Matrimony Chapter V: The Church's Control over Christian Marriage — Impediments

Chapter V: The Church’s Control over Christian Marriage — Impediments

CHAPTER V THE CHURCH’S CONTROL OVER CHRISTIAN MARRIAGE— I M PEDI MENTS In this chapter we purpose to show, ( i ) that the Church possesses control over Christian marriage; (2) that this control is based on a positive divine law and can be exercised independently of the secular power; (3) that the Church has the exclusive right to establish diriment impediments. SECTION 1 THE CHURCH HAS CONTROL OVER THE SACRAMENT OF MARRIAGE i. The Dogma. — The contracting parties, the officiating priest, and the required witnesses are by no means the only persons who have a part in the administration of Matrimony. The Pope and the bishops, as representatives of the Church to whom our Lord has entrusted the administration of all the Sacraments,1 also play an important role. One of the palmary rights of the Church in connection with marriage is to establish and to dispense from diriment impediments. Luther and Protestants generally admit those l Cir. 1 Cor. IV, 1. 32! impediments which are mentioned in Leviticus, but deny that the Church has the power to establish others. This attitude is entirely consistent on the part of men who do not regard Matrimony as a Sacrament. Against the Protestant Reformers the Council of Trent defined: “If anyone saith that the Church could not establish impediments dissolving marriage, or that she has erred in establishing them, let him be anathema.* 2 Luther’s pet theory is expressly condemned in canon 3 of the same Session: If anyone saith that those degrees only of consanguinity and affinity which are set down in Leviticus can hinder matrimony from being contracted, and dissolve it when contracted, and that the Church cannot dispense in some of those degrees or establish that others may hinder and dissolve it, let him be anathema.” 8 2. Proof of the Dogma. — The Church is infallible, indefectible, and holy; and hence, if she attributes to herself and exercises a right, that right undoubtedly belongs to her. Now it is a fact that, constantly asserting her claim, she has established diriment impediments since the fourth S Sett. XXIV, can. 4: ” Si quis et aMnitatis gradus. qui Levitico exdixerit, Ecclexiam non potuisse sta- primuntur, posse impedive matrimotuere impedimenta matrimonium mum contrahendum et dUrimere condirimentia vel in its constituendis er- tr actum, nec posse Ecclesiam in nonreuse, anathema sit.” (Denztaffer- ttullis ilhtnm dispensore out const Bannwart, n. 974). tuere, nt plures impediant et dirisSess. XXIV, can. 3: “Si quis mant, anathema sit.” (Deqaager* ifixerit, cos tantum consanguinitatis Bannwart, n. 973 )» THE CHURCH’S CONTROL 223 century. Consequently, she had the right to establish such impediments. a) The major premise of this syllogism belongs to Apologetics or Fundamental Theology. The minor must be proved from history. The Council of Elvira, A. D. 300, regarded the defect of Baptism (disparitds cultus) as a diriment impediment.4 The Council of Neo-Caesarea, 314, mentions affinity among the diriment impediments.5 St. Basil (+379) says no man can marry a woman with whose sister he has had illicit intercourse.6 Pope St. Leo the Great (+461) ordained for the diocese of Rome that no deacon should marry, and that if a man espoused a slave, mistakenly thinking her to be free, the marriage should be null and void (impedimentum conditionis).7 Gregory the Great (+604) forbade marriages between first cousins, which were permitted under the Roman law.8 Spiritual relationship arising from Baptism was made a diriment im4 Can. 15 “Propter copiam pueU iarum gentilibus minime in tnatrimonium dan doe sunt virgines chrir stianae, ne aetas in A ore tumens in adulterio animae resolvatur.” (Hardouin, Condi., I, p. 252). 5 Can. 2: ” Femino si duobus fratribus [t. e. successive] nupserit, extrudatur usque ad mortem; sed in morte propter hutnanitatem, si dixerit quod ubi convoluerit, solvet matrimonlum, kabebit poenitentiam.” «” Si quis impuritatis vitio oliquando victus in illicitam duarum sororum coniunctionem inciderit, neque id matrimonium existimetur neque omnino in Ecclesiae coetum admittatur, priusquom a se invicem dmmantur.* {Ep. 160 ad Diodor., n. 2; Migne, P. C, XXXII, 623). 1 * Ancillam a toro abiicere et uxorem certae ingenuisatis accipere, non duplicatio coniugii, sed profectus est honestotis.* {Ep. 6> ad Rustic. Episc. Narbon., c. 6). 8 In his instructions to St Augustine of Canterbury (L. XII, ep. 31): * Quaedam terrena lex in Romano Republica permittit, ut swe fratris sive sororis sen duorum fratrum germanorum vel duarum sororum Alius et iUia misceantur. Sed experimento didicimus, ex tali coniugio sobolem non posse succrescere, et sacra lex [t. e. Leviticus] Prohibet cognationis turpitudinem revelare. Undo necesse est, ut imm tenia vel quarto generaHa Hdelium licenter sibi iungi debt at. Nam secunda, quam diximus, a se omni modo debet abstinere. Cum noverca autem misceri grave est facinus.” 