Return to Contents

Section One - Conjugal Society

Chapter 5 (Part 1)

Duties and rights of spouses

1227. So far we have discussed the nature of the union (cf. 983-1103), and how and under what conditions it is posited in being (cf. 1104). We pointed out that marriage and the fulfilment of its obligations are not the same thing (cf. 1099).

After this discussion of the nature and constitution of marriage, we must deal with the obligations accompanying it and founded in its intimate essence. After the obligations come the relative rights.

1228. We must first examine what, in domestic society, the spouses posit in communion and how they do so.

Because their union is full, everything is placed in communion, but in a limited way; the spouses retain their individuality as persons, or personal dignity. I say `individuality as persons' or `personal dignity' because these two expressions mean the same to anyone who really understands them. Personal individuality is itself dignity as person; in other words, individuality of person is constituted by the dignity human beings have from their communication with what is eternal and divine. Let us look at this in another way.

1229. Natural theocratic society, which is completed by supernatural theocratic society, precedes conjugal society. It is called `natural' because it emanates from nature, from the essence of humanity. Human individuals are constituted in it by their natural, spontaneous will directed towards universal good whether they will this freely or not. All have a supreme duty to adhere freely to it.(100)

1230. Theocratic society is principally the society of the individual human being with God. Relative to nature, it is initial society; relative to the grace of the Saviour, complete.
The individual human being can have moral good in common with God, together with what precedes moral good (truth) and what follows it (happiness). He cannot renounce these goods except by violating his essential society with the divine being; this society constitutes him what he is, a human person. In fact the human person is an indivisible principle possessing truth and a (moral) activity with which it can adhere to truth.(101) The universal moral obligation is non-violation of this society.

This society precedes all others, constituting their possibility and uprightness. Without this first society (natural theocratic society), human beings no longer have rights or duties; social right no longer exists, and without social right, society does not exist. This first society therefore is that which renders all other societies possible. It also makes them upright and endows them with moral dignity, because moral dignity resides essentially in it. The first society therefore is also THE SOCIAL PRINCIPLE.

Hence, if two or more human beings associate, the first obligation of the social body they have formed is to acknowledge that `every individual has a society immensely more honourable with the supreme Being.' Consequently, the first, fundamental obligation of the social body and of all its members is `to acknowledge the personal individuality of every member', that is, to acknowledge that `every member, before being a member, is an individual per se who possesses supreme, inalienable and intangible rights. Neither the society nor individual members can dispose of these rights. On the contrary, these rights must direct the society and its laws to maintain the rights themselves with a respect that has something infinite and final, like its object.'

Granted all this, how do spouses come together as persons in such a way that their union is full? Not by confusing their personal individuality, nor by destroying the society which each has individually with the supreme Being, but by enjoying together the individual good of the other (society of fruition) and promoting the society itself (society of moral action).

1231. Nevertheless, this good remains individual. At the same time, the consequent delight and interest that all take in the individual good of each becomes common. All desire to preserve and advance this individual good, and desire it to be individual. Its excellent nature consists precisely in this individuality.

1232. Love, by loving the individuality of the good, is pure friendship, and has a nobility beyond all loves because totally unselfish in its essence.
Friendship is something more than society (as we have observed elsewhere),(102) but produces a society of its own, because that good which can only be essentially individual is enjoyed in common by all members; all equally rejoice in that good and its individuality.
God willing, I will speak about the mysteries of friendship and love in Agathology.

1233. It is clear from what we have said that the fullness of the conjugal union does not destroy the individuality and personship of the spouses, which they enjoy in common in an entirely special way. Hence, their duties and rights can be divided into two series: those which they have as personal individuals and which exist per se; and those which they have as members of a society.

1234. This first division is important and I will make great use of it in all that follows. However, I do not think it necessary to classify under it the special rights and duties I intend to discuss. This would take far too long(103) and oblige me to divide the content, which I think is better kept as one in the mind of the reader. To do otherwise would mean imparting deformed and imperfect concepts.

1235. Let us set out an easier classification of the rights and duties of spouses. Personship makes the spouses distinct subjects of rights and duties. Nature, partly different in man and woman, gives spouses different common and proper rights and duties.

1236. As we have seen, every society implies equality. But we have also seen that if, in two intelligent individuals, one part is equal, the other part can be unequal. Granted that the inequality is harmonious, it can give rise to that element of appropriateness which, far from impeding the union, makes it possible and gives it a character of its own. This is particularly true of the conjugal union.

In spouses one part (human nature) is equal, and the source of common rights and duties (communal Right); the other part is unequal (sex) and the source of different rights and duties (seigniorial, governmental Right in domestic society). We will speak about these two great classes of duties and rights of spouses.

1237. The principle giving rise to common rights and duties is the fullness of conjugal union, which can be formulated as: `Spouses must preserve and make real the fullness of union which constitutes their marriage.'

1238. They can fail in this duty in two ways:

1. By performing acts which of their nature are opposed to the preservation and realisation of the union.
2. By not observing the right way of implementing the union, although on the other hand they intend to preserve and realise it.
These common duties and rights can therefore be subdivided into those concerning the union of the spouses and those concerning the manner of this union.

1239. The fullness of union between the spouses has four consequences:

1. the indissolubility of marriage;
2. the uniqueness of each spouse;
3. community of life;
4. community of goods.
These consequences constitute corresponding duties and rights in spouses. I will say something about each one.

1240. The indissolubility of marriage is founded on 1. natural Right; 2. primitive divine Right, and 3. evangelical Right grounded in the sacramental dignity of Christian marriage.

1241. a) Natural Right. - Marriage is the union of man and woman in all its fullness. The union would not be full unless it were indissoluble. Hence indissolubility proceeds from the nature of marriage.

1242. b) Primitive divine right. - When the first human being pronounced the solemn words with which he expressed the nature of marriage,(104) he spoke as legislator for all his descendants. The law he enunciated was rightly considered divine.
Properly speaking, it was natural law that was promulgated, which can however be called divine in so far as God is the author of nature and the source of the light of reason. It was also divine-positive law, because inspired and confirmed by God, and human positive law because the first human being, as head of the human race, had authority to make and promulgate universal laws.

1243. It was very fitting that the law of domestic society(105) should be promulgated immediately after the law of theocratic society, which consists in the obedience of the creature to the Creator and all his ordinances.(106) This guaranteed that the two original and essential societies of the human race were fully constituted and regulated. These two laws were in fact the first laws of society.

1244. Adam's words contain no imperative; he says, `This is bone of my bone, and flesh of my flesh. She will be called derivation from man because she has been taken from man. Therefore a man will leave his father and mother and adhere to his wife, and they will be two in one flesh'. This however causes no difficulty. Adam was indicating the nature of marriage, showing that the law enunciated by him was natural. Nor did he, who was created upright and perfect, need anything else for him to fulfil the law. A human being in the state of total rectitude never acts contrary to the nature of things.

Hence God himself did not use a legislative formula to enunciate the law of marriage, but promulgated it by the very act of drawing the woman from the side of the sleeping Adam. This act was most suitable for expressing the relationship between man and woman, and was well understood and interpreted by Adam. God therefore promulgated the conjugal law by the fact of the production of woman from Adam's rib, and Adam promulgated it with the words which interpreted the divine fact. The law was thus shown to be founded in the reality of things, in the nature of man and woman, and in their mutual appropriateness, which drew them to their perpetual, full union.

1245. c) Sacramental right. - Finally, the Saviour unites Christian man and woman by the insoluble sacramental bond. With it, he gives them the power to remain perpetually united for as long as they live on earth, with a love similar to that which unites JESUS Christ with his Church, or God with humanity.

1246. We are now in a position to understand the nature and force of the triple indissolubility of marriage.

1247. a) Natural indissolubility. - From what we have said, we see that natural indissolubility has its title in the human being's upright nature subsisting in both sexes. Reason, based on sound principle, does not eliminate indissolubility. Its sole enemy is the corruption of humanity which alone alters and deforms the conjugal relationship.

