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Section One - Conjugal Society

Chapter 4

Necessary conditions for placing conjugal society in being

1104. It will help if we summarise here. In the first chapter, we considered marriage as a full union between two people of different sex; in the second, as a contract that puts such a union in being; in the third as a sacrament which consecrates the concept and the union which is its object. Christian marriage has all three qualities. The conditions required to bring it into being are, therefore, all those which are needed in order that the following may come into existence:

1. the union,
2. the contract and
3. the sacrament.

1105. The lack of one or other of these conditions is normally called an impediment.

The impediments to marriage are, therefore, divided into three classes: Some make the union impossible, some the contract and some the sacrament. Every impediment of each of these classes makes marriage between Christians impossible. Christian marriage must be, at one and the same time, full union, valid contract, and sacrament.

1106. These are called diriment impediments because they render marriage not only unlawful, but also invalid if they precede it.

1107. There are however other impediments which render marriage unlawful but not invalid. These are prohibiting impediments.

1108. To understand how a marriage can be valid even though it is unlawful, we need to recall the teaching already explained about the lawfulness essential to a right. We said that the lawfulness essentially required to constitute a right regards only the title, the object and the activity constituting the right itself. In other words, if the title, or the object of the right, or the activity constituting the right is immoral, the right cannot subsist because it is intrinsically vitiated in its constitutive elements (cf. RI, 1124-1126). On the other hand, the subject can act immorally in acquiring a right without necessarily infringing the act of acquisition. In this case, the immorality of the act does not fall on the constitutive elements of the right.

For example, a man who, after his betrothal (an accepted promise of marriage) with one woman marries another, certainly does something unlawful and unjust. Nevertheless, the woman to whom he made the promise, and whose right (the right arising from the promise of marriage) is injured by his action, can no longer claim marriage with him. Her right was concerned only with the future conjugal contract. It was a right to action which did not, however, bring any right in the thing itself (in the conjugal union) (cf. RI, 1087). Because the thing (the conjugal union) was not yet in the ownership of the engaged woman, it could still become the ownership of another through a contract of marriage. The first woman has no possibility of claim because the man is no longer the owner of what has been promised. Betrothal is considered, therefore, as a prohibiting impediment and as such leads to an obligation to compensate the injury (cf. RI, 1181), but it is not considered as a diriment impediment.

1109. We can now take up the thread of the argument. According to natural Right, the diriment impediments which render marriage invalid are reduced to three classes, that is:

1. Impediments which render the union null. These are two: impotence and natural relationship.
2. Impediments which render the contract null. These can be reduced to three: the object of the contract has already been alienated; error in the person giving consent; lack of freedom in the consent.
3. Impediments which directly render the sacrament null. These can be reduced to five: one of the parties does not belong to Christian society; spiritual and legal relationship; affinity; justice proper to public decency; clandestinity; and crime.

1110. If the union, or the contract, or the sacrament is null, the conjugal society of Christians is null. As we said, Christian marriage requires for its formation all three elements as its essential constitutives.

We shall now say something about each of these impediments.

1111. A person lacking the faculty for sexual intercourse cannot contract marriage because the specific object of the contract is missing.

1112. But if this faculty is present when marriage is contracted, even though lost immediately afterwards and perhaps before the consummation of the marriage (for example, through enforced castration), the marriage is valid, and full union is obligatory even though the union cannot descend to generative intercourse, which is its least part.

1113. On the one hand, therefore, the actualisation of this least union is never necessary to constitute conjugal society and the state of marriage (cf. 1093 ss.); on the other, the possibility of such a union is necessary only at the moment of the contract. This union is in fact the specific object of the contract,(53) and no contract of any kind loses its validity because a part of its object ceases to exist immediately after the contract has been established through the handing-over of the right (cf. RI, 1080-1087).

1114. In our case, only a part of the object of the contract is lost because the total object is full union (cf. 1094). The right to sexual union, although it makes this contract specifically different from all others, is the extreme part and consequence. The contracting parties, despite their loss of this part, retain the rest and the best part of their union which remains as full as it can be according to nature and reason.

1115. According to the Summa Pisanella, `There are three kinds of relationship: carnal, called blood-relationship; spiritual, called spiritual relationship; and legal, called adoption.'(54) Here we shall speak of blood-relationship only. The other kinds will be dealt with later.

1116. Blood-relationship is between ascendants and descendants, or in the lateral line. We shall speak first about

1117. Mankind judges that marriage between ascendants and descendants is abhorrent because the full union, in which the essence of marriage consists, cannot be effected between them.

1118. As far as natural law is concerned, this can easily be understood by reference to the moral-human instinct,(55) which repudiates full union of this kind. We shall indicate the fact, and then analyse it.

1119. Luigi Pasquali writes:

1120. This is the undeniable, universal fact. Once it has been ascertained, it is clear that there can be no full union according to nature, that is, marriage amongst ascendants and descendants. If there is a natural repugnance to a part of the union between two persons and if this repugnance falls on that precise part of the union which constitutes the specific difference of conjugal union, it is clear that according to nature marriage cannot take place.
Nevertheless, we shall examine the hidden reasons which produce such repugnance to sexual union amongst bloodrelations in the direct line.

1121. First, I suspect that within animal nature itself there lies a hidden law which to a some extent impedes sexual communication between ascendants and descendants, at least to a certain degree and with certain limitations. Ancient naturalists have maintained this about some animals such as the horse and the camel.(59) A Roman tragedian illustrates this opinion when he makes Phaedra say:

1122. However, we can leave aside these hidden laws of animal nature (if there are such), to deal with what is proper to human nature (animal-intellective-moral). We need to explain, or rather to analyse, the repugnance we have indicated by observing other particular facts which form elements producing it.

1123. The act of generation unites two opposite qualities. One (that of producing an intelligent being) is extremely noble; the other (the animal act considered without reference to the laws of reason) is extremely ignoble. The latter, by drawing to itself the whole human being, degrades him; at that moment, he is no longer a rational being in control of self. Such degradation and debasement, the momentary loss of the noble faculties that lift the human being above the stars, is the evident origin of the shame with which he seeks to conceal the generative act from the eyes of others, and of the modesty with which he covers the parts which share in the act.

On the other hand, the nobility and the dignity included in the fact of being the author of an intelligent being like oneself is at least the origin of the act's special mark of dignity, even if it is not the source of paternal authority.(61) At the same time, it is the source of the reverential feeling placed by nature in the heart of children.

These two feelings are opposed to one another in the way that the two elements contained in the generative act, from which they spring, are mutually opposed. Any feeling for which we have some love produces abhorrence of its contrary, opposing feeling. We want to preserve and increase the precious feeling we love, and isolate it from every alien as well as inimical feeling so that it may live and dominate on its own.

The genitor who feels his dignity as father - a very precious feeling because it exalts and enhances him - naturally abhors everything that could oppose or destroy something so precious to himself, to his children who are its object, and to all mankind. But there is nothing more opposed to the dignified feeling of fatherhood than the turpitude and baseness contained in the act of generation and in the members used for that purpose. Consequently, consciousness of paternity sets in motion the will to hide all such things from the child, and to prevent the child's perceiving or even thinking about them.