224 MATRIMONY pediment by the Council in Trullo (692). 9 A synod held at Mayence, in 813, prohibited marriage in the fourth degree of consanguinity and designated the spiritual relationship arising from Confirmation as a diriment impediment.10 Pope Zachary testified at the Roman Council of 743 that the archbishops and princes of Germany had asked him for instructions with regard to marriage.11 Pope Nicholas I (+ 867), in confirming the diriment impediments of consanguinity and spiritual relationship, cited “the sacred canons, and especially the decrees of Pope Zachary.” 12 b) In order to understand how the Church can invalidate the Sacrament of Matrimony without changing its matter and form, we must consider that the validity of the Sacrament is conditioned by the validity of the matrimonial contract.18 By nullifying the contract, the Church deprives the Sacrament of its basis. The validity of the contract does not depend solely on the free will of the contracting parties ; it depends also on the will of God, which may manifest itself in a threefold man9 Canon 53: ” Quoniam . . • in nonnullis locis cognovitnus quosdatn, qui ex sancto et salutari baptismate infantes suscipiunt, postea quoque cunt matribus illorum viduis matrimonium contrahere, statuimus ut in posterum nihil Hat eiusmodi. Si qui autem post praesentem canonem hoc facer e deprehensi fuerint, i% quidem primo ab hoc illicit o matrimonio desistant( deinde et fornicatorum poenis subuciantur.” 10 Can. 54, 55 J “Contradicimus quoque, ut in quarto generatione nullus amplius coniugio copuletur; ubi autem post interdictum factum inventum fuerit, separetur. Nullus igitur proprium filium vel filiam de fonte baptismatis suscipiat, nec {Malam nec commatrem ducat uxor em, nec illam cuius Mium aut filiam ad confirmationem duxerit: ubi autem factum fuerit, separentur” (Hardouin, Condi., IV, p. 1016). 11 . . petentes apostolica praecepta, qualiter liceat eis coniugia copulare et quomodo debeant observare.* 12 Resp. ad Consult. Bulgaror., c 39: * Sacri veto canones et praecipue Zachariae summi praesulis decreta quid hinc promulgent, episcopo vestro vobis explorandum relinquimus.” On the very ancient impedimentum voti, see infra, Sect 2. On the historic development of these impediments in general cfr. Palmieri, De Matr. Christ., thes. 20. 18 V. Ch. I, Sect 1. Thesis IL THE CHURCH’S CONTROL 225 ner : through the law of nature, through a positive law, or through an ecclesiastical precept. Hence there are three distinct classes of diriment impediments : (1) Impediments flowing from the law of nature (e. g. impotency, error, violence) ; (2) Impediments set up by a positive ‘divine law (e. g. the bond of an existing marriage) ; (3) Impediments established by ecclesiastical law (e. g. clandestinity, difference of religion, affinity). No matrimonial contract is valid if the contracting parties are incapacitated for marriage by the law of nature, by a positive divine law, or by the law of the Church. Persons thus incapacitated are technically known as inhabiles. A marriage entered into with such a person is null and void because there can be no true and binding consent between inhabiles. These considerations explain why the Church can establish diriment impediments without altering the matter and form of the Sacrament. Both matter and form of Matrimony consist in the valid consent of the contracting parties. Where there is no valid consent, there can be no valid marriage, and hence no Sacrament.14 Conversely, the Church can, by establishing impediments, render a marriage unlawful, but she cannot prevent it from being sacramental if the underlying contract is valid. 3. Two Functions of Ecclesiastical Authority.— As the Church has the power to regulate Christian marriage, she must also have the power of dispensing from diriment as well as for14 V. Ch. I, Sect. 1. bidding impediments {pot est as dispensandi) and of haling matrimonial causes before her judicial tribunal {potestas iudicialis) . The potestas dispensandi is exercised both in foro externo and in foro interno, and extends to all impediments, except where the natural or a positive divine law form an insuperable obstacle ; it may also validate an invalid marriage in radice. The potestas iudicialis is the power to pass definitive judgment on all matters pertaining to the essence of Matrimony, e. g. the dissolubility or indissolubility of the bond,15 matrimonial engagements (sponsalia)9 separation from bed and board, etc. In regard to the latter, the Tridentine Council declares : “If anyone saith that the Church errs in declaring that, for many causes, a separation may take place between husband and wife in regard of bed or cohabitation, for a determinate or for an indeterminate period, let him be anathema.” 