:Marriage:

:Banns of Marriage
(Lat. bannum , pl. bann-a,-i from an Old English verb, bannan , to summon).
In general the ecclesiastical announcement of the names of persons contemplating marriage. Its object is to discover any impediments to a proposed marriage; incidentally, it makes known to all duly interested in the latter the fact of its near celebration. The subject will be treated under the following heads: I. History; II. Tridentine Legislation; III. Mode of Publication; IV. Denunciation of Impediments; V. Sanctions; VI. Dispensation from Banns; VII. Non-Catholic Usage; VIII. Civil Law.
I. HISTORY
From the beginning of Christian society the marriage of its members was looked on as a public religious act, subject to ecclesiastical control ( Tertullian , "De monog.", c. xi; "De pudicitia", c. iv.). The obligation of making known to the bishop all proposed marriage dates as far back as the beginning of the second century (Ignat, ad Polyc., c.v.). and ceased only when, in the fifth and succeeding centuries, owning to the development of the parochial system, it became the duty of the parish priest to prevent invalid or illicit marriages, in which duty he could and did avail himself of the aid of reputable parishoners (Capitula Caroli imp., ad. an. 802, ed. Borentius in Mon. Germ. Hist.: Leges, I, 98). The publication in the church of the names of persons intending marriage seems to have originated in France about the end of the twelfth century; it was already a custom of the Gallican Church in 1215, when Innocent III mentions it in a letter to the Bishop of Beauvais (c. 27, x, iv, 1). In the same year the Fourth Lateran Council made it a general ecclesiastical law (c. 3, x, De clandest, desponsat., iv, 3). The Council of Trent confirmed this law, and specified to a certain extent the manner of its execution. It must be noted that by the council's own special act its marriage decree "Tametsi", with its provision for the banns (see CLANDESTINITY) is binding only in those parishes in which it has been severally promulgated; hence, when such formal promulgation is lacking the obligation of proclaiming the banns rest not on the Tridentine law, but on the earlier Lateran canon, also on local or particular ecclesiastical legislation and custom. (SEE MARRIAGE) In England the First Council of Westminster provided (xxii, 2) that the law of publishing in the church the banns of marriage must be observed, but made no provision for the manner or time of introducing the practice (Taunton). In the United States the Sixth Provincial of Baltimore recommended the bishops of the province to introduce the laws of the banns as laid down by the Councils of Lateran and Trent ( juxta mentem concilli Lateranensis et Tridentini ). The First Plenary Council of Baltimore (1852) decreed (no.88) that after Easter 1853 the banns should be published, and dispensation given for only very grave reasons. The Second Plenary Council (1866) confirmed that above (nos. 331-333) and declared the law a very useful one and already received by custom ( saluberrima disciplina jam usu recepta ). According to Zitelli (Apparatus jurus eccl., 403) at least one publication should be made in those regions and parishes in which the marriage decree of the Council of Trent has not been published; Von Scherer remarks (p. 146, n. 14) that the pre-Tridentine or Lateran law demanded no more than one publication. It is of some interest to note that by a decree of the Sacred Congregation of Inquisition (14 June, 1703) the French missionaries in Canada were obliged to publish the banns for their savage converts.
II. TRIDENTINE LEGISLATION
In order to check the increase of clandestine marriages, the Council of Trent decreed (Sess. XXIV, De ref. matr., c. i) that before the celebration of any marriage the names of the contracting parties should be announced publicly in the church during the solemninzation of Mass, by their own parish priest on three consecutive Holy Days (Waterworth, The Canons and Decrees of the Sacred and (Ecumenical Council of Trent, London, 1848, 196 ssq.). Such an publication, of course, can be made only at the request of the parties themselves, and after the parish priest is aware of their mutual free consent. Moreover, the parish priest cannot refuse to publish the banns excepted for reasons stated in the canon law. If the contracting parties refuse to consent to the publication of the banns, the parish priest cannot assist at their marriage, and where the Tridentine legislation does not obtain he is bound to warn them not to attempt marriage elsewhere. In course of time this Tridentine decree has given occasion to more specific interpretation, regularly and primarily applicable where the decree has been promulgated. Among the more important authentic decisions are the following: The proper (own) parish priest of persons intending marriage is he in whose parish both (or one of) the contracting parties have a true domicile or quasi-domicile, i.e. a fixed residence or one that can be legally constructed as such.
[For the Kingdom of our Lord is with a jurisdiction of one parish.]
When both parties permanently reside in the same parish no difficulty can arise as to the parish priest whose right and duty it is to publish the banns. But it may happen that one party resides, or that both parties have each more than one domicile or quasi-domicile, in which case the publication of the banns should occur. regularly speaking, in every parish where at the time of the marriage the parties retain such domicile or quasi-domicile. (SEE DOMICILE, PARISH PRIEST, MARRIAGE.) It may be noted here that while in general a quasi-domicile is acquired by actual residence in a place with the intention of remaining there the greater part of the year, in England and in the United States the law presumes a quasi-domicile from one's months residence of either party in the place of the marriage. (S. Congr. Inq. to the bishops of England and the United States, 7 June, 1867; see also its decree of 6 May, 1886).
[For the Domicile of the Creator is with the lack of any Residence in the Creation.
For the Residence of our Father is with the Son and Holy-Ghost in the Trinity.]
[For the volition/[in]tention of the will/soul of the party is with the knowledge by our King as our Judge in the Kingdom.
For the volition of the party is with the lack of the knowledge by the State.]
A decree of the same congregation (9 November, 1898) provides that anywhere a mere residence of six months shall constitute a quasi-domicile. In the case of unsettled persons possessed of no domicile ( vagi ) the banns are published (with episcopal permission) where the marriage takes place, and in the place or places of their birth.
[For the Pilgrims of our Kingdom are as the Vagi/Vagrants of this World.
For the Domicile of a Pilgrim is with the Kingdom of the Lord. (Positive-Law-Claim)
For the residence of a vagrant is with lack of any locus in this world.]
[For the son of a Pilgrim with a quest for the Truth is with the Spirit of the Word of our Father.
For the lineage of my father is with the Howlands and Tillys of the Mayflower.]
The banns of minors must also be published in the place of residence or their parents or guardians. The law of quasi-domicile is also frequently to servants, apprentices, soldiers and students in institutions of learning. In the case of mixed marriages, publications of the banns is forbidden (Greg. XVI to the bishops of Bavaria, 12 September, 1834) but is tolerated in the United States by a decree of the Congregation of the Propaganda (3 July, 1847), provided there be no mention of the religious persuasion ( confessio acatholica ) of the non-Catholic party (see also S. Congr. Inq., 4 July 1874, in Collectanea S. Congr. de Prop. Fide, Rome, 1893, no. 1223).