1248. b) Divine-positive indissolubility. - We also see how the primitive divine-positive law of marriage confirmed the natural law which made marriage indissoluble. Indissolubility was greatly ennobled by God when he constituted the human race in a supernatural order.

1249. Man, placed in this sublime order, had indeed a greater obligation to conform himself to the laws of his upright nature. Any contrary act deformed him, insulting the grace conferred upon him by the supreme Being.

1250. Furthermore, the only dispensation which the divine-positive law allows and of which the Church is simply a mouth-piece and interpreter, comes from the divine legislator himself. Consequently, a stronger bond is added to the natural law of indissolubility.

1251. c) Sacramental indissolubility. - But the sacramental bond is much stronger. It is not simply jural-moral, like the previous two, nor does it consist simply in the obligation imposed on the spouses by jural-moral laws; these can be violated or broken by human free will. The sacramental bond, effected by divine action, is a real bond, the work of God himself, which unites the spouses supernaturally. It is neither lawful nor possible for any earthly authority to destroy the work of God. A legitimate authority may sometimes remove a bond consisting in mere jural-moral obligations, but no one can destroy the reality of facts. No human power exists which can divide Christian spouses validly united. No human power is greater than divine power; no power can undo what God accomplishes with his power.

1252. The divine action accomplished in the sacraments is the communication of grace. On the part of God, this action never fails in its efficacy, although the human recipients can impede its sanctifying effect by their sin. But, as we have said, the action remains potentially in them, so that the effect of sanctification takes place when the obstruction of sin is removed. When human beings, through their depravity, turn the grace contained in the sacrament into their own damnation, this terrible consequence itself shows how the sacramental bond is never without its effect in them.

1253. The bond gives rise both to the spouses' greater obligation not to disunite (the law of supernatural indissolubility) and to the reality of the sacramental union.

1254. Hence the crime of two pagan spouses differs immensely from that of two Christian spouses who in each case separate to enter another marriage. The former have only a jural-moral union, that is, the jural-moral duty and right to remain perpetually together. But the Christian couple, in addition to the jural-moral obligation, remain bound by the divine action. This action unites them in the love of God, even if they obstruct him, just as a heavy body gravitates to earth even though its movement is impeded by some other body. For this reason Canon Law usually calls pagan marriage, which lacks the sacramental bond, true but not ratified marriage - the `Gloss' explains that it can be dissolved, and this is normally understood in the way I have explained.(107)

1255. Moreover, merely ratified marriage participates in indissolubility to a different degree from marriage that is also consummated. Here I understand `ratified' in the general sense of lawful (and include the marriage of pagans) as opposed to consummated. It is indeed necessary that we examine the difference between the indissolubility of ratified and of consummated marriage with reference to the natural, divine-positive and sacramental law. From these three laws every kind of indissolubility comes.

1256. a) Natural indissolubility. - The following points demonstrate that consummated marriage shares more than non-consummated marriage in the indissolubility dependent on the natural law:

1. The fullness of union is finally activated in the consummation of the marriage. As long as the only union is that brought about by the contract, the union is merely in potency; it is not realised and actuated. But a union in act is certainly a fuller union than the same kind of union in potency. In the former the notion of marriage is fulfilled, but not in the latter. Marriage, as I have defined it, is `the full, appropriate union between man and woman'.(108)

2. In the marriage contract the right to union passes reciprocally between the contracting parties. There is jural but not real union: the handing over of the thing, accomplished in the exercise of the acquired right, is not carried out.

3. A third, stronger reason, the special nature of the act uniting the bodies, shows that the consummation of marriage renders conjugal union more indissoluble. As we have seen, the act is consonant with human dignity only as a consequence and completion of the fullness of union called marriage. If the couple should part after having had intercourse, their act would remain in its most shameful nakedness, because the veil of immortal affections which ennobles it, or at least hides what is unbecoming, would have been removed.
Any couple who, after carnal knowledge of each other, break up and enter other marriages, dishonour human dignity. All that remains to them of their transitory union is shameful impurity.

4. Finally, if children result from the consummation of the marriage, the parents' duties towards them make the stability of their union even more necessary.

1257. b) Divine-positive indissolubility. - When the first man and legislator of the human race pronounced the law of indissolubility, he made express mention of the carnal union in the solemn words, `and they shall be two in one flesh.'(109) These words posited the end and reason for the previous words, `Wherefore a man shall leave father and mother, and shall cleave to his wife: and they shall be two in one flesh.'(110) It has already been observed(111) that Christ in restoring and declaring the first law, described consummated marriage in the ancient words of Adam (`And they shall be two in one flesh')(112) before affirming the indissolubility of marriage (`What God has joined together let not man put asunder'). Similarly, the Apostle said, `This is a great sacrament in Christ and in the Church', only after describing the consummation of marriage, using Adam's same words, `And they shall be two in one flesh'.(113)

1258. As we have said, this divine-positive law of conjugal indissolubility is simply the same law of nature posited in reality by God, expressed in words by Adam, and confirmed by Christ's efficacious power. We must therefore conclude that, in accordance with the same natural law, indissolubility has two degrees, of which the higher degree is carnal union. This union is debased immediately it is separated from the total union of two human beings of different sex. Divine authority therefore does not make any change to the concept of indissolubility, or to its degrees; rather it renders them more honourable and sacred.

1259. c) Sacramental indissolubility. - Nor does the sacrament change the natural reason for indissolubility or its degrees, but reinforces it and raises it to a higher dignity.

1260. We can distinguish two parts in the sacrament: 1. the sign, and 2. the efficacy of the sign which produces the grace of the Saviour.

1. As sign, the sacrament of marriage when consummated represents a greater union and indissolubility than when simply ratified. A ratified marriage represents the soul's union with God by means of grace, a union that can be severed by sin; a consummated marriage indicates the union of Christ with the Church, effected in an entirely indissoluble manner by the incarnation of the Word.

1261. The words of Pope Innocent III deserve mention here because they explain in a wonderful way the two degrees of sacramental indissolubility. He replied negatively to the query, `Must a man who has taken as wife a widow who is still a virgin, be barred from sacred ordination as a twice-married man'. He argued as follows:

and it is this sharing alone which prevents the re-presentation of the unique bridegroom, Christ, in marriage to the unique bride, the Church.

1262. Consummated marriage, therefore, even among pagans, can aptly serve as a symbol of the marriage between God incarnate and humanity, even if less worthily and completely, and without sacramental action. Thus Benedict XIV writes:

The learned Pope apparently holds the opinion that a consummated marriage of pagans has an indissolubility greater than a marriage of Christians which is only ratified. We cannot legitimately infer that the Pope has the power to dissolve a consummated marriage simply because he has the power to dissolve a ratified marriage. As we said, not even the sacrament itself changes the reason and natural degrees of conjugal indissolubility; rather, granted indissolubility as foundation, the sacrament ennobles and consecrates it.

This natural reason consists supremely in the principle, `The act of carnal generation is impure immediately it is separated from the more noble elements of the total union of two human individuals of different sex'. Granted this, we see that indissolubility begins when the right to this act is acquired through the contract. The right itself is unbecoming if separated from the right of full, perpetual union. But when the carnal act itself is consummated, it only ceases to be impure by taking on the concept of completion of the full union. If the marriage is dissolved, this concept is lost.

If no carnal act takes place and only the right exists (ratified marriage), the marriage can be dissolved per accidens, provided the causes are such that the solution leaves nothing unbecoming in the human being. This happens in the case of a solemn vow, by which human beings consecrate themselves totally to God. There can never be any indecency in renouncing the exercise of the conjugal right for a greater union with God himself. By means of the vow, a human being truly enters into a special jural union with God, a union infinitely more noble than the abandoned union with a creature. Because the exercise of the right to carnal union is incompatible with the vow of chastity, the right whose exercise is rendered impossible ceases. As we have said,(123) a right does not exist if it is impossible to exercise it or profit by it. A solemn vow therefore indirectly dissolves marriage.