1124. The child does not have the same shame relative to his parents. Nevertheless, he finds it totally repugnant if his parents debase themselves in his presence by uncovering that which is most ignoble and shameful in human nature. It is natural that integral human nature requires in the child the greatest reverence and honour for the authors of his being and that the child's filial feeling be gripped by extreme horror solely at the thought of sexual communication with his parents.

1125. This irreconcilable opposition of feelings and the extreme abhorrence and shame which, according to nature, renders sexual union impossible between parents and their children, is vividly expressed by phrases used in Scripture to forbid such intercourse: `You shall not uncover the nakedness of your father, which is the nakedness of your mother; she is your mother, you shall not uncover her nakedness'.(62) The Roman legislators also assigned this shame, or rather horror, as the reason for their laws `because, in contracting marriage', as Paulus says, `natural right and MODESTY are to be considered.'(63) This most holy modesty is so delicate that when offended it inspired Noah to curse his own descendants. It arouses fierce remorse and atrocious feelings in the person who has violated it. Such feelings caused Oedipus to tear out his own eyes and Jocaste to cut open her womb. Nature, when wounded to this extent, shows the enormity of the affront: `Nature can tolerate no greater crime than this',(64) screams the unhappy mother of Laius. The same cry has been heard wherever human beings have existed.

1126. Another element of the moral instinct which leads parental love to reject sexual love is to be noted in the natural development of the sexual act. It begins naturally with the vague desire of union with a person of the other sex. This desire, at first obscure and mysterious, does not remain stationary. It is endlessly restless and wants to draw from the beloved person ever-increasing delight. It extends further and further until it descends finally to wanting to add sexual union to the other bonds. But, when this union has been consummated and a child conceived, the lively desire can go no further. Fulfilled, it has arrived at its final term.

The child is, therefore, the final term of the natural activity of sexual love which ceases at this term precisely because emergent love is totally released.

Such development shows that it must be against nature for sexual love to begin at the very point where nature brings it to an end, that is, in the child. Note that the child is loved by the parents as the precious fruit of their love; love has passed from them to the offspring. This is indeed the character of parental love; it reminds the spouses of their final contentment and of the extinction of their sexual affections. According to the law of nature, therefore, the genitors love in the child their rest from the work of generation. Carnal love, as long as it is not complete, is restless and troublesome rather than sweet. When this disturbance ceases(65) through realised and natural satisfaction it brings its own peace and pure enjoyment.

This is the intimate reason why parental love is most chaste, dignified and tranquil of its nature, and why people abhor returning to the tumult and fatigue of carnal appetite at the place where they possess, seek and find delightful rest and restoration from the appetite. A sailor who reaches port after a dangerous voyage has no desire for further adventure. If, in parents, sexual love returns between them or with other persons, the parents neither see in these others the consummation of their love, nor do they love them as the fruit of such love - fruit in which they possess and hold dear the totally special delight which follows the fatigue of love.

1127. The two elements of the instinct that we are analysing arise from the laws to which human beings are subject as real beings. If we go on to consider human beings as moral beings,(66) we find that moral reason also directly forbids marriage between parents and children. This moral duty, felt immediately by us through our moral sense, generates and strengthens in us the instinct that repudiates similar unions.

1128. This element of human instinct deduced from moral reason is found in the collision between the duties of parents and spouses, of children and spouses. The clash is manifest in the incompatibility between the reverence owed by children to parents, and the homeliness and equality between spouses. It is even more clear when we consider that the parents together form a single person, according to nature, and have the right and duty of ruling and governing their children. Children on the other hand have the duty to allow themselves to be ruled, and to obey. These duties are so contrary to one another that they cannot be present, without self-destruction, in the same subject towards the same person. If a parent marries one of his children, he has already destroyed his patria potestas by the new relationship; someone equal to him in everything cannot be inferior to him in everything. In the same way, other duties are frustrated and as such frustrate family order. But to cause confusion in family order is to ruin it; and ruining the family is condemned at the highest level by the moral law.

1129. What we say about parents and children can easily be applied to all ascendants and descendants.

1130. A similar argument is valid in the case of step-fathers and step-mothers. According to nature, parents form a single person, granted the full union of marriage. Uniting oneself with the wife of one's father means uncovering the shame of one's father (to use a Scriptural phrase). The other reasons used above are also valid when applied to the true mother.(67)

1131. Nature itself provides a bulwark against human corruption even in the greatly different age normally present between ascendants and descendants. Certainly, disparity of age weakens the affection that naturally arises between contemporaries and people on the same level, and makes marriages unhappy. All this helps to show more clearly what nature intends [App., no. 1].

1132. If, in considering relationship in the transversal line, we take into account only human instinct, we may find there is no absolute repugnance to conjugal unions between siblings or other relations. In this case, marriage between them cannot always be said to be opposed to nature, or at least not to the extent that it is amongst blood-relations in the direct line.

1133. It can be said, however, that human instinct considered in its perfection strongly inclines people to unite with someone with whom they have no relationship, that is, someone with whom common ancestry is so distant that it can no longer be recalled.

1134. This is explained by the fact that the common descent is vividly present and remembered. In these circumstances the common ancestor seems to be reproduced in the children. Contemplating the paternal image in them, it almost seems as though we contract marriage with a common father when we contract it with a sibling or a cousin in whom the general imagination beholds a rejuvenated father or grandfather.

1135. It will be useful to recall here how rights are founded in a feeling, and how they are lost or abolished to the extent that a feeling, and the memories that maintain the feeling, fade more quickly amongst the community of mankind (cf. RI, 1047-1049). The same teaching must be applied to the feelings which impede the formation of marriage amongst blood-relations.

1136. As descendants grow more distant from the common stock, the memory and image of the ancestor gradually weakens. Sooner or later it is lost altogether (there are innumerable circumstances to account for this). Hence the different extension, in various peoples and at various times, of degrees of relationship considered as impediments to marriage.

1137. One example of these circumstances is the shorter retention of paternal memories and traditions in peoples of less noble race. Amongst these peoples, the degree of relationship forbidding conjugal unions is more restricted.

1138. When Mexicans and Peruvians were first encountered, it was found that marriage was forbidden only in the first degree of lateral consanguinity, that is, amongst siblings. The brevity of line along which people were forbidden marriage was sufficient to show their lack of development, their low intelligence or certainly the broken, degenerate state of their family life.

1139. On the other hand, it is worth noting how the ancient Indian laws took impediments as far as the sixth degree of relationship for the first three castes. This shows the vigour with which domestic society flourished amongst those peoples, and the strength of the continuity in domestic traditions [App., no. 2]

1140. At the same time, it also shows an exaggerated prevalence of domestic society, which impedes the progress of civil structures. A middle way is present amongst developed peoples where civil society develops freely on a par with domestic society. In other words, marriage is impeded to the fourth degree, the very degree at which generally the remembrance of the ancestor is completely forgotten amongst these peoples [App., no. 3].