16 As matrimonial laws bind the universal Church, the Pope is the only competent authority for the definitive adjudication of marriage cases and the granting of dispensations, and no bishop can do anything without his consent. A dispensation is a special exemption granted from the 15 V. Ch. II, Sect 2 and 3. coniuges quoad torum teu quoad 16 Seas. XXIV, can. 8: “Si quit co habit ationem ad cerium incertumve dixtrit, Ecclesiam errare, quum ob tetnpus fieri post* decemit, anamuliat cautat separationem inter thcma tit/’ THE CHURCH’S CONTROL 227 requirements of a law or rule.17 What is the extent of the papal power of dispensing from diriment impediments to Matrimony? The diriment impediments at present in force are enumerated in the following hexameters : Error, conditio, votutm, cognatio, crimen, Cultus disparitas, vis, ordo, ligamen, honestas, A etas, afiinis, si clandestine et impos, Raptave sit mulier, parti nec reddita tutae: Haec socianda vetant connubia, facta retractant Of these fifteen impediments, five are based partly on the natural and partly on positive divine law. They are: (1) ligamen, i. e. the impediment of existing marriage; (2) error, i. e. a mistake as to the person married, either before or at the time of the marriage; (3) wor metus gravis, i. e. grave fear, unjustly caused, for the purpose of extorting matrimonial consent; (4) consanguinitas, i. e. blood relationship within certain degrees; (5) itnpotentia, i. e. an antecedent incapacity to perform the functions of the married state. From these impediments not even the Pope can dispense. With regard to the impedimentum ligaminis, note that the dissolution of the marriage bond in certain cases18 is not effected by a dispensation, properly speaking, but either by divine law or in virtue of the loosing power exercised by the Supreme Pontiff in the name of Christ. The impedimentum voti arises from the solemn vow of chastity taken by religious. Being based upon a promise made directly to God, rather than to the Pope or the Church, this impediment is of divine right, but as it is selfimposed and a matter of free choice, there is no contradiction involved when the Pope, for weighty reasons, after it Dispensatio est relaxatio legis 18 V. supra, Ch. II, Sect 3. in aliquo casu particular*. 228 MATRIMONY lifting the solemnitas voti, which is of purely ecclesiastical institution, dispenses from the simple vow of chastity just as he can and does dispense from a promissory vow (iuramentum protnissorium). All other impediments are of purely ecclesiastical institution, and it needs no argument to prove that the Church can dispense from laws of her own making. The only difficulty arises in connection with the dispensation technically known as sanatio in radice, by which a marriage invalid from the beginning is made valid just as if there had been no ecclesiastical impediment. How can the Church do this? Are we to assume that the Pope is able to undo past deeds or that his power is retro-active?19 Nothing of the kind. The sanatio in radice is simply a fictio iuris, by which an invalid marriage, besides being made valid by a dispensation (ex nunc), is juridically regarded as if it had been valid from the beginning (ex tunc). The principal effect of this measure is to legitimize children begotten before the revalidation.20 19 Ad praeteritum nulla datur potentia, says an ancient proverb. 20 Also in other respects this papal favor is of far-reaching consequence, especially in questions of succession and inheritance arising in royal families. The theologians commonly teach that it behooves Christian princes to respect such papal acts, not only in their spiritual, but also in regard to their civil effects, (Cfr. Sanchez, De Matrimonio, 1. VIII, disp. 7), though it would be difficult to show that they have a strict obligation to do so, especially ruling monarchs in questions pertaining to succession. — On the subject of this subdivision cfr. Palmieri, De Matrimonio Christiano, thes. 35. SECTION 2 THE CHURCH’S CONTROL OVER CHRISTIAN MARRIAGE IS OF DIVINE RIGHT AND INDEPENDENT OF THE STATE i. Heretical Errors vs. the Dogmatic Teaching of the Church. — Antonio de Dominis was the first to maintain that the Church derives her power over matrimonial causes from the State.1 He was followed by Launoy2 and the court theologians of Austria, France, and Italy. In 1786, the Jansenist Council of Pistoia put this teaching into practice by formally requesting the Archduke Leopold II of Tuscany, a brother of Emperor Joseph II, to abolish the two matrimonial impediments of spiritual relationship and public propriety and to limit the impediments of consanguinity and affinity to the second degree. This impudent act led Pope Pius VI to condemn the principle espoused by the court theologians as heretical.8 His decision merely confirmed and lDe Republ. Christ., 1. V, c. 11, supremam civilem potestotem dumLondon 1618. taxat originarie sped are, contractui 2De Regia in Matrimonium Po* matrimonii apponere impedimenta testate, Paris 1673. eius generis quae ipsum nullum red8 Bull ” Auctorem fidei,” 1794; dunt dicunturque dirimentia/ quod cfr. Prop. Syn. Pistor. damnat., prop. ius originarium praeterea dicttur So: ” Doctrina synodi