul marriage only in the direct line, and even in this it is limited to the first and second degrees. A man can not marry validly the daughter or granddaughter of the woman with whom he has contracted an invalid marriage or lived in public concubinage, but he can marry her sister. XII. SPIRITUAL RELATIONSHIP A. Origin of the Impediment 180. (a) Baptism being a new birth, Christians, from the beginning, looked upon those from whom they had received that sacrament as spiritual parents. This spiritual paternity was little by little extended to the sponsors and to those who had assisted in the preparation of the catechumens ; then to the ministers SPIRITUAL RELATIONSHIP 183 and sponsors in the sacrament of Confirmation, which completes Baptism; and also, according to some, to the minister of the sacrament of Penance. This was the paternitas and maternitas spiritualis, to which was added the compaternitas or commatemltas, direct or indirect ; i.e., the spiritual relationship between the sponsors and the parents of the baptized person or between the baptized person and the husband or wife of the sponsor; then the confratemitas or relation- ship between the baptized person and the children of the spiritual father or mother. Once those relation- ships were admitted, it was natural that they should be considered as impediments to marriage. 181. (6) The Council in Trullo in 692 prohibited marriage between the compatres and the commatres; the Council of Rome in 721 enacted the same ordin- ance, and gradually the other forms of spiritual re- lationship became impediments also. When the cus- tom had been introduced of having several sponsors at Baptism, the impediments of spiritual relationship became so numerous that the need of a reform was felt by all. It was effected by the Council of Trent. 182. (c) The Council of Trent decreed (1) that there should not be more than one godfather and one godmother for each baptism or confirmation; (2) that the fraternitas and the compaternitas indirecta were abrogated. There remained an impediment of spiritual relationship (1) between the minister of the sacraments of Baptism or Confirmation and the sponsors on one side, and the person baptized or con- firmed on the other; (2) between the minister and sponsors on the one side and the parents, legitimate 184 DIRIMENT IMPEDIMENTS or illegitimate, of the baptized or confirmed party on the other. The conditions for contracting the impediment are (1) that Baptism or Confirmation be valid; (2) that the sponsors have the intention of acting as such; (3) that they, personally or by proxy, touch physic- ally the person baptized or confirmed at the moment the sacrament is administered; (3) that they be not legitimately rejected by the Bishop or pastor ; (5) that they be baptized, or confirmed for Confirmation. This law had been in force to the present time. (Tan- querey, n. 1097.) B. Present Discipline Can. 1079. Ea tantum spiritualis cognatio matri- monium irritat, de qua in can. 768. 183. Only that spiritual relationship annuls marriage which is mentioned in can. 768. (It arises only from Baptism and exists between the baptized person and the minister, the bap- tized person and the sponsor.) No longer does any impediment of spiritual rela- tionship arise from Confirmation. That which arises from Baptism is restricted to the paternitas, the compatemitas being abolished ; i.e., it exists only be- tween the baptized person on one side, the minister and the sponsor on the other. The conditions for contracting the impediment re- main the same; there is no serious doubt that it is produced by private as well as by solemn Baptism. LEGAL RELATIONSHIP 185 XIII. LEGAL RELATIONSHIP A. Origin of the Impediment 184. Legal relationship arises from the act of adoption, sanctioned at law, by which a person re- ceives as his child one who is not so by nature. Roman law recognized and regulated adoption and made it an impediment: (1) Between the adopter and the adopted and the descendants of the latter who were under his authority at the time of the adoption this was by way of quasi-paternity, and the impedi- ment continued even after emancipation or the dis- solution of the adoption; (2) between the adopted and the children of the adopter, by way of quasi-fra- ternity; (3) between the adopted and the adopter's wife and between the adopter and the adopted's wife. The Church accepted these provisions of the Roman law at least substantially and gave them canonical force. "The intimacy consequent upon these legal relations was recognized as ample ground for placing a bar on the hope of marriage, out of respect for public propriety, and in order to safeguard the morals of those brought into such close relations." But in countries which were not under the Roman law or where the Roman law had been modified in a notable manner, the question arose whether there ex- isted the impediment of legal relationship. The answer was that whenever the substantial elements of the Roman adoption law are retained in the new legislations the Church recognizes this relationship as a diriment impediment. Hence a new difficulty. There were in Roman law, since the time of Justin- 186 DIRIMENT IMPEDIMENTS ian, two kinds of adoption, the perfect and the im- perfect adoption. The essential effect of the perfect adoption was that it placed the adopted under the control of the adopter whose name he took, made him a member of his family and his necessary heir. By imperfect adoption the adopted did not come into the family. Many canonists had maintained that only perfect adoption gave rise to a marriage impedi- ment; others that imperfect adoption had the same effect. The new law removes all doubts. B. Present Legislation Can. 1080. Qui lege civili inhabiles ad nuptias in- ter se ineundas habentur ob cognationem legalem ex adoptione ortam, nequeunt vi juris canonici matri- monium inter se valide contrahere. 185. Those whom the civil law considers as unable to marry one another, because of the legal relationship arising from adoption, are, by canon law, incapable of contracting marriage validly. We have seen before that wherever legal relation- ship renders a marriage unlawful by civil law, the marriage is forbidden by ecclesiastical law. Here it is enacted that if the law of the country considers legal relationship as an obstacle to the validity of the marriage contract, that same relationship constitutes, by canon law, a diriment impediment to marriage. The Church, therefore, now gives canonical value to the prescriptions of modern legislations on that point, LEGAL RELATIONSHIP 187 as formerly she gave canonical value to the prescrip- tions of the Roman law. To determine on what conditions the impediment of legal relationship is produced and how far it ex- tends, the laws of the country will have to be con- sulted. CHAPTER V OF THE MATRIMONIAL CONSENT I. THE CONSENT ITSELF: ITS IMPOR- TANCE AND QUALITIES Can. 1081. 1. Matrimonium facit partium con- sensus inter personas jure habiles legitime manifes- tatus; qui nulla humana potestate suppler! valet. 2. Consensus matrimonialis est actus voluntatis quo utraque pars tradit et acceptat jus in corpus, perpetuum et exclusivum, in ordine ad actus per se aptos ad prolis generationem. 186. 1. Marriage is constituted by the duly manifested consent of persons juridically able to marry; which consent can not be supplied by any human power. 2. The marriage consent is an act of the will by which each party gives and accepts a perpetual and exclusive right over the body for the exercise of acts suitable of themselves for the procreation of children. 187. 1. (a) Two different theories of marriage were in vogue for some time in the schools. For Gratian and the school of Bologna, marriage is be- gun by consent, but it becomes complete, indissoluble, and a sacrament only when it is consummated. For Peter Lombard and the school of Paris, marriage contracted by mutual consent alone is a true and 189 190 THE MATRIMONIAL CONSENT complete marriage, absolutely indissoluble, and, be- tween Christians, a sacrament. This second theory had the support of early Christian writers, received the approval of Sovereign Pontiffs, particularly of Alexander III, and soon prevailed. It was conceded, however, to the first theory that, whilst non-consum- mated marriage is a complete marriage and a sacra- ment, yet it is not absolutely indissoluble. This Duality belongs fully to the marriage ratified and consummated. Thus mutual consent is sufficient to constitute marriage in its essence; consummation adds an accidental perfection and more absolute in- dissolubility. (Gasparri, n. 770; De Smet, n. 59.) 188. (6) To have such efficacy, consent must be given by persons who are not prevented by any law from contracting marriage; and since it must be mutual, and, among Christians, sacramental, it must be known to both parties, and manifested outwardly and legitimately ; i.e., in the form prescribed, if there is one. (c) Consent, sufficient in itself, is so necessary that while "in a civil contract the absence of consent may sometimes, for certain reasons, be supplied by the law, no human power can do this in the case of marriage." (Pius VI, July 11, 1789.) "It can not be supplied by paternal authority or by the supreme authority of the Church or of the State ; for it belongs exclusively to the bride and bridegroom to transfer to each other ownership of their bodies, and to take upon themselves the yoke of marriage." 189. 2. The marriage consent is an act of the will with a definite, specific object, OBSTACLES TO VALID CONSENT 191 (a) The act of the will must really exist, actually or virtually, not in a merely interpretative manner. It is the act of the will that constitutes the contract. Acts of the intellect, dispositions of mind, opinions, errors of judgment, are considered only in so far as they affect the act of the will. (6) The consent is a mutual one. (c) The essential object of the consent is a right over each other's body with a view to certain specific acts. (d) That right must be granted and accepted as perpetual and exclusive. II. OBSTACLES TO VALID CONSENT: IGNORANCE, ERROR, SIMULATION, VIOLENCE, OR FEAR 1. IGNORANCE Can. 1082. 1. Ut matrimonialis consensus ha- beri possit, necesse est ut contrahentes saltern non ignorent matrimonium esse societatem permanen- tem inter virum et mulierem ad filios procreandos. 2. Haec ignorantia post pubertatem non prae- sumitur. 190. 1. In order that matrimonial consent be possible it is necessary that the contracting parties at least be not lacking in the knowledge that marriage is the permanent union of man and woman for the procreation of children. 2. Such ignorance is not presumed in those who have attained the age of puberty. 1. We can not consent to what we do not know; the marriage consent is not possible without some. 192 THE MATRIMONIAL CONSENT at least confused, knowledge of what constitutes the essential object of the marriage contract; and this is the mutual right and obligation to the conjugal act: Jus in corpora in ordine ad actus de se aptos ad gen- erationem prolis. Hence a person who would marry without having any idea of that right and obligation would not marry validly. Clear and explicit knowl- edge is not necessary. If one, knowing that the pur- pose of marriage is the procreation of children, would enter the contract with that in view and would con- sent to all it implies, although having no distinct idea of what is required for generation, there would be confused knowledge of, and consent to, what consti- tutes the essential object of the contract, and the mar- riage would be valid; even if the party was so dis- posed that if he knew what the act of generation really is, he would not give his consent. But at least that confused knowledge of the substantial object of the contract is necessary. 191. 2. Ignorance of the primary purpose of mar- riage is easily admitted in children. In the ancient legislation it was always presumed before the age of puberty ; after' that age, on the contrary, knowledge is presumed. The presumption admits of proofs to the contrary, but it would require strong evidence to ob- tain the annulment of a marriage on the ground of ignorance in a person of age to marry. Frequently in such cases the Congregations find the evidence in- sufficient, but it is possible to obtain a dispensation super matrimonium ratum et non consummatum. (A. S. S., v., p. 555.) OBSTACLES TO VALID CONSENT 193 2. EREOR 192. In relation to marriage, error may be of fact or of right. Error of fact is error about the person with whom the contract is made or about his qualities. Error of right may be about the nature, the proper- ties, the sacramental character, or the validity of the marriage. Error is called concomitant when it has no real influence on the consent, so that even if the error had not existed the consent would have been given. It is called antecedent when it has such influence that if the truth had been known the consent would have been withheld; the error is then said to be giving cause to the contract, dans causam contractui. That disposition of a person who would be averse to giving consent if such or such was known, is called an interpretative will. It is not an actual reality and does not affect the validity of marriage. What has to be considered is not what would have been done if such a fact had been known, but what has been done in reality. A. Error of Fact as to Person or Quality Can. 1083. 1. Error circa personam invalidum reddit matrimonium. 2. Error circa qualitatem personae, etsi det cau- sam contractui, matrimonium irritat tantum: 1. Si error qualitatis redundet in errorem per- sonae ; 2. Si persona libera matrimonium contrahat cum persona quam liberam putat, cum contra sit serva, servitute proprie dicta, 194 THE MATRIMONIAL CONSENT 193. 1. Error about the person renders a marriage invalid. 2. Error about the quality of the person, even if it is cause of the contract, invalidates marriage only: 1. When the error about the quality amounts to an error about the person. 2. If a free person marries one whom he believes to be free also, but who, on the con- trary, is in a state of servitude properly so called. 194. 1. An error of person does not necessarily invalidate the other sacraments, nor other contracts generally, but as the object of the marriage contract is the very person of the contracting parties, an error on this point is an error about the essential object of the consent and must therefore substantially vitiate it. This will be true whatever the cause of the error and even if it was merely concomitant. N. gives his consent to marry M. ; the person who accepts the consent and gives hers in return is S. The marriage is null even if N. would be just as willing to marry S. The consent is in reality given to M. ; there is no agreement of the contracting parties on the same object. If N. would give his consent to the person here present, falsely thinking it is M., the contract would be valid; the error here is about a quality, not the person. 195. 2. Error about the qualities of the other con- tracting party does not, as a rule, invalidate the con- tract; because for the validity of the contract it is OBSTACLES TO VALID CONSENT 195 sufficient to have what constitutes the essential object of the consent, and in marriage the essential object of the consent is the person; the qualities are some- thing accidental in themselves, very important some- times, still accidental. Neither does it matter whether the error is antecedent or merely concomi- tant, whether the consent would have been refused had the truth been known. In reality, the consent was not refused and the contract was made. Some ancient canonists, like Pontius and Ledesma, hesitated to admit that conclusion, but, in modern times particu- larly, it was universally received, the Roman Congre- gations applied it in their decisions, and now it has the official sanction of the law. 196. The two exceptions to the rule are in reality no exception. Error about the quality invalidates the contract: (a) When it amounts to an error about the person, when it is really an error about the person, because the quality serves to identify the person. N. intends to marry the second daughter of P., otherwise un- known to him ; the person present is the third daugh- ter. The marriage is null because the consent was given to the second. If the consent had been given to the person here present, the marriage would be valid. More naturally, it is in this last sense that the contract is made; and it is always so when the party is known. In case of doubt the presumption is in favor of the validity of marriage. (Qasparri, n. 785.) 197. (6) Error as to the servile condition of the other party renders marriage invalid by a special 196 THE MATRIMONIAL CONSENT provision of the ecclesiastical law on three conditions : (1) that one of the contracting parties is free, the other a slave; (2) that this servile condition is not known to the free party at the time of the marriage ; (3) and that this state of servitude is not simply serfdom, but slavery properly so called. Canonists, after the Decretals, treat of servile con- dition as a distinct impediment because it was so originally. It rendered the slave unable to contract marriage with any free person. Later on, marriage was declared null only when the free party did not know of the servile condition of the other. Finally, the impediment ceased to be one of incapacity on the part of the slave and became one of error affecting the consent of the free party. It is an ecclesiastical im- pediment not incurred, therefore, by the unbaptized. It is not a relative impediment if the free party is not baptized it does not exist. B. Error of Law as to the Properties of Marriage Can. 1084. Simplex error circa matrimonii uni- tatem vel indissolubilitatem aut sacramentalem dig- nitatem, etsi det causam contractui, non vitiat con- sensum matrimonialem. 198. A simple error as to the unity, indissolu- bility, or sacramental character of marriage, even if it be cause of the contract, does not vitiate the consent. Error as to the essential object of the contract viti- ates the consent, like ignorance. Error as to the es- sential properties does not, as long as it remains OBSTACLES TO VALID CONSENT 197 simply an error of the mind, whether antecedent or concomitant. Thus, a man who intends to form a real contract of marriage, although he does not be- lieve in its indissolubility or sacredness, will be mar- ried validly, provided he does not exclude those prop- erties by a positive act of his will, even though he would exclude them if he thought of it. His con- sent is directed expressly to the marriage contract and by way of consequence to the properties which are inseparable from it. His prevailing intention is to contract marriage; his views on the properties of marriage are errors in the mind which do not affect the primary object of the will. If, however, he would exclude those properties and make that exclu- sion the primary object of his will, this then would prevail over his intention of marrying and the con- sent would be vitiated, because one can not will mar- riage without willing an indissoluble union. But this requires more than a theoretical error; it sup- poses a positive act of the will, placing a condition, making consent depend on something else than the substantial element of the contract. That positive act is a fact which must be proved and is not pre- sumed. Hence the difficulty of annulling a marriage on the ground of error as to quality. (Gasparri, n. 792; De Smet, n. 261; Ami du Clerge, Oct. 18, 1906; A. A. S., 1910, pp. 584, 961; 1911, p. 497; 1915, June, p. 292. Canoniste Contemporain, Aout, 1915, p. 397.) 198 THE MATRIMONIAL CONSENT 3. KNOWLEDGE OR CONVICTION OF THE NULLITY OF THE MAEKIAGE Can. 1085. Scientia aut opinio nullitatis matri- monii consensum matrimonialem necessario non excludit. 199. The knowledge or thought that the mar- riage will be null does not necessarily exclude matrimonial consent. If a person, thinking or knowing that he can not he married validly, would, in consequence of that, go through the ceremony as a merely external per- formance or intending only to form a purely civil contract, he would not be giving a matrimonial con- sent; the marriage would be null even if it would happen that the supposed impediment would not ex- ist; and to revalidate it a new consent would be ab- solutely necessary. If, on the contrary, that same person intends to do what he can and gives his consent, come what may, his consent is a matrimonial consent; if there hap- pened to be no impediment, the marriage would be valid ; and, if the impediment existed, once it would be removed, the marriage might be revalidated with- out renewing the consent. The intention to form a real marriage contract is always presumed unless the contrary be proved. 4. FICTION 6B SIMILATION Can. 1086. 1. Internus animi consensus semper praesumitur conformis verbis vel signis in cele- brando matrimonio adhibitis. OBSTACLES TO VALID CONSENT 199 2. At si alterutra vel utraque pars positive vol- untatis actu excludat matrimonium ipsum, aut omne jus ad conjugalem actum, vel essentialem aliquam matrimonii proprietatem, invalide con- trahit. 200. 1. The internal consent of the will is always supposed to correspond to the words or signs used in the celebration of the marriage. 2. But if one of the parties, or both, would exclude, by a positive act of the will, marriage itself or all right to the conjugal act, or an es- sential property of marriage, the contract would be null. 1. When a contracting party utters externally and seriously words expressing consent, he is supposed to consent internally. His consent is supposed to be absolute if it is expressed absolutely. "Nobody is to be considered as having said what was not on his mind." This, however, is only a presumption, and if in reality the internal consent was wanting, no matter what the external words might have been, the contract would be null in itself and before God. 201. 2. There is simulation when a party pro- nounces words which express willingness to contract marriage while internally be has not that intention or even positively excludes it. There will also be simulation if the party intends to contract marriage but refuses to accept the essen- tial obligations thereof; if he excludes by a positive act of the will all obligation to the conjugal relations. There are in that case two acts of the will annulling 200 THE MATRIMONIAL CONSENT each other. The same is true of one who positively excludes the essential properties of marriage unity, indissolubility, and sacramental dignity. As mar- riage can not exist without them, the will excluding one of them annuls the will to contract marriage. Would the effect be the same if one was willing to assume the obligations of marriage, but had no in- tention of fulfilling them, or would expressly intend to abuse marriage, be unfaithful, prevent conception, procure abortion ? Such an intention would assuredly be criminal, but it is not included among those which render the marriage null, as being incompatible with true matrimonial consent. Canonists find a differ- ence between an intention contrary to the indissolu- bility of the bond or the good of the sacrament and an intention contrary to the good of fidelity or of the offspring. The latter does not annul the marriage unless it has been set down as a pact, because fidelity and the good of the offspring do not belong to the con- tract itself, but rather to its use; they follow the contract already constituted in its essence. (Gas- parri, nn. 802, 803 ; Wernz, n. 302, note 44; A. A. S., Oct., 1914, Oregonopolitana, p. 516 ; June, 1915, Neo-Eboracensis, p. 292 seq. ; Canoniste Contempor- ain, Oct., 1914, p. 592; Aout, 1915, p. 397.) 202. (3) Simulation is difficult to prove, (a) The testimony, even on oath, of the interested party can not be a sufficient proof, for "it is not proper to take his own word to destroy the value of his own testimony." Neither will the sworn testimony of the two contracting parties suffice, for the simulation of one is of itself unknown to the other. The Glossa OBSTACLES TO VALID CONSENT 201 says that "should a man protest beforehand that, whatever he maj affirm, he will not have the inten- tion of contracting marriage, if he would afterward say publicly, 'I consent/ the marriage would be valid, for he might in the meantime have withdrawn from the original intention; and should he declare that he was still in the same intention at the time of the contract, he is not to be believed, because the inter- pretation is to be made against the person who uses guile." This should not be understood as meaning that the proof of simulation is impossible. There are examples of marriages declared null by the Roman Congregations because of want of internal consent. (Parisiensis, March 7, 1885 ; A. S. S., xviii, p. 14; Massiliensis, June 1, 1911; A. A. S., iii, p. 525; Gasparri, n. 800.) (6) To prove simulation it is necessary, in the first place, to assign a cause which could satisfactorily account for it and render it not unlikely. Then the fact itself of the simulation has to be confirmed by conjectures arising from the circumstances ante- cedent, concomitant, and consequent of the mar- riage. (Gasparri, n. 798.) If almost immediately after the ceremony a man would declare that he did not consent, would abandon his wife, this would create a strong presumption that the consent was simulated. When the proof will be really conclusive is for a prudent man to decide in each case. If there remains a serious doubt, the presumption is for the validity of the marriage. (c) When it is alleged that the properties of mar- riage were excluded, it is necessary to prove that this 202 THE MATRIMONIAL CONSENT was done by a positive act of the will and not in a merely interpretative manner; that there was a real act of the will, not a simple error of the mind. In case of doubt, it is presumed that the intention of marrying prevailed. Likewise, it is presumed that a party had only the intention of violating his obli- gations when it is not clearly proved that he did not intend to assume them. (d) Thus, there may be conflict between the in- ternal and the external forum. It may be quite cer- tain for the parties or for the confessor that a mar- riage is null for want of consent, and yet it may be impossible to prove it to the satisfaction of the ec- clesiastical judge. A second marriage can not be permitted ; cohabitation is obligatory and at the same time conjugal relations remain unlawful. The only remedy then is for the party who was guilty of simulation to give now a real consent, so that the marriage be valid. As the nullity is occult, the con- sent may be given privately; cohabitation, animo maritali, will suffice, provided the consent of the other party perseveres. (e) The conflict would be more serious if the man who simulated consent had afterwards, being really free, contracted a valid marriage with another wo- man. In the external forum the first woman would be considered his legitimate wife ; he would be bound to live with her and forbidden to have any relations with the second one. In conscience, before God, the second woman would be his real wife and there would be no possibility of revalidating the first marriage. 