Matrimony — The Church's Control Is of Divine Right; The Exclusive Right to Establish Diriment Impediments

Section 2: The Church’s Control over Christian Marriage Is of Divine Right and Independent of the State

1. Heretical Errors vs. the Dogmatic Teaching of the Church. Antonio de Dominis was the first to maintain that the Church derives her power over matrimonial causes from the State.¹ He was followed by Launoy² and the court theologians of Austria, France, and Italy. In 1786, the Jansenist Council of Pistoia put this teaching into practice by formally requesting the Archduke Leopold II of Tuscany, a brother of Emperor Joseph II, to abolish the two matrimonial impediments of spiritual relationship and public propriety and to limit consanguinity and affinity to the second degree. This impudent act led Pope Pius VI to condemn the principle espoused by the court theologians as heretical.³ His decision merely confirmed and emphasized the teaching of the Tridentine Council.

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

2. Proof of the Dogma.

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

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

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

β) We can go a step farther and show that, in establishing certain impediments, the Church either had no precedent on the part of the State, or paid scant attention to existing civil laws. Take e.g. the impedimentum voti. This is one of the most ancient ecclesiastical impediments of which we know. As early as the third century St. Cyprian (d. 258) declared that young women who married after taking the vow of chastity excommunicated themselves.⁸ When the Church was recovering from the terrible persecutions of the first three centuries, a Spanish council held at Elvira (A.D. 300) refused to admit such women to the Sacraments except on condition that they abstained from conjugal intercourse.⁹ St. Basil (d. 379) testifies that marriages of this kind were regarded as invalid in the Eastern Church.¹⁰ Pope Innocent I (d. 407) distinguishes two classes of virgins, veiled and unveiled, and says that the former cannot be absolved until after the death of their guilty partners.¹¹ St. Jerome (d. 420) declares that virgins who marry after taking a solemn vow of chastity are “guilty of incest rather than adultery.”¹² Gelasius I (d. 496) brands as sacrilegious the attempted marriage of virgins who had dedicated themselves to God by a solemn vow of chastity.

The Church proceeded with similar independence in determining the forbidden degrees of consanguinity and affinity,¹³ in recognizing the diriment impediment of disparitas cultus (defect of Baptism), which was not generally enforced until after 1000, in establishing the impedimentum criminis, for which civil legislation offered no precedent, and so forth. To these and other canonical laws Christian rulers bowed in obedience without ever claiming that their own rights were being usurped.¹⁴

Section 3: The Church’s Exclusive Right to Establish Diriment Impediments

1. The Teaching of the Church. Abstractly speaking there is nothing contradictory in the assumption that the State, too, has the right to establish diriment impediments to marriage. In matter of fact there have been some theologians who held this to be the case. Prominent among them were Peter Soto, Ambrose Catharinus, Tournely, Collet, and Carrière. “Kings and secular princes,” says e.g. Tournely, “possess the innate right to establish impediments which render marriage forbidden or invalid.”¹⁵

Gregory of Valentia, Gonet, Henno, and especially Th. Sanchez¹⁶ thought it prudent to modify this thesis. They said the State originally did possess the right to set up marriage impediments, but it was taken away by the Church in the legitimate exercise of her potestas indirecta in temporalia.

To-day it is doctrina certa that the State has no jurisdiction over matrimonial causes so far as they (directly or indirectly) relate to the Sacrament. The Tridentine Council declares: “If anyone saith that matrimonial causes do not belong to ecclesiastical judges, let him be anathema.”¹⁷ Pope Pius VI authentically interpreted this synodal canon as meaning that “all matrimonial causes belong solely to ecclesiastical judges.”¹⁸

The correctness of this interpretation is evident. The proposition condemned as heretical by the Council, viz.: “Matrimonial causes do not belong to ecclesiastical judges,” must mean either that “not all matrimonial causes belong to ecclesiastical judges,” or that “all matrimonial causes do not belong to ecclesiastical judges.” The contradictory of the first proposition would be: “All matrimonial causes belong to ecclesiastical judges”; and of the second, “Some matrimonial causes do not belong to ecclesiastical judges.” But to assert this would afford no guidance to Catholics. Hence the Council can only have meant what Pius VI says it meant, or, to employ the Pontiff’s own words, “The terms in which the canon is clothed are so general that they comprehend and contain all [matrimonial] causes.”¹⁹ If we further consider that the reason why matrimonial causes belong to the ecclesiastical jurisdiction is that Matrimony among Christians is a Sacrament, it follows that they belong solely to the jurisdiction of the Church.²⁰ Were we to grant for argument’s sake that some matrimonial causes belong to the State, we should be at once confronted with the question: do they belong to the State independently of the Church or dependently? To say that they belong to the State independently of the Church would be to deny the Tridentine teaching that “all matrimonial causes belong to ecclesiastical judges.” To say that they belong to the State dependently of the Church would be to admit her exclusive jurisdiction in principle.