asserens, ’ ad ‘cum iure dispensandi essentiaUter emphasized the teaching of the Tridentine Council. Launoy’s interpretation of the Council was arbitrary. We will give but one example. The Council declares: ” If anyone saith that the Church could not establish impediments dissolving marriage, or that she has erred in establishing them, let him be anathema.” Launoy claims that ” Church ” here means the Ecclesia disc ens, or community of the faithful as represented by the State, to which the Ecclesia doc ens owes whatever powers she. enjoys in matrimonial affairs. Launoy further maintained that the Tridentine canons possess no dogmatic authority, but are purely disciplinary, and therefore revocable. As a matter of fact the Council expressly meant to define that the Church has the power to establish diriment impediments, and that she is infallible in exercising this power. No such infallibility resides in, or has ever been claimed by, secular rulers. Besides, the Tridentine Council had in view mainly the heresy of Luther, who denied jurisdiction in matrimonial matters to the Holy See, not to the State. The Council proved ks independence of the secular power by establishing a new impediment (clandestinity), by limiting the scope of certain traditional impediments, and by refusing the urgent request of the King of France and other monarchs to declare the marriage of children without parental consent invalid.4 connexum ’ subiungens ’ supposito assensu vel conniventia principum potuisse EccUsiam iuste constitute impedimenta dirimentia ipsutn contraction matrimonii, — quasi Ecclesia non semper potuerit ac possit in Chrir stianorum matrimonUs iure proprio impedimenta constituere, quae matrimonium non solum impediant, sed et nullum reddant quoad vinculum, … in eisdem dispensare — : canonum 3, 4, 9, 12 Sees. XXIV. ConciKi Tridentini everswa, haeretica.” (Denzinger-Bannwart, p. i$S9)> 4Cfr. Palmierf, De Matrimonio Christ., the«. 28. THE CHURCH’S CONTROL 231 2. Proof of the Dogma. — a) To refute the court theologians it is sufficient to point out that their teaching is contrary to dogma. No Catholic is permitted to doubt that the Church has the God-given right to control the administration of all the Sacraments, including Matrimony.5 Now the control of the matter and form of this Sacrament, which consist in the matrimonial consent of the contracting parties,6 is merely a function of the legitimate administration of Matrimony. Moreover the establishment of diriment impediments involves actual control over matter and form, and hence the Church has the right to establish such impediments and to condition upon them the validity of the matrimonial consent, which is inseparable from the Sacrament. This fundamental right comprises the power of granting dispensations and other acts of jurisdiction. It follows that the Church has received her prerogatives and rights, not from any monarch, nor from the secular power as such, but directly from Jesus Christ. b) A sufficient argument from Tradition is furnished by the demonstration that the contrary thesis has no foundation in history. a) When did the State confer upon the Church the power to regulate matrimonial causes? This cannot, in the nature of things, have happened during the era of • V.’ Sprv, Cb. I, Sect 1. • V. Supr. Ch. I, Sect a. the persecutions, which ended with the edict of Milan, 313. Did it perhaps occur after the reign of Constantine, at the beginning of what we are wont to call the Middle Ages? Impossible. The court theologians themselves emphasize, with no small degree of satisfaction, that the secular princes who ruled during this epoch (Theodosius, Justinian, et a/.), far from relinquishing their alleged rights in favor of the Church, set up and abolished diriment impediments without her consent, nay contrary to her will.7 The Middle Ages are marked by many sharp conflicts between the papacy and the rulers of the Holy Roman Empire, and the Church was often compelled to defend her rights against usurping princes. Nor does modern history furnish a single fact or document to prove that the Church derives her matrimonial jurisdiction from the State. Hence the assertion of the court theologians is groundless. P) We can go a step farther and show that, in establishing certain impediments, the Church either had no precedent on the part of the State, or paid scant attention to existing civil laws. Take e. g. the impedimentum voti. This is one of the most ancient ecclesiastical impediments of which we know. As early as the third century St. Cyprian (+258) declared that young women who married after taking the vow of chastity excommunicated themselves.8 When the Church was recovering from the terrible persecutions of the first three centuries, a Spanish council held at Elvira (A. D. 300) refused to admit such women to the Sacraments except on condition 7 dr. F. H. Vcring, Geschichte der Pandekten des romischen und heutigen gemeinen Privatrechtes, 4th ed.t pp. 556 sqq., Maycncc 1875. — • On certain objections drawn from the writings of Athenagoras, St. Ambrose, and St Augustine see Palmieri, De Matrimonio Christ., pp. 258 sqq. 8 Ep. 4 (a/. 