uncertainty, and it was early found necessary to modify it. This was done by Pope Gregory I., who limited the impediment to the 7th degree of relationship inclusive (civil computation)[1] which was afterwards made the law of the empire by Charlemagne. Later still Innocent III. found it necessary again to issue a decree (4th Lateran Council) permitting marriages between a husband and the relations of his wife, and vice versa, beyond the 4th degree inclusive (canonical computation).[2] This remains the canonical rule of the Roman Catholic Church. As regards impediments due to spiritual affinity, these were limited by the Council of Trent to the relation of the baptizer and baptized; the baptizer and the parents of the baptized; the baptizer and the godfather and godmother; the godparents and the baptized and its parents: i.e. a godfather may not marry the mother of the child he has held at the font, nor the godmother the father of such child.
In the fully developed canon law impediments to marriage are of two kinds, public and private (impedimenta publica and privata), i.e. according as the objection arises out of the very nature of marriage itself or from consideration for the rights of particular persons; near relationship, for instance, is a public impediment, impotence (impotentia) and force (vis et metus) are private impediments. Impediments are further divided into separating (impedimenta dirimentia) or merely suspensive (impedimenta tantum impedientia); to the first class belongs, e.g. a previous marriage not dissolved by death, which involves the nullification of the marriage even where through ignorance the crime of bigamy is not involved; to the second belongs the case of one or both of the contracting parties being under the age of puberty.[3] Impediments, moreover, are absolute or relative, according as they are of universal application or only affect certain persons; near relationship, for instance, is an absolute impediment, difference of religion between the parties a relative impediment. In addition to consanguinity and affinity, impuberty and existing marriage, the canon law lays down as public and absolute impediments to marriage the taking of holy orders and the vows of chastity made on entering any of the religious orders approved by the Holy See. In these impediments the canon law further distinguishes between those which are based on the law of nature (jus naturae) and those which are based on the law of the Church (jus ecclesiae). From impediments based on the law of nature, or of God, there is no power even in the pope to dispense; e.g. marriage of father and daughter, brother and sister, or remarriage of husband or wife during the lifetime of the wife or husband of another marriage, which is held to be a violation of the very nature of marriage as an indissoluble union.[4] From impediments arising out of the law of the Church dispensations are granted, more or less readily, either by the pope or by the bishop of the diocese in virtue of powers delegated by the pope (see Dispensation). Thus dispensations may be granted for marriage between persons related by consanguinity in any beyond the 2nd degree and not in the direct line of ascent or descent; e.g. between uncle and niece (confined by the council of Trent to the case of royal marriages for reasons of state) and between cousins-german, or in the case of marriage with a heretic. In this latter case a dispensation is now (i.e. since the papal decrees ne temere of the 2nd of August 1907, which came into force at Easter 1908) only granted on condition that the parties are married by a Catholic bishop, or a priest accredited by him, that no religious ceremony shall take place except in a Catholic church, and that all the children shall be brought up in the Roman Catholic faith.[5]
In the absence of any impediment a marriage is according to the canon law completed between baptized persons by the facts of consent and consummation; the principle is still maintained that the parties to the marriage, not the priest, are the “ministers of the sacrament” (ministri sacramenti).[6] From the first, however, the Church, while recognizing the validity of private contracts, enjoined the addition of a public religious ceremony, so that they might be “sanctified by the word of God and prayer” (1 Tim. iv. 5).[7] Tertullian (de pudicitia, cap. iv.) says that clandestine marriages, not professed in the Church, were reckoned among Christians as all but fornication, and he speaks of the custom of seeking permission to marry from the bishop, priests and deacons (de monogamia, cap. xi.). This latter precaution became increasingly necessary as impediments were multiplied, and Charlemagne, in a capitulary of 802, forbade the celebration of a marriage until “the bishops, priests and elders of the people” had made diligent inquiry into the question of the consanguinity of the parties. This was the origin of the publication of banns which, long customary in France, was made obligatory on the whole Church by Pope Innocent III. In the Eastern Church the primitive practice survives in the ceremonial blessing by the priest of the betrothal, as distinguished from the marriage ceremony. The ecclesiastical recognition of clandestine marriages, however, survived until the crying evil was remedied