1263. It is clear that a ratified marriage can, for other very grave reasons, be dissolved by the authority of the Church, but not by the will of the contracting parties. Granted these reasons, the unbound man or woman lose no dignity, while Christian society acquires, by means of their dissolution, a more worthy and noble good than their right to carnal union.(124)

1264. [2.] Relative to sacramental grace, this certainly accompanies and sanctifies the two degrees of indissolubility we have described. Both are efficacious signs of something sacred.

1265. Ratified marriage brings with it the grace of charity between the spouses, mutual fidelity, peace in their domestic life together, fortitude in bearing each other's burdens, and mutual help and succour.

1266. The consummation of marriage brings with it the grace of conjugal chastity in the exercise of this office of nature, holy fruitfulness, the procreation of children of good character to increase the number of saints, and wisdom in educating them.

1267. Grace not only renders the bond more honourable, bestowing a greater obligation to respect it, but draws it much tighter by means of interior divine action and the will of the spouses to remain inseparably together.

1268. If ratified marriage (marriage merely of right) is dissolved by the authority of the Church, grace is not violated, granted that the causes of the dissolution redound to the glory of God. Grace received at the time the marriage was contracted is also not wasted; indeed it continues because it is an increase of charity and holiness, and able to make perfect the other elements of the union. Marriage, I repeat, is not simply carnal union; it supposes, as a kind of preamble to carnal union, every possible union between two human individuals of different sex.

1269. Concubinage is cohabitation between a man and woman for the purpose of satisfying the sexual stimulus outside the fullness of conjugal union. Sex used in this way does not receive from the fullness of union the dignity due to the actions of creatures who are endowed with reason. Consequently it is something impure.

1270. We must note that the word `concubinage' was sometimes used to mean a true marriage, a full union, contracted however with a woman to whom civil society did not grant all the external prerogatives granted to wives. Such a purely civil disposition does not change the nature of the union, which, according to nature, can still be full.

1271. This distinction into wives of first and second order however is not at all natural. Upright human nature acknowledges only one kind of marriage and therefore only one kind of wife. Indeed the very expression, `fullness of union', which the concept of marriage contains, demonstrates the simplicity and uniqueness of the union: what is full can be only of one kind.

1272. The distinction of marriages and wives into two kinds has its origin in the decadence of human nature, and in social laws, which normally conform to that decadence.

1273. The Church distinguished the essential constituents of marriage which she required uncompromisingly and without relaxation of any kind. Once they were safeguarded, her spirit, teaching and incessant exhortations were directed to perfecting the marriages of the faithful. She removed the difference between marriages and marriages, between wives and wives introduced by the imperfection of individuals and human societies. She continues this great work today, and will accomplish it only in the course of centuries.

1274. But even in her first task, that is, of making sure that no illegitimate marriages were formed but those only which possessed all the constituents of a true marriage, she proceeded with her accustomed wisdom. At first she left intact the language of society, and was content to remove any disorders expressed by such language. But once the disorders had been removed, the language had to fall, and did so of itself. By this natural and gentle means, the Church corrected behaviour and abolished Roman concubinage. Some observations about this wise conduct of the Church in abolishing Roman concubinage will not be out of place.

1275. The marriage called justum conjugium [just marriage] by the Romans had three forms, corresponding to its three relationships with theocratic society, civil society and the state of nature.

1276. In the first form, the solemn rites of religion were used. The Pontifex Maximus and the priest of Jupiter joined the spouses(125) by a sacrifice in which the bride presented a spelt cake;(126) hence the contract was called per confarreationem. The ceremony signified that the couple intended to communicate sacred things. Certain formulas were pronounced, and ten witnesses took part.

1277. This form was very ancient and recalled the original institution by God himself. The fact that marriage came from God and must be something sacred was an opinion impressed on the minds of all ancient peoples. The communication of divine things is certainly the noblest part of the conjugal union, the part that contributes the highest nobility and extends a heavenly mantle over all other parts.

1278. Moreover, people felt there was something divine in generation, and something ineffably great in perfect love.(127) But no love is fully great unless the lovers communicate something divine to each other.

1279. The second form of contracting marriage among the Romans was per legitimam stipulationem [legitimate stipulation], or per coemptionem viri et mulieris [ceremonial sale of man and woman], in a word, by a civil contract.

1280. The third form was called per usucapionem, that is, by living with a woman for a whole year. After this period of cohabitation or concubinage, the Twelve Tables declared the woman a legitimate wife, but without religious ceremonies or civil acts. It was presumed that after a year's cohabitation the couple wished to be husband and wife. Thus the marriage took place by tacit consent and was supposed by law.

1281. These three forms for contracting marriage deserve the greatest consideration. They show people passing through the various social states forced upon them by events.

1282. The first form pertains to people who were able to preserve a larger portion of the very ancient state of theocracy, or were at the mercy of less harsh events or, endowed with a fuller, more constant spirit, were able to rise above such events and to some extent preserve the original family.

1283. The second form pertains to those who, after the destruction of the original family or because they had left it to follow their own purposes, united into bands of bachelors which then became civil associations.(128) As long as the earth was uninhabited, entire families, together with their family customs, could move from one region to another. But when, as armed groups of settlers, they left one populous region to go in conquest of lands already occupied, the family was an encumbrance in the solely military enterprise. Strong, bold young men confronted every danger on land and sea. And at the mercy of events, they succeeded in conquering a country or founding a city by the power of individual energy and thought, not on the basis of forgotten traditional and domestic practices. With the customs of their ancestors almost entirely lost, the thing that occupied their spirit was civil organisation. Thus religious marriages were the first to go, or rather there was no time to think about well-regulated marriages. However, when the pressing needs of war had ended, and settlement was sufficiently established, they felt the need to re-organise marriage after past neglect. New legislators drew up civil ordinances for it and introduced the civil form of contract.

1284. There was however another part of humanity, which had suffered ill fortune, or lacked understanding, energy or moral feeling: those who remained unattached and dispersed without attaining civil association. Hence, savages and the `state of nature' as opposed to the state of society. In this state of disassociation marriage lost its religious forms and did not regain even the forms proper to the city. Generally, people had intercourse more or less at random; union was a fact rather than a clearly known right. Humanity however still remained, because certain of its feelings and of its mental conceptions are indelible and natural to it. Consequently stable unions between man and woman, as something totally in keeping with human nature, could never entirely disappear. Even in this state of degradation a kind of de facto marriage remained, although almost entirely without external forms. This kind of union, legalised by the city, gave rise to the third form of Roman marriage.

1285. We have to imagine a country where one section of the inhabitants live in a state of domestic or tribal society and preserve the customs and traditions of their fathers. Another section has become weak and has degenerated to a state of nature. Let us imagine that a band of warlike, enterprising young people arrives and settles in the country, subjugating the inhabitants and founding a civil state. It is clear that both sections, those living in a state of regular domestic society and those dispersed and degenerated to a state of nature, must be incorporated into the overriding establishment of the bold adventurers. The conquerors now wish to organise and increase the civil society they have founded. They apply themselves to making laws, and do exactly what the Twelve Tables did, that is, they recognise and legalise the three ways of contracting marriage: 1. the way proper to families that have preserved religion: per confarreationem; 2. their own way, per stipulationem, because they know no other organisation than that which they give to themselves through new civil laws; and finally 3. the way proper to the state of nature, per usucapionem. Hence, each condition of the human race brought its own element into Roman society which welcomed and legalised it.(129)

1286. The laws of the Twelve Tables, by legalising natural unions lasting more than a year, removed the impurity of these unions and changed them into true marriages. The laws however allowed concubinage to continue for the year;(130) they dared not impose on degenerate human beings the hard necessity of abstaining from every disorder [App., no. 6]. This was not the case in the Catholic Church - she dared all because she could do all.