For the rest, the Council of Trent acted in perfect accord with the above-quoted interpretation of its twelfth canon when it declared clandestine marriages to be truly sacramental so long as the Church does not expressly declare them null and void. Hence it is doctrina certa that all matrimonial causes belong exclusively to the Church.²¹

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

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

In claiming jurisdiction over all matrimonial causes among Christians, the Church is not actuated by an immoderate desire for power, or by jealousy, but purely and solely by obedience to the commands of her Divine Founder. “Due weight must be attached to the sacramental dignity,” says Leo XIII, “by the addition of which the marriages of Christians have become far the noblest of all matrimonial unions. To make laws and regulations with regard to the Sacraments is, by the will of Christ, so much the privilege and duty of the Church, that it would be plainly absurd to maintain that even the smallest part of such power has been transferred to the civil rulers.”²² This principle underlies the constant practice of the Church.

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

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

(1) The so-called marriage of nature was originally intended to symbolize Christ’s mystic union with His Church and thereby withdrawn from all purely human jurisdiction.²³

(2) Marriage is older than civil society. The State found it in existence and incorporated it into its own organism. This explains why even to-day marriage is regarded primarily as a natural and only secondarily as a civil contract.²⁴

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

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

To prevent misunderstanding it may be well to note that the power of the State over the marriages of its non-Christian subjects is preëminently a religious prerogative, which owes its existence to the fact that in the purely natural order the secular ruler is the supreme representative of religion and unites within himself both political and religious jurisdiction.²⁵

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

Christian marriage is a Sacrament, and whatever concerns it as a Sacrament, e.g. the validity of the contract, the indissolubility of the bond, separation from bed and board, betrothment and the public celebration of marriage, the legitimacy of children, etc., belongs exclusively to the jurisdiction of the Church. The civil effects or consequences over which the State has control are such non-essential matters as property, dowry, and inheritance. By virtue of her right to enforce the effects of marriage in foro externo the Church has established certain external consequences analogous to the effectus civiles, such as the incapacity of bigamists to receive Holy Orders.²⁶

c) A word about civil marriage. Civil marriage (matrimonium civile), in the sense of a true marriage between baptized persons, under State control and without regard to the laws of the Church, is contrary to the divine law. Under the influence of the Lutheran view that marriage is “a worldly thing,” and of the French Revolution, civil marriage was introduced by Napoleon I in France, whence it made its way into nearly all countries of Europe and North America and into some of the South American republics.²⁷ It has been repeatedly condemned, by Pius VII, Pius IX,²⁸ and Leo XIII.

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

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

Where the State conditions the civil effects of marriage upon the fact of its being contracted before a civil magistrate, or where it refuses to recognize as legitimate children born of a purely ecclesiastical marriage, Catholics have no choice but to submit, nay they are in duty bound to do so, since civil marriage in such cases is nothing but a legal form.²⁹

Readings: A. Roskovány, Matrimonium in Ecclesia Catholica Potestati Ecclesiasticae Subiectum, 2 vols., Neutra 1871. — J. Schneemann, S.J., Die Irrtümer über die Ehe, Freiburg 1866. — Heuser, De Potestate Statuendi Impedimenta Dirimentia Ecclesiae Propria, 1859. — J. Becamel, Tract. de Matrimonio et Dispensationibus Matrimonii, Paris 1889. — De Becker, De Sponsalibus et Matrimonio, Bruxelles 1896. — J. Pompen, Tract. de Dispensationibus et de Revalidatione Matrimonii, Amsterdam 1894. — F.X. Feije, De Impedimentis et Dispensationibus Matrimonialibus, Louvain 1890. — F. Huszár, De Potestate Ecclesiae circa Matrimonium, Rome 1900. — J. Hollweck, Das Zivileherecht des bürgerlichen Gesetzbuches im Lichte des kanonischen Rechtes, Mayence 1900. — A. Visek, Die Zivilehe vor dem Forum des Rechtes und des Gewissens, Prague 1884. — Schnitzer, Katholisches Eherecht, Freiburg 1898. — F. Heiner, Grundriss des katholischen Eherechtes, Münster 1900. — M. Leitner, Lehrbuch des katholischen Eherechtes, Paderborn 1902. — F.X. Wernz, S.J., Jus Decretalium, Vol. IV, 2nd ed., Ius Matrimoniale Ecclesiae Catholicae, Rome 1911. — De Smet, Betrothment and Marriage: A Canonical and Theological Treatise with Notices on History and Civil Law, tr. by W. Dobell, new ed., 2 vols., Bruges 1923. — F.M. Cappello, S.J., Tractatus Canonico-Moralis de Matrimonio, Turin 1923.

B.J. Otten, S.J., A Manual of the History of Dogmas, Vol. I, St. Louis 1917, pp. 25, 43 sq., 96, 164, 179, 197, 207, 347, 355, 475; Vol. II (1918), pp. 393 sqq.