5. VIOLENCE AND FEAR Can. 1087. 1. Invalidum quoque est matrimon- ium initum ob vim vel metum gravem ab extrinseco et in juste incussum, a quo ut quis se liberet, eligere cogatur matrimonium. 2. Nullus alius metus, etiamsi det causam con- tractui, matrimonii nullitatem secumfert. 203. 1. Marriage is null also when it is con- tracted because of violence or grave fear, caused by an external agent, unjustly, to free himself from which, one is compelled to choose marriage. 2. No other fear, even if it would give cause to the contract, entails the nullity of marriage. 1. Violence is defined, "the onset of force too great to be resisted," and fear, "a perturbation of mind arising from present or future danger." "Vio- lence" and "fear" are correlative terms., like "cause" and "effect." "Violence is on the part of the one who inflicts the fear and is of an active nature; fear is on the part of the one who suffers the violence and is of a passive nature." On account, however, of their close relation and because what is true of one holds good of the other, violence and fear are often used as synonymous terms. Physical or absolute violence takes away all free- dom; if a man was made to nod his consent, mar- riage would be null, even though the internal con- sent really existed because its external expression would not be free. 204 THE MATRIMONIAL CONSENT Again, violence or the fear it causes may so per- turb the mind that a person does not know what he is doing. There would clearly be no freedom in a marriage contracted under the influence of such a fear. We are concerned here with moral violence, or with that fear which does not destroy all deliberation and freedom, but diminishes it; with that fear which, according to the words of the law, forces a person to choose marriage. There is some deliberation and freedom, since there is choice; there is not complete freedom, since the choice is forced. 204. 2. Does such fear render the marriage con- sent null even by natural law ? Many authors think it does, because, they argue, the marriage contract is of such a nature that it demands perfect freedom, on account of the heavy duties it imposes and the last- ing evils that result from forced unions. (Wernz, n. 267 ; Reiffenstuel, 1. i, t. 40, n. 47.) Many others maintain that, considering the natural law alone, a marriage contracted under the influence of heavy fear would, strictly speaking, habitually possess enough freedom to be valid; but they agree that much more is very desirable and that what is strictly sufficient in itself is not always so in practice. There- fore, the Church demands, even for the validity of the contract, freedom from grave fear. 205. 3. When the discipline of the Church on that point was definitely established is difficult to de- termine. In the Roman empire she found practices which she could but condemn princes disposing of OBSTACLES TO VALID CONSENT 205 their subjects for marriage against their will and the will of their parents. The same abuses continued or grew worse after the barbarian invasions. Many Councils condemned them (Orleans iv, 541, c. 22 ; Paris iii, 557, c. 6; Toledo iii, 589, c. 10), and decreed severe penalties against the offenders; and the more effectively to protect the freedom of mar- riages they gradually came to declare invalid those contracted through fear. This is clearly insinuated in an answer of Pope Nicholas to King Lothaire in 863, and expressly ordained by Pope Urban II, 1088-1099. Alexander III completed that legisla- tion which found its place in the Corpus Juris. The Council of Trent left it untouched and simply re- newed the ancient prohibitions, forbidding "all per- sons, of whatsoever dignity or condition, to employ constraint in any way whatever, whether directly or indirectly, against those subject to them, or against any other person, so as to prevent them from con- tracting marriage freely." (Wernz, n. 262 ; Esmein, ii, p. 255.) The present legislation maintains the ancient disci- pline, only defining a few points which had remained somewhat doubtful. 206. 4. Some conditions are required for fear to render the marriage contract invalid : (a) It must be grave, both in the external and in the internal forum. The fear is grave when it is capable of extorting a consent to marriage which would not otherwise be given. It has this effect when the evil which is feared is considered as serious and imminent. Some evils are grave absolutely for all men, with a few 206 THE MATRIMONIAL CONSENT possible exceptions, as loss of life, of freedom ; others are grave relatively, i.e., for some persons, not for others. The Church, in appreciating the gravity of fear in the external forum, takes into account the subjective element ; but a certain objective gravity is always required. If the evil causing the fear was absolutely light in itself, whatever the impression produced on the contracting party, the marriage would not be declared null. (A. A. S., vol. iv, p. 505.) The evil must be imminent, i.e., one which is threatening now and can not be easily avoided. If the one who makes the threats is not likely to carry them out, if they can be warded off without much difficulty, if the evil is feared only for a distant future, the fear is not considered as grave. But the fear might be grave although the threats be made only against one's own relatives or for the good of the party concerned. Does reverential fear constitute a grave fear ? If it is nothing more than the fear of offending, giving pain to, a person who is respected and loved, it is not a grave fear, nor reverential fear properly so called. If one would be afraid of incurring the anger of parents, superiors, etc., and their indignation would be likely to last for a long time, this, according to some canonists, would be sufficient to constitute grave fear. In practice, however, the fear would not be presumed to have been grave unless there be some attendant circumstances, like threats, blows, impor- tunate and insisting entreaties of parents. (Wernz, OBSTACLES TO VALID CONSENT 207 n. 264; Causa Colon., July 1, 1912; A. A. S., vol. iv, p. 671.) 207. (6) The fear must be unjust, caused by an external, free agent. The fear of disease, death, eternal punishment, would not fulfil those conditions. Injustice supposes violation of one's rights ; a man's rights would be violated in this matter if he was forced to contract a marriage which he is not obliged to contract, in justice; if he was forced by one who has no right to do so or by means which he has no right to use. In the last two cases the injustice ex- ists only quoad modum, as to the mode of procedure, and, according to some, this would not be sufficient, at least more probably, to annul the consent ; but others consider it as sufficient. (Gasparri, n. 820 ; Wernz, n. 265, note.) (c) Many canonists required as a third condition that the fear be inflicted for the purpose of extorting consent to marriage. This was not considered as necessary by such authorities as Schmalzgruber, 1. iv, tit. i, n. 398, or De Lugo, n. 175 ; and the present law does not demand it, either explicitly or implicitly. Nor is it required, as had been done by some canon- ists, that a person be forced to marry a certain party, but simply that he should be reduced to choose mar- riage in order to free himself from the fear. The legislator has taken care to add that no other fear than the one thus defined renders marriage null, even if it would give cause to the contract. We are not supposed to argue here from analogy, nor to ex- tend the effect of fear beyond the limits assigned to it by the law. The Church has power to determine 208 THE MATRIMONIAL CONSENT to what cases her laws will apply, and authority to interpret the natural law. 208. 5. To prove the nullity of a marriage on the ground of fear is ordinarily difficult, without, how- ever, being impossible. Presumptions, conjectures, and other circumstances may give moral certainty. Because, from the nature of the case, ordinary proofs must often be wanting, the Church accepts as wit- nesses persons who would not be admitted in other causes, like friends, relations, and parents of the petitioner. The testimony of the party concerned himself, if given under oath and confirmed by other circumstances, is accepted as evidence. (Gasparri, n. 219, 823; Wernz, n. 269.) To render the consent null, the fear must continue till the moment of the celebration of marriage ; if it has existed it is presumed to continue unless the con- trary be proved. (Gasparri, n. 807.) If the party had given the consent under the influ- ence of grave fear, wishing, as the lesser of two evils, that the marriage be valid, the law of the Church, if not the natural law, would annul the consent just the same, according to the common opinion. (Lehm- kuhl, Theologia Moralis, t. ii, n. 738; Gasparri, n. 807.) 209. 6. Freedom from grave fear is a condition for the validity of the consent from which the Church does not and perhaps can not dispense. Neither will prescription or prolonged^cohabitation, of themselves, validate a marriage contracted under those circum- stances, but only renewal of the consent after the fear has been removed and the party bag been made aware MANIFESTATION OF THE CONSENT 209 of the nullity of the first consent. (Causa Osnabru- censis, Jan. 11, 1912; A. A. S., vol. iv, p. 186.) That renewal may be made in secret if the fear was occult: Continuance of cohabitation will suffice for that. When the fear was public, the consent must be renewed in the form required for the celebration of marriage. Hence, when the fear is proved jurid- ically, the question is not even raised whether the marriage was not revalidated by several years of co- habitation, wherever the solemn form of marriage is necessary for the validity. (A. A. S., vol. iv, p. 115.) 210. 7. The right of challenging a marriage on the ground of violence and fear belongs exclusively to the one who has suffered the injustice; and, moreover, he would forfeit his right, according to an instruc- tion of June 20, 1883, if he had continued to cohabit, for a long time, without protesting when liberty and opportunity for doing so were not wanting. Numerous examples of marriages challenged on the ground of fear are found in the Acta Apostolicse Sedis. Cf. vol. ii, pp. 348, 886; vol. iii, pp. 244, 661 ; vol. iv, pp. 108, 646, etc. III. MANIFESTATION OF THE CONSENT Can. 1088. 1. Ad matrimonium valide contrahen- dum necesse est ut contrahentes sint praesentes sive per se ipsi sive per procuratorem. 2. Sponsi matrimonialem consensum exprimant verbis; nee aequipollentia signa adhibere ipsis licet, si loqui possint. 210 THE MATRIMONIAL CONSENT 211. 1. In order to contract marriage validly, it is necessary that the parties be pres- ent either personally or by proxy. 2. The spouses shall express the matri- monial consent by words; nor are they per- mitted to use equivalent signs when they are able to speak. 1. Before the Council of Trent and also, according to the common opinion, confirmed by several de- cisions of Congregations, under the discipline of the decrees Tametsi and Ne temere, marriage could be contracted by letter, although it was recommended not to permit such mode of proceeding without grave reasons. The present law rejects it altogether and makes the presence of the parties either personally or by proxy a condition for the validity of the con- tract. In marriages by letter it was difficult, al- though not impossible, to observe the formalities de- manded for the public celebration of marriage ; hence doubts and disputes would arise afterward. They will be avoided by obliging the parties to appear in person or send a representative, which can always easily be done. (A. A. S., April 30, 1910, p. 300 ; De Smet, n. 70 ; Nouvelle Revue Theologique, Aout, 1910, p. 460; Canoniste Contemporain, 1910, p. 366.) 212. 2. Innocent III, asked by a Bishop how the matrimonial consent should be expressed, answered that, for the Church, words were necessary. (IV, X, 1, c. 25.) From this some had concluded that there was a grave obligation to use words in contract- ing marriage; but others interpreted the Papal MARRIAGE BY PROXY 211 declaration as containing only a counsel. The Coun- cil of Trent did not decide the question, but the pres- ent canon clearly enunciates the obligation, explicitly stating that the equivalent signs, cequipollentia signa, which, according to the interpretation of Innocent's decree, given by Abbas Panormitanus, might serve as substitutes for words, may not be used now when the parties can speak. The pastor is to see that the law is observed. It is not binding under pain of nullity, but there can be little doubt that it is bind- ing under pain of grave sin. IV. MAKRIAGE BY PROXY Can. 1089. 1. Firmis dioecesanis statutis desuper additis, ut matrimonium per procuratorem valide ineatur, requiritur mandatum speciale ad contra- hendum cum certa persona, subscriptum a man- dante et vel a parocho aut Ordinario loci in quo mandatum fit, vel a sacerdote ab alterutro delegate, vel a duobus saltern testibus. 2. Si mandans scribere nesciat, id in ipso man- dato adnotetur et alius testis addatur qui scrip- turam ipse quoque subsignet; secus mandatum irri- tum est. 3. Si, antequam procurator nomine mandantis contraxerit, hie mandatum revocaverit aut in amen- tiam incident, invalidum est matrimonium, licet sive procurator sive alia pars contrahens haec ig- noraverint. 4. Ut matrimonium validum sit, procurator de- bet munere suo per se ipse fungi. 213. 1. Besides what may be prescribed by diocesan statutes, in order that a marriage may 212 THE MATRIMONIAL CONSENT be contracted validly by proxy, it is necessary to have a special mandate to contract marriage with a specified person, signed by the principal, and either by the parish priest or the Ordinary of the place in which the mandate is given or by a priest delegated by either of these, or by two witnesses. 2. If the principal is not able to write, this fact is to be noted in the document, and an ad- ditional witness must sign it, else the mandate is null. 3. If, before the proxy makes the contract in the name of the principal, the latter has re- voked the commission, or has fallen into in- sanity, the marriage is invalid, even though both the proxy and the party with whom the contract was made would be unaware of the change. 4. In order that the marriage be valid the proxy must discharge his office personally. 1. The Church has always recognized the validity of marriage contracted by proxy, on certain condi- tions, which are enumerated by Boniface VIII in the last chapter De Procuratoribus, tit. xix, lib. i in Sexto. 2. After the Council of Trent, the question was raised whether the form it prescribed for marriage did not suppose that the" parties should appear per- sonally before the parish priest and the witnesses. Commonly, however, it was held that the decree MARRIAGE BY PROXY 213 Tametsi and the more recent decree Ne temere had not modified the existing discipline on that point. 214. 3. The present canon admits the principle of the validity of marriage by proxy and it defines with greater precision than had been done before what formalities will henceforth have to be observed for the validity of the contract : (a) A general commission to act in the name of another does not imply power to contract marriage for him. Special authority must have been received for that; and, moreover, the principal must have specified the person with whom marriage is to be contracted; the choice is not to be left to the proxy. In order that there be no misunderstanding or doubt about that commission, it will not suffice, hence- forth, that it be given orally, but it will have to be committed to writing. Moreover, that there be no question about the authenticity of the document, certain formalities are prescribed here, similar to those necessary for the celebration of marriage itself, or for the contract of betrothment. The document has to be signed by the one who gives the commission, in whose name the marriage is to be contracted, and by the pastor or the Ordinary of the place, or two witnesses. It will be noted that the parish priest who is to sign the mandate is the one who has juris- diction in the place in which that contract is made, as for marriage, but not the parish priest of the party. The Ordinary is also the Ordinary of the place. Just as for marriage, the parish priest or Ordinary can act through a delegate, provided he be a priest. If the pastor or the Ordinary or a priest delegated by 214 THE MATRIMONIAL CONSENT either of them can not be had, then two witnesses must sign the document. No special qualifications are required in the witnesses. 215. (fe) If the party who wishes to contract mar- riage by proxy is unable to write, mention of this is to be made in the document and another witness added to those regularly demanded. (c) As the proxy or delegate is acting in the name of the principal, it is on the latter's consent that the validity of the contract depends. If that consent does not exist at the time the marriage is celebrated and the other party gives his or hers, the marriage can not be valid. It does not matter whether or not the proxy or the other party know that the consent has ceased to exist. In other matters the with- drawal of the consent takes no effect until it has been made known to the agent. Law supplies, meanwhile, the consent which is wanting; but no power on earth can supply the consent necessary for marriage. The consent ceases to exist when it is withdrawn or when the commission is revoked. It may be revoked tacitly or expressly, implicitly or explicitly, publicly or privately, or even internally ; but if the fact of the revocation can not be proved, the commission will be considered as continuing, and the marriage will be held as valid in the external, although it be null in the internal, forum. The consent perseveres virtually even if the one who gave it were not thinking of it or were asleep or drunk. But it does not persevere when he loses the use of reason and becomes insane, as is expressly de- clared by the law. Sanchez assimilated the state MARRIAGE BY INTERPRETER 215 of insanity to that of sleep, but canonists commonly treated it as moral death. There is no more doubt that it suspends consent. 4. A delegate can not generally subdelegate; here he is expressly forbidden to do so. As the above prescriptions have an annulling clause, they are to be observed under the pain of nullity of the delegation and consequently of the con- tract. V. MARRIAGE BY INTERPRETER Can. 1090. Matrimonium per interpretem quoque contrahi potest. 216. Marriage can be contracted also through an interpreter. Before the Council of Trent there was no doubt about the validity of marriages contracted through an interpreter. But after the publication of the decree Tametsi some authors, like Pontius, asked how the pastor and witnesses could fulfil their office if they did not understand what the parties said. Com- monly it was held that here, as in other contracts, the consent could be sufficiently ascertained through an interpreter, provided he be trustworthy. Still, there remained some doubt. It is now removed; marriage through an interpreter is certainly valid and also lawful under certain conditions. 216 THE MATRIMONIAL CONSENT VI. LICITNESS OF THE FOREGOING MAR- RIAGES THROUGH PROXY OR IN- TERPRETER Can. 1091. Matrimonio per procuratorem vel per interpretem contrahendo parochus ne assistat, nisi adsit justa causa et de authenticitate mandati vel de interpretis fide dubitari nullo modo liceat, habita, si tempus suppetat, Ordinarii licentia. 217. The pastor shall not assist at a mar- riage which is to be contracted by proxy or by interpreter, unless there be a just cause for it, the authenticity of the commission and the trustworthiness of the interpreter be beyond all possible doubt, and the permission of the Ordinary be obtained if time permits. Although marriages contracted by proxy or by in- terpreter be valid, and sometimes permissible, they are liable to give rise to difficulties and do not fully satisfy the demands of the Church's present legisla- tion; therefore this manner of entering the contract is allowed only by way of exception, when there is a just cause for departing from the ordinary way of proceeding. Then precautions are to be taken to remove all danger of error and fraud ; the authentic- ity of the mandate and the reliability of the inter- preter must be above suspicion, and the permission of the Ordinary must be obtained when time per- mits, because the matter is of a somewhat serious nature and the decision should as much as possible be left to him. CONDITIONAL MARRIAGE 217 VII. CONDITIONAL MARRIAGE 1. NATURE AND SPECIES OF CONDITIONS 218. (a) A condition in a contract is a circum- stance to which the consent is attached, and on which the value of the contract depends. This may be in two ways: (1) The fulfilment of the condition may put an end to the contract; we have then a voiding condition. Or (2) the fulfilment of the condition may cause the contract, held in suspense till then, to have its effect : This is a suspensive condition. In relation to a contract which is indissoluble, like marriage, there can be no question of voiding condi- tions. 219. (&) A condition differs from a mode, cause, interpretative intention, or antecedent error. A mode is an "accessory and supervenient clause added to the contract already constituted" ; it is not part of the contract, as if persons would agree to contract mar- riage and then add that they will not fulfil some of its obligations. The cause may prompt a man to consent, but, once he is determined, he gives the con- sent absolutely and independently of the cause. Thus, a man may marry a certain woman because he thinks she is honest, and, having no doubt about it, he gives his consent absolutely. Or he may be in such dis- position that if the thought occurred to him that she may be dishonest he would not marry her; but, in reality, he does marry her, without making his con- sent depend on her being honest : We have here only an interpretative intention. Or, again, a man may be convinced that marriage may be dissolved and con- 218 THE MATRIMONIAL CONSENT tract with that conviction, but giving his consent absolutely without making it depend on the possi- bility of a divorce. We have here an error, but not a real condition. A condition, to be real, must have been placed actually and not in a merely interpretative manner; it must be an integral part of the contract, the con- sent must be attached to it and depend upon it. 220. (c) Conditions may be honest or immoral and leading to sin ; possible or impossible, repugnant to the substance of the marriage contract ; past, pres- ent, or future; contingent or necessary, that is, con- cerning a future and uncertain event, or one which is already past, or a future one which is already cer- tain. Strictly speaking, conditions concerning events which are past, present, or necessary, i.e., future, but already certain, are not real conditions, since they do not suspend the consent. They are, however, spoken of as conditions because, for us, who may often be not sure of their fulfilment, they prac- tically do hold the contract in suspense or render it doubtful. 2. ANCIENT LEGISLATION 221. In the early marriage legislation, as in the Roman law, there is no question of conditional mar- riages, probably because they rarely occurred, if at all. The first time a condition is mentioned, it is to declare it of no value, (c. 7, 8, c. xxvii, q. 2.) It seemed logical to conclude that since marriage, as distinct from betrothal, ought to be contracted per verba de prcesenti, its validity should not be made CONDITIONAL MARRIAGE 219 to depend on a future event, and that either it was contracted absolutely, or remained a mere engage- ment. The argument, however, was not found con- clusive, and the doctrine of conditional marriages re- ceived official recognition in the Decretals of Gregory IX, in which a special title is devoted to the subject, (lib. iv, tit. v, De conditionibus appositis in de- sponsationibus.) The great theologians of the thir- teenth century, St. Thomas (Summa Theologica, pars 3* supp., q. xlvii, art. 5) and St. Bonaventure, set forth in details the theory of conditional consent, which was now accepted by all. The Council of Trent has no special decree on that point, but the one on the form of marriage which aimed at doing away with clandestine marriages seemed to strike also at the conditional contracts, which, taking place really when the condition is ful- filled and not when they are celebrated before the priest, would not satisfy the conciliar requirements. But canonists found a solution for that difficulty, and conditional marriages continued to be held as valid; still, they became less common; ordinarily they were not permitted except for a grave cause, and in modern times Bishops reserved to themselves the right to decide when the cause was sufficient. (Es- mein, vol. i, pp. 171-178; vol. ii, pp. 216-218.) In the Greek Church it is not the practice to con- tract marriage conditionally, nor in the Protestant churches. Modern civil legislations generally do not recognize conditional marriages. (Wernz, n. 294, 306.) 