- ↑ The civil law counts, in the direct line, as many degrees as there are generations between the parties; e.g. the son is in regard to his father in the 1st degree, the grandson in the 2nd, and vice versa. In the collateral line it computes degrees by generations, i.e. from one of the relations to the common ancestor, without including him or her, and from him or her back to the other relation; e.g. two brothers are in the 2nd degree of relationship to one another, uncle and nephew in the 3rd, cousins-german in the 4th. The canon law, which in this case derives from the old Germanic law, has the same computation as regards the direct line. In the case of collateral relations, however, it differs, having two rules: (1) In the case of equal line—i.e. when the collaterals are equally removed from the common progenitor, it reckons the same number of degrees between the collaterals as between one of them and the progenitor; e.g. brothers are related in the 1st degree, while cousins-german are related in the 2nd degree because they are two generations from the common grandfather. (2) In the case of unequal line—i.e. when the collaterals are unequally removed from the common ancestor, the degree of their relationship is that of the most remote from the common progenitor; e.g. uncle and niece are related in the 2nd degree—i.e. that of the niece to the grandfather. The civil computation was furiously attacked by canonists as tending to laxity (see Peter Damianus, “De parentelae gradibus,” in Migne, Patrol. Lat. cxlv. 191, &c.).
- ↑ Innocent III. also decided that the husband’s relations were not related to those of the wife, and vice versa, thus establishing the rule that “affinity does not breed affinity” (affinitas non parit affinitatem).
- ↑ This is fixed by the canon law at 14 for a male, 12 for a female. If, however, owing to the precocious physical development of a girl, the marriage has been consummated before she has reached this age, it cannot be nullified.
- ↑ It is maintained that no pope has ever given a dispensation for such a marriage. Such a case seems, however, to be narrated by Ordericus Vitalis (Hist. eccles. viii. 23; ed. A. le Prevost, Paris, 1838–1855, t. iii. p. 408; ed. A. Duchesne, 1619, 704 B). Robert Mowbray, earl of Northumberland, had only been married to Maud de Laigle three months when he was condemned to perpetual imprisonment for rebellion against King William Rufus. After describing her forlorn state Orderic continues: “Nec ipsa eo vivente, secundum legem Dei, alteri nubere legitime valebat. Tandum, permissu Paschalis Papae (II.), cui res, a curiosis enucleata, patuit, post multos dies Nigellus de Albineo ipsam uxorem accepit.” This may mean no more, of course, than that the curiosi “untied the knot” by discovering an impediment—the usual expedient in such cases. In any case the fact that Nigel de Albini, in his turn, soon afterwards obtained a “divorce” from her on the ground that her first husband was his relative by consanguinity, hardly points to a strict view of the sanctity of the marriage tie.
- ↑ The customary rule for more than three centuries after the Council of Trent was that male children followed the religion of the father, female children that of the mother. On the general subject of the attitude of the Church towards mixed marriages see O. D. Watkins, Holy Matrimony, pp. 468 et seq. For the Roman Catholic view see “An Instruction on Mixed Marriages” in Bishop Ullathorne’s Eccl. Discourses (London, 1876).
- ↑ Among the “errors” denounced by Pope Pius IX. in the Syllabus of 1864 is lxvi.: “Matrimonii sacramentum non est, nisi quid contractui accessorium ab eoque separabile, ipsumque sacramentum in una tantum nuptiali benedictione situm est.” This condemns the attempts of certain canonists (e.g. Melchior Cano) to distinguish between the contractus naturalis and sacramentalis. This view, which was first advanced by the jurist and theologian Johann Gropper (1502–1559) at the council of Cologne (1536), and gained support especially in France, makes the “matter” of the sacrament the consent of the parties, the “form” the prayers and benedictions, the “minister” the priests (see e.g. “Du sacrament de mariage” in vol. v. of the Dissertationes selectae of Petrus de Marca, d. 1662, archbishop of Paris, Bamberg, 1789, p. 148).
- ↑ See the list of quotations from the early fathers given by Watkins, Holy Matrimony, p. 93.