1141. We should note that marriage amongst close bloodrelations can only continue without serious prejudicial consequences amongst undeveloped, primitive peoples [App., no. 4]. As society develops, and even begins to enter a corrupt stage, an obvious need grows for rigorous laws which impede unions amongst overly close relatives. These impediments, although issuing from public authority, have their just foundation in rational Right, that is,

1. in the need to obviate the crime of incest between parents and children;(68) and
2. to preserve decency in family life.(69)

1142. Yet another good derives from these laws: the diffusion of friendships and the greater breadth of society between human beings.(70)

1143. It can be seen from all these things that conjugal unions between collateral relations do not find the same intrinsic, absolute repugnance in an immovable feeling of nature as the unions between ascendants and descendants. Instead, they are subject to various modifications according to changes in feeling which repudiates them to varying degrees, and according to the needs appearing in society and provoking the formation of public laws.

1144. These laws have a triple level which should be noted. Indeed

1. positive laws begin to sanction that which first appertained only to natural law and to custom;(71)
2. the prohibition is gradually extended from a greater to a lesser degree of relationship;(72)
3. marriages, once considered unlawful for certain degrees of relationship, are later considered invalid.(73)

1145. From all these observations we can also see the reason why circumstances rendered such marriages legitimate at certain times (as, for instance, amongst Adam's first children) and why, after laws were established against them, rare exceptions and dispensations were found within the limit that competent authority had prescribed for itself.(74)

1146. When we consider the nature of marriage, which makes two human beings one, we see clearly that the blood-relations of either spouse have to be considered as relatives of the other.

1147. The same considerations which led us to discover the intrinsic motives forbidding marriage between collateral blood-relations can therefore be applied to in-laws.

1148. At the same time, we should reflect that although this explains why the blood-relations of one spouse are said to be in-laws of the other spouse, the notion of affinity does not hold between the blood-relations of the spouses. In-laws do not form a single person with the blood-relations of the other spouse. Hence the rule: affinity does not engender affinity.

1149. Adoption also provides an intrinsic reason for impeding conjugal union.

1150. Adoption is not simply a fiction of civil law. It can take place through a contract between people still at the level of the state of nature. One person takes in another whose rights and duties are those of a child; the former thus obliges himself to fatherly affection and duties. The other person spontaneously attributes paternal rights to him, and takes on the affection and other duties proper to children.

1151. This contract produces in both parties feelings, duties and rights similar to those present between father and child. Marriage, therefore, is impossible between them because it involves other feelings, duties and rights directly opposed to those inherent in the relationship between child and genitor. We have to apply to the connection established by adoption that which was said about the impediment resulting from relationship in the direct line.

1152. Adoption recognised by civil laws is called legal adoption.(75)

1153. In perfect theocratic society, that is, in the Church of Jesus Christ, human beings are reborn in baptism, which is strengthened and completed by the sacrament of confirmation. The person who administers these sacraments becomes in the supernatural order the father of the person receiving them.

1154. Moreover, the Church has established godfathers and godmothers who assist those who are baptised and confirmed, and assume in their regard the office of spiritual fathers and mothers. This is a kind of adoption.

1155. Such sacred relationships give rise to very serious and chaste feelings between the person conferring the sacraments and those who receive them, and between the godparents and the baptised or confirmed person. These feelings are similar to those arising from the relationship of natural fatherhood and childhood, except that they receive a greater degree of dignity and holiness from the supernatural order whence they originate and to which they belong.

1156. This spiritual relationship, as it is called, is, therefore, a diriment impediment to marriage because of the incompatibility of feelings and duties(76)

1157. Impediments which render the conjugal union null necessarily render the contract null. In these cases, matter suitable for the contract is lacking.

1158. There are, however, other impediments which vitiate the contract as such. We have reduced these to three headings. People who form a contract must 1. own the thing alienated; 2. know what they acquire through the contract; 3. enjoy the necessary freedom to make the contract (a contract is an essentially free act). The contract is therefore rendered impossible and null

1. through lack of ownership of what is alienated;
2. through lack of knowledge of what is acquired;
3. through lack of freedom.

1159. It is clear that a person already married has no ownership, as long as his partner lives, over the right with which the conjugal contract is conferred on another. This is a case of diriment impediment (bond).

1160. But if a person had only promised a future marriage with another who accepted it (betrothal), the object of the contract would not be alienated, as we saw. If one of the engaged persons contracted a marriage with a third party, the promise would certainly be broken, but the object of the contract could not be reclaimed.(77)

1161. The vow of chastity is also a diriment impediment to marriage if it is accepted as such by the Catholic Church. This is the case when people receive the sacred order of the subdiaconate or make the vow in a religious order with an act that incorporates them in it as true religious [App., no. 5] (votum). The vow, when accepted by the Church, contains a contract through which the person making the vow deprives himself of the right to marry by sacrificing the right to God; the Church, in the name of God, accepts such a right offered in sacrifice.

1162. If this acceptance by the Church does not take place, the vow is not a completed contract which alienates the right to marry, but only a promise that a person makes to God of sacrificing to him for a time or forever his chastity. This kind of vow does indeed render marriage unlawful because it is a violation of a promise made to God. It does not annul the matrimonial contract, however, because the object of the contract still lies within the sphere of the right of ownership of the person making the vow. The Church, as the earthly procurator of God himself, has not accepted the vow.

1163. Contracts are invalid if there is substantial error about their object (cf. RI, 1156-1157).

1164. Error about the object of the matrimonial contract may be related to one of the persons or the qualities of one of the persons.

1165. If error falls on a person (if, for example, someone thinks he is marrying Rachel but is given Lia), the contract is invalid through lack of consent. This would be the case even if the person deceived would have been disposed to marry Lia, knowing that it was she. The validity of the contract requires actual consent, not a mere disposition to consent.

1166. If error falls on personal qualities, several kinds of qualities have to be distinguished. These are the person's

1. free or servile condition;
2. material well-being;
3. internal or external gifts and defects.

1167. If, in the case of true slavery (mancipia), error occurs about a person's servile condition, the marriage is null.(78)

1168. Slavery is indeed an extreme injustice (cf. RI, 128-133), but granted this first error in civil laws, it follows necessarily that there cannot be marriage between bond-servant and master, but only contubernium, as the Roman laws called it.

1169. There can be no marriage from the point of view of the contract nor from that of the fullness of union between a man and a woman. Not from the point of view of the contract because bond-servants cannot by nature make a contract, nor can they be the subject of rights (they are simply `animated instruments', as Aristotle defined them); nor from the point of view of the union because there is no communion of right between bond-servant and master. A bond-servant cannot, therefore, become a single jural person with the master, nor possess in communion with him all worldly goods; the bond-servant cannot have power over the body of the master nor attain the equality which is indispensable for full union between two intelligent creatures; the bond-servant cannot be end, but only means.

1170. When Christianity came into the world, such marriages were therefore considered as illegitimate and null. They remained such at least until the time of St. Leo, who noted that the equality of which we have spoken was a necessary element of marriage.(79)

1171. The reason for considering them null was lack of consent. The free party, although living with the bond-servant, did not have the intention of uniting with the other party in a full, perpetual conjugal union, nor of granting to the other person the freedom necessary to give spontaneous, jural consent.(80)

1172. These unions, which were always denominated unjust, that is, not carried out according to legal justice, gradually began to be forbidden by the civil law.(81)

1173. The Church could never recognise the unjust element of ancient servitude, and from the beginning used its own maxims to assert the freedom essential to all human beings. Amongst Christians the nature of servitude changed substantially as soon as the Gospel was promulgated; only its just element remained after the removal of what was unjust. However, the language of the ancient Roman laws and exterior, social customs could not be swept away all at once. It was sufficient, nevertheless, to destroy the unjust element of ancient servitude, as we said, through the profession of the Christian faith and thus open the way to true and perfect marriage between masters and bond-servants. With the removal of the inhuman element, all human beings were substantially equal; they were brothers in Christ, made free in his baptism, even though they retained the outward appearances and title of bond-servants.