220 THE MATRIMONIAL CONSENT 3. PBESENT LEGISLATION Can. 1092. Conditio semel apposita et non revo- cata: 1. Si sit de future necessaria vel impossibilis vel turpis, sed non contra matrimonii substantiam, pro non adjecta habeatur; 2. Si de future contra matrimonii substantiam, illud reddit invalidum; 3. Si de future licita, valorem matrimonii sus- pendit ; 4. Si de praeterito vel de praesenti, matrimo- nium erit validum vel non, prout id quod condi- tion! subest, exsistit vel non. 222. When a condition has been placed to the consent and not withdrawn: 1. If it concerns the future and is necessary or impossible or dishonest, but not contrary to the substance of marriage, it is considered as non-existing ; 2. If it concerns the future and is against the substance of marriage, it invalidates the marriage. 3. If it concerns the future and is honest, it suspends the marriage. 4. If it concerns the past or the present, the marriage is valid or not according as the con- dition is fulfilled or not. This canon sums up with greater precision the legislation in vigor for several centuries, and is little more than the application of the natural law. Conditions are divided here into several categories : That on which the matrimonial consent is conditioned CONDITIONAL MARRIAGE 221 or made to depend may be something past, present, or future. If it is something future, it may be neces- sary, that is, bound to come and already certain in itself; or impossible; or dishonest without being contrary to the substance of the marriage ; or it may be contrary to it; or it may be something lawful. 223. 1. If the consent is conditioned on. some- thing past or present, the marriage is valid or not according as the condition is verified or not. This rule is general and no distinction is made here be- tween conditions which are impossible, unlawful, etc., as long as they are past or present. 224. 2. When the consent is conditioned on some- thing future, several distinctions have to be made; future conditions are divided into three categories : (a) To the first category belong those conditions the object of which is something necessary, impos- sible, or dishonest, but not contrary to the substance of marriage. Necessary conditions are here assimilated to the impossible ones, which was ordinarily not done by ancient canonists ; and whether the parties know the real nature of the condition and its effect on the con- tract the result will be the same. (Reiffenstuel, n. 45 ; Schmalzgruber, n. 72ff. ; Gasparri, 844, 853, 865ff.; Wernz, n. 300, note.) The validity of the marriage contracted with one of those conditions will, objectively, depend on the reality of the condition and its realization; but the law, wishing to favor marriage and to restrict the cases of nullity, presumes that the condition did not exist or was not meant seriously, and that, therefore, 222 THE MATRIMONIAL CONSENT the marriage is valid from the beginning. But this is a presumption juris, not one of those which admit of no proof to the contrary; it could not be, for the Church can not supply a consent which is wanting, and she does not wish to treat as valid a marriage which is null. If, then, it is certain, from the con- fession of the parties in the internal forum, or from circumstances in the external forum that the consent was truly made to depend on the condition, we have to see whether the condition is realized or not. If it is impossible, the contract is null; if necessary, the contract is valid at once; if it was immoral and is not yet fulfilled, the contract is at least suspended ; there is no obligation, or even right, to fulfil the con- dition, nor to wait for its fulfilment, but if it hap- pened to become fulfilled the contract would hold. (Gasparri, n. 853; Wernz, n. 300, not so positively.) 225. (&) When conditions concern a future and contingent event, possible and honest, the marriage remains in suspense until fulfilment. (1) If one of the parties would revoke his consent the subsequent verification of the condition would be of no effect, for the two consents must exist at the moment the contract is actually completed ; the same would be true if one would lose the use of reason. The presumption juris et de jure that consummation of the marriage implies withdrawal of the condition has probably not been abolished. (Wernz, n. 298 ; De Smet, n. 87.) (2) If the condition is not fulfilled, nor with- drawn, there is no marriage. CONDITIONAL MARRIAGE 223 (3) Once the condition is fulfilled, the contract is complete without notifying the parish priest or the witnesses. The formalities prescribed for marriage have to be observed only when it is celebrated. If, however, the condition was to obtain a dispensation from the Holy See, the parties are required to renew their consent when the dispensation is applied to them. In order that the validity of the marriage may not be questioned in the external forum, proofs of the fulfilment of the condition should be had if the existence of the condition was publicly known. 226. (c) A condition which is repugnant to the substance of the matrimonial contract renders it invalid by the law of nature itself, supposing that it is a real condition, because in that case there is no true matrimonial consent one of its essential ele- ments is excluded. Conditions are really repugnant to the substance of marriage when they are inconsistent with the essential object of the marriage contract or destruc- tive of one of its essential properties. The object of the marriage contract is the mutual right and obligation of the spouses to generative rela- tions; its essential properties are unity, which includes fidelity, indissolubility, and sacramental dignity. Hence : 227. (1) To contract marriage on condition that there will be no children or a limited number, if it means that the spouses do not give to each other the right to the acts apt for the generation of children, or that these rights are transferred only for a limited time, is to place a condition which is contrary to the 224 THE MATRIMONIAL CONSENT essential object of the marriage contract and annuls it. If it meant that the rights are transferred but they will not be used, we would be in presence, not of a condition forming an integral part of the mar- riage contract, as in the previous supposition, but only of an accessory modification of it. The right to the marital relations is essential, the actual use of it is not. 228. (2) Marriage contracted under condition of practising onanism will be null or invalid in the same manner, according as this will be a true condition or only a modal clause, a refusal of the right to gen- erative relations or merely an intention of not ful- filling obligations really assumed. (3) The condition that the offspring will not be allowed to be born alive, that drugs of sterility will be taken, is also against the substance of marriage, the primary purpose of which is the procreation of children; and if it became part of the contract, that is, if the party or parties meant to reserve that right in the contract, the marriage would be null. Condi- tions against the moral good of the children v. g., bringing them up in heresy although sinful, are not considered as repugnant to the substance of mar- riage, because the education of children is not so es- sentially and immediately the end of matrimony. Still, if one of the parties made his consent depend on the condition that the other will assume the obligation of bringing up the children- in heresy, as that obliga- tion can not exist, the contract would be null because of an impossible condition. CONDITIONAL MARRIAGE 225 229. (4) Marriage contracted under the condition of not receiving the sacrament, not being bound ab- solutely and forever, retaining a right to relations with other parties, is invalid whenever the condition is part of the contract, not simply an interpretative intention, an error in the mind, an accessory clause. It is a part of the contract when it implies reserving a right, like that of dissolving the marriage in case of adultery. Some canonists distinguish between the conditions which are against the good of fidelity and the offspring, and those which are against the good of the sacrament or the indissolubility of the bond. The former fcre not contrary to the substance of matri- mony and do not nullify it unless they are set down as a pact, in pactum deductce; the latter render the marriage null even if they are net introduced into the pact, because they are directly, immediately, of their inherent force contrary to the substance of matrimony. (Wernz, n. 302, note 44.) 230. In practice, however, It will be difficult, if not impossible, to prove that a party by a positive and not an interpretative intention gave his consent to only a dissoluble union unless it be proved that the intention was introduced into the pact or made a strict condition. In those cases there exist generally in the mind of the contracting party two contrary intentions the general intention of contracting a real marriage, which means an indissoluble one, and a particular intention of not binding one's self abso- lutely and forever. The marriage will be valid or null according as it will be the general or particular intention that will prevail; and, according to Bene- 226 THE MATRIMONIAL CONSENT diet XIV, the general intention prevails unless the particular one is expressly laid down, made a real condition. (De Syn., lib. xii, c. 22, n. 7.) When it has ceased to be a theoretical error to become a suspensive condition may be judged from circum- stances, from the declaration of the parties, the mo- tives that prompted them, and also from the ritual form used in some sects and the interpretation com- monly put upon it. (Inst. S. C. Inq., April 6, 1843 ; Dec. 9, 1874, to the Bishop of St. Albert, Canada; 1877, to the Bishop of Nesqually.) The existence of a real condition contrary to the substance of marriage is often very difficult to prove. De Lugo states that if both parties placed the condi- tion and both affirm it, nothing more will be required to declare the marriage null in foro externo, unless there be presumption of collusion. (Gasparri, n. 860-864; Oregonopolitana, A. A. S., Oct., 1914, p. 516 seq. ; Neo-Eboracensis, A. A. S. June, 1915, p. 292 seq.) VIII. CONSENT IN INVALID MARRIAGE Can. 1093. Etsi matrimonium invalide ratione im- pediment! initum fuerit, consensus praestitus prae- sumitur perseverare, donee de ejus revocatione con- stiterit. 231. Although marriage be invalid because of an impediment, the consent once given is pre- sumed to persevere unless its revocation be proved. CONSENT IN INVALID MARRIAGE 227 It is supposed that the consent was valid in itself but remained without effect because of an impedi- ment. Unless it is revoked, and revocation is a fact not to be presumed but proved, it will continue and be able to produce its effect when the obstacle is re- moved, as in cases of dispensation in radice. A. Former Discipline 232. 1. "From the beginning of Christian society the marriage of its members was looked upon as a public religious act, subject to ecclesiastical control." (Tertullian, De Monog., c. 11 ; De Pudi., c. 4.) The obligation of making known to the Bishop all pro- posed marriages dates as far back as the beginning of the second century. (St. Ignatius ad Polyc., c. 5.) It was not doubted that marriage, although a sacra- ment, is also a contract, and that all the essential elements of a contract are found in the consent of the parties; but even for consensual contracts a cer- tain form may be prescribed by the positive law. Nor was it forgotten that to marry is a right which every man receives from nature. On the contrary, the ecclesiastical legislation always aimed at facilitat- ing the exercise of that right as much as possible. But it was remembered, on the other hand, that mar- riage is a social function also. Its primary end is not the satisfaction of individual needs or desires, but the propagation of the species and the preservation of society. The good of society and of the family, as well as that of the individual, depends on marriage ; they are interested, therefore, in its proper regula- tions, and should have the right to exercise some con- trol over it. Hence the ceremonies and rites of vary- ing solemnity which, by custom or law, accompanied, among all peoples, the celebration of marriage. The 229 230 THE FORM OF MARRIAGE Christian Church, for whom marriage is also a sacra- ment, could not remain indifferent to what concerns it, nor approve its celebration without some interven- tion on her part. The denunciations of Tertullian against clandestine marriages would almost lead one to conclude that in his time they were invalid. There is no other proof of this, but it can not be doubted that they were strictly forbidden. That prohibition was frequently renewed by provincial Councils, particularly after the eighth century. As an additional measure the Fourth Lateran Council, in 1215, commanded that all prospective marriages be publicly announced in church. But that law, too, was disobeyed, and mar- riages continued to be contracted secretly, with the result that legitimately married parties could sepa- rate and enter another contract, which, although null, was to be held as valid by the Church ; others lived in concubinage under the cover of a supposed occult marriage. 233. 2. To remedy those evils some Councils de- cided to prescribe a certain form of marriage, de- manding among other things that it be celebrated in presence of the pastor and of several witnesses. But that legislation was local in character and, moreover, it could be disregarded also and remain without effect unless some sanction were added to it. And so when a General Council met at Trent for the reformation of abuses in the Church, -the Fathers were petitioned and urged, especially by the representatives of the king of France, to devise some means by which the great evil of clandestine marriages could be rooted FORMER DISCIPLINE 231 out. All merely prohibitive regulations had failed. The only resource left, apparently, was to declare all clandestine marriages invalid. The measure was a radical one and met, at first, with strong opposition. Some considered it as a dangerous novelty, calculated to multiply illegitimate unions by curtailing the liberty of marriage. Others objected on doctrinal grounds, as this seemed to be changing the substance of the sacrament. The great majority of the Fathers, however, were in favor of the reform and the decree Tametsi was published. The somewhat involved wording of it seems to reveal in its framers some hesitation as to the real nature of the impediment they were introducing. But whatever the theoretical foundation of the decision, it was clearly and explic- itly enacted that in future marriages would be null unless contracted in presence of the pastor and of at least two witnesses. It was not to be expected that the Tridentine decree would remove all abuses and meet everywhere with the same success. One great result it has accom- plished the almost total abolition of strictly occult marriages from Christian society. The State has imitated the Church, and marriage is rarely con- tracted without the intervention, under one form or another, of the social authority, civil or religious. 234. 3. But the decree Tametsi remained unpub- lished in many places; in others its publication was doubtful; hence, lack of uniformity, uncertainties, and the inconveniences of the ancient discipline. Where it was published its application gave rise to numerous difficulties. It had been interpreted as de- 232 THE FORM OF MARRIAGE manding for validity that the marriage be celebrated before the parish priest of the parties. In modern times, among the moving population, particularly of large cities, it had become often difficult to find out who was the parish priest; numerous errors were made, in good faith. This was one of the main rea- sons that prompted several Bishops to ask for a modi- fication of the Tridentine legislation. Acceding to their desires, Pope Pius X had the matter studied carefully and on August 2, 1907, was published the decree Ne temere, which, without in- troducing any essential change in the existing dis- cipline, regulated the form of marriage in a manner better adapted to present conditions. The new de- cree went into effect at Easter, 1908. Its wisdom and beneficent efficacy were so well established by an experience of eight or nine years that it was em- bodied in the new Code with hardly any modification. B. Present Legislation 1. GENERAL PRINCIPLE Can. 1094. Ea tantum matrimonia valida sunt quae contrahuntur coram parocho, vel loci Ordi- nario, vel sacerdote ab alterutro delegate et duobus saltern testibus, secundum tamen regulas expressas in canonibus qui sequuntur, et sal vis exceptionibus de quibus in can. 1098, 1099. 235. Only those marriages are valid which are contracted before the parish priest or the local Ordinary or a priest delegated by either of them and at least two witnesses, in accord- CONDITIONS FOR TEE VALIDITY 233 ance with the rules laid down in the canons that follow and excepting the cases mentioned in can. 1098, 1099. Like the decree Tametsi, this canon demands for the validity of marriage the presence of the parish priest as the official representative of the Church, and of two witnesses ; but formerly personal, at least in part, the law has now become exclusively territor- ial. It is not the pastor or Ordinary of the parties whose presence is necessary for the validity, but the pastor or Ordinary of the place in which the marriage is celebrated. The intervention of the pastor in the celebration of marriage is assimilated to the exercise of external jurisdiction, which is territorial, as dis- tinct from the jurisdiction of the internal forum, which has become more and more personal. 2. CONDITIONS FOE THE VALIDITY Can. 1095. 1. Parochus et loci Ordinarius valide matrimonio assistant: 1. A die tantummodo adeptae canonicae posses- sionis beneficii ad normam can. 334, 3, 1444, 1, vel initi officii, nisi per sententiam fuerint excom- municati vel interdicti vel suspensi ab officio aut tales declarati; 2. Intra fines dumtaxat sui territorii; in quo matrimoniis nedum suorum subditorum, sed etiam non subditorum valide assistant; 3. Dummodo neque vi neque metu gravi con- stricti requirant excipiantque contrahentium con- sensum. 2. Parochus et loci Ordinarius qui matrimonio possunt valide assistere, possunt quoque alii sacer- 234 THE FORM OF MARRIAGE doti licentiam dare ut intra fines sui territorii mat- rimonio valide assistat. 236. 1. The pastor and Ordinary of the place validly assist at a marriage : 1. Only from the day on which they have taken canonical possession of their benefice, in accordance with can. 334, 3 ; 1444, 1 ; or en- tered upon their office, unless they have been, by a particular decree, excommunicated or sus- pended from office, or declared to be such; 2. Only within the limits of their territory; but in that territory they assist validly at mar- riages not only of their subjects but also of others ; 3. Provided that without being compelled to do so, by violence or grave fear, they ask and receive the consent of the parties. 2. The pastor and Ordinary of the place who may validly assist at marriage, may also give permission to another priest to assist validly within their territory. 237. 1. Under the name of "Ordinary" are in- cluded Bishops, Vicars-Apostolic, Vicars-General, Prefects-Apostolic, Vicars-Capitular and Adminis- trators during the vacancy of the See. (Holy Office, Feb. 20, 1888.) "By 'pastor' is to be understood not only the priest who legitimately presides over a parish which is canonically- erected, but also, in locali- ties where parishes are not canonically erected, the priest to whom the care of souls has been legitimately entrusted in a determined district, and who is assimi- CONDITIONS FOR THE VALIDITY 235 lated to a pastor; and also in missions where the territory has not yet been perfectly divided, every priest generally deputed for the care of souls, in any station by the superior of the mission" ; (Ne temere, n. ii.) and, we may add, the priest, who, without having the title of "pastor," has full charge of a parish during a prolonged absence or sickness of the regular pastor. Curates need a delegation from the pastor or Ordinary to assist validly at marriages. It may be given them for particular cases or for all marriages in the parish. 2. The Ordinary and pastor may validly assist at marriages, not from the day of their election or appointment, but, for the Bishop, from the day he takes formal possession of his diocese, personally or by proxy; and for the pastor, Vicar-General, Vicar- Capitular, etc., from the day of their installation ; or, if there is no formal installation, from the day they begin the exercise of their office. 238. 3. They lose their authority when their pos- session of the office to which it is attached comes to an end, by translation, removal, resignation, etc., and also by those causes which suspend the exercise of external jurisdiction; viz., excommunication or suspension from office pronounced or denounced by special sentence. Not all censures produce that effect, but only those which are mentioned here and have all the required conditions, for we are in materiel odiosa. Interdict is not mentioned, nor irregularity ; the suspension is the suspension from office, not from benefice or from sacred functions. Nor would it be sufficient to have incurred a secret or even public 236 THE FORM OF MARRIAGE excommunication or suspension; it is necessary that the censure should have been inflicted, or that it should be denounced by sentence of the judge. 239. 4. Ordinaries and pastors can validly assist at all marriages contracted within their territory, whoever the contracting parties may be. This applies to pastors in ordinary conditions, who are the only ones the law can have here in view. But it may be supposed that nothing is changed in regard to those whose situation is exceptional and jurisdiction personal, by the very nature of the case. In explaining the decree Ne temere the Congrega- tion of the Holy Office, February 1, 1908, distin- guished four special classes of parish priests : (a) Those who have no territory at all but who, like military chaplains, exercise their jurisdiction directly over persons, following them wherever they go. It was declared that nothing had been changed in regard to military chaplains ; they may validly assist at the marriage of their subjects in any place, but not at the marriage of any other person, even in their military chapel or church. Their subjects may, however, validly contract marriage before any pastor, in his territory, unless the chaplains have been granted exclusive jurisdiction, as has been the case in Germany for a number of years. (Nouvelle Re- vue Theologique, Mai, 1908, p. 290.) 240. (&) Parish priests who have no territory ex- clusively their own, but one~ in common with another or other pastors. They can validly assist at all mar- riages within that territory. CONDITIONS FOR TEE VALIDITY 237 (c) Parish priests who have charge of certain per- sons or families within a territory assigned to other pastors. This is ordinarily the case with pastors of national churches in American cities. They can assist validly at the marriage of their subjects in the territory, but not at the marriage of strangers. Their subjects may validly contract marriage before any other pastor. (d) Priests in charge of institutions, like colleges, hospitals, etc., which are exempt from parochial jurisdiction. If it is certain that they have received full parochial powers, which is not to be presumed without proof, they may assist at the marriage of persons who are in their care, but only in the place in which they exercise their office. (A. A. S., Feb., 1908, p. 92-111; Canoniste Contemporain, Mars, 1908, p. 133 ; N. R. T., Mai, 1908, p. 289.) 241. 5. Mode of assistance. Under the law of Trent it was enough for the priest to be present and understand that the parties exchanged consents, whether he was a willing witness or not, whether he was present by mere accident or preconcerted ar- rangement. Now, -passive, unwilling presence does not suffice ; it must be active, free. (a) The parish priest must not be constrained by fear or violence. Such fear, to render his assistance invalid, must be grave. Must it be unjust also ? It would seem so, but the text does not state it explicitly, from which some have concluded that it is not neces- sary. (Besson, K R. T., Fev., 1908, p. 34; contra, De Becker, Legislatio nova, p. 42.) Fraud and de- ceit are not mentioned as affecting the validity. 238 THE FORM OF MARRIAGE (&) The pastor must ask and receive the consent. Receiving it would not suffice; a positive act is re- quired of him, active assistance even at mixed mar- riages. What is said here of the priest as a qualified witness applies only to him, not to the other wit- nesses ; nothing is changed in regard to them ; passive presence continues to suffice and no special qualifica- tions are required in them. 3. AUTHOBIZATION TO ASSIST AT MABBIAGB8 Can. 1096. 1. Licentia assistendi matrimonio con- cessa ad normam can. 1095, 2, dari expresse debet sacerdoti determinate ad matrimonium determina- tum, exclusis quibuslibet delegationibus generali- bus, nisi agatur de vicariis cooperatoribus pro pa- roecia cui addicti sunt ; secus irrita est. 2. Parochus vel loci Ordinarius licentiam ne concedat, nisi expletis omnibus quae jus constituit pro libertate status comprobanda. 242. 1. The permission to assist at a mar- riage granted in accordance with the prescrip- tions of can. 1095, 2, must be given expressly, to a priest specified, for a determined marriage, to the exclusion of general delegations, except in the case of assistant pastors for the parishes to which they are attached ; otherwise the per- mission is invalid. 