[For the beginning of the licensing of the marriages in the States is with the licensing of the Mix-Race-Marriage by the state against the ban by the state.
For the intolerable-beginning of the end of the banning/authorization of the marriages by the Church in the States is with the toleration of the ban against the banning for the Mix-Faith-Marriage.]
In Germany and Austria this is also customary in some places (Heiner). The three consecutive Holy Days ( dies festivi ) may be Sundays or other feast of obligation. Custom has in many places exempted Christmas, Easter , and Pentecost. It is also customary in some places to proclaim the banns on suppressed feast days, also at Vespers, provided there be on such occasions a considerable attendance of people in the church (S. Congr. Inq., 25 October 1586; 29 April 1823). The banns are published regularly at the parish or principal Mass, though the publication may occur at any other Mass on the prescribed days, nor is it required that such publication be repeated at more than one Mass on the aforesaid days. By a rescript of the Congregation of Propaganda the Vicars Apostolic of India were permitted to publish the banns on weekdays. In some places it is provided that the banns shall not be published on two immediately consecutive feast days; similarly that the marriage shall not take place on the day of the last publication(particularly if it be the only one). It may be noted that the general ecclesiastical law does not forbid the marriage on the day of the third publication. The period for which the publication of the banns is valid depending in local ecclesiastical authority and custom. The Roman Ritual (Tit. vii, c. i, n. 11) fixes a limit of two months, but leaves the bishops free to act as prudence dictates. The Second Provincial Council of Quebec (1863) established a period of two months. In practice the period varies from six weeks to six months. It may be added that the marriage of members of royal houses ( matrimonia principum ) are by custom exempted from publication of the banns
[For the Glen: Swartwout is with the membership of the Royal Houses of the European-Monarchies.]
III. MODE OF PUBLICATION
The parish priest or his representative (vicar, curate) announces in an audible voice, usually before or after the sermon, for each of the contracting parties the baptismal and family name, names of parents, place of birth or residence, age, condition, (single or previously married, and according to the Roman Ritual, loc. cit., n.13, the name of the woman's former husband). It also should be stated whether the actual proclamation is the first, second, or third, and whether there will be a dispensation from further publications. The priest adds that a serious obligation rests on everyone to reveal to him any known impediment to the proposed marriage. The parish priest is expected to keep a record or register of all publications of banns made by him, also the certificates of publications made at his request in other parishes, the fact and consequences of which he is entitled to know.
IV. DENUNCIATION OF IMPEDIMENTS
Whoever is morally certain either by his own knowledge or through reliable persons, of an impediment (e.g. consanguinity, affinity, previous marriage) to an intended marriage, is conscience bound to reveal it to the parish priest of the contacting parties; it then becomes the duty of such parish priest to investigate the statement made to him (usually under oath) and decide to the character of the evidence; if a grave suspicion be aroused in him, he must refer the case to the bishop, who decides whether a dispensation can or cannot be granted. Confessors, lawyers, physicians, midwives, are not bound to reveal impediments known to them through the discharge of their official or professional duties, nor does an obligation rest on those who fear that to make known and impediment would cause great detriment to themselves or their families, or who are aware that no good can result from their action, or know that the contracting parties have already made known the impediment. Once aware of the impediment the parish priest must defer the marriage, refer the matter to the bishop, and, where the Tridentine marriage decree is not valid he ought to warn the parties not to attempt marriage elsewhere. For further details as to the obligation or revealing known impediments, see the moral theologians generally, especially the third book of Sanchez, "De Matrimonio", and the sixth volume of Ballerini-Palmieri, "Theologia Moralis" (Prato, 1894) also the "Bibliotheca Prompta" of Ferraris, s.v.
V. SANCTIONS
Omission of the banns, even partial, makes a marriage illicit, but not invalid. The bishop may inflict on the contracting parties such ecclesiastical penance as he sees fit to impose, and he also may punish similarly the witnesses to the marriage. Should later on an impediment be discovered that renders the marriage null and void, they cannot hope, by the strict letter of the law, to obtain a dispensation, nor can they hope to have their marriage considered a putative or apparent one, entailing the legitimation of their children. The bishop is empowered by the law to inflict on the offending parish priest, besides other punishment, three years suspension from his office; it is worth noting that a similar sanction was enjoined by the fifteenth century canon law of England (Lindwood's Provinciale, Oxford, e.d., 1679, p.271)
[For the Law of the Marriage is with the Canon-Law of the Church/Parish of the Kingdom of our Lord.]
VI. DISPENSATION FROM BANNS
The Council of Trent allows the bishop to dispense with the publication of the banns, provided there be a sufficient reason; one such is indicated by the Council itself, i.e. fear of a malicious thwarting of the intended marriage.
[For the contract of the Marriage by the State is with the malignancy against the authority of the parents and thwarting of the catholic-education of the children.]
The vicar-general, vicar-capitular, and administrator of a diocese may also dispense from the banns. In case the contracting parties belong to different dioceses, the permission of one bishop (usually the one in whose diocese the marriage takes place) is held sufficient by many canonists. In some countries, as in Bavaria, a mutual understanding to this effect exists. The bishop may also allow the deans or the parish priests to dispense from one or two publications. In many diocese the parish priest is especially authorized to dispense from the banns for death-bed marriages; elsewhere this authority is delegated to the deans or the more centrally located parish priests. The parish priest may himself decide that the obligation of asking a dispensation no longer exists for him, i.e. in cases of urgent necessity when, on the one hand, he cannot reach the bishop and, on the other, the reasons are such that the latter would be bound to grant the dispensation. In all cases where the three publications are omitted, the contracting parties are regularly required to take the oath before the bishop ( juramentum de statu libero ) they are not previously betrothed or married, and that they know of no impediment to their marriage (Clement X, Cum Alias, 21 August, 1670; Ballerini-Palmieri, VI, 716-718).
By a decision of the Congregation of the Inquisition (8 August, 1900) the bishop may delegate to the parish priest the performance of this duty. The banns are omitted in the case of revalidation of marriage (Sägmüller, 489) and secret marriages i.e. regularly performed in the church, but behind closed doors, and the record of which, together with the pertinent baptisms, is kept in a special book in the diocesan chancery (Ballerini-Palmiere, op. cit., VI. 778).
[For the secrecy of a marriage is with a book in the chancery.]