The Church recognised marriage contracted between a free person and a bond-servant as true marriage provided the condition of the bond-servant was known to the other party when the marriage took place. The only impediment still attached to the servile condition was that of error, when the free party was ignorant of the servile state of the other. This did not mean that the bond-servant was such in the ancient, unjust sense, and therefore incapable of marriage, but that even the name, customs and external aspect of servitude, together with the abuses to which it was subject, served to maintain between the parties such an immense difference in the temporal order that only an extraordinary love, which could not normally be presumed, would have been equal to the situation. Lack of consent had to be presumed in the party ignorant of the other's servile condition at the act of celebration of the marriage.

1174. Another good arose from admitting and recognising true marriage between bond-servants and free people. These marriages were a means for promoting the abolition of that part of servitude and servile burdens which still remained. This part, although not unjust in its concept absolutely speaking, was immensely hard, and easily became unjust in fact. This was caused by the concept of ancient servitude impressed in the mind (masters used the concept as a rule of conduct with their bond-servants) and by the lack of protection afforded by laws of the city for bond-servants against the abusive and reprehensible inhumanity of the masters. Christian marriage, which of its nature did indeed make spouses equal and life-long consorts, necessarily freed the party that had previously suffered servitude.(82) This also happened if the master gave in marriage to a free person his male or female bond-servant, and the free party was ignorant of the condition.

1175. Moreover, bond-servants acquired along with Christianity the faculty of marrying even in opposition to their masters provided they continued to give the service proper to upright servitude after the marriage.(83) This was a great step forward on the road to their complete emancipation.

1176. No other servitude, except that of bond-servants, invalidates marriage if it remains unknown. It simply enters as one of the common circumstances determining or specifying the quality of the person. Two of these circumstances, as we have seen, are temporal well-being, and the internal and external gifts and defects of the person.

1177. These circumstances do not, when ignored, per se invalidate marriage even if the error is the result of deceit by one of the parties and avoidable by the other. The substantial object of marriage is the person, and no contract is dissolved unless error falls on the object, even if it falls on the motive for the contract (cf. RI, 1156-1157). The argument is stronger still if we consider that consent was freely given, and that the person giving it could and should have informed himself fully about the matter. Nor does it help to say that the person contracting marriage would not have given his assent if he had known the truth. The question is not about what someone else might have been able to do, but about what one person actually did. It does not help either to say that the person making the contract was looking as much or more to the accessory qualities of the other person than to the other person, as too often happens. This does not change the nature of things; the person truly remains the substantial object of the contract. Consequently, consent has to be considered as given whenever there was no error about the person, except in the case where it can be proved that `consent was conditioned by the presence of some quality.'

1178. In this last case, that is, if the contracting party who has been deceived shows fully that he gave only a consent conditioned by the qualities of the person (which are not verified), and did not confirm his consent in words or fact after he came to know the actual qualities present, the marriage is null through lack of consent.

1179. However, the marriage must be held valid until the lack of consent has been proved externally. In the meantime, if consent has not in fact been given, the person withholding consent may abstain from cohabitation. If it cannot then be proved that the consent was conditioned, the party concerned is obliged to cohabit with the other and, in this case, to first renew the consent and thus convalidate the marriage. Proof of conditional consent will depend upon arguments:

1. suitable in the state of nature for convincing the other party and arbitrators;
2. suitable in the state of society for convincing competent tribunals.
If these external arguments are lacking, consent will appear absolute and lead to the consequences we have indicated.

1180. What are the arguments that must reasonably convince the other party, or whoever stands in for him, that consent was conditioned to certain qualities which afterwards were found absent in this party?

They are:

1. The direct expression of the condition. - It is clear that no consent is present when the condition, expressed in the formula with which the consent was given, remained unverified.

2. The condition was expressed indirectly, but indubitably. - The formula expressed the quality of the person so clearly that it was at least an essential part of the principal object of the consent, although not perhaps the object itself. For example: `I want to marry a rich woman, and therefore I want Teresa.'

3. Indetermination in the case of the person. - If the formula expresses an individual quality of the person, for example: `I want to marry Matilda, the Spanish King's first-born child.' In this case, if Matilda is not the first-born child of the king of Spain, there is a presumption of error about the person determined both by the name and the description. If, however, the name determines the person in one way and the description in another, the person remains indeterminate unless one can prove that a slip of the tongue or the pen has been registered.

4. Grave error altering sexual union and its consequences. - After the contract has been made, and before the consummation of the marriage, some very serious defect may be found, prior to the contract but deliberately hidden and relevant to generation. The error would seem sufficient to annul the ratified marriage if this defect is such that on the one hand the party ignorant of it would never have married the defective party if such knowledge had been available and, on the other, that it must naturally and reasonably be abhorrent to generate, through such union, children who would probably be defective and unhappy. In fact, sexual union is ordered essentially to the procreation of children and includes the tacit condition that there is no great error opposed to the ordinary state of nature and relative to this object essential to the contract.(84)

1181. Consent suitable for forming a true contract must be free. We have already discussed the conditions of such freedom (cf. RI, 1127-1138). Violence, therefore, and fear inflicted(85) for the purpose of extracting consent to marriage dissolves the marriage through lack of consent when the violence and fear are unjust and so serious relative to the person concerned that he thinks it a lesser evil to accept the hated marriage than to submit to the evil threatened or even initiated in fact.(86)

1182. Tribunals, however, cannot always know with certainty the gravity of the fear relative to the person, and consequently require an unjust and generally serious fear, that is, `fear which affects a resolute person'.(87)

1183. Fear unjustly inflicted, besides rendering the contract null if it is the cause of the marriage, is also opposed to the union which, as the product of perfect love (cf. 995) has a character contrary to that of the feeling of such fear.(88)

1184. Abduction is reduced to violence and fear. Positive laws presuppose that the woman always loses her freedom as long as she is in the power of the abductor who cannot therefore validly marry her until she is returned to a place of freedom.

1185. Two causes prevent marriage from being a sacrament:

1. lack of baptism;
2. lack of the conditions placed for validity by the Catholic Church upon the matter of the sacrament.

1186. Marriage cannot be a sacrament for those without faith because they have not received the sacramental character conferred with baptism (cf. RGC, 906-907) which makes possible the reception of the sacraments.

1187. In the first centuries of the Church, when disparity of cult was still not an impediment, the Christian partner received the sacrament, the other did not. Nevertheless, the other partner also intervened as the quasi-minister of the sacrament, just as an unbaptised person can baptise.