62) • ” Quodsi obstinatae per sever ani nec se ab invicem se par ant, sciant se cum hoc sua tmpudica obstinatione nunquam a nobis admitti in Ecclesiam poss$” THE CHURCH’S CONTROL 233 that they abstained from conjugal intercourse.9 St. Basil (+379) testifies that marriages of this kind were regarded as invalid in the Eastern Church.10 Pope Innocent I ( + 407) distinguishes two classes of virgins, veiled and unveiled, and says that the former cannot be absolved until after the death of their guilty partners.11 St. Jerome (+420) declares that virgins who marry after taking a solemn vow of chastity are “guilty of incest rather than adultery.” 12 Gelasius I ( + 496) brands the attempted marriage of virgins who had dedicated themselves to God by a solemn vow of chastity as sacrilegious.13 The Church proceeded with similar independence in determining the forbidden degrees of consanguinity and affinity,14 in recognizing the diriment impediment of disparitas cultus (defect of Baptism), which was not generally enforced until after 1000,15 in establishing the impedimentum criminis, for which civil legislation offered no precedent, and so forth. To these and other canonical laws Christian rulers bowed in obedience without ever claiming that their own rights were being usurped.16 • Can. 13: . . ut abstineant se a coitu.” 10 * Canonic arum fomicationes pro matrimonio non reputentur, sed earum coniunctio omnino divellatur.* {Ep. 1 ad Amphil., can. 6). 11 Ep. ad Victric. Episc. Rotomag. 12 Adv. Iovin., I, 7: ” Virgines quae post consecrationem nupserint, non tarn adulterae sunt quam incestaer is The Council of Tours (567) cites in support of the nullity of such marriages the code of Emperor Theodosius the Great (+ 395) » which punishes the forcible abduction of consecrated virgins for the purpose of marriage with death; but aside from the fact that the secular law is narrower in scope, the Council gives as a reason for the diriment effect of the vow of chastity (can. 20, apud Palmieri, p. 350) : * quod vel Apostolus Paulus vel Papa Innocentius statuit.* — For fuller information see Palmieri, De Matrimomo Christ., pp. 237 sqq. iV. supra, Sect 1. l5Cfr. Bellarmine, De Matrimonio, I, 23. 16 Cfr. Palmieri, De Matr. Christ., thes. 30 and 33.- On the subject of marriage impediments from the standpoint of Moral Theology see Thos. Slater, S.J., A Manual of Moral Theology, Vol. II. pp. 285 sqq., New York 1908; from the canonical point of view, De SmetDobell, Betrothment and Marriage, Vol. II, Bruges 19x3. SECTION 3 THE CHURCH’S EXCLUSIVE RIGHT TO ESTABLISH DIRIMENT IMPEDIMENTS I. The Teaching of the Church. — Abstractly speaking there is nothing contradictory in the assumption that the State, too, has the right to establish diriment impediments to marriage. In matter of fact there have been some theologians who held this to be the case. Prominent among them were Peter Soto, Ambrose Catharinus, Tournely, Collet, and Carriere. “Kings and secular princes,” says e. g. Tournely, “possess the innate right to establish impediments which render marriage forbidden or invalid.” 1 Gregory of Valentia, Gonet, Henno, and especially Th. Sanchez 2 thought it prudent to modify this thesis. They said the State originally did possess the right to set up marriage impediments, but this right was taken away by the Church in the legitimate exercise of her potestas indirecta in temporalia. To-day it is doctrina certa that the State has no jurisdiction over matril” Reges et princip** saccular** monium irritantia t diriment.” htr* stbi proprio ae innate consti- {D* Matrimonio, qu. 7, art. ). tur* pouunt imprdimmta tnatri- 2D* Matrimonio, I VII, ditp. J, 34 monial causes so far as they (directly or indirectly) relate to the Sacrament. The Tridentine Council declares: “If anyone saith that matrimonial causes do not belong to ecclesiastical judges, let him be anathema.”3 Pope Pius VI authentically interpreted this synodal canon as meaning that “all matrimonial causes belong solely to ecclesiastical judges.” 4 The correctness of this interpretation is evident. The proposition condemned as heretical by the Council, viz.: ” Matrimonial causes do not belong to ecclesiastical judges/9 must mean either that “not all matrimonial causes belong to ecclesiastical judges/’ or that ” all matrimonial causes do not belong to ecclesiastical judges.” The contradictory of the first proposition would be: “All matrimonial causes belong to ecclesiastical judges;” and of the second, ” Some matrimonial causes do not belong to ecclesiastical judges.” But to assert this would afford no guidance to Catholics. Hence the Council can only have meant what Pius VI says it meant, or, to employ the Pontiff’s own words, * The terms in which the canon is clothed are so general that they comprehend and contain all (matrimonial) causes. • If we further consider that the reason why matrimonial causes