1287. She censured every carnal union outside marriage as soon as it appeared on earth.(131)

1288. Although she always disapproved of the words `concubinage' and `concubine', which at that time were less offensive than today, she did not immediately prohibit them. But, by suppressing the year's experiment allowed by impotent human legislation,(132) she at least wanted concubinage to become true marriage. However, once the substantial disorder had been removed, the words themselves gradually fell into disuetude, and today, to Christian ears, they are abominable. Finally the Council of Trent completely removed every kind of clandestinity.(133)

1289. Nevertheless, the forms of marriage, practised mainly in Germany, called ad morganaticam or ad morghengabam seem to do some insubstantial harm to the fullness of the conjugal union (which implies perfect equality between the spouses). In these marriages, a nobleman marries a woman of lower family status on condition that her children, although legitimate, do not acquire the paternal status or inheritance, but remain in the lower status and are content to receive from the father sufficient for their maintenance.(134)

1290. As I said, this harm is not substantial, because it concerns only external condition and ownership, and must be attributed more to the weakness of social organisation than to individuals who unite in such a lesser union.

1291. It is clear that full union excludes not only concubinage but also divorce; if the union is full, it is perpetual. Those therefore who intend to disunite or believe they can revoke their union are never fully united.

1292. Why then were the Hebrews allowed to divorce? First, civil laws do not necessarily approve what they permit; to permit something is not the same as to approve it. Even evils are permitted, if greater evils are feared by their prohibition. But they do not cease to be evils, and the natural law which disapproves them preserves all its force.(135)

1293. Moreover we must remember what has been said about the immutability of rational law. In its principles, this law is immutable, which explains its name, `eternal law', but considered in its consequences and application it produces no real obligation unless we grant the factual circumstances supposed by its ideal dictate. The perfect union, which forms the essence of marriage, is inferred from the supposed factual circumstance that the nature of man and woman is perfect enough for the perfection of union to be fitting for it.

If this is not the case, that is, if the nature of individual human beings is so vitiated that it can no longer absorb the fullness of union, which is required by perfect humanity and suggested to the minds of those who contemplate this union, some indulgence is possible. This indulgence permits human beings what in itself is defective. The defect however must be merged with and attributed to the defect of nature itself.

This indeed was the corrupted, defective condition of humanity before the Saviour. Christ says that for this reason the Hebrew legislator permitted his people divorce `because of the hardness of heart',(136) that is, because their nature was greatly defective and incapable of perfect union. The union requires a wise soul and tender heart where the elevated, rational affection, which the blind impetus of the libido opposes, can take root. The nature of the libido, extremely selfish and capricious, seeks only its own delectation, the contrary of true affection which has a noble, altruistic, constant character [App., no. 7].

1294. In the beginning however human beings were constituted perfect by God. Dissolubility of marriage was impossible. Moreover, after the Saviour had restored humanity, the moral element returned with such power that human beings could restrain their libido and nurture pure, rational, holy and divine affection. The Saviour then restored the original law of marriage, a law in keeping with perfect human nature, and still more in keeping with human nature raised to the state of grace where human nature can emulate even the angels. In this way the new legislator recalled the marriage of Eden when he said, `But from the beginning of creation God made them male and female.'(137)

1295. Moses therefore could permit divorce and in the name of God dispense the Hebrews from the rigour of conjugal indissolubility constituted by divine-positive law. He made himself interpreter of rational law by means of a constitution which permitted a writ of repudiation. As we have said, rational Right has various applications dependent on humanitarian differences, and does not always produce externally more than a part of the total obligation it contains deep within itself. The various applications thus make it give rise to external titles, the kind which give force to the law and make it effective.

1296. The re-introduction of the law of divorce into Christian societies is a clear sign of great deterioration of morals, and of a deplorable return to paganism. This law appeared in Europe together with heresy; once nations had renounced the religious faith of their fathers and divided themselves from the Catholic Church, they suddenly felt the need for divorce. Theocratic society and the family were simultaneously lacerated.

In France the law was passed in 1792. Later (1803) the Napoleonic Code took up the inheritance of philosophico-revolutionary depravation. The Code, the product of its time, revealed the profound ignorance of busy, confident men when it said with military frankness in the senate, `It is not true that marriage is indissoluble. THAT HAS NEVER EXISTED.'(138)

1297. The degeneration of morals in England(139) and Prussia(140) was for a time a cause of alarm to both governments. They were concerned and still are, with limiting or abolishing the laws of divorce.

1298. However, as long as these nations remain separated from the Church, to which England seems to be drawing closer every day, they lack the powerful supernatural principle to restore morals.(141) Hence the prohibition of divorce among them would be similar to the sumptuary laws of the pagan nations: it would be incapable of emending the general degradation.(142)

1299. I have spoken about the indissolubility of marriage, of the triple reason that determines it (natural, divine-positive, sacramental), of its two levels (ratified, or ratified and consummated marriage), and of the serious defects which violate this most holy law of conjugal society. It will be helpful now to offer some thoughts about the system adopted by French legislators who claimed to split Christian marriage into two marriages: one before political authority and obligatory under civil law, the other before Church authority, not obligatory under civil law but left to the individual's conscience.

1300. I think I can reasonably state that the French system splits marriage into two marriages rather than separates the ecclesiastical effects from the civil, which is the phrase normally used to describe what occurs. In the eyes of the law and government, civil marriage is the marriage itself, not a complex of its civil effects; if not, marriage would be outside the law, which would deal only with its effects. Napoleonic law makes no distinction between marriage and the double series of ecclesiastical and civil effects.

If it did, it would have to abandon marriage to nature and the Church, and thus acknowledge that true marriage takes place independently of the law. In this case and provided the conjugal bond was always safeguarded, the law could only determine its civil consequences, such as inheritances, protection of the mutual rights of the spouses, relationships with relatives. But the law, far from acknowledging and being indifferent to this bond made independently of it, not only positively acknowledges it, but disapproves and punishes it and, in certain cases determined by law, claims to separate the spouses by external coercion.

1301. For example, in the case of a marriage between a woman and a young man who has not completed his 18th birthday, or between a man and a young girl who has not completed her 15th birthday, the Code allows(143) the spouses, interested parties and the ministry of public affairs to bring an action for dissolution.(144)

Marriage itself is in fact dissolved by the use of public authority and force. The law is not passive and indifferent, restricting itself solely to the civil effects of marriage. Under the pretext of civil effects, the law recognises and tolerates only civil marriage and thus has the conjugal union itself as its object. Hence, to pretend that the Napoleonic law concerns only the civil effects of marriage and not marriage itself is a poor deception.(145)

Let us therefore examine this system that divides marriage into ecclesiastical and civil. The law pretends a total ignorance of ecclesiastical marriage, and intends to sanction only civil marriage, even when civil marriage tends to destroy the former or is separated from it. On what legal principles is this unprecedented system founded? Can such principles be the foundation of an equable and reasonable civil legislation?

1302. These questions should have been thoroughly discussed and settled by the French law-makers. But they did nothing of the kind. Instead, secure in their prejudices, they disdained these questions; without any investigation or mature consideration, they gratuitously based the principles of their legislation on the popular philosophical opinions of the time. They would have been ashamed to doubt these opinions, which they consecrated by acclamation without any examination.
Let us see how the Counsellor of State, Portalis, in a few, confident words, expounds these wonderful principles as the basis of the law on marriage:

This short passage contains all that has been said by these legislators in order to justify their system of civil marriage with its absolute neglect of ecclesiastical marriage. But should a philosophico-legal theory, intended as the foundation of the complete marriage right of a nation, be treated so briefly and superficially? If a building's foundations are unsafe, the whole structure is in danger. There is nothing in fact in the passage that bears serious philosophical examination. The following few observations should convince any reasonable person of this.