2. The pastor or "Ordinary of the place must grant that permission only after he has complied with all that the law requires to ascer- tain the freedom of the parties. AUTHORIZATION TO ASSIST 239 1. The pastor or Ordinary who has authority to assist at marriages can communicate it to others. That communication, which is not called delegation, but permission, because there is no power of jurisdiction exercised here, must be made expressly and really. Presumed or tacit permission, which was considered as probably sufficient before, would now certainly be null. 2. The permission must be given to a priest, not to a simple cleric, to a priest specified and determined ; not that he should necessarily be mentioned by name, but he should be so designated by his office or other- wise, that there be no doubt as to who is meant. 243. 3. The permission must be given for particu- lar definite cases. Assistant pastors may be author- ized to assist at all the marriages in the parish, but outside of that case general permissions are null. An Ordinary can not give authority to a priest to assist validly at marriages in the whole diocese ; nor could a pastor give it for all marriages in his parish. This is a change in the existing legislation. 4. Even when the pastor or Ordinary of the place is not to assist himself at the marriage of one of his subjects, it remains his duty to make the prescribed investigations before the marriage, publish the banns, etc. 4. CONDITIONS FOB THE LAWFUL ASSISTANCE AT MARRIAGE Can. 1097 i. Parochus autem vel loci Ordinarius matrimonio licite assistunt: 240 THE FORM OF MARRIAGE 1. Constito sibi legitime de libero statu contra- hentium ad normam juris; 2. Constito insuper de domicilio vel quasi-domi- cilio vel menstrua commoratione aut, si de vago agatur, actuali commoratione alterutrius contrahen- tis in loco matrimonii; 3. Habita, si conditiones deficiant de quibus n. 2, licentia parochi vel Ordinarii domicilii vel quasi- domicilii aut menstruae commorationis alterutrius contrahentis, nisi vel de vagis actu itinerantibus res sit, qui nullibi commorationis sedem habent, vel gravis necessitas intercedat quae a licentia petenda excuset. 2. In quolibet casu pro regula habeatur ut mat- rimonium coram sponsae parocho celebretur, nisi justa causa excuset; matrimonia autem catholi co- rum mixti ritus, nisi aliud particular! jure cautum sit, in ritu viri et coram ejusdem parocho sunt cele- branda. 3. Parochus qui sine licentia jure requisita mat- rimonio assistit, emolumenta stolae non facit sua, eaque proprio contrahentium parocho remittat. 244. 1. The pastor or Ordinary of the place lawfully assist at a marriage : 1. After duly ascertaining the freedom of the parties, in accordance with the prescrip- tions of law; 2. After ascertaining, moreover, that one of the contracting parties has a domicile or quasi- domicile or monthly residence, or, if it is ques- tion of a vagus, actual residence at present in the place of the marriage ; CONDITIONS FOR ASSISTANCE 241 3. Having obtained, if the conditions men- tioned in n. 2 are not fulfilled, permission from the pastor or Ordinary of the domicile, quasi- domicile, or monthly residence of one of the contracting parties, unless it be question of those vagi who are actually traveling and have no residence in any place, or unless a grave necessity excuses from obtaining the permis- sion. 2. In every case the rule shall be that the marriage is celebrated before the pastor of the bride, unless a just cause excuses from it ; mar- riages between Catholics of different rites are to be celebrated in the rite of the bridegroom unless ordained otherwise by particular law. 3. A pastor who assists at a marriage without the required permission acquires no right to the stole fee and shall return it to the pastor of the contracting parties. 245. 1. The first condition for being permitted to proceed to the celebration of a marriage is to have complied with all the prescriptions of the law for ascertaining the freedom of the parties to marry. 2. Regularly people should contract marriage in the place of their domicile, quasi-domicile, monthly residence, or actual residence if they are vagi; and they should be married by their pastor or Ordinary, or the pastor of one of them. The new law does not intend to take away from parish priests any of their former rights in this matter, only it does not make the presence of the parish priest of the parties, at the marriage, a condition for its validity. Consequently, 242 THE FORM OF MARRIAGE although a parish priest can assist validly at any mar- riage celebration within his own territory, he has no right to do so unless at least one of the parties has a domicile, quasi-domicile, monthly residence, or actual residence if he be vagus, in the parish. 246. 3. To assist at the marriage of parties neither of whom is his subject in any sense, a pastor or Or- dinary ought to obtain permission from the one before whom the marriage should regularly be cele- brated. To this rule there are two exceptions: (a) The vagi who have not even a place of actual resi- dence because they are actually moving from one place to another, belong to no pastor, and, therefore, may go to any one whom they choose. (&) A grave necessity would dispense from obtaining that per- mission. The reason demanded to excuse from the law is a grave one, which supposes that the obligation imposed by the law is grave also. 4. When the parties belong to two distinct par- ishes, either pastor would be competent to assist at the marriage, but the rule is that the pastor of the bride should perform the ceremony, unless there be a just cause, not necessarily a grave one. If the bride was a non-Catholic this would, no doubt, be a sufficient reason to give the preference to the bride- groom's pastor, unless diocesan regulations ordain otherwise. It is explicitly declared here that when the parties belong to different rites, it is in the bride- groom's rite that the marriage is to be celebrated and in presence of his pastor, but it is also recognized that a different rule may be adopted by particular legisla- tion. CONDITIONS FOR ASSISTANCE 243 247. 5. The Council of Trent punished with sus- pension pastors who officiated at marriages without proper authority. The present law only declares that they are not entitled to the stole fees. Although only pastors are mentioned here explic- itly, this, no doubt, applies equally to all priests who violate the law in that manner. The obligation to restore the fees is one of jus- tice binding before any sentence of the judge, since it is declared that no right has been acquired to the emolument. This concerns the pastors who assist at a marriage without the proper permission, that is, pastors assist- ing at the marriage of parties who are not their subjects in any sense, without obtaining the permis- sion which is required in those cases. It would not seem to apply in the case of the pastor of the bride- groom performing the ceremony instead of that of the bride. The fee has to be handed to the proper pastor of the contracting parties. If they belong to different parishes, the fee would naturally go to the bride's pastor, although this is not stipulated in the law, since he is the one who regularly should have offi- ciated. If the bride has a domicile, quasi-domicile, or monthly residence, the pastor of the place of domicile would seem to have first claim. 248. Note. The questions of domicile or quasi- domicile have not, at present, in this matter the importance they had formerly, as the validity of a marriage does not depend on them; still, the licit- ness does, and it is the duty of pastor or Ordinary 244 THE FORM OF MARRIAGE before proceeding to a marriage to find out whether the parties are his subjects, at least one of them. 1. According to can. 94, book ii, every person's pastor or Ordinary is the pastor or Ordinary of the place in which that person has his domicile or quasi- domicile. The pastor of the vagi, or of those who have neither domicile nor quasi-domicile, is the pas- tor of the place in which they actually reside. They, too, therefore, have their proper pastor and Ordinary. The pastor of those who have no domicile or quasi- domicile in any particular parish, but only in the diocese, is the pastor of that parish in which they actually reside. 249. Can. 1097, 2, mentions also monthly resi- dence, together with domicile and quasi-domicile, as sufficient for marriage. The only persons, then, who belong to no pastor and may choose any one they please for marriage, are those vagi who have not even what might be called a residence, sedes commorationis, in any place. (Holy Office, March 24, 186Y.) 2. According to can. 92, domicile may be ac- quired in a parish or quasi-parish, or at least in the diocese, vicariate apostolic, prefecture apostolic, by actual residence there together with the intention of remaining permanently, if nothing happens to call elsewhere; or also by the mere fact of actual resi- dence for ten complete years. Quasi-domicile may be acquired by residence m the parish, diocese, etc., together with the intention of remaining for the greater part of the year; or also by the mere fact EXCEPTIONS IN EXTREME CASES 245 of actual residence in the place for the greater part of the year. Thus there are two ways, under the present law, of acquiring a domicile or quasi-domicile ; and both may be acquired in a diocese without being acquired in any particular parish ; for example, at present a man who would reside for ten years in different parishes in the same diocese, would have a diocesan, although not a parochial, domicile. 250. 3. Domicile or quasi-domicile is lost by leav- ing the place without intention of returning, except in the case of minors who retain the domicile of those under whose authority they are, i.e., their father or, in his default, their mother or guardian ; they may, however, once they have completed their seventh year, acquire a quasi-domicile of their own. 5. EXCEPTIONS: IN CASES OF DANGER OF DEATH OB OF URGENT NECESSITY Can. 1098. Si haberi vel adiri nequeat sine gravi incommodo parochus vel Ordinarius vel sacerdos delegatus qui matrimonio assistant ad normam canonum 1095, 1096: 1. In mortis periculo validum et licitum est mat- rimunium contractum coram solis testibus; et etiam extra mortis periculum, dummodo prudenter prae- videatur earn rerum conditionem esse per mensem duraturam ; 2. In utroque casu, si praesto sit alius sacerdos qui adesse possit, vocari et, una cum testibus, mat- rimonio assistere debet, salva conjugii validitate coram solis testibus. 251. If it is impossible without grave incon- venience to send for or go to a pastor or Ordi- nary or a priest delegated by either of these to assist at a marriage in accordance with the prescriptions of canons 1095, 1096: 1. In case of danger of death, marriage will be contracted validly and licitly in pres- ence of the witnesses only; and it will be the same outside of the danger of death, provided it be foreseen that this condition of things is to last for a month. 252. 2. In both cases if a priest could be present he should assist at the marriage to- gether with the witnesses, but the marriage would be valid in presence of the witnesses alone. The presence of the pastor may be dispensed with in the celebration of marriage on two conditions taken together: First, that it is impossible to have him ; secondly, that there is either danger of death or a serious probability that the same state of things will last for a month. 253. 1. The impossibility is a moral one, existing whenever the law can not be complied with, short of grave inconvenience. (S. C. de Sac., March 12, 1910.) The nature of the inconvenience is not de- fined; it does not matter where it comes from, nor whether it affects the parties or the priest. Accord- ing to the answer of the Congregation of the Sacra- ments, March 12, 1910, ad 3 um , if the parties had betaken themselves to a country where they can EXCEPTIONS IN EXTREME CASES 247 have no priest, for the purpose of evading the law, they would still be dispensed. It must be impossible to have, or to go to, a com- petent priest. If the priest can not come, the parties should go to him; if the parties can not go to their pastor or Ordinary or a priest delegated by either of these, they should go, when possible, to another pastor or Ordinary who would have authority in the place in which the marriage would be celebrated. Thus, they might go to a neighboring pastor to be married in his parish. They would not be obliged to go to one who has no authority in the place. A delegation should be obtained, if possible, but one is not bound to use for that the telegraph or telephone. 254. Will a particular necessity suffice? Some canonists had interpreted in that sense Art. viii of the decree Ne temere in spite of the words, "if in a district," which seemed to refer to an im- possibility affecting a whole region. Their view appeared to be favored by the answer of the Con- gregation quoted above, March 12, 1910, ad l um , in which the word regio, which caused the difficulty, was omitted. It seemed more explicitly confirmed by two other decisions which, although not published in the A. A. S., are of undoubted authenticity (Prop- aganda, March 24, 1909 ; Cong. Sac., Nov. 26, 1909 ; apud Bucceroni, Theolo. Mor., 4th edit. ; Eccles. Rev., Ap., 1915, p. 477). The first directs parish priests to let parties who can not comply with the prescriptions of the civil law contract marriage be- fore two witnesses. The second directs the Ordinary 248 THE FORM OF MARRIAGE to allow parties to contract marriage without a priest in presence of two witnesses only, when the civil law renders the presence of the priest impossible. A. Lehmkuhl concluded from those decrees that under the Ne temere marriage could be contracted with only the two witnesses whenever it was not possible to secure the presence of a priest, even though there would be priests in the place who, under ordi- nary circumstances, could assist at the marriage. A decree of the Congregation on the Discipline of the Sacraments of January 31, 1916, does not, how- ever, fully support that conclusion. It was asked what should be done when, in those countries in which the civil law strictly forbids the celebration of the religious before the civil marriage, the civil marriage could not be celebrated and yet the good of souls would demand that the parties be married. The answer was, to refer those cases to Rome, except in danger of death, when any priest can dis- pense from the impediment of clandestinity and permit the celebration of a marriage in presence of two witnesses. (A. A. S., Feb., 1916, p. 36; cf. De Smet, n. 69 ; Wernz, iv, pars, i, p. 300 ; N. R. T., 1908, Mar. 152, Nov. 662-667, Dec. 733.) 255. 2. The second condition is danger of death for at least one of the parties or danger of having to delay the marriage for a month. (a) The danger of death has not to be very grave, as in the decree of 1888, nor imminent, as in the decree Ne temere, but simply grave, that is, seriously probable ; and it does not matter from what causes it THOSE AFFECTED BY TEE LAW 249 arises. Together with the danger of death, the de- cree Ne temere demanded that marriage should be necessary for the relief of conscience or the legitima- tion of the offspring. Henceforth this will not be required. 256. (b) Even when there is no danger of death, parties may dispense with the presence of the com- petent priest if they would have to wait for a month. Under the decree Ne temere it was required that they should have already waited for a month. Cer- tainty is not necessary; it suffices that there be a serious probability of being unable to have the pas- tor within a month. It is added that if the presence of another priest who would have no special author- ity can be secured, it ought to be done, but this is not necessary for the validity. Under the Ne temere legislation, the presence of a priest was always re- quired in the case of danger of death and it was not demanded at all in the case of necessity. 6. THOSE WHO ABE AFFECTED BY THE LAW Can. 1099. 1. Ad statutam superius formam ser- vandam tenentur: 1. Omnes in catholica Ecclesia baptizati et ad earn ex haeresi aut schismate conversi, licet sive hi sive illi ab eadem postea defecerint, quoties inter se matrimonium ineunt; 2. lidem, de quibus supra, si cum acatholicis sive baptizatis sive non baptizatis etiam post obtentam dispensationem ab impedimento mixtae religionis vel disparitatis cultus matrimonium contrahant; 3. Or lent ales, si cum latinis contrahant hac forma adstrictis. 250 THE FORM OF MARRIAGE 2. Firmo autem praescripto 1, n. 1, acatholici sive baptizati sive non baptizati, si inter se con- trahant, nullibi tenentur ad catholicam matrimonii formam servandam; item ab acatholicis nati, etsi in Ecclesia catholica baptizati, qui ab infantili aetate in haeresi vel schismate aut infidelitate vel sine ulla religione adoleverunt, quoties cum parte acatholica contraxerint. 257. 1. The above laws are binding: 1. On all persons baptized in the Catholio Church, and on those who have been converted to it from heresy or schism, even if either the latter or the former have fallen away after- wards, whenever they contract marriage among themselves ; 2. Those laws are binding also on the above- mentioned persons, if they contract marriage with non-Catholics, baptized or unbaptized, even when a dispensation has been obtained from the impediment of mixed religion or dis- parity of worship ; 3. Orientals are bound to the prescribed form when they contract with Latins. 2. Non-Catholics, whether baptized or un- baptized, who contract among themselves are nowhere bound to observe the Catholic form of marriage; nor one who, born of non-Catholic parents, was baptized in the Catholic Church, but grew up, from infancy, in heresy, or schism, or infidelity, or without any religion, if he con- tracts marriage with a non-Catholic. THOSE AFFECTED BY THE LAW 251 258. 1. Catholic marriages. Catholics of the Latin rite, when they marry among themselves, are bound by this law all over the world. By Catholics are meant all who at any time were acknowledged members of the Catholic Church by Baptism or by conversion: (a) persons baptized and educated in the Catholic religion and never separated from it; ( b ) persons baptized as Catholics who never practised the Catholic religion (the case of one born of infidel or non-Catholic parents, baptized as a Catholic and brought up from infancy in heresy or infidelity had to be referred to the Holy Office according to a de- cree of March 31, 1916. The present law considers him as a non-Catholic) ; (c) persons baptized as Cath- olics, but who afterward have fallen away into her- esy ; (d) non-Catholics, baptized in heresy or schism, converted to the Church and fallen away again. We should consider as baptized in the Catholic Church: (a) infants who, with the consent of their parents, are brought to be baptized by a Catholic clergyman, even if the parents are non-Catholics; (b) infants born of Catholic parents who are bap- tized by a lay person in case of necessity ; (c) adults who of their own accord have presented themselves to be baptized by a Catholic minister. "Infants baptized as non-Catholics, but whom their convert- parents cause to be brought up as Catholics, may be considered as converts." 259. 2. Mixed marriages. Catholics are bound by this law even when they contract marriage with non- Catholics. Because of the unity of the marriage contract, the law must be binding on both parties 252 THE FORM OF MARRIAGE or neither. Under the Tridentine discipline, if one of the parties was exempt he communicated the ex- emption to the other; under the new law it is the contrary principle that prevails the party who is bound communicates his obligation to the other. It does not seem fitting that a Catholic should be freed from an obligation because he marries a non-Catholic. On the other hand, there is nothing unreasonable in asking a non-Catholic to conform to the laws of the Church if he wishes to marry one of her members. An exception to this rule had been made by the Holy See in favor of Germany, where the provisions of a previous constitution (Provida, Jan. 18, 1906) were maintained after the decree Ne temere; and for Hungary by a decree of the Congregation of the Council, Feb. 27, 1909. In those countries mixed marriages remained exempt from this law. Exten- sion of the concession to Russia and Poland was refused by the Congregation of the Council, July 8, 1908. The exception was to be restricted to mixed marriages, i.e., marriages between Catholics and baptized non-Catholics; and it was officially inter- preted as applying only to marriages contracted in Germany between parties who were both natives of Germany, and to marriages contracted in Hungary between parties who were both natives of Hungary. (De Smet, n. 79.) The present law mentions no exception. 260. 3. Non-Catholic marriages. Persons who were never members of the Catholic Church by bap- tism or by conversion are nowhere bound to observe RITES TO BE OBSERVED 253 the formalities prescribed for the valid celebration of marriage when they marry among themselves. 7. BITES TO BE OBSEBVED A. In Catholic Marriages Can. 1100. Extra casum necessitates, in matrimonii celebratione serventur ritus in libris ritualibus ab Ecclesia probatis praescripti aut laudabilibus con- suetudinibus recepti. 261. Outside of the case of necessity, the rules prescribed in the rituals approved by the Church, or those which have been introduced by a laudable custom, shall be observed in the celebration of marriage. Can. 1101. 1. Parochus curet ut sponsi benedic- tionem sollemnem accipiant, quae dari eis potest etiam postquam diu vixerint in matrimonio, sed solurn in Missa, servata speciali rubrica et excepto tempore feriato. 2. Sollemnem benedictionem ille tantum sacer- dos per se ipse vel per alium dare potest, qui valide ct licite matrimonio potest assistere. 262. 1. The pastor shall take care that the spouses receive the solemn blessing, which may be given them, even after a long time of mar- ried life, but only during Mass ; observing the prescriptions of the rubric on that point and outside of the forbidden time. 2. The solemn blessing may be given only by that priest who can assist at the marriage 254 THE FORM OF MARRIAGE validly and lawfully ; he may give it himself or through another. 263, 1. It is the wish of the Church that all mar- riages should receive the nuptial blessing when it is permitted; it should be given to all who did not re- ceive it when they were married, even if they ask for it a long time after, and they should be exhorted to ask for it as soon as possible. (Holy Office, Aug. 31, 1881.) The blessing should not be given outside of Mass, of which it forms a part. It consists of the prayers : Propitiare Domine . . . Deus qui potestate . . . which the priest recites over the couple, between the Pater and the Libera nos; and of the prayer Deus Abraham, which is said before the Placeat. When the rubrics do not allow the Nuptial Mass, the nuptial blessing may be inserted in the Mass of the day, except during the forbidden time, which excludes the solemnization of marriage. 264. 2. The priest who has authority to perform the marriage ceremony is the only one who may give the solemn blessing. He may do so himself or authorize any other priest to do it in his place. B. In Mixed Marriages Can. 1102. 1. In matrimoniis inter part em catho- licam et partem acatholicam interrogationes de consensu fieri debent secundum praescriptum can. 1095, 1, n. 3. 2. Sed omnes sacri ritus prohibentur; quod si ex hac prohibitione graviora mala praevideantur, Ordinarius potest aliquam ex consuetis ecclesias- RITES TO BE OBSERVED 255 ticis caeremoniis, exclusa semper Missae celebra- tione, permittere. 265. 1. In marriages contracted between a Catholic and a non-Catholic the consent must be asked as prescribed by can. 1095, 1, n. 3. 2. But all sacred rites are forbidden; if, however, from this prohibition greater evils were likely to result, the Ordinary might per- mit some of the usual ecclesiastical ceremonies, always to the exclusion of the Mass. 1. Before the decree Ne temere, the assistance of the priest at mixed marriages was, as a rule, purely passive. That decree having demanded an active assistance for the validity of the contract, the Con- gregation of the Council declared, July 27, 1908, ad 3 um , that this applied also to mixed marriages, and the present canon ordains likewise that in mixed marriages the officiating priest will ask and receive the consent as in other marriages. The Holy See may make an exception to that rule. A decree of the Holy Office, June 21, 1912, declared that when by special permission of the Sovereign Pontiff a priest assists at a mixed marriage, although the cus- tomary promises have not been made, the assistance must remain purely passive. But this held ex- clusively in those countries for which the above con- cession had been made ; viz., parts of Hungary, Aus- tria, and Germany. (A. A. S., vol. iv, p. 443 ; Eccl. Rev., t. xlvii, p. 477 ; N. R. T., Jan., 1913, p. 17 ; H. O., Aug. 2, 1916; A. A. S., Sept. 1, 1916.) 266. 2. Regularly, mixed marriages have to be 256 celebrated without any religious ceremony, outside of the church ; the priest does not wear any religious vestments or insignia of his office. However, several decrees or instructions of Congregations had author- ized Bishops to depart from that severity when deemed necessary to avoid greater evils. (Inst. An- tonelliana, Nov. 15, 1858.) The publishing of the banns, a short address or instruction, the celebration of the marriage in church before the priest vested in surplice, were permitted in various places. But it was always understood that no Mass should be celebrated in connection with the marriage ceremony. The new law leaves it to the Bishop to grant the same permissions when the greater good of souls will demand it. 8. REGISTRATION Can. 1103. 1. Celebrate matrimonio, parochus vel qui ejus vices gerit, quamprimum describat in libro matrimoniorum nomina conjugum ac testium, lo- cum et diem celebrati matrimonii atque alia secun- dum modum in libris ritualibus et a proprio Or- dinario praescriptum; idque licet alius sacerdos vel a se vel ab Ordinario delegatus matrimonio adstiterit. 