1188. But if both parties are unbaptised, lack of religious faith is not numbered amongst the impediments because these are understood simply as defects which render the marriage of Christians null

1189. An intrinsic moral evil can be present in human actions either through their own culpability or through the culpability found in them when considered in their relationships.(89)

1190. The act of generation has no culpability of its own; it is good or bad according to its relationships.

1191. This act cannot be completely good unless it is truly the consummation of the full union called marriage which we have described. It must therefore first possess this relationship of completion with the noble affections of two persons of different sex. If not, the act is wayward.

1192. Other relationships are also necessary, however, if the act is to be fully upright. These depend upon the state of societies in which several families find themselves bound together, that is, civil and theocratic society. Marital unions must be formed without substantial prejudice to the end of these two more extensive societies whose governments, therefore, have the power to make laws regulating marriage, provided that rational Right is safeguarded. Indeed, such laws must be ordered to rational Right alone.(90)

1193. The government of civil society can certainly make laws regulating marriage provided that natural freedom is not restricted. Government must limit itself to regulating the modality of the exercise of natural freedom, without prejudice to the end of the greater, theocratic society. Civil government can also intervene to punish those who do not observe its law about marriage. Of their nature, each of these laws is a prohibiting impediment which all the members of civil society must faithfully observe.

1194. In the absence of Christianity, or in a case where neither spouse is subject to the Church, civil government can, for grave reasons of public good, attach penalties to certain of its regulative laws on marriage. It can decide that ratified,(91) but not consummated marriage, is null when its laws are broken. In this case only the promissory contract is dissolved, not the union, which is still incomplete. Civil law can in fact place just conditions to the validity of contracts.

1195. It cannot, however, dissolve for any reason whatsoever the consummated marriage of those who may have violated its laws on this matter (although it can punish such people), provided that the marriage substantially conforms in other respects to natural laws. Positive law can never set itself up in opposition to natural and rational law, which it can only assist. It is contrary to natural and rational law that full, consummated conjugal union between two persons should ever be dissolved. Such union is of its very nature perpetual precisely because marriage is a full, natural union between man and woman, as we have defined it. The parties to a dissolved marriage of this kind would find themselves in a state altogether against nature. Nor can the contract be invalidated by this accidental reason. It is joined to the union, of which it forms a part, and indeed the causal, formal part which, if lacking, should be posited for the sake of rectifying the marriage, granted its consummation.

1196. Things change, however, when Christian marriage is in question. The Church can lay down impediments which invalidate consummated as well as ratified marriages. There is no full conjugal union between Christians unless it is made and concluded by the sacramental bond.

1197. The Church's power does not directly concern the contract, as the civil power does; it is directly concerned with the union and only indirectly with the contract.

1198. The union of Christian spouses possesses a natural and a supernatural part. The natural part is the natural union, the supernatural part the supernatural union. Christians are human beings raised to a supernatural state. Their union is not full if they join together as natural beings only and not as supernatural beings. In this case, the best part of their union would be lacking. It is necessary, therefore, in their regard, that the grace of Christ `perfect the natural union and confirm the indissoluble unity', as the Council of Trent says.(92) The opposite is the case with persons in a merely natural state: because they are not capable of greater union, their union is absolutely full when it is full according to nature alone. If `marriage is the full union between man and woman', there can indeed be an entirely true marriage between unbaptised people without the presence of the sacrament, but not between baptised persons. These would lack the sacred bond which is the most intimate and precious part of the union of which they are capable.

1199. The Church's power is supernatural. It directly regards the supernatural part of the union, that is, the sacramental bond. The Church has, moreover, received from Christ the power to determine the matter of this sacrament, which is the natural union. She can, therefore, place on the natural union those conditions which in her divine wisdom she judges necessary for the good of the perfect theocratic society. All Christians belong to this society, which they must serve if their natural union is to be capable of constituting suitable matter for the sacrament.

1200. This power of the Church is proved ineluctably with the same theological reason which shows it flowing necessarily from the whole system of the Christian sacraments.

1201. The principal operand in the sacrament is Christ. But Christ operates through the hand of the Church, and the Church through the hand of her ministers who, relative to marriage and according to the most common opinion, are the simple faithful who contract the marriage. The Church intervenes to form all the sacraments with her authority, her faith, her will, so that the ministers in forming the sacrament must always have the intention of doing what the Church intends to do. Every time the Church posits a diriment impediment, however, she no longer intends that a sacrament should come about through the marriage contract that two Christians might otherwise be able to establish. She declares that the sacrament is not present and thus becomes impossible for the ministers themselves, who cannot have the intention which the Church herself does not have.(93)

Positing a diriment impediment simply means determining the matter of the sacrament. It means placing certain conditions and limitations which form the object of the ecclesiastical legislation on this subject. Finally, it means requiring that the conjugal union preserve those relationships which render it fully upright.

1202. Consequently, when a contracted marriage has on the other hand all that is necessary for validity according to natural and divine Right, except the intention and the law of the Church which posits a positive impediment, the Church herself can also convalidate it with her own authority simply by adding the intention which she first denied. In this way, she removes the positive impediment imposed by her own authority. The spouses, ignorant of the impediment, have no need to renew their contract because this is presumed to persevere habitually - in other words, the contract was not revoked before the dispensation was given. This is the power present in those dispensations given by the Holy See to convalidate invalid marriages. Such dispensations are said by theologians to be at the root of marriage.(94)

1203. The object of this part of ecclesiastical legislation are certain relationships and requirements that the Church sees as necessary in Christian matrimony for the good of Christian society.

1204. Without these relationships and requirements, the union would be damaging to this society. Hence, although the union would have no intrinsic evil in itself, it would have an intrinsic evil if considered in these social relationships.

1205. The aim of the Church's dispositions in placing these impediments is the good of Christian society. She does not therefore invalidate matrimony every time some defect is present, but is often content simply to forbid it. She does this in all those cases in which invalidity would bring more evil than good to Christian society in general. In this case, she permits the lesser, particular evil because she sees in her wisdom that she could not remove it without occasioning a greater, universal evil.

1206. Hence, the Church recognises as valid, although unlawful, marriages contracted while the parties are in sin, or in a state of excommunication, or marry heretics, or after making a simple vow of chastity, or have already contracted betrothal with another person, or are under an ecclesiastical interdict. Marriages infected by these defects are disapproved by the Church and condemned, but not rendered invalid, in order to avoid a greater evil, as we said. Those who contract these marriages receive the sacrament and are bound by it. God and the Church provide sacramental efficacy even for the wayward on the occasion of such marriages. If such people then repent of their misdeed and obtain remission of their sin, the effect of grace, previously impeded and suspended through their fault, flows from the secret operation of the sacrament.

1207. If, however, the defect connected with the marriage is such that it is more harmful to the public good of Christians to validate than invalidate the marriage, the Church declares the defect a diriment impediment. Under this special title, she posits the following five diriment impediments in the present state of Christian society: 1. disparity of cult; 2. public decency; 3. affinity; 4. clandestinity; 5. crime.

1208. In the first place, the Church invalidates the conjugal union which a baptised individual attempts to contract with a non-baptised person (disparitas cultus).

1209. This impediment, now in force, did not exist when the Church began. At that time she allowed the validity of such unions, judging it less harmful to Christian society to admit than to exclude it. It would certainly have been impossible to impede these marriages without extremely serious consequences. Moreover, they assisted the conversion of the world. As the Gospel spread, however, the good expected from such marriages was replaced by greater danger of subversion of the baptised spouse.