belong to the ecclesiastical jurisdiction is that Matrimony among Christians is a Sacrament, it follows that they be8 Seas. XXIV, can. ta: Si quis spectant ad solos indices ecclesiadixerit, oausas matrimoniales non sticos. (Ep. ad Episc. Motulens. spectare ad indicts ecclesiasticos, d. 16 Sept. i?88). anathema sit.” (Dcnzingcr-Bann- 5 ” Verba canonis ita generalia wart, n. 982). sunt, omnes ut causas comprehendant Omnes causae matrimoniales et complectantur.” (Ibid,) 236 MATRIMONY long solely to the jurisdiction of the Church.6 Were we to grant for argument’s sake that some matrimonial causes belong to the State, we should be at once confronted with the question: Do they belong to the State independently of the Church or dependency? To say that they belong to the State independently of the Church would be to deny the Tridentine teaching that “all matrimonial causes belong to ecclesiastical judges.” To say that they belong to the State dependency of the Church would be to admit her exclusive jurisdiction in principle. For the rest, the Council of Trent acted in perfect accord with the above-quoted interpretation of its twelfth canon when it declared clandestine marriages to be truly sacramental so long as the; Church does not expressly declare them null and void. Hence it is doctrina certa that all matrimonial causes belong exclusively to the Church.7 2. Proof. — A legitimately established diriment impediment produces two distinct effects: (1) remotely, it renders certain persons incapable of contracting a valid marriage (inhabilitas personarum) ; (2) proximately, it nullifies any attempted marital consent on the part of such persons (inefficacitas consensus). The State cannot do either of these things. For if it were empowered to declare baptized persons incapable of contracting marriage, it would possess the right • * Sic ut haec sacramenti ratio clesiasticos, quum eadem ratio tit in communis est omnibus causis matri- omnibus.* (.Ibid.) monialibus, ita omnes hae causae t Cfr. Palmieri, Do Matrimomio tpectare unice debent ad indices ec- Christ., pp. 267 »q. to regulate the administration of the Sacraments, which belongs exclusively to the Church. If it could render the matrimonial consent null and void, it would necessarily also possess the right to determine the matter and form of the Sacrament, which is equally inadmissible. Consequently, the State cannot establish or grant dispensations from diriment impediments, nor can it claim jurisdiction over matrimonial causes. This argument derives strength from the philosophical consideration that no two tribunals can claim independent and supreme jurisdiction over the same class of cases. Had the State equal jurisdiction in matrimonial matters with the Church, it might happen that the Church, by virtue of her divine prerogatives, would establish a diriment impediment which the State refused to recognize, or vice versa. In that case a marriage might be valid and invalid, licit and illicit, legal and illegal at one and the same time, and there would be no end of trouble between the two powers, while the faithful subjects of both would be sorely embarrassed ; — all this not because of some human weakness or imperfection, but in consequence of a positive divine ordinance. Since it cannot be the will of God to bring about such an intolerable state of affairs, we must conclude that the control of Christian marriage belongs either to the Church or to the State. Matrimony being a Sacrament, its control belongs to the Church, and hence the State has no jurisdiction whatever over matrimonial causes. In claiming jurisdiction over all matrimonial causes among Christians, the Church is not actuated by an immoderate desire for power, or by jealousy, but purely and solely by obedience to the commands of her Divine Founder. “Due weight must be attached to the sacramental dignity,” says Leo XIII, “by the addition of which the marriages of Christians have become far the noblest of all matrimonial unions. To make laws and regulations with regard to the Sacraments is, by the will of Christ, so much the privilege and duty of the Church, that it would be plainly absurd to maintain that even the smallest part of such power has been transferred to the civil rulers.” 8 This principle underlies the constant practice of the Church. 3. Rights of the State. — It would be wrong to deny, however, that the State has some rights with regard to marriage. A wide field is open to civil jurisdiction in regulating the marriages of unbelievers and exercising a certain control over the civil effects of the marriages of Christians. a) Some modern theologians assert that the State has no jurisdiction over the non-sacramental marriages of the unbaptized. These writers (Perrone, Martin, Feije, Zigliara, Chr. Pesch, and others) argue as follows: (1) The so-called marriage of nature was originally intended to symbolize Christ’s mystic union with His Church and thereby withdrawn from all purely human jurisdiction.0 a ” Consideranda sacramenti dignitas est, cuius accessions matrimonia Christianomm evasere longs nobilissima. Ds sacramsnHs autem statuere st prascipers ita sx voluntots Christi sola potest st dsbst Ecclssia, ut absonum sit plane potestatis eitts vel minimam partem ad gubematotes rei civilis velle esse translatam,” (Encycl. “Arcanum db’inae,” Feb. xo, x88o). 