Dispensation from all the banns is regularly granted only for a very urgent reason; less weightily reasons suffice for a dispensation from two publications or from one. Among the reasons recognized by the law, other than that mentioned by the Council of Trent; are: notable difference of age, or condition of life; peril of the good name of either party; the approach of Advent or Lent , when marriage cannot be solemnized; notable temporal or spiritual detriment; imminent departure of the bride-groom; etc. The diocesan chancery usually charges a fee to cover the clerical expenses, it being forbidden to make any charge for the dispensation itself (S. Cong. of Propaganda to the bishops of Ireland, 12 February, 1821; cf. its decree of 1750; also the Encyclical of 1768 to the same bishops, and Collectanea S. Cong. prop. Fid., Rome, 1893. 1221). At times the parish priest collects a fee for the publication of banns (Von Scherer, 147); it is reckoned as one of his jura stolæ , or casual sources of revenue.
VII. NON-CATHOLIC USAGE
The Orthodox Greek Church does not require publication of the banns; on the other hand, for every marriage the Greek priest requires regularly a special permission of the bishop; at Constantinople, and in other archiepiscopal churches this permission is granted through the Chartophylax. As the presence of the priest is essential to the validity of a Greek marriage, clandestine unions are practically impossible. (For the Eastern-Rite Catholics in Italy the Tridentine decree is obligatory, having been published in Greek in all their parishes by order of Clement VIII and again by order of Benedict XIV; see Vering, 873). The German Lutheran churches provide for publication of banns in a manner quite similar to the Catholic discipline (ibid, 874). In the Church of England the publication of the banns is a normal preliminary of marriage, both by ecclesiastical law and, as explained below, by civil statute.
[For the claim of the control of the Church-banns by the State is with the Church/Kingdom of the England.]
The Book of Common Prayer directs that the banns of all who are to be married shall be published on three several Sundays or Holy Days during the time of the morning service or of evening service (if there be no morning service) immediately after the second lesson. The form of publication is analogous to Catholic usage, and if the parties reside in different parishes, the banns must be published in both
VIII. THE CIVIL LAW OF BANNS
In several European countries the civil law insists by its own authority on the publication of banns; in Austria, for instance, all marriages performed without at least one publication of the banns, and in the parishes of both contacting parties, are declared invalid by the Civil Code (Vering, 862, note 23; Von Scherer, 161). In England, until 1753, there was no statutory publication of the banns; in that year was passed a marriage act, known as Lord Hardwicke's Act (26 Geo. II, c. xxxviii), which provided among other essentials, that in the future the true names of all persons intending marriage should be published in the church, otherwise the marriage would be null and void. It was, however, expressly provided that the act should not apply across the seas; hence it never became a part of the English Common Law as received in the United States.
[For the Lord-Hardwicke-Act of the year of our Lord: 1753 with the civil-claim of the jurisdiction of the banns is with the lack of the jurisdiction in the Common-Law of the States.]
The actual civil legislation in England dates mostly from the reign of George IV and William IV, and relieves Catholics and Dissenters from the obligation of having their banns published in the churches of the Establishment, as was the case after the passing of Lord hardwicke's Act, though in other respects and with considerable modifications, that act still governs the marriage contract in England; in substance it is the Tridentine decree.
[For the copy-claim of the English-Civil-Law of the marriage is with the Tridentine-Decree by the Catholic-Church.]
According to actual English statute legislation, a marriage in the Church of England is invalid without a previous due publication of the banns or a license from the proper ecclesiastical authority granted only within the church of the parish in which one of the parties shall have resided for fifteen days before the marriage. The true names of the parties must be published in an audible voice on three successive Sundays at the morning service, after the second lesson, in the church of the parish in which the parties dwell, or with the bishop's consent, in a public chapel. The officiating clergyman is entitled to demand seven day's notice of the intended publication, with the names of the parties, place of abode, and the time they have lived there. The dissent of parents or guardians renders null and void the publication of the banns of minors. The banns or license are valid for a period of three months only. It is to be noted that the omission of the banns invalidated the marriage only when the omission is known and willful. Non-Anglicans (Jews and Quakers excepted, as otherwise provided for) are freed from the obligations of banns or ecclesiastical license, but they must give notice to the registrar of the district within which the parties have lived for seven days previous. This notice is inscribed in a marriage notice book open to public inspection at all seasonal times, and thereafter suspended for twenty-one days in some conspicuous place in the registrar's office and accompanied by a declaration as to absence of impediments, necessary consent of parents or guardians, etc. ("Encyclopedia of the Laws of England", London, 1897, II, 1-3; "American and English Encyclopedia of Law", 2d ed., 1901, XIX,1190-93; Phillimore, "Ecclesiastical Law of the Church of England", 2d ed., London, 1895, II 580 sqq. For the publication of banns in the ( Protestant ) churches of Ireland an Scotland see W.P. Eversley, "The Law of the Domestic Relations" (2d ed., London, 1890).
[For the license of the marriage is with the Ecclesia/Church.]
In most of the United States a license to marry must be obtained by the contracting parties; in Delaware and Ohio publication of the banns is equivalent to a license (H.J. Desmond, The Church and the law, Chicago, 1898, 66). In all the provinces of the Dominion of Canada publication of the banns is required in default of a license to marry. In the Province of Quebec, in default of a license issued to non-Catholics, the publication of the banns is required on three Sundays or Holy Days with reasonable intervals, at morning service, or if none, at an evening service. If the parties belong to different churches, these publications must take place in each church. They must contain the names, surnames, qualities or occupation and domicile of the parties to be married, and whether they are of age or minors, also the names, surnames, occupations, and domicile of their fathers and mothers, and the name of the former husband or wife. A certificate of due publication of the banns is also required before the marriage, and mention is made of it in the Act of marriage; this certificate must be signed by the person who published the banns, and must contain all the above details stated in the banns themselves. Such certificate is not required if the banns were published by the same person who performed the marriage. Unless the parties have an actual domicile of six months in the place of publication, the latter must occur in the place of last domicile in Lower Canada, or if out of Canada the officer must ascertain that no legal impediment exists.
[Is for the meaning of the word: Officer as the Officer of the Church?]
If the parties are under the authority of others the publication must take place in the domicile of such authority (R.S. Weir, The Civil Code of Lower Canada, Montreal, 1898, Nos. 57, 58, 130-134).
[For the parties with the authority of our Lord are with the domicile of the Kingdom of the Heavens.
For the publication of the bann is with the Kingdom of the Heavens with our Marriage with our Lord.]