1210. In addition, granted that matrimony is a sacrament representative of the marriage between Christ and the Church, it was altogether fitting that such a holy union should be represented by holy people alone.

1211. Again, marriage is a full union. But this fullness is not present on the part of a baptised spouse who cannot put all his or her goods (chief of which are supernatural goods) into communion with the non-baptised spouse.

1212. The pagans themselves were able to deduce from the fullness of union that marriage required community of religion between spouses. Modestinus, for example, expresses this in a wonderful way when he defines marriage as: `The union between a man and a woman, a sharing of one's whole life, A COMMUNICATION OF DIVINE AND HUMAN RIGHT.(95)

It follows from this that the prohibiting impediment with which the Church forbids the marriage of Catholics and heretics, although caused by the danger of seduction, has a more intimate reason dependent upon the very nature of marriage. It is impossible for Catholic spouses to believe themselves fully united with heretical partners with whom they have no common faith or hope of eternal union.

1213. The preservation of good morals in Christian society prompted the Church to remove from Christians their hope of being able to contract marriage with their in-laws.

1214. If the marriage has already been consummated, it is not possible to marry the dead spouse's blood-relations to the first, second, third and fourth degree (affinitas).

1215. If the marriage has been ratified but not consummated, it is still impossible to marry the blood-relations of the spouse to the same four degrees (honestas publica).(96)

1216. Moreover, it is fixed by law in the Church that a person who illicitly has intercourse with another, cannot validly marry the blood-relations of the other person to the first and second degree (affinitas). It is fitting that those who unite unlawfully should make their carnal union decent by completing it through marriage. The first union, therefore, is considered an incipient marriage, as it were. If then marriage is impossible because one or both of the accomplices are already married, it helps if their hope of contracting marriage with blood-relations of their partner are shattered. This should prevent further diffusion of this evil custom.(97)

1217. Finally, even bethrothal places an impediment to contracting marriage with blood-relations to the first degree, that is, with the parents, children, brothers and sisters of the person with whom the betrothal was contracted (honestas publica). The aim is to prevent the supposed familiarity with the other person from extending to near relations, with its consequent detriment to good morals.(98)

1218. The degrees of extension of the impediments of affinity and public decency, like the degrees of consanguinity, were established by the Church in keeping with the exigencies of the state of Christian society, and the public good expected from such enlargement or diminution.

1219. The impediment of clandestinity, posited by the Council of Trent, invalidates marriages not contracted in the presence of the parish priest (or his delegate) and two or three witnesses.

1220. The public good requires that all should know with certainty the identity of persons joined in matrimony so that no one may aspire to contract marriage with them. This would disturb domestic society and open the way to immorality.

1221. For a long time, the Church tried to avoid this extremely serious defect by severely condemning clandestine marriages and laying down various penalties for them, but without declaring them invalid. As soon as experience showed that this was not sufficient to prevent the evil, the Council of Trent invalidated them by creating the so-called impediment of clandestinity.(99)

1222. Murdering one's spouse invalidates marriage with the accomplice to such a crime if it was committed with the intention of marriage, or if this was the intention of one of the parties.

1223. If the murder of the spouse was preceded by adultery, it produces a diriment impediment to marriage with the adulterous party even though this party was not an accomplice to the crime, and the intention of contracting marriage was held by only one of the parties.

1224. Adultery alone, accompanied by a promise of marriage made during the lifetime of one's own spouse, results in a diriment impediment.

1225. Finally, a similar impediment arises from adultery accompanied by an attempt at marriage when both have been carried out during the lifetime of the spouse who has suffered from the infidelity. There is no impediment if they have been carried out during the lifetime of a second or other spouse.

1226. The end of such impediments is clear: the Church wishes to defend domestic society, the personal safety of the spouses and the preservation of the fidelity they have sworn to one another.

Notes

(53) Lack of the possibility of sexual union can occur because the individuals have not yet reached puberty. Consequently, too tender an age is counted amongst the diriment impediments of marriage when it renders intercourse impossible. - Ecclesiastical laws fix puberty at fourteen years for males and at twelve for females.

(54) Maestruzzo (1: 75), quoted by the Dictionary.

(55) In AMS (683-686), I spoke about human instinct in so far as it is opposed to moral reason. Considered from this point of view, human instinct arises from merely subjective feelings. But there is also a feeling which reaches the contemplation of objects. This can be called objective (moral feeling); from it flows a moral instinct which is certainly human, and indeed supremely human. This moral sense will be understood better by reference to the intellectual sense of which I spoke in the Lettera a Don Pietro Orsi (in Prose, p. 266 ss., Lugano, 1834) and to subjective necessity of which I spoke in the Moral System (cf. ER, 132-147). Here I call this instinct moral-human rather than simply human to help the reader understand that I am not speaking of an instinct arising merely from subjective good. Objective good produces subjective good which in turn generates moral feeling and the moral instinct that forms part of the human instinct generally considered.

(56) This observation was also made by Xenophon (Cyropaedia 5).

(57) This universal agreement is not lessened by the earlier or actual presence on earth of a few monstrously perverted people who choose to follow, or even support, not nature but the corruption of nature. The cynics Diogenes and Crisippus, who denied that blood-relationship was an impediment because it was not found amongst the Gauls, belonged to this class. (Cf. Laertius, bk. 7: 71, 187). There are also a few extremely decadent nations which either ignore incest altogether or think very little of it, as Xenophon (Memorabilia, 4: 4, §19, 20) and Philo (De special. legibus.) tell us about the Persians. The same crime was frequent amongst the Medes, Indians and Ethiopians, according to St. Jerome (Contra Giovin, bk. 2). Lucanus (bk. 8, 401§410), Dion of Prusa (Orat. 20) and others (Augustine, In Levit. c. 18., Eusebius, Prae. Ev., 6: 8) say that the Parthians practised it. Dion puts it down to their bad education. - Cf. Alessandro d'Alessandro, Genial. Dierum 1: 2; and Selden, De J. N. V., 11). For the barbarians in general, cf. Euripides in Andromaca (v. 173 ss.) and Ovid (10 Metam.). Note however that such crimes were rare and abhorrent even amongst the barbarians. The claimed right of the Persians of which Xenophon speaks, seems to have been a religious right, that is, introduced by pagan superstition which was wont to sanctify horrendous things that were always contrary to nature. As Catullus tells us, they believed that magi were born of such incest (In Epital. Pelei et Thetid.), and permitted incest to their magi (Laertius, bk. 1).

(58) Diritto naturale e sociale, e principi del Diritto delle Genti, dedotti dall'analisi dell'uomo, ossia dal senso morale e dal comun consenso di Ragione, Padua, Bettoni, 1815.

(59) Aristotle (De Histor. animal., bk. 9, c. 47; and De Admirabil.); Pliny (Hist. N., bk. 8, 42); Antigoneus (De Admirabilibus, c. 59); Oppianus, (De Renatu, bk. 1); Varro (De Re Rustica, 2: 7); Elianus (Var. Hist., 3: 47); Cf. also Selden (De jure nat. et gentium secundum discpl. Haebreor., bk. 1, c. 7); and Carpzov (Crim., p. 2: 9, 72). It is truly extraordinary, if Pliny and other ancient authors are to be believed, that a stallion, first blindfolded in order to make it mount its mother, then immediately unblindfolded, goes wild when recognising the mother and hurls itself over a precipice. This happened not once, but several times, according to these authors. If this is true, it would show how instinct simulates intelligence, although the conclusion reached by the Roman naturalist is improperly expressed when he says: `they (horses) understand what the relationship is.'