1303. 1. First, we have the authority of learned magistrates who recognised the possibility of separating civil from ecclesiastical institutions. If the question can be dealt with in this way the authorities alluded to should have been more precisely indicated; a general reference is not sufficient. Authorities should have been compared and evaluated. And magistrates should not be the only authority referred to; philosophers and theologians should have been mentioned, particularly in view of the stated wish not to harm anyone's religion. Portalis had confessed, shortly before the quoted passage:

Portalis should have added that Catholic Christians (the great majority of French people) regard marriage as a sacrament instituted by the Saviour whom they adore. Granted all this, the only people who could have enlightened the legislators in their attempt to make civil laws without harm to religion were theologians, who alone know religion fully.

But the competent authority was not heard; the relevant doctrine was referred to but not discussed. Simply saying that, under the ancient régime, some learned magistrates requested the separation of civil and ecclesiastical institutions is really little more than words. The magistrates should have at least been named. It should also have been shown that throughout the ages learned magistrates, who have always existed, held the same opinion. What kind of authority in fact could magistrates offer who were imbued with a philosophy of wickedness that advised the separation of religion simply because it took no account of religion and the authority of the Church which indeed it eagerly sought and planned to destroy?

1304. 2. According to Portalis, these nameless magistrates had acknowledged the possibility of the separation of civil from ecclesiastical institutions. But we need to discover and seriously discuss whether what is possible is also helpful and fitting. A law-maker must prescribe what is shown to be opportune, not what is merely possible.

1305. Moreover, the phrase, `the separation of civil and religious institutions' is not clear enough. `Separation' means that two things can be separated and yet continue in beautiful harmony, or be separated according to a prearranged and predetermined mutual opposition. They can also be separated in such a way that one acts independently of the other, as if the other did not exist. When this happens, they act in random agreement or disagreement; in other words, their agreement or disagreement is purely accidental, without any deliberation or foresight. If a separation were desired between civil and ecclesiastical institutions relative to marriage, the principal, substantial question to be discussed is: `Which of the three systems of separation must be chosen?'

But we see no mention at all of such an essential, real question. It does not even enter the minds of the legislators! They do not discuss it in any way; guided by the instinct of the times, they go straight to the third of the three systems with such promptness and certainty that it seems the only one possible. Their own marriage legislation is indeed separated from the ecclesiastical, but in such a way that it very often contradicts and openly challenges the latter. The law-makers evidently did not see that their legislation was inconsistent with the principle they used to justify it, namely, that `there was no question of making a law hostile to religion, but simply of separating civil from ecclesiastical institutions.' Because of this negligence and forgetfulness they did much more than they intended. Certainly, the principle of separation in itself does not entail the opposition which the civil Code introduced between the State and the Catholic Christian Church. Hence this principle was not sufficient to justify the law promulgated on marriage.

1306. 3. A similar observation must be made about Portalis' next words, where he says that magistrates under the Bourbons

These words are equivocal, and in no way suitable for justifying the Napoleonic law on marriage. The civil status of human beings can certainly be independent of the cult they profess, and when determined by law need not in the slightest offend that cult. The question that should be discussed (and they should have discussed) is: `What kind of independence is involved, and how can it be brought about?' If it is independence pure and simple, the civil status of human beings is independent of the cult they profess whenever the law grants the followers of a cult the status of citizenship. But it is one thing for the law to grant civil status to human beings which avoids any clash between that status and the different cults they profess, and another to grant them a civil status incompatible with and offensive to their cult. The Napoleonic law, however, as it stands, claims to be not only independent of a person's cult but able to force human beings to violate it; in fact it positively seeks to protect all those who wish to violate their cult against those who wish to uphold it.

Let us suppose that a Catholic Frenchwoman, after making a solemn vow of chastity, has married civilly. The law forcibly defends this sacrilegious marriage; it sanctions it, claims to sanctify it and founds a happy, moral family upon it! The marriage, which in the eyes of the Church is null and non-existent, is not only tolerated by the civil law in the way civil law tolerates disorders, but is protected by the authority of the law and upheld by its force in the way that good actions are protected and supported. Now let us suppose that the woman, repenting of her fault, wants to separate from the man in order to observe the prescriptions of religion or, as the French legislators improperly say, of HER CULT . Despite being torn by remorse, she cannot do this; she is not free to profess the duties attached to her religious belief. On the appeal of the man with whom she is living, and whom the law declares to be her true husband despite her Catholic cult, she is FORCED to live with him AGAINST HER OWN CONSCIENCE, which clearly tells her she is in a state of grave sin.

This law therefore lies when it claims to be liberal and tolerant to all cults. It is not liberal or tolerant in any way; on the contrary it cruelly forces consciences. In the above example, it uses brute force to abolish Catholic cult and violently constrains a Catholic person to violate her cult. It is not a law separated from cult but inimical to it. It does not give human beings a civil status independent of the cult they profess, but a status that is offensive and destructive of their cult. It is therefore false that the law wishes to prescind from cult; instead, it wishes to enslave and tyrannise it.

Consequently, if Counsellor Portalis' words are reduced to a formula coherent with the law they defend, and are contained in the tenor of the law, they are as follows: Civil law is mixed with everyone's religion when the law takes care not to offend it, and is separate from their religion when the law does not care about offending and destroying it. We want civil law to be separate, that is, for religion to depend on and give way to the law. We want civil law to be able to modify and destroy religion, in the way it wants.

This is the separation of civil from ecclesiastical institutions which the French empire speaks about, the civil status, independent of everyone's religion, which was used as a basis for law on marriage. It is truly secularised legislation, as the legislators were so pleased to call it.

1307. 4. From all this we see very clearly that Counsellor Portalis introduces without any need whatsoever the freedom of cults into his exposition of the reasons for the law. As I said, there is no intention whatsoever of allowing this freedom. In fact, the Napoleonic law on marriage does not allow freedom of cults. On the contrary it destroys this freedom because in many cases, as we have seen, it forces consciences. The principle of the freedom of cults is valid, but a law that despotically clamps its iron hand on all cults is invalid; by restricting them, it enslaves and tends to annihilate the Catholic cult in people's consciences.

1308. 5. The same applies to the words that follow. Evidently, Counsellor Portalis wants to explain the nature of freedom of cults:

These few words, typical of our times, are evidence of hasty thought; they are empty rhetoric and totally lack solid legislative knowledge. Is it really true that `a great idea has been conceived that we must tolerate everything Providence tolerates'? Does Providence tolerate evil? If Portalis means that Providence tolerates evil in the sense that Providence lets evil go unpunished, he is mistaken. In this sense Providence does not permit any evil at all; on the contrary, Providence prohibits evil by rational and positive laws and in due time punishes it in the other life. Even in this life, Providence works through scourges and remedial chastisements and has charged the Church to apply such remedies. Either we grant the first part of this thesis or we renounce natural religion; the second part is admitted at least by Catholics. The human legislator certainly cannot take Providence as his model; Providence punishes all evil and tolerates none. Civil law cannot do this - what a disaster it would be if civil law ever presumed to emulate Providence!

1309. If however Portalis means that Providence tolerates evil because it allows human beings the physical freedom to produce evil, civil law can only imitate Providence. It has no power to do otherwise, even if it wished. Civil law cannot despoil human beings of the freedom to do good as well as evil; no human being has this power.

1310. Finally, if Portalis is talking about the external execution of evil, the evils tolerated by Providence are those which are factually committed. Thus in peoples unrestrained by civil law, Providence tolerates the factual commission of many evils which could have been prevented by civil laws. But Providence certainly does not tolerate all these evils among peoples whose civil laws suppress certain evils, and prevent others. Indeed, Providence uses these civil laws as second cause to prevent evils and does in fact prevent them. In this sense it cannot be said that `civil law must tolerate all the evils tolerated by Providence'. On the contrary, good sense tells us that `Providence tolerates the evils that civil law tolerates' by allowing the law not to repress them for causes far more noble than those possible to a human legislator.