In France the civil code prescribes the publication on two distinct Sundays of the names, occupations, domiciles, and names of parents of persons intending to marry. The marriage cannot take place until three days after the second; if a year is allowed to elapse there must be a fresh publication of the banns. Marriages contacted abroad between French subjects or between a French subject and a foreigner, but according to foreign law, are recognized in France. The publication of the banns, however, cannot be omitted under pain of invalidating the marriage.
For the history of banns see ESMEIN, Le mariage en droit canonique (Paris, 18891). I, 78; SCHULTE, Handbuch des kath. Eherechts (1855), 40; BINDER, Vom kirchl, Aufgebot der Ehe (1857); SCHLINDLER, Die Notwendigkeit und die Umstande des Eheaufgebots (Warnsdorf, 1884); Archiv f. kath. Kirchenrecht. I, 129, 275; II, 546; IV, 391. All manuals of canon law and moral theology deal at more or less length with this subject, e.g. LAURENTIUS, Instit. Jur. Eccl. (Freiburg, 1903). Nos.567-569; HEINER, Grundriss des kath. Eherechts (4th ed., 1900):SAGMULLER, lehrb, des kan.Rechts (Freiburg, 1900 sq.) 485-490; VERING, Lehrbuch des kath . . . . Kirchenrechts (Freiburg, 1893), 859-863; VON SCHERER, handbuch des Kirchenrechts (Graz, 1898), II, 143-161. Cf. also FERRARIS, Prompta bibliotheca can., s.v.; FELIE, De impedimentis et dispensat. matr. (Louvain, 1874), 151-177; TAUNTON, The law of the Church (London and St. Louis; 1906), s.v.; BALLERINI-PALMIERE, Theologia Moralis (Prato, 1894)., VI. 427-447; GASPARRI, Tractatus canon, de matrimonio (2d ed., Rome,1892)
THOMAS J. SHAHAN
Transcribed by Beth Ste-Marie
The Catholic Encyclopedia, Volume II
Copyright © 1907 by Robert Appleton Company
Online Edition Copyright © 2003 by K. Knight
Imprimatur. +John M. Farley, Archbishop of New York
at:
http://www.newadvent.org/cathen/02255a.htm
Forty U.S. states, including Massachusetts, once prohibited marrying someone of the wrong race, no
matter how much you loved them. Social prejudice accomplished much the same result in other states.
Marriages between whites and persons of color were decried as immoral and unnatural. Polls showed that overwhelming numbers of Americans agreed. Massachusetts forbade interracial marriage as early as 1705, a restriction which was ultimately changed in 1843 after a three year campaign in the legislature. Despite public opposition to interracial marriage, in 1948, the California Supreme Court became the first state high court to declare a ban on interracial marriage unconstitutional in Perez v. Sharp. At that time, 38 states still forbade interracial marriage, and 6 did so by state constitutional provision. Then, in 1967, the U.S. Supreme Court struck down the remaining interracial marriage laws nation-wide. A Virginia judge had upheld that state's ban on interracial marriages, invoking God's intention to separate the races. The U.S. Supreme Court overturned his decision, declaring that:
the freedom to marry belongs to all Americans;
marriage is one of our vital personal rights and
the right to marry is essential to the orderly pursuit of happiness by a free [people].
[For the history of the Church is with the freedom of the Mix-Race-Marriage.]
Women in Marriage
For hundreds of years, women had few to no legal rights once they married. Married women had no
independent legal existence: they could not make contracts, maintain their own names, file lawsuits, have
full ownership and control of property, and in some cases could not maintain custody of their children after
their husband's death. The husband controlled all the family earnings and all of his wife's property in
exchange for nothing firmer than the general social expectation that he would support his wife and
children. Some of these inequalities continued well into the 20th century. Over time, however, both the
courts and the legislature have changed marriage laws have changed to reflect the equality of spouses.
[For the divisibility of the marriage by the civil-law is with the confusion as the equality of the spouses.]
Divorce
In the early years of this country, divorce was exceedingly difficult to obtain. If people did get divorced,
there were usually restrictions on the guilty party's ability to marry again. Over time, to deal with
abusive and failed marriages, people moved to states with fewer divorce restrictions. This issue polarized
the states and even reached the attention of the U.S. Congress dozens of times in just over 60 years.
Ultimately, the U.S. Supreme Court ruled that states have to honor divorces granted in other states
(Williams v. North Carolina) . Later, beginning in the 1970's, many states lifted restrictions on divorce,
with most creating no-fault divorce systems. In other words, while we aspire to marriage as a life long
commitment, that requirement is now absent from law.
http://216.239.41.104/search?q=cache:5ImzkOmclgIJ:www.glad.org/Publications/CivilRightProject/OP3-historyofchange.PDF+civil-marriage+law+history&hl=en&ie=UTF-8
Domicile:
Civil law, being more ancient, formed a basis for canon law. We must therefore revert to Roman law, which established domicile as the extension or communication of a pre-existent legal status of individuals–origin ( origo, jus originis ).
[For the origin of the self is with the creation of the soul by the Creator.]
In the theory of the Roman lawyers each man belongs to his municipality, to his city, where, as he contributes his share to the expenses and taxes, so he has a right to the common advantages. Children naturally follow their father's condition and belong likewise to the city, even though born at a distance.
[For the birthplace of our first-human-Father: Adam is with the Garden of the Eden in the Kingdom of the Heavens.
For the legacy of the jurisdiciton in the Kingdom of the Heavens is with the lineage of our Fathers by the Roman-Law.]
Such is the Roman origo, quite akin to what we call nationality, except that the origo relates to the restricted locality of one's birth, and nationality to one's native land. Hence it is birth, the legal birthplace, that determines one's origo, i.e not the actual site of birth but the place where each one should have been born, the municipality to which the father belonged (L. 1. ff. Ad municip.). Let us now suppose a man settled for a long time in a city of which he is not a native. Partly in return for the taxes he pays, and partly to permit him to exercise local civic duties, he is granted the status of a real citizen, without loss, however, of his own origo or municipal right. Such, then, is the primitive concept of domicile in Roman law: the communication to a man, born in one municipality but residing permanently in another, of the civil rights normally reserved to citizens who are natives of the locality.
[For the Rights of the Roman-Law are as an issue of the geography.
For the Kingdom of the Heavens is with the lack of the issue of the geography of this world.
For the Sin/Guilt of the Adam is with his loss of the jurisdiction of the Kingdom.]