9 Cfr. St Leo the Great, Ep. 9 ad IMPEDIMENTS \i) Marriage is older than civil society. The State found it in existence and incorporated it into its own organism. This explains why even to-day marriage is regarded primarily as a natural and only secondarily as a civil contract.10 Nevertheless the great majority of Catholic divines adhere to the traditional opinion that the secular rulers of non-baptized subjects undoubtedly possess the right to uphold and enforce the diriment impediments flowing from the natural law, and to establish new impediments of a purely civil character. This power is, however, subject to two limitations, (a) The State cannot arbitrarily dissolve validly contracted marriages between unbaptized persons, and (b) a non-Christian, and a fortiori a Christian ruler cannot make purely civil impediments binding upon his baptized subjects. For the marriages of Christians are in no way subject to the jurisdiction of the State. To prevent misunderstanding it may be well to note that the power of the State over the marriages of its non-Christian subjects is preeminently a religious prerogative, which owes its existence to the fact that in the purely natural order the secular ruler is the supreme representative of religion and unites within himself both political and religious jurisdiction.11 b) With regard to baptized persons, the State Rustic. Narbon., 4: ” Societas nup- s’ed et contractus naturolis divino tiarum ab initio ita fuit constituta, ut iure ante omnem societatem constipraeter sexuum coniunctionem ha- tutus et Urmatus.* beret in se Christ* et Ecclesiae sacra- « On the rights of the State in menium.* (Migne, P. L„ LIV, the matrimonial causes of unbap1304). tired persons cfr. A. Resemans, De loCfr. Pius VI, Ep, ad Episc. Competentia Civitt in Vinculum Ag riens., July 11, 1789: ” Motrimo- Coniugale Infidelntm, Rome 1887. nium non est contractus mere civilis. must confine itself to the regulation of the socalled civil consequences (effectus civiles) of marriage. Christian marriage is a Sacrament, and whatever concerns it as a Sacrament, e. g. the validity of the contract, the indissolubility of the bond, separation from bed and board, betrothments and the public celebration of marriage, the legitimacy of children, etc., belongs exclusively to the jurisdiction of the Church. The civil effects or consequences over which the State has control are such nonessential matters as property, dowery, and inheritance. By virtue of her right to enforce the effects of marriage in foro externo the Church has established certain external consequences analogous to the effectus civiles, such as the incapacity of bigamists to receive Holy Orders.12 c) A word about civil marriage. Civil marriage (matrimonium civile), in the sense of a true marriage between baptized persons, under State control and without regard to the laws of the Church, is contrary to the divine law. Under the influence of the Lutheran view that marriage is “a worldly thing,” and of the French Revolution, civil marriage was introduced by Napoleon I in France, whence it made its way into nearly all countries of Europe and North America and into some of the South American republics.13 It has been repeatedly condemned, by Pius VII, Pius IX,14 and Leo XIII. 12 Cfr. Palmieri, D§ Matrimonio 13 Cfr. J. A. Ryan in the Catholic Christ., thea. 31. Encyclopedia, Vol. IX, p. 698. 14 Sec the Syllabus, prop. 65-75. When civil marriage cannot be regarded as an ecclesiastically valid clandestine marriage, it is neither a true marriage nor a Sacrament, nay, according to a decision of the Holy Office of March 13, 1879, it is not even equivalent to a valid betrothal. In some .countries civil marriage is essential to the validity of the conjugal union before the civil law (matrimonium civile obligatorium) . In others, e. g. the United States, it is merely one of several ways in which marriage may be contracted (matrimonium civile facultativum) . In still others it is provided for cases in which a marriage for some reason, e. g. the lack of a dispensation from an ecclesiastical impediment, cannot take place in church. Where the State conditions the civil effects of marriage upon the fact of its being contracted before a civil magistrate, or where it refuses to recognize as legitimate children born of a purely ecclesiastical marriage, Catholics have no choice but to submit, nay they are in duty bound to do so, since civil marriage in such cases is nothing but a legal form.15 Readings: — A. Roscovany, Matrimonium in Ecclesia Catholica Potestati Ecclesiasticae Subiectum, 2 vols., Neutra 1871. — J. Schneemann, S.J., Die Irrtumer uber die Ehe, Freiburg 1866. — Heuser, De Potestate Statuendi Impedimenta Dirimentia Ecclesiae Propria, 1859.