1311. 6. But even further away from correct reasoning and legislative wisdom is the statement that

I grant and readily accept the last principle that `the civil law cannot force religious opinions'. However, this proposition has no logical relationship with that which it follows and from which it is deduced. The law cannot and must not force religious opinions. But there is no forcing of religious opinions when Catholics are recognized as Catholics and Protestants as Protestants; in fact the very opposite applies. The law can and must refer both to French people as such and to Catholics and Protestants. The law, if it deliberately ignores them, risks offending them. Law, which must never be blind but examine carefully all that exists, has to acknowledge Catholics and Protestants to protect them, but without ever forcing the religious opinions of either party.

If religious opinions were forced, Protestants could be constrained to become Catholics, and viceversa; this cannot and must not happen. Again, forcing religious opinions would mean forcibly making Catholics or Protestants act contrary to their religious persuasions and opinions; they would be forced to neglect what they consider their sacred duties, and to commit what, according to their religion, is sin.

In keeping with contemporary practice, the Napoleonic law on marriage has been proclaimed as a consequence of the principle that `the law cannot force religious opinions'. But the law is so far from fulfilling this principle that it forcibly prevents Catholics (not to mention others) from fulfilling their most sacred duties, which it actually constrains them to infringe. Two Catholics who have married without their parents' consent are, according to their religious opinions, validly married and have satisfied all the obligations of a true marriage. This is certified by the teaching of the Catholic religion they profess. Religious faith is a fact that cannot be invented by law-makers, who must accept it as it is.

If civil legislators claimed to determine the nature of the Catholic religion without reference to the common faith and decision of the Church (the reference point of the common faith), they would no longer be dealing with actual, existing Catholic religion but with a new religion which they themselves had invented to suit their needs. In our example, this is not the religion professed by the couple married without paternal consent. Their religion teaches as an undeniable fact that they must live together, help each other and perform all other conjugal duties, and cannot enter another marriage. This is what their cult and the dictate of their conscience commands. Catholic parents who press their own case fail in the duties of their faith; because of their irreligious stand, the law(146) forcibly separates the couple, prevents them from fulfilling their duties and robs them of their happiness. The civil law punishes the couple's fault against the law by violating their religious opinions, and forcibly tries to make them believe they are not married - a belief which they cannot hold without renouncing their faith!

Viceversa, if children of cousins german marry, their marriage, according to the decrees of the Catholic religion, is invalid; it is incestuous concubinage. Let us suppose that the more irreligious partner wishes to continue in the crime, while the other repents and wishes to end the cohabitation reproved by a dictate of conscience. The civil law immediately comes to the aid of the irreligious partner and brutally forces the other to cohabit. All this is done in the name of freedom of cults and sensitive observation of the principle that the civil law does not force religious beliefs. Is it possible that responsible legislators were unaware of the contradictions involved?

1312. 7. Is it wise to try to separate the believer, the Frenchman and the human being, as Portalis claims can and must be done? Is this not one of those abstractions as harmful in practice as they are false in theory?

If you claim that the civil law applies solely to the French as such and not to human beings, the French will be merely abstract beings in the eyes of the law. In this case the law, in keeping with this principle, will sanction dispositions contrary to the Right of nature. If the law fails to consider the French as human beings first, and then as citizens, it will be unable to respect natural Right. The same must be said about the attribute of believer: if the law ignores this attribute, it is liable to offend religious beliefs, and thus inevitably harm the French in what they in fact hold most precious and dear, their faith. Certainly French law must consider the French as such, but not as abstract beings. They must be considered as they are, with all their particularities and real attributes, which become titles of law (cf. RI, 288, 576-577), and without which the French do not exist.

8. The legislator errs therefore when he makes the citizen an abstraction. He cannot in fact do this, even if he wishes. He can only posit the nebulous theory as a principle, and then forget the theory entirely when he expounds the laws; common sense, not empty speculation, must be his guide. As soon as the French legislator begins to declaim, the philosopher disappears; but once he begins to draw up laws, human common sense fortunately returns. French legislators have done little indeed to uphold Monsieur Portalis' principle that the law must deal only with the French as such. If the law had done this, the first title of the Code: `The enjoyment and deprivation of civil rights' would have sufficed. But it did not take kindly to the poor philosophy imposed upon it at the start; it gently shook itself free from the limitation imposed by sole consideration of the common attribute, French, and necessarily took into account a great number of special attributes, for example, those of parent and child, of spouse, of elder and minor, of owner and of a person bound by an agreement. In the eyes of this and all other laws, each of these special attributes determines a distinct class of French people, not French people as such. For each of these classes many dispositions were laid down which determined the obligations and rights of the class, as well as the form of entry into or exit from it. All this is undeniable. These kinds of special attributes and conditions were acknowledged without any possible alternative; the laws made for each of the classes would have been useless if enacted only for French people as such.

However, the legislators, when dealing with the special religious attribute and status of the French, and the classification of the people according to their cults (as they had been classified according to all the other particularities), declared that the law `must deal only with the French as such'! The one special attribute of the French on which legislation bestowed the odious privilege of exemption, was the religious attribute; the sole reason adduced to justify this omission was the lie that the law dealt only with the French as such. This shows the partiality and weakness of logic in minds prejudiced from birth by religious antipathies.

1313. 9. Granted, then, for the moment that civil law recognises in citizens special attributes that can be distinguished into different classes, and determines the jural duties pertaining to each of these classes and protects their rights; granted also that civil law considers it necessary to exclude the classification founded on religious beliefs and not to protect the rights proper to these beliefs; the justification for this cannot be founded on 1. freedom of cults, or 2. the independent civil state of religious opinions, or 3. the separation desired between religious and civil institutions, or finally 4. the principle that the law deals only with the French as such, just as nature deals only with human beings as such. All these so-called reasons are simply phrases inapplicable to the French law on marriage.

The law considers the French as classified in many ways but not according to the cults they profess. The French, however, do profess these cults, and the right to profess them is expressly granted by the political law which proclaims and upholds in principle the freedom of cults. It is clear, therefore, that the civil law, if it wishes to prescind from the cults professed by the French, must not disturb the people by violating religious opinion and its consequences.

On the contrary, it must leave everyone's conscience free to act in conformity with everything prescribed by his cult - something the law itself promises to do, and prides itself on doing.

The French legislators have only one way, consistent with their principles, to fulfil this duty and remain coherent: they must determine nothing about marriage which is prescribed by special cults. They must either leave the ordering of marriage to these cults or limit themselves to determining only that part of marriage in which all cults professed by the French agree, now or in the future. This is the only way open to the legislators based on their principles. If individual cults professed by the French impose obligations that are special and proper to their followers but not common to the followers of other cults and religions, either 1. the civil laws will recognize what is obligatory regarding marriage for the followers of individual cults (in this case, the laws contradict their principle of not wishing to consider the attribute of believer in the French as such and of not classifying them according to their professed beliefs), or 2. they start forcing those who profess different cults to follow the same norms in matters which, in the different cults, have different norms (in this case, civil laws now contradict their other principle of freedom of conscience, because the people must choose between renouncing their cult or violating the civil law).

We see therefore that, if the law is to uphold the two principles it has proposed to follow, it must refrain from determining anything in all those matters and cases in which the individual cults determine and impose obligations on their followers relative to marriage, and every other object. But the Napoleonic Code does nothing of the sort: in many cases it forces Catholic couples to separate when their cult obliges them to stay together; in many other cases, it obliges them to live together when their cult obliges them to separate. It is not a liberal, but a despotic, tyrannical law; it shows contempt for people when it tells them to do all this in the name of freedom of cults and out of delicacy, and not to force religious opinions or consciences.

1314. 10. However, no wise legislator would in my opinion exempt the civil law from determining the constitutive elements of marriage and mutual rights of spouses in certain parts concerning religious opinions. Real legislative wisdom must carefully consider the two facets of the problem it has to solve: 1. it must not harm the religious belief of the citizens (freedom of cults);(147) and 2. it must determine the constitutive elements of marriage and the mutual duties and rights of spouses, and sanction them by its authority for the good of families and the State. The problem is solved when the laws enacted uphold these two conditions. It is clear that legislative wisdom is obliged to classify subjects according to their cults, as it is in many other ways. It must also apply to each cult dispositions coherent both with the cult and with rational Right which contribute to the greater good of both family and civil society. If civil law concerning marriage truly professes freedom of cults, it never forces a Catholic man and woman to live together as husband and wife when the Catholic religion does not recognise them as such and obliges them in conscience to separate; in this case even the civil law itself will decide for their separation.