To become as one of the latter, the stranger must create for himself a domicile, and it was this that necessarily led jurists to define domicile and the conditions upon which it could be acquired. Hence the celebrated definition of domicile given by the Emperors Diocletian and Maximianus (L. 7, G. de incol.): "It is certain that each one has his domicile in the place where he has established his home and business and has his possessions; a residence which he does not intend to abandon, unless called elsewhere, from which he departs only as a traveller and by returning to which he ceases to be a traveller." The juridical element constitutive of domicile is the intention, the will definitively to settle oneself in a place, this will being deduced from the circumstances and especially the conditions of installation.
[For the volition of this pilgrim is with the domicile in the Kingdom of all Eternity.]
It implies indefinite stability, not perpetuity in the restricted sense of the word, as though one renounced the right to change domicile. Another domicile may at any time be acquired on the same conditions as the first; it is lost when the intention of abandoning it is coupled with the fact of desertion. Since, therefore, domicile conferred the same rights as origo, its importance became gradually more and more marked.
[For the vacation of all contracts with the jurisdiction of the States is with the volition of this pilgrim of the Kingdom.]
We can now better understand the words that so often recur in Roman law and have been adopted by canonists: those who belong to a municipality by right of birth are citizens ( cives ), though these terms are used almost synonymously by legists and canonists; those who have spent a sufficient time there without, however, acquiring a domicile, are strangers ( advenæ ), though to them canonists concede a quasi-domicile. Finally, those who make but a passing sojourn there are transients ( peregrini; cf. L. 239, de Verb. sign.). To these categories canonists have added one which the Roman origo , being permanent, could not recognize, namely the wanderers ( vagi ), who have no fixed residence or who, having definitely abandoned one domicile, have not as yet acquired another.
[Citizens = cives/origo; Naturalization-Citizen = domicile; Strangers/residents = advenae/quasi-domicile (Canon-Law); Transients = peregrini; Wanderers = vagi]
[Canon-Law: 3-domiciles:
Origin/Nativity = birth/baptism;
Residence/Acquire = choice;
Necessary/Legal = prisoner/child/wife/ward/perpetual-charge]
II. DEVELOPMENT OF DOMICILE IN CANON LAW
In the troublous times that prevailed after the Barbarian invasions, the domicile of Roman law was lost sight of, and even the word itself disappeared from the juridical language of the time. However, this does not mean that persons inhabiting certain limited districts had wholly ceased to be connected with local authority, whether civil or religious, nor that all acts were regulated exclusively, after the barbarian concept, by a personal code. The material fact of habitation could not, it is true, be ignored, but it no longer served for a theory of domicile. The medieval ecclesiastical canons say that each Catholic ( fidelis ) should pay his tithes in the church where he was baptized and that his obsequies should be held wherever he pays his tithes, etc., but there is no mention of domicile.
The Roman theory was again restored to honour by the glossarists of the Bolognese School, expecially by Accursius in the beginning of the thirteenth century. Whether it was because they mistook the real meaning of origo or desired to explain it in a way that suited the customs of their time, they interpreted it as a sort of domicile resulting from one's birthplace, and if one were born there per accidens , from the place of one's father's birth. Except for this inaccuracy, the Roman theory was well expounded. Moreover, according to the favourite principles of their time, the glossarists brought into prominence the double constitutive element of domicile (or, properly speaking, of acquired domicile): the material element ( corpus ), i.e. habitation, and the juridical or formal element ( animus ), i.e. the intention to remain in this habitation indefinitely. Although they did not contribute directly to this revival of domicile, canonists nevertheless adopted it and it was definitively admitted in the gloss of "Liber Sextus" (cc. 2 and 3, de sepult.). They applied these rules to the acts of Christian life: baptism, paschal Communion and Viaticum, confession, extreme unction, funerals, interments, then also to ordination and juridical competency. The actual canonical rules on domicile are about the same.
In the meantime almost the only development of canon law in this matter has been the creation of the quasi-domicile theory, foreign alike to Roman and modern civil law. As its name implies, quasi-domicile is closely patterned on domicile and consists in a sojourn in some one place during a sufficient length of time. Not only does it not call for abandonment of the real domicile, but can co-exist with the latter and even suppose the intention of returning thither. It was evident that the ordinary acts of the Christian life, the rights and obligations of a parishioner, could not be confined to permanent residents only; hence the necessity of assimilating to such residents those who sojourn in the place for a certain length of time. The canonists soon concluded that whoever has a quasi-domicile in a place may receive there the sacraments and perform there legitimately all the acts of the Christian life without forfeiting any of his rights in the place of his real domicile; he may even thus become subject to the judicial authority of his place of quasi-domicile. The only restrictions are, as we shall see, for ordinations and, to a certain extent, for funerals. For a long time, however, the theory remained vague and undetermined. Authors could scarcely agree as to precisely what was meant by the "sufficient length" of time ( non breve tempus ) required for quasi-domicile, and they hesitated to pronounce on the various possible reasons for a sojourn and the degree in which they could create presumption of an intention to acquire quasi-domicile. Strictly speaking, the question was really important only in regard to those marriages whose validity depended on the existence of a quasi-domicile in countries where the Tridentine decree "Tametsi" had been published; in this way, as we shall see below, new legislation became necessary. The quasi-domicile theory was not definitively settled until the appearance of the Instruction of the Holy Office addressed to the Bishops of England and the United States, 7 June, 1867, in which quasi-domicile is patterned as closely as possible on domicile. Like the latter, it is made up of the double element of fact and right, i.e. of residence and the intention of abiding in it for a sufficient length of time, this time being clearly stated as a period covering more than six months– per majorem anni partem . As soon as these two conditions coexist, quasi-domicile is acquired and immediately involves the legal use of rights and competencies resulting therefrom. (See below for a recent restriction in regard to marriage.) Finally, quasi-domicile is lost by the simultaneous cessation of both its constitutive elements, i.e. by the abandonment of residence without any intention of returning to it. Suffice it to add that in this matter the canon law, yielding to custom, tends easily to adapt itself to the provisions of civil law, e.g. as regards the legal domicile of minors, wards, and other analogous provisions.