2. Praeterea, ad normam can. 470, 2, parochus in libro quoque baptizatorum adnotet conjugem tali die in sua paroecia matrimonium contraxisse. Quod si conjux alibi baptizatus fuerit, matrimonii parochus notitiam initi contractus ad parochum baptismi sive per se sive per Curiam episcopalem transmittat, ut matrimonium in baptizatorum librum referatur. 3. Quoties matrimonium ad normam can. 1098 REGISTRATION 257 contranicur, sacerdos, si eidem adstiterit, secus testes tenentur in solidum cum contrahentibus cu- rare ut initum conjugium in praescriptis libris quamprimum adnotetur. 267. 1. After the celebration of a marriage, the parish priest, or he who takes his place, is to register as soon as possible in the book of marriages the names of the couple and of the witnesses, the place and day of the celebration of the marriage, and the other details, accord- ing to the method prescribed in the ritual books or by the Ordinary. This obligation holds like- wise when another priest, delegated either by the parish priest himself or by the Ordinary, has assisted at the marriage. 2. Moreover, the parish priest is to note in the book of baptisms the fact that the married person contracted marriage on such a day in his parish. If the married person was baptized elsewhere, the parish priest who has assisted at the marriage is to send notice of the marriage, either directly or through the episcopal curia, to the parish priest of the place where the per- son was baptized, in order that the marriage may be inscribed in the book of baptisms. 3. Whenever a marriage is contracted in the manner described under can. 1098, the priest, if one was present, otherwise the wit- nesses, are bound conjointly with the contract- ing parties themselves to provide that the mar- riage be entered as soon as possible in the pre- scribed registers. 258 THE FORM OF MARRIAGE 1. The Council of Trent (Sess. xxiv, c. 1) com- mands pastors to have a book in which to enter marriages, with the names of the parties and wit- nesses, the day and the place of the contract. The Roman ritual contains the same, prescriptions (Tit. vii, de Sac. Mat., c. 2), giving forms to be used and adding that the parish priest ought to make the entry on the marriage register at once, and with his own hand, even when another priest, delegated by him or by the Ordinary, has officiated at the marriage. The decree Ne temere and this canon renew those prescriptions, completing them and adding new ones. It is a grave obligation for a parish priest to have a marriage register and to take care that all the marriages celebrated in his parish are entered in it. He must make the entry as soon as possible in order to avoid omission or inaccuracy. The new law does not say that he must make it with his own hand; therefore he may entrust that office to some one else, but the responsibility remains with him (De Smet, n. 338; N. R. T., Mar., 1908, p. 155). The record should mention the names of the con- tracting parties, the place and date of the marriage, and other particulars called for by rituals or dioce- san regulations. Thus, it may be useful to make note of the officiating priest's name, of the dele- gation or permission received, the dispensations ob- tained, the promises made in mixed marriages, the publication or omission of banns. If the marriage was afterward declared null it would be well to in- sert a note to that effect in the register. REGISTRATION 259 268. 2. A new obligation was introduced by the decree Ne temere and is maintained in the new Code it is that of entering the marriage in the bap- tismal book also. This may be done by means of a simple marginal note written alongside of the name of the parties in the book of baptisms. If the parties were not baptized in the parish in which they are married, notification has to be sent to the pastor of their place of baptism in order that he may make the proper entry. The notification may be sent di- rectly or through the episcopal curia, and it should be sent as soon as possible, within two days, accord- ing to some diocesan regulations. (De Smet, n. 338 ; Cong. Sac., March 6, 1911.) 269. 3. When a marriage is celebrated without the presence of the parish priest, the obligation to have it entered properly does not cease; it falls on the priest who was present, if there was one, or on the witnesses and parties themselves. In several countries the civil law imposes that same obligation of recording marriages in the bap- tismal register, as a means of preventing bigamy or fraudulent unions. It should not be surprising that similar measures, even though somewhat burdensome, should be adopted by the Church, which is the guar- dian of the sacredness, unity, and indissolubility of marriage. If this law is complied with as strictly as circumstances permit, the inquiry as to the free state of the parties before marriage will be greatly facilitated and many abuses prevented. To find out whether the parties are bound by a previous contract or not it will suffice to consult the baptismal regis- 260 THE FORM OF MARRIAGE ter, or the baptism certificate, which those who were not baptized in the parish have to produce in com- pliance with a rule on the importance of which the Congregation of the Sacraments insisted again in a decree of March 6, 1911. The object of the Council of Trent and of the present legislation in prescrib- ing the solemn celebration of marriage under pain of nullity was to provide for "the security and the stability of the proof" of the contract. It is for the same purpose that pastors were commanded to have a marriage register. But that end will not be at- tained at all, or only very imperfectly, unless that system of double registration or some similar meas- ure be adopted, at the present time particularly, with the constant fluctuations of population. The mar- riage registers can not very often be consulted. Mar- riage publicly celebrated in one place can remain unknown in another, and if it is entered in only one book of marriages it is easy to conceal it in a remote district. But if the record of all the pos- sible marriages validly contracted by a man is kept together with the record of his baptism, as the lat- ter is usually easy to find, the former will be also. 270. Often, perhaps, in a country where people have come from all parts of the world and move freely from place to place, it may be difficult or even impossible to secure the proper information about the place of baptism, and hence also to send the notification of marriage. In cases of impossi- bility the obligation ceases. But in itself the law is binding sub gravi, as the best authorities teach (Gen- nari, Breve commento, p. 34), and as can be con- REGISTRATION 261 eluded from its object and purpose. Its observance is most important in the very places where it is hard- est, because they are the places in which the free state of prospective spouses is most difficult to estab- lish, the danger of adulterous unions greatest, and the strictest care necessary. The difficulties which the application of the law offers in practice are not unknown to the Holy See, and yet, when negligences were reported to the Con- gregation of the Sacraments, the answer was a more detailed instruction on the manner of observing the law and a strong recommendation to Bishops "to use vigilance in securing obedience to these rules, and to bring the transgressors, if they meet any, to the sense of their duty, even by recourse to canonical penalties, if need be." (March 6, 1911.) And now, after an experience of several years, the new Code retains the prescriptions of the Ne temere on mar- riage registration, without any change. CHAPTER VII MARRIAGES OF CONSCIENCE I. NATURE 271. Marriages of conscience are those which are celebrated in the form prescribed by law, but in such a manner that they may remain secret. The banns are not published and the priest and witnesses who assist at the ceremony are bound to secrecy. (De Smet, n. 94.) II. FORMER LEGISLATION 272. It is contained in the Constitution of Pope Benedict XIV, Satis Vobis, published November 17, 1714. (Gasparri, vol. ii, Allegatum viii; Gennari, Consultations Canoniques, Cons, vi.) When, by the publication of the decree Tameisi, clandestine marriages had become invalid, a substi- tute was found- for them in marriages of conscience, which, for a while, threatened to bring back the abuses which the Council of Trent intended to cor- rect. To prevent this, Benedict XIV, without for- bidding absolutely marriages of conscience, lays down the conditions on which they may be per- mitted : 1. Marriages of conscience are not to be permitted except for urgent and very urgent reasons, and spe- cial care has then to be taken to find out whether the parties are free. 2. The marriage ought to be celebrated in pres- ence of the parish priest of the parties or, at least, 263 264 MARRIAGES OF CONSCIENCE of a priest venerable for his knowledge and virtue; and the parties ought to be warned, beforehand, that the children will have to be baptized and recognized as legitimate. 3. After the celebration of the marriage, the priest who assisted at it must send to the Ordinary a writ- ten report giving the date, place, and witnesses of the ceremony ; that document is transcribed, word for word, in a special register kept in the secret archives of the diocese. 4. When a child is born, the father or, if he be dead, the mother, ought to notify the Bishop, who will cause the information to be entered in another special register, so that there be a proof of the legiti- macy of the child, whether it was baptized under the name of its parents or under fictitious names. And it must be understood that should the parents fail to comply with that obligation the Bishop re- serves to himself the right to make their union public. III. PKESENT LAW The present law is substantially the same as that of Benedict XIV. 1. LAWFULNESS OF MABBIAGES OF CONSCIENCE Can. 1104. Nonnisi ex gravissima et urgentissima causa et ab ipso loci Ordinario, excluso Vicario General! sine speciali mandato, permitti potest ut matrimonium conscientiae ineatur, idest matrimo- nium celebretur omissis denuntiationibus et secreto, ad normam canonum qui sequuntur. PRESENT LAW 265 273. Only for very grave and very urgent causes can the Ordinary of the place, and he alone, to the exclusion of the vicar-general, un- less the latter has a special mandate for that, permit marriages of conscience, that is, mar- riages which are contracted without publica- tion of banns and secretly, in accordance with the prescriptions of the following canons. (a) The reasons required for authorizing a mar- riage of conscience are called very grave and very urgent. Benedict XIV gave as an example the case of two persons publicly living as husband and wife, and whom everybody believes to be married, while in reality they are not. (b) The matter is considered so important that to grant those authorizations the vicar-general needs a special mandate. Nothing is said of the priest who is to assist at such marriages. 2. OBLIGATION TO KEEP THEM SECRET Can. 1105. Permissio celebrationis matrimonii conscientiae secumfert promissionem et gravem ob- ligationem secret! servandi ex parte sacerdotis assi- st entis, testium, Ordinarii ej usque successorum, et etiam alterius conjugis, altero non consentiente di- vulgationi. 274. Permission to celebrate a marriage of conscience implies a pledge and a grave obliga- tion to keep it secret on the part of the priest who assists at it, of the witnesses, of the Ordi- nary and his successors, and of each one of the 266 MARRIAGES OF CONSCIENCE parties as long as the other one is opposed to the disclosure. Can. 1106. Hujus promissionis obligatio ex parte Ordinarii non extenditur ad casum quo vel aliquod scandalum aut gravis erga matrimonii sanctitatem injuria ex secret! observantia immineat, vel par- entes non curent filios ex tali matrimonio susceptos baptizari aut eos baptizandos curent falsis expressis nominibus, quin interim Ordinario intra triginta dies notitiam prolis susceptae et baptizatae cum sincera indicatione parentum praebeant, vel chris- tianam filiorum educationem negligant. 275. This pledge is not binding on the Ordi- nary in case a scandal or a grave injury to the sanctity of marriage would be likely to follow from the keeping of the secret ; or if the parents would not have the children, born of such a mar- riage, baptized; or would have them baptized under fictitious names, without informing the Ordinary, within thirty days, of the birth of the children, their baptism, and the exact name of the parents ; or would neglect the Christian education of the children. (a) By granting permission for a marriage of conscience, the Ordinary imposes the obligation of secrecy about it on all those who are connected with its celebration; and he implicitly binds himself and his successors to the same secrecy. (h) But that promise which he makes or obliga- tion which he assumes, is only conditional, like the permission itself for the marriage. It is always PRESENT LAW 267 understood, and Benedict XIV asked that the parties be explicitly informed, that permission to keep a marriage secret was granted on condition that no evil consequences would follow from it and that the parties would fulfil their part of the contract. Secrecy about the marriage should not be a source of scandal, as it would be if people generally came to believe that the parties were living in concubinage ; nor should it favor neglect of the duties of the mar- ried life, or of the duties to the children who may be born of such unions. To keep the marriage secret it may sometimes be necessary to baptize the children under fictitious names or not to let the name of the parents appear on the baptism register, but this canon implies that, in such case, the parents are bound to notify the Ordinary within a month, so that proofs of the legiti- macy of the children may be kept, as formerly, in the secret archives of the diocese. 3. REGISTRATION Can. 1107. Matrimonium conscientiae non est ad- notandum in consueto matrimoniorum ac baptiza- torum libro, sed in peculiar! libro servando in se- creto Curiae archive de quo in can. 379. 276. Marriages of conscience should not be entered in the usual marriage and baptism register, but in a special book to be kept in the secret archives of the diocese spoken of in can. 379. CHAPTER VIH TIME AND PLACE FOK THE CELEBRATION OF MARRIAGE I. TIME Can. 1108. 1. Matrimonium quolibet anni tern- pore contrahi potest. 2. Sollemnis tantum nuptiarum benedictio veta- tur a prima dominica Adventus usque ad diem Na- tivitatis Domini inclusive, et a feria IV Cinerum usque ad dominicam Paschatis inclusive. 3. Ordinarii tamen locorum possunt, salvis legibus liturgicis, etiam praedictis temporibus earn permittere ex justa causa, monitis sponsis ut a nimia pompa abstineant. 277. 1. Marriage may be contracted any day of the year. 2. Only the solemn nuptial blessing con- tained in the Missal is forbidden from the first Sunday of Advent to Christmas Day inclu- sively, and from Ash Wednesday to Easter Sunday inclusively. 3. Local Ordinaries may, however, permit it during that time also, for a just cause, and warning the spouses to avoid too much display. 1. By common law, marriage may be celebrated any day of the year both validly and licitly, and, considering the matter in itself, at any hour of the day, since there is no mention of the time. Particu- lar law may put restrictions on that liberty. 269 270 CELEBRATION OF MARRIAGE 278. 2. During what is called the forbidden time the common law of the Church forbids the solemni- ties of marriage. (a) Before the Council of Trent, in some places at least, the prohibited time extended from the first Sunday in Advent to Epiphany, from Septuagesima Sunday to the Sunday after Easter, and from the Monday before the Ascension to Saturday after Pentecost. The Council of Trent reduced it to the period from the first Sunday in Advent to the octave of the Epiphany, and from Ash Wednesday to the Sunday after Easter. The present law shortens it still by a few weeks, since it will extend only from the first Sunday in Advent to Christmas Day and from Ash Wednesday to Easter Sunday inclusively. The time is counted from midnight to midnight, as commonly understood. (b) The solemnities forbidden during that time are explained by the Ritual to mean the solemn nuptial blessing given at Mass, the escorting of the bride, and the nuptial feast. The present law speaks only of the nuptial blessing. The escorting of the bride to her new home is not in use any more, and it was admitted that a moderate repast, according to the customs of the place, was not condemned during the prohibited time. 279. 3. Moreover, Bishops are given the power, which they did not possess before, to permit the solemn nuptial blessing during the prohibited time. All that is required is that there be a just cause and 11'ft thf parties be warned to avoid worldly display which would be unbecoming during a time of pen- ance. By particular law or custom even the celebration D marriage may be unlawful during the prohibited time. II. PLACE Can. 1109. 1. Matrimonium inter catholicos cele- bretur in ecclesia paroeciali; in alia autem ecclesia vel oratorio sive publico sive semi-publico, nonnisi de licentia Ordinarii loci vel parochi celebrari po- terit. 2. Matrimonium in aedibus privatis celebrari Ordinarii locorum in extraordinario tantum aliquo casu et accedente semper justa ac rationabili causa permittere possunt; sed in ecclesiis vel oratoriis sive Seminarii sive religiosarum, Ordinarii id ne permittant, nisi urgente necessitate, ac opportunis adhibitis cautelis. 3. Matrimonia vero inter partem catholicam et partem acatholicam extra ecclesiam celebrentur; quod si Ordinarius prudenter judicet id servari non posse quin graviora oriantur mala, prodenti ejus arbitrio committitur hac super re dispensare, firmo tamen praescripto can. 1102, 2. 280. 1. Marriage between Catholics shall be celebrated in the parish church ; to celebrate it in another church or chapel, either public or semipublic, the permission of the local Ordi- nary or of the pastor is necessary. 2. The celebration of marriage in private houses may be permitted by the local Ordi- 272 CELEBRATION OF MARRIAGE naries only in some extraordinary case, always demanding a just and reasonable cause; but in the churches or chapels of seminaries or of convents the Ordinaries shall never permit it except in cases of necessity and all proper pre- cautions being taken, 3. Marriages between Catholic and non- Catholic parties are to be celebrated outside of the church; if, however, the Ordinary ju-iged prudently that greater evils would follow from the observance of this rule, it is left to his dis- cretion to dispense from it; without the pre- scription of can. 1102, 2, ceasing to bind. 1. In one of the chapters of the Council of Trent (Sess. xxiv, c, 1, de Ref. Mat) it was implied that, regularly, marriage was to be celebrated in church, but no formal law existed on that point. The Roman Ritual (Tit vii, ch. 1, n. 16) says that it is most proper to celebrate marriage in church ; whence it was concluded that to celebrate it in pri- vate houses or even in private chapels, although not forbidden, by common law would be improper. Pub- lic or semipublic chapels were, in this matter, assim- ilated to churches, unless some special circumstance made them unfit places for a marriage ceremony. 281. 2. It is now explicitly decreed (a) that mar- riages be celebrated in the parish church; (b) that to celebrate them in another church or in a chapel, public or semipublic, the permission of the Ordinary or of the pastor is necessary and sufficient ; (c ) that to celebrate them in private houses and this in- PLACE 273 eludes, no doubt, private oratories the pastor's per- mission does not suffice; that of the Ordinary is re- quired, and he is to grant it only by way of rare exception, in extraordinary cases, and always on condition that there is a just and reasonable cause for it ; ( d) that the permission to celebrate marriages in seminary or convent chapels should be granted still more rarely, only in cases of real necessity, and then all the precautions necessary ought to be taken to avoid what might be unbecoming. 3. Mixed marriages ought not to be celebrated in church, unless the Ordinary permits it to avoid greater evils. Mass remains forbidden. EFFECTS OF MAKKIAGE I. INDISSOLUBILITY OF MAKRIAGE Can. 1110. Ex valido matrimonio enascitur inter conjuges vinculum natura sua perpetuum et ex- clusivum; matrimonium praeterea christianum con- jugibus non ponentibus obicem gratiam confert. 282. From valid marriage arises between the spouses a bond of its nature perpetual and ex- clusive; Christian marriage confers, besides, grace upon parties who place no obstacle to it. The contract of marriage is indissoluble of its na- ture, independently of positive legislation; between pagans as between Christians, although its elevation to the dignity of a sacrament has added to its firm- ness. It is exclusive ; the right it gives to the parties can not be given to other persons at the same time. Marriage contracted between two Christians is a sacrament and produces grace ex opere operato. If only one of the contracting parties is baptized, it is doubtful whether there is a sacrament for the bap- tized party; because it seems difficult, on account of the unity of the contract, for the marriage bond to be sacramental for one of the parties and not for the other. (De Smet, n. 107; Perrone, ii, pp. 289-294.) 275 27i> EFFECTS OF MARRIAGE II KELATIVE RIGHTS OF THE SPOUSES Can. 1111 Utrique conjugi ab ipso matrimonii in- itio aequum jus et officium est quod attinet ad actus proprios conjugalis vitae. 283. Both spouses have from the beginning of marriage the same rights and duties with re- gard to the acts of the conjugal life. Can. 1112. Nisi jure speciali aliud cautum sit, uxor, circa canonicos effectus, particeps efficitur status mariti. Unless otherwise ordained, the wife, before the ecclesiastical law, shares in the husband's status. 1. By natural law the husband and wife are equal in what pertains to the conjugal life The husband is the head of the family and in that respect he is the superior of the wife, who owes him obedience and submission, but in what pertains to marital rela- tions they have the same rights and the same duties. The husband owes fidelity to tbe wife, as well as the wife to the husband. Adultery is, in itself, as unjust on the part of one as on the part of the other. Neither could take a vow of chastity nor embrace the religious life without the other's consent. 284. 2. By ecclesiastical law the wife has the same canonical standing and .dignity as the husband. Ex- ceptions may be made to this rule, as in the civil order there are marriages, called "morganatic," which do not raise the wife to the condition of the man; but this would require a special ordinance. DUTIES OF PARENTS 277 Even when in the eyes of the civil law a woman does not enjoy the full rights of a wife, she does in the eyes of canon law unless otherwise decreed. By mar- riage "the very being or legal existence of the wife is merged into that of her husband ; hence by fiction of law, she is, generally speaking, supposed to live where he lives, though in reality they live apart, and consequently they come under the authority of the same ecclesiastical superiors and the same ecclesias- tical courts. This ceases when they are legitimately separated." III. DUTIES OF PAKENTS Can. 1113. Parentes gravissima obligatione tenen- tur prolis educationem turn religiosam et moralem, turn physicam et civilem pro viribus curandi, et etiam temporali eorum bono providendi. 285. Parents are under very grave obliga- tion, according to their means, to attend to the education of their children, both religious and moral, physical and civil, and also to provide for their temporal good. This obligation is imposed upon parents by the very law of nature ; canon law reaffirms, defines, and enforces it. The Catholic Church has always main- tained that the rights and duties of parents extend to all the functions of education. As far as depends on them, they are bound to make their children strong and good men and women, good Christians and good citizens. They should look after their tern- 278 EFFECTS OF MARRIAGE poral welfare, principally when children are not able to provide for themselves, but afterward, also, to help them to improve their social condition. IV. LEGITIMACY OF CHILDREN Can. 1114. Legit imi sunt filii concept! aut nati ex matrimonio valido vel putative, nisi parentibus ob sollemnem professionem religiosam vel susceptum ordinem sacrum prohibitus tempore conceptionis fuerit usus matrimonii antea contracti. 286. Children are legitimate when they were conceived in, or born of, a valid or putative marriage, unless, the parents having made solemn religious profession or received Sacred Orders, the use of the marriage contracted be- fore was forbidden them at the time of the con- ception. 1. By strict right only those children are legit- imate whose parents are validly married. The Ro- man law and the ancient canon law did not recog- nize any others. But since the twelfth century the Church has admitted as sufficient for the legitimacy of children putative marriages; i.e., those marriages which, although null, are thought to be valid and had been contracted in good faith, at least by one of the parents. The lawwas interpreted as applying whether the good faith was due to an error of fact or one of right. But it was always required that the marriage should have been celebrated publicly. The new law introduces no change in the former dis- PRESUMED PATERNITY 279 cipline and therefore should be interpreted in the same sense. 2. If parties, validly married, make solemn re- ligious profession or receive Sacred Orders, there arises between them an impediment which can not render their marriage null, since it is indissoluble, but renders relations illegitimate, and the Church looks upon children born of such relations as if they had been born of fornication. V. PRESUMED PATERNITY Can. 1115. 