If the civil law were to remain silent on the matter, justice and the private sanction of rights would become necessary, and human beings would return to the state of nature. Similarly, civil law will never force two spouses to separate whom the Catholic religion declares to be married and obliges to live together; on the contrary, it will sanction the union. I repeat, any silence on the part of civil law in the matter would be dangerously defective. The faithful could only compensate for this defect by an association of their own, by a Code written by themselves or based on experience, by an external force of their own. Indeed, every community of the faithful has a full right to provide for the order and safety of their mutual rights when these are not safeguarded by public law. Consequently, when the wise legislator has to draw up dispositions on marriage, the sole, equable and wise thing for him to do, from the point of view of legal, religious and cult aspects, is to sanction what the State-recognised religions prescribe. This has been done recently by His Majesty Charles Albert, King of Sardinia, in his new Code.

1315. 11. I will add a last observation which to me seems important. The mental process by which the French legislators established a law so much at variance with the Catholicism of the great majority of the nation can easily be identified in the long passage of Portalis' Exposizione de' motivi where he tries to show that

The logical error here lies in Portalis' failure to understand that the Catholic religion, like every other religion professed by human beings, is A FACT. As we know, a fact is verified not by reasoning but solely by trustworthy witnesses. In other words, we need to ask the followers of the religion in question what they profess to believe. It is absurd to try to show that they believe other than what they say, and even more absurd to prescribe what they must believe. This would be tantamount to imposing a new religion on them without recognising the old religion, particularly if the latter had existed for many centuries. The fact therefore to be verified in Portalis' case is this: `Do Catholic Christians believe that the faculty to apply diriment impediments to marriage pertains to the State (as Portalis claims) or solely to the Church, or is it common to both State and Church?'

Catholics (and it is Catholic faith we are discussing) reply that they believe what the universal Church believes, that is, what the Church and the Sovereign Pontiff (the visible head of the Church) declare must be believed. Portalis has certainly not acted in this logical manner; he has made no effort to consult either the Councils or the perennial authority in the Church, the Sovereign Pontiff, who has complete right to declare what Catholics must truly believe. He is content to argue totally on his own account, to refer to a few decrees of Roman emperors and other princes and to divide the question up as he pleases. He is fully aware that he is addressing an audience which has no desire to contradict him and is probably incapable of doing so. Instead of acting as a historian, he makes the great mistake of playing a role as theologian, laying down what, according to him, Catholics are to believe instead of investigating what they really believe. In place of the existing Catholic cult, he has simply substituted another so-called Catholic cult, improvised on the spur of the moment. This is a danger to which unfortunately jurists are continually subject. They can of course easily avoid it by not undertaking a mission they have not been given; instead of determining the fact of faith, they should be content to verify it with fitting and logical modesty.

I repeat, this fact can be verified only by listening to what the Church teaches. In order to discover, therefore, whether Catholicism entails belief that a particular union of man and woman is a true, ratified and sacramental marriage with the consequent obligations of the spouses to fulfil their conjugal duties, it is sufficient, in case of doubt, to ask the Pope, whom all Catholics believe themselves obliged to believe and obey. Thus the Council of Trent quite logically defined: `If anyone should say that marriage cases do not pertain to ecclesiastical judges, let him be anathema.'(148) This is natural because, properly speaking, it would be contrary to good sense for any lawmaker to think that his own witness to what Catholics factually believe is more trustworthy than the witness of the Church or of the Pope who presides as teacher over the whole Church.

1316. Portalis will reply that this harms the imprescriptible rights of civil authority. I answer: do these rights contain the right to enslave the religious cults of the citizens to whom the laws are given? If such a right does not and cannot exist, particularly in the eyes of one who proclaims the freedom of cults, civil authority must clearly halt when any further movement would restrict the cults; religious cults obviously put a natural limit on civil authority whose rights cease where the rights of cults begin.

1317. To claim that civil authority can disregard cults means we desire the destruction, not the freedom of cults, under the despotism of the law.

1318. In the case of Catholic cult there is a further difficulty, because this cult, or rather, faith, does not change or undergo modification. The whole of the Catholic religion must be either accepted and respected, or abolished;(149) either Catholics must be allowed to believe and always obey in every circumstance the Church, or the persecutions of Nero and Julian must be repeated. There is no other choice; only the greatest idiocy would think a via media possible.

Notes

(100) SP, 545-573 where I proposed the following formula when discussing the moral system of the Stoics: `Making the will of the human person fully agree with the will of human nature' [573].

(101) Cf. AMS, 832 ss.

(102) SP, 91-101.

(103) The duty of one spouse to respect the personship of the other is common to all human beings. Similarly, the duties arising from this duty are common, together with the relative rights. We have spoken about these in Rights of the Individual, to which they pertain.

(104) Gen 2: 23.

(105) Gen 2: 23-24.

(106) Gen 2: 16-17.

(107) `Although TRUE MARRIAGE exists among pagans, it is not RATIFIED. Among Christians it is TRUE AND RATIFIED because the sacrament of faith, once admitted is never lost. This sacrament ratifies the sacrament of marriage so that the latter endures in the spouses as long as the former' (Innocent III, 1212 AD, Sext. bk. 4, tit, 19, c. 7).

(108) It may be objected that `the fullest union can exist between two spouses without any use of the marriage right.' - It is true that I have said this myself, but we must note that a totally full union between two chaste spouses could not be mentally conceived unless their extraordinary virtue and the great love they share for eternal things united their souls in a wonderful way; this wonderful agreement and greater union of souls would advantageously supply for what is lacking in their union relative to their bodies. Here, we are dealing with an altogether extraordinary case, the intervention of a love stimulated to immortal good. Relative to ordinary cases and to what happens in the order of spontaneous affections, the things I have already said apply. - Furthermore, spouses who have souls so noble and distant from this earth that they dwell together like two angels do not dissolve the conjugal bond, rather they embellish it and consummate it more tenderly with the virtuous flame burning in their hearts.

(109) Gen 2: 2 [24, Douai].

(110) Ibid.

(111) Cf. Pignatelli, T. 1. Consult., 148, n. 4.

(112) Mt 19: [6].

(113) Eph 5: [32, 31, Douai].

(114) 1 Cor 6: 17.

(115) Jn 1: 14.

(116) Gen 2: [23].

(117) Ibid.

(118) [Cf.] Eph 5: 32.

(119) Sext., bk. 1, t. 21, c. 5.

(120) De Matrim., disput. 16; art. 2, §6, num. 231.

(121) In 3 P. D. Thom., t. 4, disput. 2, sub num. 57.

(122) De Synodo D., bk. 13, c. 21: 4. - Lambertini held the same thesis in a discourse printed in vol. 4, Thesaur. Resolutionum of the Sacred Congregation of the Council. He gave the discourse relative to a case presented to the Sacred Congregation, 29th March 1727.

(123) ER, 252-255.

(124) Fr. Maurus von Schenkl speaks about some rights which German custom attributed to spouses who had performed a ceremony which simulated the consummation of marriage and was called `thoral consent': `Generally among the Germans, ratified marriage did not have civil effects unless there was thoral consent. Even today, in certain regions and cities of Germany, the communion of goods, the succession of spouses together with the statutory portion of goods, the dignity of the husband to be communicated to the wife and the bridegroom's gifts to the bride on the morning after the wedding are still in vogue' (Institutiones juris ecclesiastici communis, pt. 2, §665*).

(125) Serv. Georg. 1, v. 31.

(126) Arnob., bk. 4.

(127) I have observed that anything beyond the understanding power of the human mind, or rather, beyond human imagination, was called God or confused with God, that is, it was divinised. Cf. Frammenti d'una storia dell'empietà in Apologetica, pp. 379-380.