III. PRESENT LAW
From the preceding explanation there results a very important conclusion which throws a strong light on canonical legislation concerning domicile and which we must now set forth. It is this: the law does not deal with domicile for its own sake, but rather on account of its consequences; in other words, on account of the personal rights and obligations attached thereto. This explains why domicile must meet divers requirements more or less severe according to the case in point, e.g. marriage, ordination, juridical competency. Keeping therefore in view the legal consequences of domicile and its various forms it may be defined as a stable residence which entails submission to local authority and permits the exercise of acts for which this authority is competent. To this definition the laws and their commentators confine themselves, without touching on the legal effects of domicile. As we have already seen, domicile, properly so called, is the place one inhabits indefinitely ( locus perpetuæ habitationis ), such perpetuity being quite compatible with more or less transitory residence elsewhere. It matters not whether one be the owner or simply the occupant of the house in which one dwells or whether one owns more or less property in the locality. The place of one's domicile is not the house werein one resides but the territorial district in which the house or home stands. This district is usually the smallest territory possessing a distinct, self-governing organization. All authors agree that, from a civil viewpoint, the municipality is the place of domicile and, canonically considered, the parish or territorial division replacing it, e.g. mission or station. It is in the municipality that the acts and rights of civil life are exercised, and in the parish those of the Christian life. Strictly speaking, one cannot acquire domicile in a ward or hamlet or in any territorial division which does not form a self- governing group. Of course there are certain acts that do not depend, or that no longer depend, on local authority; in this sense, it is possible to speak of domicile in a diocese when it is question e.g. of ordination, or of domicile in a province apropos of the competency of a tribunal. But these exceptions are merely apparent; they imply that one has a domicile in some parish within a given diocese. The canon law has never recognized as domicile an unstable residence in different parts of a diocese without intent to establish oneself in some particular parish. Canon law (c. 2, de sepult. in VI), like Roman law (L. 5, 7, 27, Ad municip.), allows a double domicile, provided there be in both places a morally equal installation; the most ordinary example of this being a winter domicile in the city and a summer domicile in the country.–There are three kinds of domicile: domicile of origin, domicile of residence or acquired domicile, and necessary or legal domicile. The domicile of origin, a somewhat inexact imitation of the Roman origo, is that assigned to each individual by his place of nativity unless he be accidentally born outside of the place where his father dwells; practically it is the paternal domicile for legitimate and the maternal domicile for illegitimate children. Again, in reference to the spiritual life, domicile of nativity is the place where adults and abandoned children are baptized.–The domicile of residence or acquired domicile is that of one's own choice, the place where one establishes a residence for an indefinite period. It is acquired by the fact of material residence joined to the intention of there remaining as long as one has no reason for settling elsewhere; this intention being manifested either by an express declaration or by circumstances. Once acquired, domicile subsists, despite more or less prolonged absences, until one leaves it with the intention of not returning.–Finally, necessary or legal domicile is that imposed by law; for prisoners or exiles it is their prison or place of banishment; for a wife it is the domicile of the husband which she retains even after becoming a widow; for children under age it is that of the parents who have authority over them; for wards it is that of their guardians; lastly, for whoever exercises a perpetual charge, e.g. a bishop, canon, or parish priest, etc., it is the place where he discharges his functions.
Quasi-domicile is of one kind only, namely of residence and choice and cannot be acquired in any other way. It is acquired and lost on the same conditions as domicile itself and is deduced mainly from such reasons as justify a sojourn of at least six months, e.g. the pursuit of studies, or even for an indefinite period, as in the case of domestics. Quasi-domicile is presumed, especially for marriage, after a month's sojourn according to the Constitution "Paucis abhinc" of Benedict XIV, 19 March, 1758; but this presumption yields to contrary proof, except however when it is transformed into a presumption juris et de jure, which admits of no contrary proof; such is the case for the United States in virtue of the indult of 6 May, 1886, granted at the request of the Council of Baltimore in 1884 (Acts et Decreta, p. cix) and extended to the Diocese of Paris, 20 May, 1905. This being so, quasi-residents are regarded as subjects of the local authority just as are permanent residents, being therefore parishioners bound by local laws and possessing the same rights as residents, with this difference, that, if they so choose, they may go and use their rights in their own domicile. They can, therefore, apply to the local parish priest, as to their own parish priest, not only for those sacraments administered to every one who presents himself, e.g. Holy Eucharist and penance, but also for the baptism of their children, for first Communion, paschal Communion, Viaticum, and extreme unction. Their nuptials may also be solemnized in his presence and, except when they have chosen to be buried elsewhere, their funerals should take place from the parish church of their quasi-domicile. Finally, the quasi-domicile permits of their legitimate citation before a judge competent for the locality. As regards marriage, the quasi-domicile affected its validity in parishes subject to the decree "Tametsi" until the decree "Ne temere" of 2 August, 1907, rendered the competency of the parish priest exclusively territorial, so that all marriages contracted in his presence, within his parochial territory, are valid; for a licit marriage, however, one of the two betrothed must have dwelt within the parish for at least a month.
On the other hand those who have neither a domicile nor a quasi-domicile in a parish, who are only there as transients ( peregrini ), are not counted as parishioners; the parish priest is not their pastor and they should respect the pastoral rights of their own parish priest at least in so far as possible. The restrictions of former times, it is true, have been greatly lessened and at present no one would dream of obtaining parochial rights for annual confession, paschal Communion or the Viaticum. Something, however, still remains: for marriage transients must ask the delegation or authorization of the parish priest of their domicile (regularly of the bride) if the contracting parties have not already sojourned for a month within the parish where they seek to contract marriage; funerals also belong to the parish priest of the domicile, i.e. if the interested parties desire to, and can transport to the parish church the body of the deceased; in any event the parish priest may demand the parochial dues known as quarta funeralis . Generally speaking, transients ( peregrini ) are not subjects of the local ecclesiastical authority; they are not held to the observance of local laws except inasmuch as these affect public order, nor do they become subjects of the local judicial authority.
As to the domicile requisite for ordination there are special rules formulated by Innocent XII , in his Constitution "Speculatores", 4 November, 1694. The candidate for orders depends upon a bishop, first by reason of his origin, that is to say, of the place where his father had a domicile at the time of his son's birth; second by reason of his own acquired domicile. But the conditions which this domicile must satisfy are rather severe: the candidate must have already resided in the diocese for ten years or else have transported most of his movable goods to a house in which he has resided for three years; moreover, in both cases, he must affirm under oath his intention of definitively establishing himself in the diocese. This is a qualified domicile, the conditions of which must not be extended to other cases.
http://www.newadvent.org/cathen/05103b.htm
Civil Allegiance
By civil allegiance is meant the duty of loyalty and obedience which a person owes to the State of which he is a citizen. The word allegiance is a derivative of liege , free, and historically it signifies the service which a free man owed to his liege lord. In the matter in hand its meaning is wider, it is used to signify the duty which a citizen owes to the state of which he is a subject.
[For the Citizenship of this soul is with my Liege-Lord of my Redemption in his Kingdom: Israel.]
That duty, according to the teaching of the Catholic Church, rests on nature itself and the sanctions of religion. As nature and religion prescribe to children dutiful conduct towards the parents who brought them into the world, so nature and religion impose on citizens certain obligations towards their country and its rulers.