1. Pater is est quern justae nuptiae demonstrant, nisi evidentibus argumentis contra- rium probetur. 2. Legitimi praesumuntur filii qui nati sunt saltern post sex menses a die celebrati matrimonii, vel intra decem menses a die dissolutae vitae con- jugalis. 287. 1. The father is he whom legitimate marriage points out as such, unless the con- trary be proved by conclusive arguments. 2. Children born at least six months after the celebration of the marriage or within ten months of the dissolution of conjugal life are presumed to be legitimate. 1. Like the old Roman law, canon law presumes that the father of the child is the man who was the mother's legitimate husband at the time of the con- ception or at least of the birth. This is, however, a simple presumption which admits of proofs to the 280 EFFECTS OF MARRIAGE contrary; only they must be convincing ones; the benefit of the doubt, if any remains, is given to the child. 2. Conception is supposed to have taken place dur- ing the marriage and to render the children legiti- mate if they are born not less than 180 days after the marriage was contracted, and not more than 300 days after separation. This again is only a presump- tion. VI. LEGITIMATION OF CHILDKEST Can. 1116. Per subsequens parentum matrimonium sive verum sive putativum, sive noviter contractual sive convalidatum, etiam non consummatum, legi- tima efficitur proles, dummodo parentes habiles ex- stiterint ad matrimonium inter se contrahendum tempore conceptionis, vel praegnationis, vel na- tivitatis. 288. By the subsequent marriage of the par- ents, whether real or putative, whether newly contracted or revalidated, even only ratified, the offspring becomes legitimate, provided the parents were able to contract marriage at the time of the conception, of the pregnancy, or of the birth. Can. 1117. Filii legitimati per subsequens matri- monium, ad effectus canonicos quod attinet, in om- nibus aequiparantur legitimis, nisi aliud expresse cautum fuerit. 289. Children legitimated by subsequent marriage are, in the eyes of canon law, assimi- LEGITIMATION OF CHILDREN 281 lated in all things to legitimate children, unless expressly ordained otherwise by law. 1. Legitimacy is an effect of the natural law ; still it depends also on the positive law, which can ex- tend some of its privileges to children who would not otherwise be entitled to them. The Church, at least since the time of Alexander III, has used that power in favor of illegitimate chil- dren whose parents have afterward contracted mar- riage. This was done for the sake of the children, who are innocent, and also to encourage persons who had illicit intercourse to become legitimately united. By a fiction of the law the marriage is referred back to the time of the children's conception or birth. For that reason it is demanded that the marriage should have been possible at that time, that is, that there should be no impediment between the parents at the time of the conception or of the birth or between the two. It is not necessary that it should have been possible at the time of the conception as some canonists thought and even children whose concep- tion is adulterine may have the benefit of this law if the impediment disappears before their birth. It will likewise be certain henceforth that this effect is produced by putative marriage. The legitimation follows from the very fact of the marriage of the parents without any special declaration and whether it takes place immediately after the birth of the child or long after. If the mother would marry one who is not the father of the child, even though he would legally 282 EFFECTS OF MARRIAGE acknowledge it, the child would not be legitimated. However, it is presumed that he who marries the mother is the child's father, and the testimony of the two parties affirming that such is the case would be accepted as sufficient evidence unless there would be proofs to the contrary. 290. 2. Legitimation by subsequent marriage con- fers the right to receive Orders and be promoted to ecclesiastical dignities, except the Cardinalate. Six- tus V introduced that exception in the Const. Post- quant, Dec. 3, 1586. Legitimation by papal rescript has generally not the same efficacy. (De Smet, n. 168 ; Wernz, n. 686 ; Putner, n. 120.) CHAPTER X MUTUAL SEPARATION OF MARRIED PEOPLE 291. That separation may imply the dissolution of the marriage bond then we have divorce properly so called, absolute divorce, divortium plenum. Or it may leave the marriage bond intact and mean only the cessation of common life we have then limited divorce or simple separation. ARTICLE I DISSOLUTION OF THE MARRIAGE BOND As said above, every marriage validly contracted is indissoluble by the law of nature. Christian mar- riage was made a still more sacred contract when it was raised to the dignity of a sacrament. It is not, however, above God's power to make an excep- tion to a general divine law as long as this is not against the absolutely essential order of things. Ex- ceptions were made under the old dispensation to the law of marriage indissolubility. Are there any under the new ? Has the Church received authority to break the marriage bond in certain cases? We may examine that question in regard to the various kinds of marriages defined in the Introduction. (Can. 1015.) 283 284 MUTUAL SEPARATION A. Marriage Ratified and Consummated Can. 1119. Matrimonium non consummatum inter summatum nulla humana potestate nullaque causa, praeterquam morte, dissolvi potest. Valid marriage ratified and consummated can be dissolved by no human power and by no other cause than death. A Christian marriage which has been consummated is complete in every respect, and should therefore possess more firmness and more stability than any other. If God had so willed, it could have been made dissoluble by adultery, as the Greeks and Protestants claim it is. But the Catholic Church has always maintained that there is no evidence of any such divine disposition, and consequently the principle holds good: "What God has joined to- gether let no man put asunder." B. Marriage Only Ratified Can. 1119. Matrimonium non consummation inter baptizatos vel inter partem baptizatam et partem non baptizatam, dissolvitur turn ipso jure per sol- lemnem professionem religiosam, turn per dispen- sation em a Sede Apostolica ex justa causa con- cessam, utraque parte rogante vel alterutra, etsi al- tera sit invita. 292. Marriage only ratified between two bap- tized parties or between one baptized and one unbaptized, is dissolved by the very fact of solemn religious profession, and also by dis- MARRIAGE ONLY RATIFIED 285 pensation of the Holy See, granted for a just cause at the request of the two parties or even of one of them, against the wish of the other. A merely ratified marriage was considered by Gratian and the school of Bologna as no real mar- riage and therefore not indissoluble. Peter Lom- bard and the school of Paris found in it all the essential elements for a marriage contract and main- tained its absolute indissolubility. The controversy was settled by the Koman Pontiffs, particularly Alexander III (1159-1181), who affirmed the indis- solubility of matrimonium ratum, admitting, how- ever, against Peter Lombard, that it can be dissolved by religious profession and Papal dispensation, (c. 3, x, iv, 4; Esmein, Le manage en droit canonique, vol. i, p. 124 seq.) I. BELIGIOUS PROFESSION 293. 1. That solemn religious profession dis- solves a merely ratified marriage was authoritatively declared by Alexander III (c. 2 and 7, x, iii, 32) and Innocent III (ibid., c. 14), universally received in practice, after them, and defined by the Council of Trent. (Sess. xxiv, De Sacramento Matrimonii, Can. 6.) The only question which remained con- troverted was whether religious profession dissolved marriage by divine, or, as more commonly admitted, by ecclesiastical, right. 2. It is only solemn religious profession that pos- sesses that power, not a simple vow of chastity, nor the reception of Sacred Orders. The marriage is 286 MUTUAL SEPARATION dissolved when the profession is made, without any further formalities, and the other partner becomes free at once to marry again. It does not matter how long the marriage had existed, provided it was not consummated. But if consummated, even through violence, deceit, or injustice, it is absolutely indis- soluble. 3. The present law, like earlier documents, speaks only of matrimonium ratum non consumma- ium; but canonists conclude that, a fortiori, solemn religious profession dissolves matrimonium legiti- mum non consummatum, which possesses less firm- ness. Whether it would dissolve also a matrimonium legitimum consummatum coming under the authority of the Church by the baptism of one of the parties, or the matrimonium consummatum become ratified by the baptism of the two parties, is doubtful, for there is no text conceding that power to solemn vows, and there exists no certain example of such disso- lution. The efficacy of the religious profession does not extend beyond the limits assigned to it by the law. H. PAPAL. DISPENSATION 294. 1. The Roman Pontiffs have exercised for centuries the power of dissolving marriages merely ratified; there can be no doubt that they possess it, not of their own authority, but as God's ministers and representatives. 2. They have exercised that power when two con- ditions were fulfilled: MARRIAGE ONLY RATIFIED 287 (a) It must be proved juridically that the mar- riage was not consummated ; this may be established by medical examination or by circumstances show- ing that the parties could not have conjugal relations after marriage, or by the testimony of the parties themselves confirmed by that of seven witnesses on either side, testimonium septimae manus. (!}) There must be a grave reason. A dispensa- tion granted without sufficient reason would be not only unlawful, but more probably invalid, for the Pope exercises here a ministerial and delegated power. (Gasparri, n. 1081.) As soon as the dispensation is granted, both parties are free to marry, provided there be no other ob- stacle. Those dispensations are granted only by the Sov- ereign Pontiff. (Can. 1985.) All such cases have to be referred to him, through the Congregation of the Sacraments. Usually the Ordinary is delegated to make the proper investigations. The special pro- cedure to be followed in those causes is described in the Constitution Dei miseratione or in an instruction of the Holy Office which gives a simplified form. (Gasparri, vol. ii, Allegatum ix, 3 ; Can. 1962, 1963, 1966-1969, etc.) 295. Corollary. It may be asked here whether the Sovereign Pontiffs have also the power of dissolving (1) a marriage legitimum non consummatum i.e., one contracted between infidels and never consum- mated; (2) a marriage legitimum ei consummatum, contracted and consummated in infidelity; (3) a marriage consummatum et ratum, contracted and 288 MUTUAL SEPARATION consummated in infidelity, then rendered ratum by the baptism of both parties, but not consummated after baptism; (4) marriage consummated again after the baptism of one of the parties; (5) marriage consummated after the baptism of both parties. The Pope has no authority over the marriage of two infidels, until one of them is baptized. This con- dition being fulfilled there seems to be no doubt that he will have power to dissolve the marriage in the first case and not in the fifth. (Gasp. 1108.) Whether he will have it in the second, third, and fourth is controverted. Many claim that such a power was exercised, particularly by Gregory XIII, who declared valid marriages contracted by converts after the baptism of the two parties, i.e., after the first mar- riage had become ratum and the Pauline privilege was no more applicable. (Of. infra.) 'C. Legitimate Marriage or Marriage of Infidels and Pauline Privilege I. EXISTENCE AND OBJECT OF THE PRIVILEGE Can. 1120. 1. Legitimum inter non baptizatos matrimonium, licet consummatum, solvitur in favo- rem fidei ex privilegio Paulino. 2. Hoc privilegium non obtinet in matrimonio inito cum dispensatione ab impedimento dispari- inter partem baptizatam et partem non baptizatam tatis cultus. 296. 1. Legitimate marriage between un- baptized persons, even if consummated, is dis- PAULINE PRIVILEGE 289 solved in favor of the Faith by virtue of the Pauline Privilege. 2. This privilege is not applicable to a marriage contracted between a baptized and an unbaptized person with dispensation from the impediment of disparity of cult. 1. The marriage of infidels, although a merely natural contract, is, of itself, indissoluble. But as it would happen frequently that converts, after re- ceiving Baptism, would be abandoned by their un- converted partners or obliged to abandon them, in order that the burden of perpetual continence should not be imposed upon them through the malice of un- believers, an exception to the law of the indissolubility of marriage was made in their favor. This is what is called the Privilege of the Faith, Casus Aposioli, Pauline Privilege, because it was promulgated by St. Paul in the name of Christ or introduced by him in virtue of special authority. (1 Cor. vii, 8-15.) 2. The privilege supposes a marriage contracted between two unbaptized persons, whether infidels properly so called, or members of a Christian sect; it consists in this, that if, one of the parties having received Baptism, the other refuses to be baptized or at least to live peaceably, the baptized party may contract another marriage. The privilege does not apply in the case of a marriage between a baptized and an unbaptized party, as is explicitly stated ; still less in the case of two baptized parties one of whom would afterward fall into apostasy. 290 MUTUAL SEPARATION Actual reception of Baptism is required; willing- ness or desire to be baptized does not suffice. Some canonists would exclude from this privilege those who are baptized in a false sect. Nothing in the texts supports that view. II. INTERPELLATIONS t NECESSITY, OBJECT, DISPENSATION Can. 1121. 1. Antequam conjux conversus et baptizatus novum matrimonium valide contrahat, debet, salvo praescripto can. 1125, partem non bap- tizatam interpellate : 1. An velit et ipsa convert! ac baptismum sus- cipere ; 2. An saltern velit secum cohabit are pacifice sine contumelia Creatoris. 2. Hae interpellationes fieri semper debent, nisi Sedes Apostolica aliud declaraverit. 297. 1. Before the converted party may contract another marriage validly he must, ex- cept in cases provided for in can. 1125, inter- pellate the unbaptized party and ask: 1. Whether he is willing to be converted also and receive Baptism; 2. Or, at least, whether he is willing to live peaceably without blaspheming the Creator. 3. These interpellations ought always to be made, unless the Apostolic See direct other- wise. PAULINE PRIVILEGE 291 1. Necessity of the Interpellations The baptized party can make use of the Pauline Privilege only if the other one abandons him. To ascertain the existence of that condition he must interpellate his unconverted partner. There might be other means of finding his disposition, but the in- terpellation is prescribed, at least by ecclesiastical law, for the validity of the subsequent marriage, as the text of the present canon clearly implies. It should never be omitted, therefore, without dispensa- tion, even when the answer has been given already equivalently ; as when the unconverted party had ex- pelled the other or obtained a civil divorce and con- tracted a new marriage. (S. C. de Propaganda Fide, March 3, 1816.) If he had become guilty of adultery, the Christian party would be entitled to perpetual separation, but it is not certain that the right to marry again would be acquired also thereby. (Gasparri, n. 1093.) If the interpellation is impos- sible, dispensation should be obtained. The interpel- lation should be made after the baptism; if it was made before, it should be repeated after or a dis- pensation obtained. (Inst. S. O., June 3, 1874; Collect., n. 1357.) 2. Object of the Interpellations 298. Two questions are asked. When the first one is answered negatively the Holy See frequently dis- penses from the second, for conversion of the infidel party is an almost necessary condition for peaceful cohabitation. But whether the first is answered af- 292 MUTUAL SEPARATION firmatively or negatively, if the answer to the second one is negative, that is, when the infidel party, refuses to live peaceably, the convert has the privilege of con- tracting another marriage. Hence the importance of the second question. 3. Dispensation 299. Dispensation can be granted only by the Holy See, because the supreme authority in the Church alone has mission to interpret the divine ordinances and power to dispense from universal ecclesiastical laws. Dispensation, which is here rather an inter- pretation of the divine law, is granted either in individual cases or by general concessions, as by can. 1125. It may be from one or from both ques- tions. Thus converted polygamists have frequently to ask their first and only legitimate wife only the first question. If she refuses to be baptized they may marry any one of their .other wives provided she consents to become a Christian. The power to dispense from the interpellation is also granted to some Ordinaries, particularly in mis- sionary countries, with permission to subdelegate it to some of their priests. 300. By a decree of the Holy Office of August 11, 1859, all Bishops and vicars-apostolic were granted that power in cases of necessity when there was no time for recourse to Rome. It has not been with- drawn explicitly and, therefore, may still be exer- cised. (See can. 1125. It was included in the facul- ties granted to Ordinaries in the United States, Form T, n. 13.) PAULINE PRIVILEGE 293 The dispensation requires a serious reason. Ordi- narily it is the well-ascertained impossibility or the uselessness of the interpellation, the refusal of the infidel to give an answer, danger to the Christian, danger of arousing persecution, doubt about the valid- ity of the first marriage, etc. (H. O., June 20, 1866 ; March 13, 1901; Putzer, n. 130; De Smet, n. 195.) If the marriage is not contracted within a year, a new dispensation becomes necessary. This rule, how- ever, does not apply to the interpellation; once it has been made, there is no obligation of renewing it, even if the marriage is delayed over a year. It may be noted here that a marriage contracted with a dispensation obtained from the Holy See is valid even though it is found later on that at the moment it was celebrated the supposed infidel party had already received Baptism or was prevented from ex- pressing willingness to cohabit peaceably. (Gregory XIII, Const. Populis, Jan. 25, 1585; Ben. XIV, Const. In suprema, Jan. 16, 1745 ; Coll. Prop. 1305, 1307.) 4. Form of the Interpellations Can. 1122. 1. Interpellationes fiant regulariter, forma saltern summaria et extrajudiciali, de auctori- tate Ordinarii conjugis conversi, a quo Ordinario concedendae sunt quoque conjugi infideli, si quidem eas petierit, induciae ad deliberandum, eo tamen monito, fore ut, induciis inutiliter praeterlapsis, responsio praesumatur negativa. 2. Interpellationes etiam privatim factae ab ipsa parte conversa, valent, imo sunt etiam licitae, si 294 MUTUAL SEPARATION forma superius praescripta servari nequeat; hoc tamen in casu de ipsis, pro foro externo, constate debet duobus saltern testibus vel alio legitimo probationis modo. 301. 1. The interpellation shall regularly be made in at least the summary extrajudicial form, by authority of the converted spouse's Ordinary, who likewise grants time for delib- eration if the infidel party asks for it, warning him, however, that, the time having elapsed, silence will be taken for a negative answer. 2. The interpellation made privately by the converted party himself is valid also ; it is even licit if the form prescribed above can not be observed; in that case, however, it must be possible to prove that it has been made, by the testimony of at least two witnesses or any other legitimate evidence. 1. The formalities required here are the same as for a summary trial: (a) The Ordinary of the con- verted party or one delegated by him summons the infidel before the ecclesiastical court, on a certain day, to answer the interpellation, (b) The infidel party appears before the judge, who, in the name of the convert and in presence of two sworn witnesses, puts to him the two questions, (c) If the answers are negative the judge Declares the convert free to marry again or remain a celibate. (Putzer, nn. 129, 132; Zitelli, Disp., p. 122.) A record of the pro- ceedings should be kept in the diocesan archives for future reference. PAULINE PRIVILEGE 295 The questions should be put clearly and explicitly, so that the unbaptized party may understand their full meaning and import. If he was asked only whether he is willing to become a Christian, without any reference to the marriage, whether he is willing to take back his wife, the interpellation might be null, as was declared by Gregory XVI in a particu- lar case (Jan. 17, 1836), or it might be of doubtful value. (Gasparri, n. 1104, 4.) If the infidel spouse asks for some time to reflect, the request is granted when reasonable, provided it can be done prudently and without danger to the con- verted spouse's faith and morals. The Ordinary has authority to fix a certain time within which the an- swers must be given. 302. 2. The interpellation may be made also pri- vately by the party himself, personally or through some one else, orally or by letter, in presence of wit- nesses or secretly. This will always suffice for the validity and for the internal forum. The legal form, however, is obligatory whenever it is possible to ob- serve it ; and the private interpellation will be of no value in the external forum unless there be proofs of it. 5. Effects of the Interpellations Can. 1123. Si interpellationes ex declaratione Sedis Apostolicae omissae fuerint, aut si infidelis eisdem negative respondent expresse vel tacite, pars bap- tizata jus habet novas nuptias cum persona cath- olica contrahendi, nisi ipsa post baptismum dederit parti non baptizatae justam discedendi causam. 296 MUTUAL SEPARATION 303. If the Apostolic See has authorized the omission of the interpellations or if the infidel party has answered in the negative, expressly or tacitly, the baptized party has the right to contract a new marriage with a Catholic per- son, unless he has, since his baptism, given to the other a legitimate cause for separation. (a) As soon as a declaration of the Apostolic See that the interpellation may be omitted has been ob- tained, the convert is free to contract a new marriage. ( b) If the interpellation has been made and the infidel in answer to the first question consents to become a Christian and receives Baptism, the mar- riage holds. "When the husband is converted," says Innocent III (c. 8, x, iv, 19) "and his wife receives also Baptism before he was lawfully married again, he will be bound to take her back." It does not mat- ter in that case how long the wife is baptized after the husband. 304. (c) If the infidel should answer the first question affirmatively, but the second one negatively, that is, would consent to be baptized, but refuse to cohabit or live peacefully, the Holy Office declared (July 8, 1891) that the convert may marry validly, provided be does so before the other party has re- ceived Baptism. (H. O., April 30, 1908 ; Canoniste Contemporain, Aout, 1908, p. 514.) Unreasonable delay in complying with the prom- ise to receive Baptism might be a sufficient reason to obtain from the Ordinary permission to contract a new marriage. (H. O., July 4, 1855; Coll. 1113; PAULINE PRIVILEGE 297 Ami du Clerge, Mars 7, 1912.) Sufficient time, however, has to be given to prepare for Baptism, at least six months or more, according to circumstances, of which the Bishop is judge. (H. O., Nov. 29, 1882.) If the infidel refuses to become a Christian, but consents to live peaceably with the convert, the Pau- line Privilege is not applicable. At times dispensa- tion is granted from the second question and a new marriage permitted as soon as the first question has been answered negatively. Eegularly, both questions should be asked. If the infidel answers the second question nega- tively, that is, if he refuses to live with the baptized consort or to live peaceably, the marriage may be dissolved. It does not make any difference to what motives the refusal is due, even if it was simply a case of impossibility, provided the Christian party be not responsible for it. The Holy Office permitted marriage to a convert whose wife had been taken away without hope of recovery, even though she would be willing to be baptized and live with him, and even if it was the husband himself who had sold her, provided he had not done so since his baptism. (H. O., July 8, 1891; June 12, 1850.) The Christian could not take advantage of the Pauline Privilege if he had given the other a just cause for separation, as by committing adultery ; but the adultery must be certain, committed since bap- tism, and not condoned. The infidel may refuse to cohabit, or consent to cohabit, but not peaceably. The refusal may be ex- 298 MUTUAL SEPARATION plicit, implicit, tacit, equivalent. He refuses equiva- lently when he makes cohabitation physically or mor- ally impossible, by blaspheming the Creator, leading the Christian to sin, retaining concubines, opposing the Christian education of the children, etc. If co- habitation was made impossible by some other per- son than the unbaptized consort, there might be a sufficient cause for separation, but not for applica- tion of the Pauline Privilege. (S. C. de Prop. Fide, March 5, 1816, ad 6 um .) (d) At times the promise of the infidel is clearly not sincere. If this can be proved, it may be treated as a refusal and marriage permitted. But as fre- quently the evidence would be insufficient, recourse should be had to the Holy See or to the Bishop for dispensation. 