(128) Cf. what I have written in SP, 371-391.

(129) Pliny calls the form of contracting by the communication of sacred things (per confarreationem) conjunctio maxime religiosa [a supremely religious union] (bk. 18, c. 4). This way however gradually decreased among the Romans. First limited to the marriages of priests, it was then totally abandoned, as we learn from Tacitus (Ann., bk. 4, c. 16). This indicated the decadence of Roman society. Religious faith ceased in the family, and Roman society became totally absorbed by external things. In other words, it suffered a hidden, internal wasting and lost its dignified character together with the original traces of humanity.

(130) Children begotten in concubinage, that is, in the first year of these unions, are called naturales. They are distinguished from children called injusti, illegitimi, spurii who were born of adultery, that is, from the union of a married man with any woman other than his wife.

(131) In the first Council fornication was forbidden by decree of the Apostles. They found it necessary to make a positive law because of the prevalent disorders permitted and justified by the social laws of the pagans. In this way they indirectly exercised the power of Christ which they received for the correction of human legislations.

(132) Hence in many places canon law permitted a man who had no other wife to have a concubine, that is, a true but clandestine wife; she was, as it were, a wife of second order - cf., for example, a canon of the first Council of Toledo (400 AD) found in the Decree (Dist. 34, can. 4; also can. 5). Christian emperors, taught by the Church and themselves subject to the holy laws promulgated by her to all the faithful without distinction, felt it their duty to correct civil legislation in conformity with ecclesiastical sanctions (cf. Justinian., Nov. 18, 5). The Church for her part willingly acknowledged all the formalities required by the civil laws for the legitimacy of marriages, provided she found them upright and helpful for the Christian people. Thus, through respect for laws recognised by the Church, St. Augustine himself does not dare call `wife' a woman given away without the dowry instruments and other formalities required by the laws. But he does recognise the validity of these marriages lacking in formalities with a woman who retained the name `concubine', provided the following three things were present: `First, both must be free to marry; second, there must be mutual fidelity which excludes their union with a third party, and no aversion to procreating children; third, they both intend to remain in that state of life until death' (De bono conjugali). Every other kind of concubine who was not a true wife was totally forbidden by the Church. Furthermore, the Church reproved this kind of marriage if it lacked the solemnities required by civil and ecclesiastical law, and repeatedly applied sanctions to prohibit them (cf. Causa, 30, q. 6).

(133) When the politico-philosophical wickedness of the times boasted of its ability to guide Christian nations by a way different from that indicated by the wisdom of the Church, the ancient evil laws of paganism re-appeared. Among the defects of the Napoleonic law on marriage, we must note article 181. This allows spouses to cohabit who have united without free consent, once the constrained party has obtained freedom, and nevertheless dissolve the marriage within six months. Here we have the restoration of legitimate concubinage under conditions worse than those of the Romans. We can make the same observation about articles 183-185.

(134) Cf. Dürr, Dissert. de Matrimon. aequali vel inaequali personarum illustr. in german., Sect. 2, §9 in Thesaur. Jur. Eccl., vol. 6, p. 567, where he condemns such marriages as contrary to natural Right, because they deprive the children of the inheritance. I do not think these marriages are contrary to natural Right for this reason (cf. RI, 1425-1448) but because they do some harm to the fullness of the union in its external consequences.

(135) For the difference between what is permitted by positive law and what is lawful, cf. ER, 256-261.

(136) Mt 19: 8; Mk 10: 5.

(137) Mk 10: 6.

(138) Cf. Mémoires sur le Consulat, Thibaudeau, p. 443.

(139) In 1779 the British parliament, shaken by the frequency of divorce (despite its very high costs) and of adultery (the only cause for which a divorce is granted in Britain), sought a way to contain it. Some, including the Duke of Richmond, favoured total abolition of divorce. But Parliament limited itself to making it more difficult, prohibiting divorced adulterers to re-marry within a year. This had no effect, and there were further complaints to Parliament to obtain new provisions.

(140) In the Gazzetta Piemontese (17 January 1843) we read the following under the heading: Berlin, 3rd January 1843: `The Minister De Savigny has just presented to the Council of State the law on divorce accompanied by an order of the cabinet prescribing that only the consequences and particular dispositions must be discussed, not the principles of the law which must be held to be invariable. For some time now, it has been observed that requests for divorce have increased alarmingly. Every unhappy spouse wishes to profit from the short period left before the publication of the new law.'

(141) Cf. SP, 473-475 for the force of this kind of laws.

(142) An observation of the Viscount di Bonald, although very close to the truth does not actually reach it: `"From the time that supreme wisdom has been perceived by human beings," as J. J. Rousseau says, and the knowledge of one's natural relationships with others has been the basis of the Codes of societies, reason has become public, laws have attained perfection, and customs, far from being correctives to weak, disordered and variable laws, have found their rule in solid, immutable laws. It has thus become possible to overturn the ancients' maxim and say, "What are customs without laws, etc." Not the restoration of customs but the goodness of the laws was all that needed to be awaited.' (Du Divorce, etc., Résumé §9. I said that this observation did not entirely attain the truth because it supposes that human beings can conform their customs to the best laws, granted they know them. The reason however why Christian nations can amend their customs in keeping with the laws is not because they know them but because the moral virtue, the practical force of their will, has grown. If this decreases, as it clearly has among heretics or among peoples guided by wickedness, the mind itself becomes darkened and no longer sees which laws are perfect. In fact, Bonald himself did not succeed in persuading his fellow citizens that the law on divorce was a very bad law, and it was passed.

(143) Cod., art. 144.

(144) Cod., art. 184.

(145) What I have said is confirmed by the initial principle of Portalis, Counsellor of State, in Esposizione de' motivi della legge del matrimonio: `If the ministers of the Church can and must watch over the sanctity of the sacrament, the civil power alone has the right of WATCHING OVER the validity of the contract.' Here, `watch over' by the civil power means that it alone determines all the conditions for the validity of the contract. This softer phrase is used to conceal more effectively the introduction of a deadly error. But 1. Portalis' words demonstrate a great ignorance of what Catholics believe about marriage. Catholics believe that there cannot be a valid conjugal contract without a sacrament. Portalis' principle is therefore contrary to Catholic dogma. 2. It seems derisory to affirm that the ministers of the Church must watch over the sanctity of the sacrament when a law is being made which renders such vigilance impossible, a law which establishes certain unions as marriages that the Church does not in any way recognise as sacramental or holy; on the contrary, the Church sees them as wicked unions, as reprehensible concubinage, which cannot in any way be marriages whose sanctity, according to our legislator, the ministers of the Church CAN AND MUST WATCH OVER.

(146) N. Cod., art. 182.

(147) The reader should recall what I said about the obligation of civil society to respect individual rights (cf. RI, 1649-1688), and particularly rights relative to the religion professed by individuals, rights that are innate and truly imprescriptible (cf. RI, 167-238) if the religion is essentially moral and true, as the Catholic religion is. To use the law as justification for violations of a human being's most sacred rights is bombastic nonsense. Civil law has no more authority than the society that enacts it. Civil law therefore can never be a means for violating the supreme rights of individual human beings.

(148) Sess. 24, De Sacram. Matrim., can. 12.

(149) Mons. Marchetti has made a very just observation on this matter in his extremely sound work, Della Chiesa quanto allo Stato politico della città: `A civil society can make innumerable sacrifices of temporal goods without destroying itself, even without ceasing to prosper in its order. True religion on the other hand (with the exception of some variable modification in economy, whose forced cessation or suspension is however contrary to the analogy of faith) destroys itself if it fails in the slightest way in just one of its principles, because truth is one and indivisible' (Conferenza 8, sec. 1). In this fine conference, the prelate shows that `the first and greatest good to be established in the secular body is that of religion'. Religion is therefore a natural, inevitable limit to civil authority.

Chapter 05 (Part 2)

Home