(60) In Hippolytus, act 3, verses 914, 915. We find the same in Oedipus, verse 638:

Arnobius (Adv. Gentes, bk. 5), speaking about this ancient view of things, reproves the Gentiles for adoring a Jove who did not find intercourse with his own mother abhorrent. Even some beasts dread it, and Arnobius calls this fear `that normally ungenerated sense.'

(61) We derived paternal authority solely from the fact of being the author of a child without reference to the nobility attached to the act by which one becomes the author.

(62) Lev 18: [7].

(63) D., bk. 22, t. 2: 14.

(64) Oedipus (verse 272): The poet makes Jocaste speak of the conflict between the opposing feelings that arise from her opposite conditions as mother and wife (act 5, verse 1038):

The same confusion between mutually repugnant feelings is expressed in another tragedy, the Thebaide (act 1, sc. 1, verse 130 ss.); and in Agam. (act 1, sc. 1). A similar struggle is described by Statius, Thebaide (bk. 4); by Ovid (Metamorphoseon, bk. 2, fab. 2, and bk. 10, fab. 9); by Catullus (carm, 58). Cf. also St. Augustine (The City of God, bk. 2, c. 4; bk. 15, c. 16; Confess., bk. 2, c. 4).

(65) Sophocles claimed that he was subject to a hard master. This explains why love has been called `tyrant' by all the poets.

(66) Man is not ideal being. Human beings are real, intellective beings. As intellective beings they receive the law; as real beings, they constitute its titles.

(67) St. Paul (1 Cor 5) detests such unions as naturally impure even in the eyes of the Gentiles. The laws of Charondas declare as infamous the person marrying his step-mother. Incest is the object of detestation in the discourse of Lysias, and is considered detestable by Cicero (Pro Cluentio, c. 6), Virgil (Aeneid, 10, verse 389), Ovid (Epistolae Heroïdum, 4), and Seneca in Hippolytus (verse 712). Cf. also Plutarch in Life of Metrius, and Tertullian, Adv. Marcionem, 5.

(68) St. Augustine says of the marriages of early Christians with their cousins: `It was not customary, although it could have been done lawfully. Even the divine law did not forbid it, nor was it yet forbidden by human law. Nevertheless, the lawful fact was held in abhorrence because of its propinquity to what was unlawful' (The City of God, 15: 16).

(69) The Hebrew teachers also ascribe the dispositions of Leviticus to the need for domestic decency (c. 18). Moses Maimonides, in his book Halath, adds as another reason the natural modesty between blood-relations and between people joined by affinity. This is universally recognised as a cause of non-marriage in these circumstances.

(70) Cf. Plutarch, Quaest. Rom., q. 108; St. Augustine, The City of God, 15: 16.

(71) `From the beginning it was neutral whether a brother slept with his sister or not. But once the law against such intercourse was made, it was immediately relevant whether it was observed or not' (Michael of Ephesus, To Nicomachus, bk. 5).

(72) The opposite is seen in decadent peoples. Amongst the Romans, permission to marry a niece accompanied licentiousness. According to Tacitus: `We have new marriages by which uncles marry their nieces, marriages which were solemnised amongst other peoples without their ever being forbidden by law' (Ann, 12, c. 6).

(73) In the Apostolic canons (can. 18), a person who married two sisters one after the other, or a niece, was excluded from the clergy. However, this does not seem to have been considered a diriment impediment.

(74) The maintenance of families, the preservation of wealth within a family and the public good were the three principal causes recognised by ancient laws as efficacious in granting dispensations for the closer degrees of relationship. It was the first, for example, which enabled a brother amongst the Hebrews to marry his widowed, childless sister-in-law for the sake of raising up offspring to the brother's sibling. Special laws were made in almost all the Greek legislations to provide for inheritance.

(75) Imperfect adoption, as it was called, in which the person adopted does not come fully under the patria potestas of the adopter, is not properly speaking adoption.

(76) This explanation, which depends upon mutually repugnant feelings and duties, pertains strictly speaking to natural Right, and for this very reason is sanctioned by the Catholic Church. Some feelings and duties come to human beings from human nature itself, others are the result of their condition as Christians or members of the perfect theocratic society. But whether they spring from nature or from the Christian condition, their formal reason as impediments to marriage is always the same. The sole distinction is that the former pertain to natural Right and the latter to supernatural Right.

These two Rights have to be distinguished (as we have said several times). The second is the complement and perfection of the former. The Church's prohibition of solemn nuptials from Advent to the Epiphany inclusively, and from Ash Wednesday to the octave of Easter inclusively (Council of Trent, sess. 24, c. 10, De Ref. Matrim.) is dependent upon the same notion of opposition between feelings and duties, although this is not a case of diriment impediment. Note that the joy and festivity that accompany weddings is considered by the Church as opposed not only to the feeling of penance nurtured in Advent and Lent, but also to that complete heavenly, pure joy and festivity found at the Lord's birth, at the Epiphany and at Easter. The Church forbids solemn nuptials at these times because she prefers Christians to rejoice at these moments with a totally chaste, heavenly happiness undisturbed by base, carnal thought. According to this spirit of the Church, certain dioceses maintain the praiseworthy custom of not celebrating marriages at all during these holy times, at least not without licence from the bishop. This is the case, confirmed by the last diocesan Synod of Cardinal Morozzo, in the diocese of Novara (p. 134). and because of the other reasons which render marriage morally and jurally impossible in the case of natural relationship.

(77) Cf. RI, 1088-1103, for the obligating force and the jural effects of accepted promises.

(78) Decret., bk. 4, tit. 9, c. 4.

(79) `The marriage contract between those born of free parents and BETWEEN EQUALS is legitimate and was constituted by the Lord long before the beginning of Roman right' (Leo the Great, Ep. 90, ad Rustic. Narbon).

(80) This full, perpetual union in Christian society is the symbol of union between Christ and his Church. Thus St. Leo writes: `Hence, because the society of marriage was constituted FROM THE BEGINNING to contain the sacrament of Christ and the Church, as well as the union of sexes, there is no doubt that marriage is impossible for a woman in whom, it is taught, no nuptial mystery has been present' (ibid.). The Pope is speaking here about the primal marriage instituted by God between the first spousal couple in whom there was, despite the certain absence of sacramental grace, the prophetic sign of the future marriage between the Saviour and the Church. This sign, called by St. Leo `sacrament (the sign of a sacred thing) and nuptial mystery', consisted in the perpetuity and fullness of the union. This is why I think Sebastiano Berardi gave an excellent interpretation of this passage of St. Leo when he wrote: `My own opinion of what I have explained until now is that Leo only wished to point to what is necessary in the intention of the individual for expressing the beginning of marriage, whether marriage comes about secretly or in sight of the Church. The nuptial mystery, that is the sacrament of Christ and the Church, is contained in the declaration of this intention, in so far as man and wife profess that they will remain together perpetually, just as Christ promised never to leave his Church' (Gratiani Canones genuini ab Apocryphis discreti etc., p. 2, c. 42).