— J. Becamel, Tract, de Matrimonio et Dispensation nibus Matrimonii, Paris 1889. — De Becker, De Sponsalibus et Matrimonio, Bruxelles 1896. — J. Pompen, Tract, de Dispensationibus et de Revalidatione Matrimonii, Amsterdam 1894. — F. X. Feije, De Impedimentis et Dispensationibus Matrimonialibus, Louvain 1890. — F. Huszir, De Potestate Ecclesiae circa Matrimonium, Rome 1900. — J. Hollweck, Das Zivileherecht des burgerlichen Gesetzbuches im Lichte des kanonischen Rechtes, Mayence 1900. IB Cfr. Benedict XIV, De Syn. Zivilehe vor dem Forum des Rechtis Dioeces., 1. IV, c. 7; A. Visek, Die und des Gewissens, Prague 1884. Schnitzer, Katholisches Eherecht, Freiburg 1898.— F. Heiner, Grundriss des katholischen Eherechtes, Munster 190a — M. Leitner, Lehrbuch des katholischen Eherechtes, Paderborn 1902. — * F. X. Wernz, S.J., lus Decretalium, Vol IV, 2nd ed., Ius Matrimoniale Ecclesiae Cafiholicae, Rome 191 1. — De Smet, Betrothmemt and Marriage. A Canonical and Theological Treatise xvith Notices on History and Civil Law, tr. by W. Dobell, 2 vols., Bruges 1912 and 1913. INDEX Abbesses, 127. Abbots, 122 sqq. Acts of the Apostles, 100 sqq. Agde, Council of (506), 115. Adam and Eve, 150, 176, 186, 219. Adultery, 190 sqq. Aerius of Sebaste, 80, 85, 87. Aix-la-Chapelle, Council of (836), 11. Albertus Magnus, 20, 22, 88, m. Albigenses, 147. Alexander III, 109, 204 sq. Alexander of Hales, 88. Alphonsus, St., 107, 111. Amalarius of Treves. 112. Ambrose, St., 60, 118, 143, 155, 181. Anabaptists, 174. Ancyra, Council of (314), I33» 181. Anglican Orders, 70 sq. Antioch, Council of (341), 123. Antoninus, St, 114. Antonio de Dotnims, 158, 229. Apostolic Constitutions, 104, 119,126.133. Archangelsky, 17. Arcudius, 40. Armenians, 11, 65, 66, 152. Atbanasius, St., 86. Athenagoras, 181. Atzberger, 4a 107, 124, 163. Augustine of Canterbury, St, “9. Augustine, St, 60, 74, 90, 97, 120, 135, 144. 153 sqq., 181, 205, 22a Aureolus, 122. B Baltimore, Third Plenary Council of, 212. Baptism, 12, 28, 44, 4& 60, 75, 00, 92, 126, 127 sq., 162, 171, 208, 223,233. o Bardenhewer, 83. Barlow, William^ 71. Barnabas, 81 sq. Basil, St., 182, 225, 233. Becanus, 22. Bellarmme, Card., 9, 32, 41, 66, 88, 90, 103, no, in, 132, 162, 166, 170 sq., 187, 195, 206. Benedict XI V, 23, 46, 66, 97, 107, 120, 128, 132, l80j 207.212. Benevento, Council of (1091), 108. Berlage, 202, 215. Bernard of Pavia, 152. Berti, 9, 10, 66. Bickell, 132. Biel, Gabriel, 88. Billot, Caret, 66, ill. Billuart, 36, 66, in, 207. Blessings of marriage, 143 sqq. Bonaventure, St, 7, 9, 26, 36, 62, 88, in, 187. Boniface VIII, 207. Boniface IX, 124. Bonutn fidei, 143 sq., 178. Bonum prolis, 143 sq., 173, 178. Bonutn sacramenti, 143 sq. Bosco, 76. Boudinhon, 40. Braga, Council of (563), 61. Brancatius, 211. Braun, 212. Ballermi, 211. 243 Caesarius of Aries, St, 14 sq. Cajetan, Card., 88, 103, 107, in, 163, 190, 202. 244 INDEX Calvin, 5, 47, J54, I5<>, 174, 177Cano, Melchior, 158, 159. 163, 164. Cantor, Peter, 109. Capreolus, 65, 162. Caramuel, 124. Carriere, 234. Carthage, Fourth Council of, 112. Casus Apostoli, See Pauline privilege. Catacombs 152 sq. Cathari, 5, 179. Catharinus, Ambrosius, 9, 190, 234. Celestine I, 7& Celibacy, Clerical, 130 sqq. Chalcedon, Council of (451 ), 61, Chains, Council of (813), 11. Character, See Sacramental Character. Charismata, 9 sq., 57. XecpoleWa, 69 sq. (See also Imposition of hands). XeipororU, 69 sq. f See also Imposition of hands). Chorepiscopi, 122 sq. Chrisma, 14, 17, 40. Chrysostom, St, 12 sq., 39, 57, 59, 85, 89, 97, 103, 135, 197 sq. Civil effects of marriage, 240. Civil marriage, 240 sq. Clandestine marriages, 164 sq., 215, 230. Clement IV, 179 sq. Clement VIII, 124. Clement of Alexandria, 102, 133, 176, 181, 196 sq. Clement of Rome, St., 101. Clericatus, 41. Collet, 202, 234. Colluthos, 86. Collyridians, 126. Concubine, 177. Confirmation, 75, 92, 12a Coninck, 76. Consecration, Rite of, 68, 119 Constantine, 232. Constantinople, (1672), 10. Council of Copts, 48, 152. Cornelius, Pope, in sq. Cyprian, St., 83, 96, 112, 232. Cyril of Alexandria, 156. Deaconesses, 126 sq. Deacons, 56, p£ sqq., 223. De Augustims, 23, in, 112, 207. Decentius of Eugubium, 39 sq. Decretum Gratiani, 41, 108. Decretum pro Armenis, 16, 21, 24, 25, 32, 44, 65 sq., 72. 113 sq., 116, 120, 191. De Lugo, 64, 66. Denzinger, 104. Diaconate, 99 sqq., 123 sq. Digami, 179 sqq. Dionysius of Alexandria, 118. Diriment impediments, 227 sq., 234 sqq. Discipline of the secret, 11. Dispensing from marriage impediments, The Church’s power of, 225 sqq. Divorce, 189 sq. Divorce, Mosaic bill of, 185 sqq. Dollinger, 66, 195. Donatists, 60, 90. Drouin, 202, 206. Durandus, 22, 26, 88, 103, 107, in, 128. Edilthryda, 205. Egbert of York, 27. Edwardine Ordinal, 71. Effger, in. Elvira, Council of (about 300), 130 sq., 223, 232. Encratites, 147. Epiphanius, St., 85, 127, 134. Episcopate, 80 sqq. Episcopus, 81 sq., 515 sq. ‘Ero-KOTOt, See Episcopus. Estius, 41. 65, in, 158, 187.