§ 11.

There is nothing in the Syllabus concerning Christian marriage other than the doctrine of the Church concerning the sacrament of marriage consistently carried out. The Pope, following the Council of Trent, maintained against Nuytz that marriage had been raised by Christ to the dignity of a sacrament. The same Council declared the sacrament to be inseparable from the (natural) contract; and in consequence it follows that the sacrament of marriage does not only consist in the nuptial blessing given by the priest. It has been dogmatically decided that by the natural law the marriage tie is indissoluble; whence it follows that civil authority cannot sanction divorce. The right of the Church to introduce impediments that invalidate marriage has been protected by the same Council. This right was derived by F. G. Vigil from the concession of civil princes, for whom also he claimed the privilege of abolishing the impediments introduced by the Church. Both these views had been already condemned by Pius VI. in his dogmatic Bull of 1794. The Church claims for herself alone the power of imposing impediments invalidating marriage, of dispensing from them, and of deciding as to the validity of marriages, but without thereby excluding the State from legislating on marriage in its civil character.7 It is not in itself objectionable that the State should require for the civil recognition of a marriage something beyond what the Church asks. It is the duty of every Catholic to obey the laws of the State. The only exception which can be made to this duty is when the civil law ordains anything that is forbidden by the divine law, or vice versa forbids what the latter ordains. Therefore civil directions concerning marriage must be obeyed. Consequently, all impediments either invalidating or impeding marriages which rest merely on the civil laws are canonically impediments impeding marriage." The Religious Edict in Bavaria indeed declares, § 64d, 'marriage laws, in as far as they relate to the civil contract and its effects,' to be civil matters; and the marriage and domestic laws of April 25, 1868, art. 33, declare every marriage to be civilly invalid which had taken place with

out the certificate of the non-existence of civil impediments given by the appointed (civil) functionary, and to continue to be civilly invalid until the certificate was obtained. But it does not at all follow that on account of prop. 68 of the Syllabus the latest Bavarian marriage-laws are null and void in their essential parts,' as some think; for by the teaching of the Church these State demands are to be obeyed entirely; civil invalidity does not encroach upon the ecclesiastical domain, which the Church alone defends, and the aforesaid proposition of the Syllabus goes no further than the Council of Trent. The latter moreover declares clandestine marriages to be true marriages as long as the Church has not declared them invalid; likewise those marriages which have been contracted without the consent of the parents.10 And nevertheless several civil laws had declared both these classes of marriages civilly illegal, before as well as after the Council of Trent.11 It is the Council of Trent, therefore, that should be complained of rather than the new dogmas.' The Church has only to decide of the validity of the sacrament; the State, of the civil effects; the Church does not deny the value of every civil impediment, but only of that one which would annul the sacrament and the bond which it creates. A dogma is here in question, and the assertion12 of Nuytz, reproduced from those of Launoy, Marcus Antonius de Dominis, and the pseudo-synod of Pistoja,13 that the canons of the Council of Trent must be considered either not dogmatic or to presuppose power conferred upon the Church by princes, has long been shown to be untenable. 14 The Church is obliged by her dogmas to maintain that the form of solemnising marriage prescribed by the said Council (in every place where this formula has been promulgated) binds, under pain of nullity; that the civil law cannot appoint another form on which the validity of the marriage shall depend.15 Likewise the Church cannot allow that amongst Christians a merely civil contract constitutes an entirely valid marriage; she maintains that a valid Christian marriage is also a sacrament, and without a sacrament has no validity.16

With regard to the condemned prop. 74, 'matrimonial

causes and betrothals belong by their nature to civil jurisdiction,' by which it was insinuated that they had become to belong to the Church merely by favour of the State, the Council of Trent declared dogmatically that matrimonial causes, amongst which betrothals must be included, should be judged by ecclesiastics; and seventy years before the appearance of the Syllabus the thesis of the Synod of Pistoja, that formal betrothals were a purely civil act, a preparation for the contract of marriage, and subject absolutely to the regulations of the civil law, was condemned by Pius VI.18 in a dogmatic Bull as false, and as violating the right of the Church in regard to the effects resulting from the betrothals in virtue of canon law; also as derogatory to the established discipline of the Church. For an act preparatory to a sacrament is in this respect subject to the jurisdiction of the Church.

It cannot be by any means tolerated to maintain that Christ has raised marriage to the dignity of a sacrament.' Syll. Prop. 65, from the document of Aug. 22, 1851, Coll. Trid. Sess. xxiv. Can. 1, de Sacram. Matr.

2 The sacrament of marriage is only an adjunct of the contract and separable from it, and the sacrament itself only consists in the nuptial benediction.' Syll. Prop. 66, from the same document, according to Trid. 1.c. cap. Doctr.: Gratiam vero, quae naturalem illum amorem perficeret, &c. Cum igitur matrimonium in lege evangelica,' &c.

3 Bened. XIV. de Syn. Dioec. 1. viii. c. xiii.

By the law of nature the marriage tie is not indissoluble, and in many cases divorce, properly so called, may be pronounced by the civil authority.' Syll. Prop. 61, from the document referred to, and the Allocution of Sept. 27, 1852, Coll. Trid. 1.c. Doctr. et Can. 5, 7.