(81) Constantine forbade them to centurions under very severe penalties in an endeavour to prevent the deterioration of this rank. His law is also found in the Code of Justinian, bk. 5, tit. 5: 3.

(82) Cf. the theologians of Salamanca, De Matrim., n. 35.

(83) `According to the Apostle (Gal 3), as in Christ JESUS neither free man nor bond-servant is to be kept from the sacraments of the Church, so marriage amongst bond-servants is not to be forbidden. Marriages contracted despite the opposition and unwillingness of masters are not to be dissolved on this account. Nevertheless DUE and customary service must be shown to the masters' (Pope Hadrian, 790 AD, Sext., bk. 4, tit. 9, c. 1). Note that this is one of the ways in which JESUS Christ freed human beings from servitude. He gave TO ALL AN EQUAL RIGHT OF SHARING IN THE SAME SACRAMENTS. This already constituted an immense freedom given to mankind. Moreover, marriage was placed by Christ amongst the sacraments. He gave TO EVERYONE, therefore, THE RIGHT TO DOMESTIC SOCIETY. This right involves a group amongst whom there exists not only society, but government. The divine, spiritual power in the Christian system essentially influences the temporal order, in which it rectifies all the distorted, unjust and unbecoming elements placed there by mankind. We have here an example of the greater attracting the less, of the accessory following the principal. There is no half-way house: we either recognise this or renounce Christianity.

(84) I noted a case of such an impediment in AMS, 676.

(85) Many authors distinguish violence from inflicted fear. However, the spirit which must give consent suffers fear only, not violence, as the Roman jurisconsults noted. `The praetor says: "I do not consider ratified what was brought about by fear". Once upon a time, the phrase used was "caused by violence or fear". "Violence" was mentioned because of the necessity imposed contrary to the will, "fear of present or future danger" because of mental trepidation. Afterwards, however, violence ceased to be mentioned because whatever came about through atrocious violence was also considered to come about through fear' (Ulpian, Dig., bk. 4, t. 2: 1). This passage also shows the natural progression of ideas in Roman laws.

(86) `Labeo says that fear is to be taken not as any fright, but fright of a greater evil' (Ulpian, Dig., bk. 4, t. 2: 5). Majoris malitatis: Haloando and others read majoris mali.

(87) Nevertheless, Roman laws do consider the gravity of the fear relative also to the person, as we can see from the quotation from Ulpian. Brunnemann, speaking of the phrase `which affects a resolute person', says: `The extent [of the fear] is explained by the quality of the person involved. Fear, therefore, is also considered relative to a resolute woman. The same fear is not required in both sexes, and should be left to the decision of the judge according to bk. 3, ss. ex quib. caus. maj. - Again, there is a great difference amongst males themselves. Graver fear is required in a soldier than in a literary person. Some men are by nature more meticulous than others who have no fear whatsoever. Age must also be taken into account.' He quotes Sanchez (d. d. tert. numer. secund.) and Fagundes (de I. et I. L., prim. cap. quint. num. decim.). Comment. in Pandect., bk. 4, t. 2, bk. 6.

(88) This reasoning is put forward by St. Alphonsus de' Liguori who makes the following noteworthy comment in his Teologia Morale: `Marriage is a perpetual bond of mutual love between spouses, as we see in St. Matthew (c. 19): "A man shall leave his father and mother and be joined to his wife." - If marriage is contracted from fear, therefore, it must per se be null. No man adheres to anything which he holds against his will' (bk. 6, tract. 6, De Matrim, c. 3, 1054).

(89) I am speaking of actions furnished with all that is necessary for their subsistence, in other words, of what I have called a full species of actions (OT, 509, fn. 14). If I were dealing with an abstract action, I would have to distinguish three, rather than two things in it: 1. the substance of the action; 2. its accidents; 3. its relationships. There could be an intrinsic moral evil in each of these three things.

(90) For the force of positive, human laws, cf. Conscience, 175-187.

(91) Here, ratified means marriage formed by the natural consent alone of the parties. I do not take the word `ratified' here in the sense it has when we say that the marriage of pagans is a true, but not ratified marriage.

(92) Sess. 24. Although sin puts an impediment to grace, the sacrament does not cease either to contain grace or to act with a tendency to communicate grace. Thus, when the impediment has been removed, the effect of grace revives just as movement takes place as soon as the obstacle impeding living forces has been removed.

(93) `These ministers DO NOT ACT IN THAT SACRED FUNCTION ON THEIR OWN ACCOUNT, BUT IN THE PERSON OF CHRIST. Thus, whether they are good or bad, provided they use the form and matter which the Catholic Church has always preserved as Christ's institution, AND INTEND TO DO THE SAME AS THE CHURCH DOES IN HER ADMINISTRATION, they truly bring about and confer the sacraments, etc.' (Catechism of the Council of Trent, part 2, c. 25).

The intervention of the Church in the confection of the sacrament of marriage is also expressed by the words of the priest: `I join you in marriage in the name of the Father and of the Son and of the Holy Spirit. Amen.' When this rite is not fulfilled, the Church supplies for it with her authority, faith and intention which, in addition to the minister, is necessary. As we said, the minister must refer, in the sacred function he exercises, to the intention and faith of the Church, and bring his own faith and intention into line with hers.

(94) Benedict XIV says of them: `These dispensations, said to be at the root of marriage, are sometimes granted in special circumstances. They remove the necessity for the renewal of consent, according to the teaching of the authors and as we see from the apostolic letters of Clement XI beginning Apostolicae Dignitatis, 2nd April, 1701; and from other letters of Clement XII beginning Cum Demum which are to be found at n. 142, §3, t. 14 of the Novum Bullarium. Nevertheless, such dispensations, which validate marriages and legitimise their offspring, although granted for very grave reasons (when the union of the spouses seems externally a true marriage, and the sexual act has not obviously been fornication), are confined solely to cases where the impediment invalidating marriage takes its origin not from divine or natural right but from what we call POSITIVE ECCLESIASTICAL LAW, from which the Supreme Pontiff can derogate. He does this not by making the invalid marriage valid, but by removing those effects which brought about the nullity of the marriage prior to the dispensation and in the very act of contracting the marriage, according to the Clementine letter: Quoniam de Immunitate Ecclesiarum' (De Synod. D., bks. 13, 21: 7).

(95) Dig., bk. 23, tit. 2: 1.

(96) Because the purpose of this impediment is the preservation of good morals, it arises even from an invalid marriage, provided the invalidity does not depend upon lack of consent. Indeed, if consent is lacking, one cannot presume the presence of the kind of familiarity with the other contracting party that can be extended to near relations. In this case, the Church removes the impediment.

(97) A spouse who has had intercourse with a blood-relation of the other to the first or second degree is punished by inability to request the marriage debt. Nevertheless, such intercourse after the marriage cannot dissolve the matrimonial bond which is of its nature indissoluble.

(98) This shows that the impediment of affinity arises from licit or illicit intercourse; the impediment of public decency from ratified marriage and betrothal.

(99) Sess. 24, c. 1.

Chapter 05

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