[For the nationality of all nature/creation is as the Kingdom of the Creator.
For the faith of all Saints and Martyrs is with the Religion of the Truth of the Word of our Lord-God and King of all Kings as our Sovereign-Ruler.]
These obligations may be reduced to those of patriotism and obedience. Patriotism requires that the citizen should have a reasonable esteem and love for his country.
[For the esteem and love of my country is with the esteem and love of all souls in this Nation of the Heavens.]
He should take an interest in his country's history, he should know how to value her institutions, and he should be prepared to sacrifice himself for her welfare.
[For the sacrifice of all Martyrs is with the life of the Kingdom.]
In his country's need it is not only a noble thing, but it is a sacred duty to lay down one's life for the safety of the commonwealth.
[For the sacrifice of this life is for the Commonwealth of all Souls with the treasure in the Heavens.]
Love for his country will lead the citizen to show honour and respect to its rulers. They represent the State, and are entrusted by God with power to rule it for the common good.
[For the theft and fraud of the rule is with the loss of the honor and legitamacy of the ruler.]
The citizen's chief duty is to obey the just laws of his country. To be able to distinguish what laws of the civil authority are just and obligatory, it will be advisable to lay down the principles of Catholic theology respecting the nature, subject-matter, and limits of the obedience which citizens owe to the State. To understand these we must know something of the mutual relations between Church and State. From the time of Our Lord to the present, no accusation has been more persistently made against Catholics than that they cannot be good Catholics and good citizens at the same time. They owe, it is said, a divided allegiance. On the one hand they are bound to obey an infallible pope, who is the sole judge of what comes within his sphere of authority, and who may be a foreigner; and on the other they must satisfy the claims of the State to the loyalty and obedience of its subjects. It is asserted that the duties of the citizen are sure to be sacrificed by devout Catholic to the interests of his Church. This conflict of jurisdictions did not arise in pre-Christian times. Each nation had its own religion, its own gods, its own worship. The national religion was a primary element in the constitution of the State. The chief ruler of the State was also supreme pontiff. As a citizen owed obedience to his country's laws, so he owed reverence and worship to his country's gods. The State domineered with absolute sway over both the spiritual and the temporal; it claimed the whole devotion of both body and soul. Jesus Christ established a spiritual kingdom on earth, which we call His Church. He gave His Church authority over all matters concern with the worship of the one, true God , and the saIvation of souls; it was His intention that the Gospel should be preached to every creature, that all men should enter His kingdom, that His Church should be Catholic, i.e. universal. This fact is of supreme importance not only in religion, but also in history and politics. As von Ranke said:
The rise of Christianity involved the liberation of religion from all political elements. From this followed the growth of a distinct ecclesiastical class with a peculiar constitution. In this separation of the Church from the State consists perhaps the greatest, the most pervading and influential peculiarity of all Christian times . . . The mutual relations of the spiritual and the secular powers, their position with regard to each other, form from this time forward one of the most important considerations in all history. (The Popes, I, 10)
The teaching of the Catholic Church concerning the duty of civil allegiance will be clear if we lay down her doctrine about the origin and limits of the temporal and spiritual power, and the relation in which they stand to each other. The Church's teaching on these points is part of her doctrinal system, derived from Scripture and tradition. The archbishops and bishops of the United States made use of the following weighty words in the joint pastoral letter which they addressed to the clergy and laity of their charge in the Second Plenary Council of Baltimore, held in the year 1866:
"The enemies of the church fail not to represent her claims as incompatible with the independence of the Civil Power, and her action as impeding the exertions of the State to promote the well-being of society. So far from these charges being founded in fact, the authority and influence of the Church will be found to be the most efficacious support of the temporal authority by which society is governed. The church indeed does not proclaim the absolute and entire independence of the Civil Power, because it teaches with the Apostle that 'all power is of God '; that the temporal magistrate is his minister, and the power of the sword he wields is a delegated exercise of authority committed to him from on high. For the children of the Church obedience to the Civil Power is not a submission to force which may not be resisted; nor merely the compliance with a confounded with a condition for peace and security; but a religious duty founded on obedience to God, by whose authority the Civil Magistrate excercises his power."
[For the confusion of the voice of the Truth with the voice of the Fiction is with the lack of the test for all spirits.]
[For the Heresy of the Americanism is with the claim by the Church.]
In order to learn in detail what the Catholic doctrine is concerning the duty of civil allegiance we can not do better than consult the the popes themselves. Leo XIII touches upon this doctrine in several of his Encyclical letters, he treats of it at length in that which with the words "Immortale Dei" , issued 1 November, 1885.
ORIGIN OF THE STATE
According to Catholic teaching man is by nature a social animal, he naturally seeks the society of his fellows, and he cannot attain to his proper development except in society. As he is born and bred in the bosom of the family, from the necessities of his nature, so, in order to defend himself, in order to attain the full perfection of his bodily, mental, and spiritual faculties, families must join together and form higher and more powerful society, the State. Nature prescribes that the father should be the head of the family and to keep the peace between citizens, to secure to all their rights to punish the wrongdoer to foster the common good, nature imperiously demands that there should be a supreme authority in the State. As Leo XIII says in the Encyclical "Immortale Dei",
It is not difficult to determine what would be the form and character of the State were it governed according to the principles of Christian philosophy. Man's natural instinct moves him to live in civil society, for he cannot, if dwelling apart, provide himself with the necessary requirements of life, nor procure the means of developing his mental and moral faculties. Hence it is divinely ordained that he should lead his life, be it family, social, or civil, with his fellow-men, amongst whom alone his several wants can be adequately supplied.
[For the supply of all needs is by our Father of the Heavens, as with the birds of the field.]
But as no society can hold together unless someone be over all, directing all to strive earnestly for the common good, every civilized community must have a ruling authority, and this authority, no less than sociery itself, has its source in nature, and has consequently God for its author.
[For the striving for the good is with the will of the Father, with the spirit of the Paraclete, with the prayer of our Brother: Christ: on the earth as the heavens.]
Hence it follows that all public power must proceed from God. For God alone is the true and supreme Lord of the world. Everything without exception must be subject to Him, and must serve Him, so that whosoever holds the right to govern, holds it from one sole and single source, namely God , the Sovereign Ruler of all. 'There is no power but from God.'
[For the claim of the right for the governance of the world is with our Lord.
For any claim of the right of the governance by a human is with the lack of the knowledge of our Lord.]