305. (e) The right to contract a new marriage is not lost by delay. Can. 1124. Conjux fidelis, licet post susceptum baptismum denuo matrimonialiter cum parte infideli vixerit, jus tamen novas celebrandi nuptias cum persona catholica non amittit, ideoque potest hoc jure uti, si conjux infidelis, mutata voluntate, postea discedat sine justa causa, vel jam non cohabitet pacifice sine contumelia Creatoris. The baptized spouse does not lose the right to contract a new marriage by continuing the marital life with the infidel party after baptism, and that right may be used later if the infidel, having become of a different mind, withdraws without just cause or does not cohabit peace- fully, without blaspheming the Creator. PAULINE PRIVILEGE 299 The matrimonium legitimum does not become ratum by the baptism of one of the spouses. The fact that it was consummated again after that bap- tism does not change its character, and the condi- tions for the application of the Pauline Privilege may be verified after several months the same as after several days. III. SPECIAL PROVISIONS Can. 1125. Ea quae matrimonium respiciunt in constitutionibus Pauli III Altitudo, Jun. 1, 1537; S. Pii V Romani Pontificis, Aug. 2, 1571; Gregorii XIII Populis, Jan. 25, 1585, quaeque pro peculiaribus locis scripta sunt, ad alias quoque regiones in eisdem adjunctis extenduntur. 306. What refers to marriage in the Consti- tutions of Paul III, Altitudo -, June 1, 1537 ; of St. Pius V, Romani Pontificis, August 2, 1571 ; of Gregory XIII, Populis, January 25, 1585; and was decreed for some particular places, is extended to Other countries in the same condi- tions. 1. By the Constitution of Paul III, converts in the West Indies, who, as pagans, had married sev- eral wives in accordance with the custom of the coun- try, and did not remember which they had married first, were permitted to keep the one they preferred and contract a regular marriage with her ; if they re- membered which they had taken first, they were to retain that one, and dismiss the others. Dispensa- 300 MUTUAL SEPARATION tion was thus granted from interpellations in cer- tain cases of impossibility. 307. 2. To Pius V it had been represented that as among the pagan Indians it was the custom to have several wives and dismiss them for trifling rea- sons, the practice had been introduced by the mis- sionaries, when those Indians would be converted, to allow them to retain the wife who would be bap- tized with her husband; and because it happened frequently that the one thus retained was not the first wife, doubts arose about the validity of such marriages. Seeing that it would be hard to separate the converted husband from his baptized wife, par- ticularly as the first one would be difficult to find, wishing to provide for the welfare of the Indians and to calm the conscience of the missionaries, the Pope sanctioned what had been done in the past and approved the same practice for the future. In this case the dispensation granted from both interpellations is, in some respects, more extensive than in the preceding one. Whether the first wife is known or not, the convert may retain the one who is baptized with him. She must, however, be bap- tized, which was not required by the Constitution Altitudo. The convert may retain the wife who is baptized together with him even if the first one is willing to be baptized later. Would he have the same privi- lege if the first was baptized at the same time, or had been baptized before ? This concession does not clearly cover that case. PAULINE PRIVILEGE 301 308. 3. Gregory XIII went still further. The case proposed to him was that of married infidels of, Ethiopia, Angola, Brazil, and other parts of the West Indies, who were made captives and carried off into distant countries, so that if later on either the party- left at home or the one carried away became a Cath- olic, it was impossible to reach his or her consort and make the regular interpellations. The Pope, considering that those marriages contracted between infidels, although real contracts, are not so firm that they can not be dissolved if necessity demands, in virtue of his supreme authority, gave to all Ordi- naries and pastors in those countries, to all the priests of the Society of Jesus, who had power to hear confessions there, faculties to grant to sincere con- verts in that situation, the necessary dispensation, so that without interpellating the party whom they mar- ried before baptism, or without waiting for the an- swer, they might contract a new marriage with any Christian, provided it had been ascertained in a summary and extra judicial manner that the party could not be interrogated or, if the interpellation had been made, no answer had been received within the fixed time. And it was added that the marriage would be valid even if it was found out later that the party was prevented from answering or even was already baptized at the time the second marriage was con- tracted. This last clause implies that not only dis- pensation is granted from all interpellations, but that a marriage which had become ratified by the baptism of both parties is dissolved. Is this only an appli- cation of the Pauline Privilege ? Some maintain it 302 MUTUAL SEPARATION is nothing more, but for many it is the exercise, by the Pope, of the power of dissolving marriages con- tracted in infidelity, even after they have become ratified, provided they are not consummated after ratification. The above concessions are now extended to the whole Church. IV. DISSOLUTION OF THE MABBIAGB CONTRACTED IN INFIDELITY Can. 1126. Vinculum prioris conjugii, in infidelitate contract!, tune tantum solvitur, cum pars fidelis reapse novas nuptias valide iniverit. 309. The bond of the first marriage, con- tracted in infidelity, is dissolved only when the baptized party contracts a new marriage validly. The baptism of the convert and the refusal of the infidel to cohabit do not dissolve the marriage, but only give to the baptized spouse the right to con- tract another; and it is when he actually exercises that right that the first marriage is dissolved, pro- vided that the new union be valid. If the convert does not choose to marry again, the marriage con- tracted in infidelity holds good and the infidel can not contract a new one validly. V. PRESUMPTION IN DOUBTFUL CASES Can. 1127. In re dubia privilegium fidei gaudet favore juris. 310. In doubtful cases the law favors the privilege of the Faith. GENERAL PRINCIPLE 303 The law favors the privilege that is, the liberty of the convert. Thus, when it is doubtful whether or not the first marriage was valid, whether the con- ditions were fulfilled for the application of the Paul- ine Privilege, whether the convert has not given the other party legitimate cause for separation after baptism, the doubt is solved in favor of the convert. Again, if the validity of the marriage contracted in infidelity is impugned on the ground of want of con- sent, the testimony of the converted party is accepted as sufficient evidence. This is done to favor con- versions, and, according to some, it is a proof that the Church could dissolve the marriage contracted in infidelity in case it would be valid. (De Smet, n. 196; Catholic Encyclopedia, Divorce.) ARTICLE II LIMITED DIVORCE, OR SEPARATION AS TO BED, BOARD, AND DWELLING- PLACE 1. GENERAL PRINCIPLE Can. 1128. Conjuges servare debent vitae conju- galis communionem, nisi justa causa eos excuset. 311. Married persons are bound to live to- gether unless they have a just cause for separa- tion. 1. Conjugal cohabitation implies community of dwelling-place, of board, of bed or bedchamber, at least habitually and as far as circumstances permit, 304 LIMITED DIVORCE This is demanded by the mutual rights and duties of husband and wife and the very end of marriage. As the husband is the head of the family, the wife ought, as a rule, to follow him wherever he goes. 312. 2. Cohabitation, however, is not so essential that the bond of marriage can not exist without it or that separation may never become legitimate. Seri- ous reasons will be required, for separation is not the normal condition, and it may lead to disorders; but occasions may arise when further cohabitation becomes unadvisable, or even unseemly and morally impossible. Cessation of married life without dis- solution of marriage is then permitted. The Coun- cil of Trent maintained the discipline of the Church on this point against the attacks of Protestants. (Sessio xxiv, c. 8; Esmein, vol. ii, p. 309.) 313. 3. St. Paul speaks (1 Cor. vii, 5) of tem- porary cessation of marriage relations by mutual con- sent from religious motives. This belongs to the in- ternal forum, and the law does not deal with such cases. Nor does it refer to complete and perma- nent separation with a view to a more perfect life; that is, the reception of Orders or entrance in re- ligion. This also is done by mutual consent, and implies no violation of any one's rights. It is per- missible as long as it does not lead to the violation of the moral law. In such cases the Church demands that when one party receives Orders or embraces the religious life the other party should also enter a re- ligious community or at least take a vow of chastity in the world. CAUSE OF SEPARATION 305 2. PRINCIPAL CAUSE OF SEPARATION ADULTERY Can. 1129. 1. Propter conjugis adulterium, alter conjux, manente vinculo, jus habet solvendi, etiam in perpetuum, vitae communionem, nisi in crimen consenserit, aut eidem causam dederit, vel illud ex- presse aut tacite condonaverit, vel ipse quoque idem crimen commiserit. 2. Tacita condonatio habetur, si conjux inno- cens, postquam de crimine adulterii certior factus est, cum altero conjuge sponte, maritali affectu, conversatus fuerit; praesumitur vero, nisi sex intra menses conjugem adulterum expulerit vel dereli- querit, aut legitimam accusationem fecerit. 314. 1. Adultery on the part of one of the spouses, without breaking the bond, gives to the other spouse cause for separation, even for- ever, unless he has himself consented to the crime, or been responsible for it, or has con- doned it expressly or tacitly, or committed the same crime. 2. There is tacit condonation when the in- nocent spouse, knowing the adultery, has freely continued to treat the guilty one with marital affection; condonation is presumed when the^ adulterous party has not, within six months, been sent away, or left, or duly denounced. 1. Adultery, being directly contrary to conjugal fidelity, is, of its nature, a cause for perpetual sep- aration and the only one really special and intrinsic to marriage. (Gasparri, n. 1111.) Hence, it is the only one mentioned in the Gospel. (Matt, v, 19.) In the first centuries of the Church, there was 306 LIMITED DIVORCE often a command, and the duty was imposed upon the innocent party, to separate from the party guilty of adultery. Even at present the dismissal of the guilty party might become a duty, if continued liv- ing with an adulterous husband and wife would seem to be an approval of the crime. Ordinarily no such obligation exists. 315. 2. To be a cause for separation, adultery must be formal, complete, morally certain; not at- tributable to the other party, partially or as accom- plice, directly or indirectly; not compensated, as it were, by the adultery of the other party; not con- doned tacitly or presumably. All sexual intercourse outside of married life is commonly assimilated to adultery, even the unnatural sin of sodomy. 3. The continuation of married life after acquir- ing the certainty that the other party has committed adultery, if it is really free, implies condonation of the crime; and it is specified here that after six months condonation is presumed. 3. TAKING BACK THE GUILTY PABTY Can. 1130. Conjux innocens, sive judicis sententia sive propria auctoritate legitime discesserit, nulla unquam obligatione tenetur conjugem adulterum rursus admittendi ad vitae consortium; potest autem eundem admittere aut revocare, nisi ex ipsius consensu ille statum matrimonio contrarium sus- ceperit. 316. After a legitimate separation, whether effected by private authority or by a sentence of the judge, the innocent spouse is never TAKING BACK THE GUILTY PARTY 307 obliged to admit again to married life the party guilty of adultery; he may, however, admit or recall her, unless, with the consent of the inno- cent spouse, the guilty one has embraced a state incompatible with matrimony. 1. Adultery is of itself a cause for perpetual sep- aration ; the innocent party has no further obligations to the guilty one, at least no obligations of justice. At times, charity might demand that after amend- ment the contrite party be taken back; perhaps in some exceptional cases reasons of common good might impose the same obligation. 317. 2. Canonists generally taught that if the in- nocent party would become adulterous in turn he would lose his privileges and be bound to take back the other one when the separation had been effected by private authority. If there had been an interven- tion of the judge, a new decision would be required to render cohabitation obligatory again. This canon states absolutely that the innocent party is free for- ever. Still, the principle of compensation is admitted in canon 1129, 1. 3. The innocent spouse retains the right to demand the return of the guilty one unless he has given up his right by granting permission to the other party to enter a state incompatible with matrimony, and that permission has been taken advantage of. This last condition is now certainly necessary. If the innocent spouse refuses reconciliation, if within two years he does not invite the other one to return, if he receives Orders or embraces the religious life 308 LIMITED DIVORCE permanently, he is supposed to give up his rights and leave the other party free to assume obligations which would render restoration of conjugal relations impos- sible. (Gasparri, n. 1114.) 4. OTHEE CAUSES FOB SEPARATION Can. 1131. 1. Si alter conjux sectae acatholicae nomen dederit; si prolem acatholice educaverit; si vitam criminosatn et ignominiosam ducat; si grave seu animae seu corporis periculum alteri facessat; si saevitiis vitam communem nimis difficilem red- dat, haec aliaque id genus, sunt pro altero conjuge totidem legitimae causae discedendi, auctoritate Ordinarii loci, et etiam propria auctoritate, si de eis certo constet, et periculum sit in mora. 2. In omnibus his casibus, causa separationis cessante, vitae consuetudo restauranda est; sed si separatio ab Ordinario pronuntiata fuerit ad cer- tum incertumve tern pus, conjux innocens ad id non obligatur, nisi ex decreto Ordinarii vel exacto tern- pore. 318. 1. If one of the married parties be- comes affiliated with a non-Catholic sect; if he gives to the children an education which is not Catholic ; if he leads a criminal and disgraceful life ; if he is a grave danger to the other party's soul or body; if his cruelty renders common life too hard ; such and similar causes will give the other spouse the right to withdraw by ap- pealing to the Ordinary of the place ; or even of his own authority if they are proved with cer- tainty and there is danger in delay. OTHER CAUSES FOR SEPARATION 309 2. In all these cases, when the cause for separation ceases, the married life ought to be resumed; but if the separation has been pro- nounced by the Ordinary for a definite or in- definite period of time, that obligation is not binding on the innocent party until it has been so declared by the judge or the time expires. 319. 1. There are other causes for separation be- sides adultery. The principal ones are mentioned here, by way of example, but not of complete enu- meration : ( a ) Heresy, so often called spiritual adul- tery, is naturally the first one. To it is assimilated apostasy or schism. The present law demands more than a single act even of public heresy ; it is joining a non-Catholic sect that constitutes the cause for sep- aration. Apostasy, indifferentism, affiliation to a condemned society are not mentioned; nor heresy or infidelity anterior to the marriage, (b) It is not every neglect of duty to the children, but giving them an education which is not Catholic, that the law specifies as a cause for separation, (c) Great crimes were generally not considered by canonists as a suffi- cient cause, but they are mentioned explicitly here. (Lehmkuhl; Catholic Encyclopedia, Divorce, p. 64.) (d) Danger to soul or body must be a really grave one, which can not be avoided otherwise than by separation. Such would be "temptation to mortal sin, to the denial of the Faith, to the abuse of the marriage rights . . . ; danger to the body means any great danger to life or health, as well as other intolerable conditions, plotting against one's life, 310 LIMITED DIVORCE well-grounded fear of dangerous contagion, insanity, serious and constant quarreling," etc. (Gasparri, n. 1117.) 320. 2. In all those and similar cases recourse must be had to the Ordinary that he may pronounce the separation, unless the cause be proved with cer- tainty and there be danger in delay. Heresy, even when clearly proved, is no exception to this rule, as was held by some canonists. (The Third Plenary Council of Baltimore, n. 126, forbids having recourse to the civil courts without consulting the Ordinary. A regular trial is not required, but only the Bishop's permission, where such custom exists. Tanquerey, De Matrimonio, n. 937.) Separation in the cases now under consideration is only temporary and lasts as long as the cause lasts. It may become perpetual de facto if the cause lasts as long as the life of the parties. May it be made perpetual antecedently also by reason of cir- cumstances, so that the innocent party would be free, v.g., to enter a Religious Order ? Canonists answered that it might, in several cases, under certain condi- tions. The present canon does not mention any such case. In this, separation for one of the causes men- tioned here differs from separation because of adul- tery ; it differs also in another respect, that ordinarily it ought not to be effected by private authority, whilst in case of adultery the intervention of the Ordinary is not explicitly required." EDUCATION OF CHILDREN 311 5. EDUCATION OF CHILDREN Can. 1132. Instituta separatione, filii educandi sunt penes conjugem innocentem, et si alter conjugum sit acatholicus, penes conjugem catholicum, nisi in utroque casu Ordinarius pro ipsorum filiorum bono, salva semper eorundem catholica educatione, aliud decreverit. 321. After the separation, the education of the children belongs to the innocent spouse; if one of the parties is a non-Catholic, it belongs to the Catholic; unless in either case, for the good of the children and their Catholic educa- tion being duly provided for, the Ordinary de- cides otherwise. 322. 1. The innocent spouse ought regularly to be favored, unless he be a non-Catholic. In the latter case the Catholic party has the preference because of his faith and also because the education of the children will, as a rule, be safer in his hands. The good of the children is what should be considered primarily and, first of all, the safety of their faith. The judge may give the children to the non-Catholic parent if he deems it to their advantage, but he has always to see that they receive a good Catholic edu- cation. 323. 2. In the preceding canons it is always ques- tion of the Ordinary, for matrimonial causes among Christians are reserved exclusively to the ecclesias- tical authority. From a moral standpoint it may, however, be permitted, at times, for a Catholic to 312 LIMITED DIVORCE apply to the civil court for corporal separation under certain conditions. (De Smet, n. 211.) 3. It is question not of the judge, but of the Ordi- nary, which implies that those matters are not nec- essarily decided in court after a regular trial ; it may be lawful, for serious reasons, or where the custom exists, to proceed extra-judicially and be satisfied with an informal decision of the Ordinary. CHAPTER XI REVALUATION OF MAERIAGE ARTICLE I SIMPLE REVALUATION 1. GENERAL CONDITIONS Can. 1133. 1. Ad convalidandum matrimonium irritum ob impedimentum dirimens, requiritur ut cesset vel dispensetur impedimentum et consensum renovet saltern pars impedimenti conscia. 2. Haec renovatio jure ecclesiastico requiritur ad validitatem, etiamsi initio utraquc pars con- sensum praestiterit nee postea revocaverit. 324. 1. To revalidate a marriage, null be- cause of a diriment impediment, it is necessary that the impediment cease or be dispensed from, and that the marriage consent be renewed by the party at least who knows of the impedi- ment. 2. This renewal is demanded by the eccle- siastical law for the validity, even if the parties gave their consent in the beginning and never withdrew it. 1. Some impediments cease of themselves, like age ; others can be removed by the parties concerned, like disparity of worship ; others can be removed only by dispensation. The cessation of the impediment is necessary for revalidation, but not sufficient. The 313 314 REVALIDATION OF MARRIAGE consent has to be renewed not only when it was want- ing in the beginning, but in all cases of simple re- validation. 2. In itself that renewal would not be necessary, but it is demanded by the ecclesiastical law, as is explicitly declared here; only it is no longer neces- sary in all cases that it be renewed by both parties if the impediment is known to only one of them. 2. EENEWAL OF THE CONSENT Can. 1134. Renovatio consensus debet esse novus voluntatis actus in matrimonium quod constet ab initio nullum fuisse. 325. The renewal of the consent must be a new act of the will ratifying a marriage known to have been null from the beginning. That the consent is renewed means that a new con- sent, independent of the first one, is given; and this bupposes knowledge of the nullity of the first. As long as the parties do not know that their marriage is invalid, there is only continuance of the same con- sent. Peaceful cohabitation and marriage relations for years after the disappearance of the impediment do not validate the marriage, unless at least one of the parties is aware of the defect in the first contract. 3. MODE" OP RENEWAL Can. 1135. 1. Si impedimentum sit publicum, con- sensus ab utraque parte renovandus est forma jure praescripta. SIMPLE REVALIDATION 315 2. Si sit occultum et utrique parti notum, satis est ut consensus ab utraque parte renovetur priv- atim et secreto. 3. Si sit occultum et uni parti ignotum, satis est ut sola pars impediment! conscia consensum priv- atim et secreto renovet, dummodo altera in consensu praestito perseveret. 326. 1. If the impediment is public, the consent must be renewed by both parties in the form prescribed by law. 2. If the impediment is occult and known to both parties, it is enough that the consent be renewed by both parties privately and in secret. . 3. If the impediment is occult and known to only one of the parties, it is enough that the party who is conscious of the impediment should renew his consent, provided the other party's consent perseveres. 1. When the impediment is public, the marriage is non-existent in the external forum, consequently it ought to be celebrated with the usual formalities in presence of the priest and two witnesses. 327. 2. When the impediment is occult in fact and by its nature, before the public the marriage is valid, and therefore there is no need of celebrating it publicly. Renewal of the consent privately with- out witnesses, although always externally, will suffice. 3. If the occult impediment is known to both parties, both have to renew the consent; if to only one, it will be enough that this one renew the con- 316 REVALUATION OF MARRIAGE sent privately and secretly. There is no obligation any more, in that case, to reveal the impediment to the other party and obtain his renewal, which often may offer real difficulties. To overcome them, can- onists had been obliged to suggest various expedients which will gladly be dispensed with. The law can declare the renewal of consent by the party uncon- scious of the impediment unnecessary, since no re- newal is, in itself, essential. 4. MABEIAGE NULL FOB WANT OF CONSENT Can. 1136. 1. Matrimonium irritum ob defectum consensus convalidatur, si pars quae non consen- serat, jam consentiat, dummodo consensus ab al- tera parte praestitus perseveret. 2. Si defectus consensus fuerit mere internus, satis est ut pars quae non consenserat, interius consentiat. 3. Si fuerit etiam externus, necesse est con- sensum etiam exterius manifestare, vel forma jure praescripta, si defectus fuerit publicus, vel alio modo privato et secreto, si fuerit occultus. 328. 1. Marriage null for want of consent is validated, if the party who had not con- sented does consent, provided that the consent given by the other party perseveres. 2. If the want of consent was merely in- ternal, it is enough, that the party who did not give his consent give it now interiorly. 3. If the want of consent was external also, it is necessary to give the consent internally and to manifest it also externally ; in the form SIMPLE REVALUATION 317 prescribed by law, if the want of consent was public ; or, if it was external, but occult, in some other private and secret manner. 1. When marriage is null for want of consent, no dispensation is needed or possible, the only remedy is that the consent which is wanting be given. The one given before has not to be renewed, provided it was not withdrawn ; the Church does not demand that renewal, and it is not in itself necessary. There is no question in this case of renewal of consent by both parties, but of the giving of consent by the one who did not give it before. Is it necessary that the party now giving consent should know that the previous one was null or that the marriage was in- valid? Here we have not a renewal; the consent now given will necessarily be new. To revalidate a marriage null because of fear, knowledge of the nul- lity is required. (A. A. S., vol. iv, Jan. 11, 1912, p. 188, Causa Osnabru. ; vol. v, March 1, 1913, p. 322, Ebora; Gennari-Boudinhon, Consultation 119; Wernz, n. 648; De Smet, n. 408.) But a marriage null for want of consent is not considered here as null because of an impediment; when it is null be- cause of fear it is null because of want of consent and also at least probably because of an ecclesiastical impediment. 