5 The Church has not the power of laying down what are diriment impediments to marriage. The civil authority does possess such a power, and can abolish impediments that may exist to marriage.' Syll. Prop. 68, against Vigil, Coll. Trid. 1.c. can. 4. In the better ages, the Church, when she laid down certain impediments as diriment to marriage, did so not of her own authority, but by a right borrowed from the civil power.' Prop. 69 against J. N. Nuytz.

6 Const. Auctorem fidei, Prop. 59, 60 (Denzinger, Enchirid. ed. iv. p. 409, n. 1422 seq.).

Phillips, Lehrbuch, § 270, p. 944 seq. i. ed.

s Impediments to marriage are either impedimenta dirimentia, which invalidate a marriage-make it null; or impedimenta impedientia, which impede a marriage-make it unlawful, but do not make it null. [TR.]

Schulte, Lehrbuch, § 155, p. 433.

10 Trid. Sess. xxiv. c. viii. de Ref. Matr.

11 In France, for instance, edict of Henry II. 1556, of Henry III. 1579, of Louis XIV. 1692 (Schulte, Eherecht, p. 496).

12 The canons of the Council of Trent, which pronounce censure of anathema against those who deny the Church the right of laying down what are diriment impediments, either are not dogmatic, or must be understood as referring to such borrowed power.' Prop. 70 of Syll.

13 Launojus, de Reg. Potest. in Matrim. Paris, 1674 (condemned at Rome on Sept. 10, 1688). M. A. de Dominis, de Rep. Christ. 1. ii. c. xi.. Const. Auctorem fidei, Prop. 59.

14 Cf. Judicium Doctrinale Archiep. Mechlin. (Card. Frankenberg), of June 26, 1789 (Kutschker, Eherecht, i. pp. 70-74); Defensio Trid. Canonum de Eccl. Potest in dir. matr. imped. Auctore Petro Deodato, Neapoli, 1786; Nuova difesa dei canoni, 3 e 4 della Sess. xxiv. del Concilio di Trento, Napoli, 1788.

15 The form of solemnising marriage prescribed by the said Council, under penalty of nullity, does not bind in cases where the civil law has appointed another form, and decrees that this new form shall effectuate a valid marriage.' Syll. Prop. 71.

16 A merely civil contract may among Christians constitute a true marriage, and it is false either that the marriage contract between Christians must always be a sacrament, or that the contract is null if the sacrament be excluded.' Syll. Prop. 73. 17 Trid. 1.c. Can. 12.

18 Prop. 58, Denzinger, 1.c. p. 408, n. 1421.

§ 12.

But the real question concerns the destruction of the Christian character of marriage and of the family, for these as well as the State are threatened with profanation. The following is one of the gravest errors that has been asserted, that the family derives the whole reason of its existence solely from civil law. Therefore the civil law has to decide all questions concerning. marriage, the rights of parents, instruction, and education. The foundation for this position is thoroughly false, for domestic society, the family, existed before civil society, the State, and therefore has natural right independent of the latter and given to it by the Creator Himself. Maternal love is so purely natural that it is found amongst savages and animals; family ties are ties of blood, purely natural ties. The family is ordained by the natural law, and therefore it is impossible that 'the whole reason of its existence' can be derived from the civil law. It is founded by marriage, by the inseparable life-partnership of two persons, undertaken with free consent from natural inclination; the State no more than the Church can supply deficiency in

this free consent. Modern jurisprudence has committed many mistakes from not rightly understanding the law of nature,3 and there has arisen one of the greatest errors, namely, that the civil power is boundless and unrestrained by any natural law. This was condemned in propositions 56 and 39 of the Syllabus.4 In truth the civil power does not really extend further than is required for political and civil life, for the protection of law and the interests of society;5 a supreme right which extends further than the end for which the State exists is inconceivable and absurd. The State has to protect the natural rights of the family as well as of individuals; no civil law can abolish them: as it is impossible that the State can undertake the functions of domestic society, its interference must only be one of completion, and it must consider the family as a foundation of its own life.7 But the theory which makes the family of no account is also perverted and dangerous in its conclusions. It endangers individual liberty, leads to the profanation of marriage, to the destruction of the family spirit, this 'second soul of mankind,' to contempt of the parental authority, parental duties, and domestic discipline, which Christianity has struggled hard to establish,9 Parental rights are founded on duties, and are therefore unalienable natural rights; the child belongs first to the parents, then to the State, and with the parents rests primarily the duty of its education. The dreams of Rousseau and of the Socialists, with all their disastrous consequences, are based on a false theory as to the family. An enormous abuse of State power1o in this matter, nay, a whole series of such abuses, has grown up in most countries.

Enc. of Dec. 8, 1864, § Et quoniam.

2 Aristot. Polit. 1. i. § 4, p. 482, ed. Paris, 1848. L. Taparelli, Corso elementare di natural Diritto, Napoli, 1853, ed. iv. 1. iii. c. ii. p. 134 seq. p. 151, n. 157.

3 The Church has always upheld it. It was taught in Rome under Gregory XVI., whilst Ferdinand II. of Naples would not allow it to be propounded in the colleges of his kingdom.

Moral laws do not stand in need of the divine sanction, and there is no necessity that human laws should be conformable to the law of nature, and receive their sanction from God.' Syll. Prop. 56. The State is the origin and source of all rights, and possesses rights which are not circumscribed by any limits.' Syll. Prop. 39.