329. 2. The consent has to be supplied as far as it is wanting; if the want is purely internal, the remedy does not need to be public, it suffices that the consent be given internally and it is implied in the spontaneous continuation of married life. 318 REVALUATION OF MARRIAGE 3. If the want of consent is publicly known, the giving of the consent ought to be public ; that is, take place at least in presence of the priest and two wit- nesses. At times, to remove scandal, it may be nec- essary that it be public in that sense that it be made commonly known, but this is never required for the validity. If the want of consent would be external, but still occult, as, if it had been manifested in presence of only one witness or none at all, the con- sent would have to be given externally, but there would be no obligation of using the canonical public form ; it might be given privately. Continuation of married life is an external manifestation of consent. 5. MAEBIAQE NULL FOB THE WANT OP THE BEQUIBED FOBM Can. 1137. Matrimonium nullum ob defectum formae, ut validum fiat, contrahi denuo debet legi- tima forma. 330. Marriage null for want of form, to be- come valid, must be contracted again in the prescribed form. Regularly there is no dispensation from the for- malities prescribed for the valid celebration of mar- riage; if they have been omitted, the parties have only to go and renew their consent in presence of the priest and of two witnesses. REVALUATION IN RADICE 319 ARTICLE II REVALUATION IN RADICE 1. ITS NATUBB Can. 1138. 1. Matrimonii in radice sanatio est ejusdem convalidatio, secumferens, praeter dispen- sationem vel cessationem impediment!, dispensa- tionem a lege de renovando consensu, et retrotrac- tionem, per fictionem juris, circa effectus canonicos, ad praeteritum. 2. Convalidatio fit a mom en to concessionis gratiae; retrotractio vero intelligitur facta ad ma- trimonii initium, nisi aliud expresse caveatur. 3. Dispensatio a lege de renovando consensu concedi etiam potest vel una tantum vel utraque parte inscia. 331. 1. The revalidation of a marriage in radice is its revalidation, implying, besides a dispensation from, or the disappearance of, the impediment, the dispensation from the ob- ligation of renewing the consent, and, by a fic- tion of law, retroaction as regards the canonical effects. 2. The revalidation takes place when the favor is granted ; the retroaction is understood to reach back to the beginning of the marriage, unless the contrary be stated. 3. The dispensation from the obligation of renewing the consent may be granted without the knowledge of one or of either party. 1. The revalidation in radice differs from simple revalidation in two things the renewal of the con- 320 REVALIDATION OF MARRIAGE sent is not required and, by a fiction of law, the marriage is considered as valid from the beginning, as far as its canonical effects are concerned. There is, then, as in a simple revalidation, a dispensation from the impediment which annulled the marriage, unless it has disappeared, and, moreover, a dispen- sation from the renewal of the consent, and a retro- active effect by which, v.g., children born of that invalid marriage are considered legitimate as if the marriage had been contracted validly. The marriage itself, as is evident, and as is explicitly stated to avoid misunderstanding, becomes valid only from the moment the dispensation is granted, and the retro- action concerns only its canonical effects. The Church simply removes those disabilities which she had decreed, restoring, for instance, to illegitimate children the privileges enjoyed by those born of legit- imate wedlock, and of which she had deprived them. 332. 2. By that fiction of law the marriage may be considered, in regard to its effects, as valid from the beginning or from a certain given moment. Reg- ularly, it is in the first sense that the revalidation is to be understood. 3. The dispensation in radice may also be total or partial ; it may have all its effects or only some. At times only one of the parties is dispensed from re- newing the consent, as when one of the parties is willing to renew his, and the other is not or might not be if asked, although the consent previously given has not been withdrawn. The dispensation may also be granted to both parties without their knowing it. Ordinarily, at least one of the parties knows of the REVALIDATION IN RADICE 321 dispensation and accepts it. Some indults grant the power of dispensing in radice only on that condition. Still it is not in itself necessary, nor required in some special cases when it would be difficult to com- ply with it, as when there would be a great many marriages to revalidate which were null through no fault of the parties. The dispensation in radice may likewise be granted without any retroactive effects. 2. WHEN IS IT POSSIBLE? Can. 1139. 1. Quodlibet matrimonium initum cum utriusque partis consensu naturaliter suffi- ciente, sed juridice inefficaci ob dirimens impedi- mentum juris ecclesiastic! vel ob defectum legitimae formae, potest in radice sanari, dummodo consensus perseveret. 2. Matrimonium vero contractual cum impedi- mento juris naturalis vel divini, etiamsi postea im- pedimentum cessaverit, Ecclesia non sanat in radice, ne a momento quidem cessationis impedimenti. 333. 1. Any marriage contracted on both sides with a consent naturally sufficient but juridically ineffective because of a diriment impediment of the ecclesiastical law, or for want of the required form, can be revalidated in radice, provided the consent perseveres. 2. But a marriage contracted with an im- pediment of the natural or divine law, even if the impediment afterwards disappears, the Church does not revalidate in radice, not even from the moment the impediment has ceased 322 REVALIDATION OF MARRIAGE 1. The Church can and does revalidate in radice marriages which were null only because of some ec- clesiastical obstacle. The ecclesiastical authority can undo what it has done. 2. When a marriage is null by the natural or di- vine law the Church can not revalidate it as long as the cause of nullity continues. Once the cause of nullity has ceased, the Church could probably dis- pense in radice, the dispensation going back to the moment when the marriage became possible; but she does not. The effect of the dispensation could not go back to the beginning; that is, the Church could not treat as valid, even by a fiction of law, a mar- riage which is invalid by divine right. (De Smet, n. 408 ; Gennari, Consultationes morales, vol. ii, p. 385; Ami, Mai 17, 1906, p. 407; H. O., March 2, 1904; H. Pen., April 25, 1895.) 3. WHEN is IT IMPOSSIBLE! Can. 1140. 1. Si in utraque vel alterutra parte deficiat consensus, matrimonium nequit sanari in radice, sive consensus ab initio defuerit, sive ab initio praestitus, postea fuerit revocatus. 2. Quod si consensus ab initio quidem defuerit, sed postea praestitus fuerit, sanatio concedi potest a momento praestiti consensus. 334. 1. If the consent of one or both par- ties is wanting, the marriage cannot be revali- dated in radice, whether the consent was want- ing from the beginning, or whether it was given in the beginning and afterwards withdrawn. REVALIDATION IN RADICE 323 2. If the consent was wanting in the be- ginning, but given later, the revalidation can be granted from the moment the consent was given. The marriage is really contracted and the sacra- ment received when the dispensation is granted ; since the consent constitutes the essence of the contract, it is necessary and sufficient that it should exist at the moment the contract is made. 4. BY WHOM IS IT GBANTED? Can. 1141. Sanatio in radice concedi unice potest ab Apostolica Sede. 335. Revalidation in radice can be granted only by the Apostolic See. The canons which deal with the Bishop's power of dispensing in cases of necessity or of danger of death must be understood of simple dispensations. To dispense in radice requires a special delegation from the Holy See. CHAPTER XII OF SECOND MARRIAGES Can. 1142. Licet casta viduitas honorabilior sit, secundae tamen et ulteriores nuptiae validae et licitae sunt, firmo praescripto can. 1069, 2. 336. Although a chaste widowhood be more honorable, second and further marriages are valid and lawful, the prescriptions of can. 1069, 2, being observed. Can. 1143. Mulier cui semel benedictio sollemnis data sit, nequit in subsequentibus nuptiis earn iterum accipere. A woman who has once received the solemn blessing can not receive it again in subsequent marriages. 337. 1. The teaching of the Church in regard to second marriages has always been the same as that of St. Paul, who exhorts widows to remain unmar- ried, without imposing it as an obligation, rather ad- vising marriage when the single life might be too dangerous. (Rom. vii, 2, 3 ; 1 Cor. vii, 39, 40 ; 1 Tim. v, 14; cf. Hermas, lib. ii, Mand. iv, n. 4; Ter- tullian, Ad uxorem, ii, 1.) The Montanists and Novatians, who absolutely forbade second marriages, were condemned. (Nice, c. 8.) Those marriages, however, were looked upon with a disfavor, which was expressed by some ecclesias- tical writers in such strong terms that at times they 325 326 OF SECOND MARRIAGES seem to amount to a formal condemnation. (Perrone, De Matrimonio Christiano, vol. iii, p. 73 ; Chardon, Histoire des Sacrements, Du Mariage, c. iv, art. 1 ; Martene, De antiquis Ecclesiae ritibus, lib. i, c. ix, artl.) In the Greek Church, from the beginning of the fourth century, second marriages were subjected to various penances. (Neocsesarea, 314, c. 3, 7; An- cyra, 358, c. 19 ; Laodicea, 380 [ ?] c. 1 ; St. Basil, ad Amphilochium.) Third and fourth marriages were treated still more severely until they were condemned as unlawful or even as invalid except under certain conditions. This was done formally in the tenth cen- tury after the discussions to which the marriage of the emperor Leo VI gave rise. In the Latin Church they remained always lawful. Some traces of the severer discipline are found in the penitential books of the West, but they had dis- appeared by the time Gratian compiled his Decretum. (C. xxxi, q. 1.) 338. 2. As a sign of disfavor, in the Greek Church, the crowning and, in the Latin Church, the solemn nuptial blessing, were, at a very early date, refused to second marriages. Originally the bless- ing was denied whenever one of the parties had been married or had been blessed before. Then the prac- tice was introduced in some countries of granting it when the bride had not -received the blessing already; and the Roman Ritual permitted to retain that prac- tice where it existed. A decree of the Holy Office, August 31, 1881, was interpreted by many as imply- ing that it might, or even should, be adopted every- OF SECOND MARRIAGES 327 where. The question is now settled by the present canon. 339. 3. Under the ancient Roman law a widow was forbidden, under pain of infamy, to contract a new marriage before ten, or, by the law of Theo- dosius, twelve, months had elapsed since the death of the first husband. Similar provisions are found in the Frankish laws and in modern civil codes. They were adopted also by some ecclesiastical canons, but these were abrogated by Innocent III. (C. ult. x, iv, De Secundis Nuptiis.) It has only been recom- mended since, as it is by the present canon, to avoid overhasty marriages, which have something unbe- coming even when they are not likely to give rise to unfavorable suspicions or to other difficulties. Pas- tors are directed to use their influence to prevent such unions, but not to forbid them. The Ordinary might, no doubt, in particular cases, prohibit them, for grave reasons. (Dictionnaire de Theologie Cath- olique, Bigamie; Esmein, vol. ii, p. 99.) INDEX (The references are to the marginal numbers) A B Abduction: ancient discipline, Banns: origin of, 42; obli- 153, 154; various kinds, gation, 44; mode of pro- 154, 155 ; present discipline, mulgation, 45 ; place, 46-48 ; conditions for the impedi- time, 49; form, 50-53; in ment, 156, 157; extent, 158; mixed marriages, 53; dis- dispensation from it, 157; pensation from, 56-57; circumstance of abduction sanction, 58 ; repeating pub- to be mentioned in petition lications, 59; when impedi- for dispensations, 159. ment is discovered, 62. Abrogation of impediments, Baptism: required for mar- . '. riage, 40, 41 ; how proved, Adoption, see Relationship, 131 . 141, 148; doubtful Bap- . legal- tism, 146 ; to be investigated Age: impediment of, 134; for in each casC) 147 . pre sumed marriage, 134-136. Baptism, 148. Adultery: as an impediment, Betrothals: 19 2 0; by nat- see .Crime; cause of sepa- , , 21 _ 23 b / ecde . ration 314 ; conditions, 315 ; ia . j \ 24 : 27 * nature perpetuity, 316, 317; adul- d conditio ' ns 2 1 ; effects, tery of converted party 22 24 27 fo ; mal ' ities 2 1 and Pauline Privilege, 304. 25 26 ' b ' 26; dis- Affimty: former discipline, so i ut ; on 23 27 171, 172; present discipline, solutlon ' a > " ... 173; nature of the im- BI "^ ng : u sole " 1 "' . 2 ' %l> pediment, 174; extent and 264; when forbidden, 278, multiplication, 175; dis- Z7y - pensation, 176. Bishop: power of, to set up, Apostates, marriage with, abrogate, dispense from, 130, 131. impediments, 74, 83, 84, 87- Assistance at marriages : con- 89 ; to dispense from banns, ditions for validity, 241; 55, 56; see also Ordinary. permission for, 242 ; by Bond : of previous marriage, whom needed or granted, 140; how removtd, 141; 242, 246; to whom, 242, double sentence required. 243 ; conditions for lawful 141 ; dissolution by vow, by assistance, 244. Papal dispensation, 142, Assistant, needs permission - 291ff ; by death, 143 ; by to assist at marriages, 237. Pauline Privilege, 296, 309. 329 330 INDEX Care of children, see Chil- dren. Casus Apostoli, see Pauline Privilege. Casus Perplexus, 87, 88. Catholics: who is considered as Catholic in relation to marriage form, 257, 258. Causes for separation : adul- tery, 314; others, 318; per- petual, 315, 316; tempo- rary, 320. Celebration : of marriage, mixed, 150, 263, 265 ; Cath- olic, 261-264; time, 277-279; place, 280, 281. Censures : absolution from, 101; marriage of persons under, 132. Children : consent of parents to marriage of children, 66; education of children after separation of parents, 321, 322. Church: authority of, to regulate marriage, 14; to set up impediments, 73-75. Civil effects of -marriage. 14, 15. Civil Ruler, and marriage, 15-18. Clandestine : betrothals, 25 ; marriage, see Form of marriage ; revalidation of clandestine marriage, 330. Cohabitation : of spouses, 311; obligation of, 312; dispensation from, 313. Communion before marriage, 65. Compensation for dispensa- tion, 106, 107. Componenda, 107. Concubinage, an impediment, 178. Condition : permitted in be- trothals, 26; in marriage, nature and species, 218, 219; differs from mode, cause, interpretative inten- tion, antecedent error, 219; ancient legislation, 221 ; present legislation, 222 ; conditions past or present, 223; future necessary, im- possible, or dishonest, 224; possible, contingent, and honest, 225; against sub- stance of marriage, 226, 227; of not having chil- dren, 227; of abusing mar- riage rights, 228; of not receiving sacrament, 229 ; proof of condition, 230; servile condition, 197. Confession, before marriage, 65. Confessor, his power of dis- pensing from impediments, 85-88. Confirmation, before mar- riage, 41. Consanguinity : general no- tions, determination, mul- tiplications of, 164-166; impediment of, former dis- cipline, 167, 168; present discipline, 169 ; dispensa- tion from, 170; error in dispensation from, 95. Consent : of parents to mar- riage of children, 66; in marriage, 186; its neces- sity, qualities, 187, 188; ob- ject, 189; obstacles to valid consent, ignorance, 190 ; error, 192; knowledge or conviction of nullity of marriage, 199; fiction, 200; violence and fear, 213 ; conditional consent, see Condition; manifestation of consent, 211-212; con- sent in invalid marriage, 231 ; marriage null for want of consent, 328. INDEX 331 Consummation of marriage, 9, 137. Contract : of marriage, a sacrament, 2, 3; of be- trothal, 20, 26. Conversion, of non-Catholic party, 123. Crime: origin of impediment of, 160; present discipline, 161 ; various forms of im- pediment of, 162; dispensa- tion from, 163; implied in other dispensation, 97. Cumuhtio, 92. Custom, impediments and, 80, 81. D Danger of death : power of dispensing in, by Ordinary, 83, 84 ; by priest, 85 ; form of marriage in, 255. Death, how proved, 143. Decency, public : origin of the impediment, 177 ; pres- ent discipline, 178, 179. Delegation, to dispense, 108. Detention, equivalent to ab- duction, 157. Disparity of worship : im- pediment of, origin, 144; nature and extent, 145 ; in case of doubtful Bap- tism, 146, 147; dispensation from, not implied in dispen- sation from mixed religion, 147; necessity of promises, 149; what that dispensation implies, 150 ; celebration of marriages with, 150. Dispensation: notion, 77; his- tory, 78; power of Pope to grant, 72, 79; of Ordinary, 74, 83, 84, 87-89; of pastor, confessor, priest, 85, 87, 88 ; for internal forum, 90; from several impediments, 92; when one is reserved, 93 ; error in dispensation, 95 ; dispensation from banns, 55, 56 ; implicit dispensation from impediments of crime, 97, 98; pbreption and sub- reption in, 99, 100; execu- tion of, 102, 104; in forma gratiosa, commissoria, 103 ; application for, 104; com- pensation for, 106, 107; dis- pensation ad cautelam, 147. Diriment impediment, nature, 69. Dissolution: of ratified mar- riage by solemn vow, 292, 293 ; by Pontifical dispensa- tion, 294 ; of legitimate mar- riage by religious profes- sion, 293 ; by Papal dispen- sation, 295 ; by Pauline Privilege, 296 ff. Divorce, see Separation. Domicile, 248-250. Doubt: about Baptism, set Baptism ; in case of, mar- riage is favored, 7; about impediment, 35, 89. Duties of parents, 285. E Education of children after separation of parents, 321, 322. End of marriage, 5. Effects: of betrothals, 22, 24, 27 ; of marriage, 282 ff . Engagements, see Betrothals. Error : in dispensation, 99, 100; in marriage, 192; about person, 193, 194; about qualities, 195, 196; about servile condition, 197; error of law, about object or es- sential property of mar- riage, 198. Examination : of spouses, 34- 38; of witnesses, 39. Execution of dispensation, 102-104. 332 INDEX Father, presumed, 287. Favor: law favors marriage, 7; faith, 310. Fear : nature and species, 203 ; vitiates consent, by natural law, 204; by ecclesiastical law, 205; conditions for, 206, 207; proof of, 208; how remedied, 209; right of challenging a marriage V&S& * at marriage , 32-36, Fees: for dispensation, 106, 107; for marriages, 247. Fiction: invalidates marriage, 200; in what it consists, 201; its proof, 202; fiction of law is sanatio in radice, 322 Form: of betrothals, 21, 25, 26; of marriage in the early Church, 232; Tridentine discipline, 233; decree Ne temere, 234; present legis- lation, 235 ff; conditions for validity, 236, 237; mode of assistance, 241; in case of necessity,251; who is bound by the law on form of mar- riatre 257-260 Guarantees: for dispensation from impediment of mixed religion and disparity of worship, 120, 149; their ne- cessity, 121 ; sincerity, form. 122; fulfilment, 128; re- fusal of, 129, 149. H Heresy : cause of separation, 318; impediment, 114; per- son brought up in heresy, when not bound by law on form of marriage, 258. Heretic: marriage with, 114; bound by impediments of ecclesiastical law, 14; not by form of marriage, 260; who is considered as a heretic, 114. Ignorance: obstacle to valid consent 19Q not *** ^ children, 286. : nature, 68 ; spe- cies > % Prohibitive din- "I 6 "*'. W ' 7 ' maj r . f E 111 .?/' ? 2 ' P wer to S U P 73 ' 7S to abrogate, 76; to dis- P ens 5 from ' 77 ' 79 J im P e c d ;- *?*{*. , ai } d Custom 54; doubtful impediments, 89; investigation of impedi- ments > ^5; minor impedi- ? is > and dispensation, , 10 - Impotency: nature, 137; im- T pediment, 138; proof, 139. \mpuberty see Age. Indissolubihty of marriage, 282, 291. Infidels : marriage of, and Pa P a JL dispensation, 295; a d Pauline Privilege, 296. Interpellations: necessity of, 297; object, 298; dispensa- tion from, 299, 300, 306, 307, 308; form, 301, 302; effects, 303; if infidel an-. swers affirmatively, 303 ; if negatively, 304; equivalent refusal, if promises not sin- cere, 304. INDEX 333 Instructions on marriage, 28, 37, 65. Investigation : before mar- riage, 29-31. Law : civil and marriage, 15, 18, 185. Legitimacy of children, 286. Legitimation, 288, 290. M Marriage: as a sacrament, 2- 4; end and properties of, 5; favored by law, 7; species of, 8-11; right to, 68; au- thority that regulates, 12-18 ; divine, 13; ecclesiastical, 14; civil law, 15-18; marriage of unbaptized persons, 16- 18; promises of, 19, 20; in- structions on marriage, 22, 37; willingness to contract, 36; mixed marriages, banns in, 53, 266; impediment in, 114, 120; to be discouraged, 127; contracted unlawfully or invalidly, 129; manner of assisting at, 150, 265, 266; marriage with mem- bers of forbidden sects, 130, 131 ; by proxy, 213 ; condi- tions for its validity and licitness, 214, 215, 217; by interpreter, 216; its licit- ness, 217; conditional mar- riage, 218-230; its lawful- ness under former legisla- tion, 221 ; under present, 222-230; form of marriage, 232 ff; before whom to be contracted, 245, 246; mar- riages of conscience, their nature, 271; former legis- lation about them, 272; present law, 273-276; effects of marriage, 282 ff; revali- dation of, 324 ff. Minister, prohibition to ap- pear before a non-Catholic, 124-126. Mixed marriages, see Mar- riage. N Natural children, see Legiti- macy. Necessity : power of dis- pensing in, 87, 88; form of marriage in urgent, 251- 256. Ne temere decree and be- trothals, 25; and marriage, 234. Nullity of marriage: how pronounced, 141 ; convic- tion of, may nullify con- sent, 199 O Obreption and subreption, 99, 100. Occult impediment, 70. Orders : impediment of, its existence, nature, dispensa- tion from, 151. Ordinary: power of, to dis- pense from banns, 55, 56; to set up impediments, 74; to dispense from impedi- ments in danger of death, 83, 84; in urgent necessity, 87, 88; to dispense from doubtful impediments, 89; who comes under the name of Ordinary, 237; in- tervention of Ordinary in cases of separation, 323. Oriental Catholics, bound to observe form of marriage when contracting with Catholics of the Latin rite, 257. P Parents: consent of, to mar- riage of children, 66; duties of, 285, 334 INDEX Pastor, for marriage, 236 ff, 245, 246. Paternity, presumed, 287. Pauline privilege, 296; applic- able also after long delay, 305 ; special provisions, 306- 308; when is marriage dis- solved, 309 Presumption : in favor of faith, 310; in favor of mar- riage, 7 ; of paternity, 287. Place for celebration of mar- riage, 280, 281. Pope : power of, to set up, 72, 73; to abrogate, 76; to dispense from impediments, 79; intervention of, 91; power to dissolve marriage merely ratified, 294; legiti- mate, 295. Polyandry, polygamy, poly- gyny, 6. Posting marriage announce- ments, 50. Profession, religious : as an impediment, see Vow; how it dissolves marriage rati- fied, non-consummated, 293. Promises, in mixed marriages, see Guarantees. Proxy : betrothal by, 26 ; mar- riage by, 213-215. Public decency, see Decency. R Ratunt et consummatum, mar- riage, never dissolved, 291. Raium et non-consummatum, dissolved by religious pro- fession, 292-293; by Papal decree, 294. Registration : of marriages, its obligation, form, 267 r in the baptismal book, 268; by whom, 269; its purpose, 269; difficulties, 270; of marriages of conscience, 276. Relationship, legal: 112; origin of impediment of, 184 ; present discipline, 185 ; spiritual, 180-183 ; produces diriment impediment, con- ditions, 183. Religion, mixed; nature, 113; origin of impediment of, 115; reason, 116; dispensa- tion, 117, 118; guarantees required, 120; manner of assisting at marriage, 265, 266. Religious profession, see Pro- fession, religious. Renewal of consent in re- validation, 327-330. Reyalidation of marriage : simple, 324 ff; general con- ditions, 324; renewal of consent, 325 ; mode of re- newal, 326; when the im- pediment is occult, 328; if marriage is null for want of consent, 328; for want of required form, 330; re- validation in radice, its na- ture, 331; effects, 332; con- ditions, 333, 334; by whom granted, 335; may be granted without knowledge of parties, 331, 332. Rights of spouses, 283. Rites of marriage, see Cele- bration of marriage. Q Quasi-domicile, 248-250. Sacrament: marriage as a, 2-4; consent excluding sac- rament, null, 229. Sonatio in radice, see Revali- dation. Second marriages : former discipline, 337, 338; present law, 339. INDEX 335 Sect: those affiliated with a T sect, 114; see Mixed mar- Time of celebration of mar- riages, riage, 277-279. Separation of married per- sons: 311-313; causes, adul- U tery, 314 ff; other causes, Unworthiness, 130. 318 ff; perpetual, 315, 316; temporary, 320; education V of children after, 321. Vagi, their case to be referred Servile condition, 197. to the Ordinary, 64. Simulation, 200, 202. Violence, see Fear. Sinner, public, should receive Vow: simple, 110, 111; sacrament of Penance be- solemn, 110; diriment im- fore marriage, 132. pediment of, origin, dis- Societies, marriage with mem- pensation from, 152. bers of forbidden, 130, 131. Witnesses: for betrothals; Solemn blessing, see ' Bless- 26 ; for marriage, 235, 241 ; ing, solemn. in cases of necessity, 251; Solemnities of marriage, see examination of witnesses, Celebration of marriage. 39. MINTED BY BRNZIGER MOTHERS, NEW YOC BOOKS OF DOCTRINE, INSTRUCTION, DEVOTION, MEDITATION, BIOGRAPHY, NOVELS, JUVENILES, ETC. PUBLISHED BY BENZIGER BROTHERS CIKCIKNATI: NEW YORK: CHICAGO: 343 MAIN ST. 36-38 BARCLAY ST. 214-216 W. MONROE ST. Books not marked net will be sent postpaid on receipt of the advertised price. Books marked net are such where ten per cent must be added for postage. 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