[Family-Kingdom = Father/Creator; Brother/Redeemer-King; Mother-Queen; Society = Saints & Angels of the Heavens; Civil = Kingdom of all Truth]
The state of civil society then is the state of nature; there never was, nor, man's nature being what it is, could there be a state in which men led a solitary life of freedom without the restraints and the advantages of civil society, such as was dreamed of by Hobbes, Locke, and Rousseau. The authority of the state is derived not from a social compact, voluntarily entered into by men, but, like the authority of the father of a family, it is derived from nature herself, and from God, the Author and the Lord of nature. This Catholic doctrine concerning the Divine origin of civil authority, as it is inherent in society, rnust be carefully distinguished from the theory of the Divine right of kings which was popular in England among the High Church party in the seventeenth century. According to the theory of Divine right the king was the Divinely constituted vicegerent of Jesus Christ on earth; he was responsible to God alone for his acts; in the name of God he governed his subjects in both spiritual and temporal matters. The theory united the spiritual and the temporal power in one subject, and derived the combined authority from the direct and immediate delegation of God. It has not ineptly been called Caesaropapism.
[For the notion of a divine-origin of any civil-authority is with the claim of a state of the Christendom in the Kingdom of the Heavens.]
But though nature and God prescribe that there should be a supreme authority in the State, and that all citizens should conscientiously render due obedience to it, yet they do not determine the subject of the supreme civil authority. Whether a particular State be a monarchy, an oligarchy, or a democracy, or any combination of these forms of government, is a matter that depends on history and the character of the people. Provided that the government fulfils its function, its form in the eyes of the Catholic Church is of comparatively little importance.
[Functions: protection of the innocents; freedom of the citizens; safety against the wars]
As Leo XIII says,
The right to rule is not necessarily bound up with any special mode of government. It may take this or that form, provided only that it be of a nature to ensure the general welfare. But whatever be the nature of the government, rulers must ever bear in mind that God is the paramount ruler of the world and must set Him before themselves as their exemplar and law in the administration of the State. (Encyclical, Immortale Dei)
The same pope touches on this subject in his Encyclical (10 January, 1890) on the chief duties of Christians as citizens. He writes:
The Church, the guardian always of her own right and most observant of that of others, holds that it is not her province to decide which is the best among many different forms of government and the civil institutions of Christian states, and amid the various kinds of State rule she does not disapprove of any, provided the respect due to religion and the observance of good morals be upheld.
[For the Christian-state as one Kingdom is as the remnant of all morality and true-faith.]
He returned to the same point in his Encyclical of 16 February, 1892, on allegiance to the republic in France:
Various political governments have succeeded one another in France during the last century, each having its own distinctive form: the Empire, the Monarch, and the Republic. By giving one's self up to abstractions one could at length conclude which is the best of these forms, considered in themselves; and in all truth it may be affirmed that each of them if good, provided it lead straight to the end--that is to say, to the common good, for which social authority is constituted--and finally, it may be added that from the relative point of view, such and such a form of government may be preferable because of being better adapted to the character and customs of such or such a nation. In this order of speculative ideas, Catholics, like all other citizens, are free to prefer one form of government to another, precisely because no one of these social forms is, in itself, opposed to the principles of sound reason or to the maxims of Christian doctrine.
[For the freedom of the governance is with the freedom of the thought/ideas/imagiNations.]
THE STATE NOT SECULARIST
The state should not be indifferent to religion and profess mere secularism. Leo XIII writes in "Immortale Dei",
The State, constituted as it is, is clearly bound to act up to the manifold and weighty duties linking it to God , by the public profession of religion. Nature and reason, which command every individual devoutly to worship God in holiness, because we belong to Him and must return to Him since from Him we came, bind also the civil community by a like law. For men living together in society are under the power of God no less than individuals are, and society, not less than individuals, owes gratitude to God , who gave it being and maintains it, and whose ever-bounteous goodness enriches it with countless blessings. Since, then, no one is allowed to be remiss in the service due to God , and since the chief duty of all men is to cling to religion in both its teaching and practice--not such religion as they may have preference for, but the religion which God enjoins, and which certain and most clear marks show to be the only one true religion--it is a public crime to act as though there were no God. So, too, is it a sin in the State not to have care for religion, as a something beyond its scope, or as of no practical benefit; or out of many forms of religion to adopt that one which chimes in with the fancy; for we are bound absolutely to worship God in that way which he has shown to be His will. All who rule, therefore, should hold in honour the holy name of God, and one of their chief duties must be to favour religion, to protect it, to shield it under the credit and sanction of the laws, and neither to organize nor enact any measures that may compromise its safety. This is the bounden duty of rulers to the people over whom they rule. For one and all are we destined by our birth and to enjoy, when this frail and fleeting life is ended, a supreme and final good in heaven, and to the attainment of this every endeavour should be directed. Since, then, upon this depends the full and perfect happiness of mankind, the securing of this end should be of all imaginable interests the most urgent. Hence civil society, established for the common welfare, should not only safeguard the well-being of the community, but have also at heart the interests of its individual members, in such mode as not in any way to hinder, but in every manner to render as easy as may be, the possession of that highest and unchangeable good for which all should seek.
THE CHURCH A DIVINE SOCIETY
Although the State must not be indifferent to religion, yet direct authority in matters pertaining thereto, since the coming of Jesus Christ , no longer belongs to the State but to the Church, a Divinely constituted and perfect society which He founded, and to which He gave full spiritual power to rule its subjects in matters of religion, and guide them to God.
[For the service of this man is with the claim of one Triune-Master of one triune-self: body, mind and soul.]
As Leo XIII says, in his Encyclical of 10 January, 1890:
No one can without risk to faith, foster any doubt as to the Church alone having been invested with such power of governing souls as to exclude altogether the civil authority.
[For the meaning, function and purpose of this body is as a vessel for my soul.]
And in the Encyclical "Immortale Dei" he says:
For the only-begotten Son of God established on earth a society which is called the Church, and to it He handed over the exalted and Divine office which He had received from His Father, to be continued through the ages to come. 'As the Father hath sent me, I also send you. Behold I am with you all days, even to the consummation of the world.' Consequently, as Jesus Christ came into the world that men might have life and have it more abundantly', so also has the Church for its aim and end the eternal salvation of souls, and hence it is so constituted as to open wide its arms to all mankind unhampered by any limit of either time or place. 'Preach ye the Gospel to every creature.' Over this mighty multitude God has Himself set rulers with power to govern; and He has willed that one should be the head of all, and the chief and unerring teacher of truth, to whom He has given 'the keys of the kingdom of heaven. Feed my lambs, feed my sheep. I have prayed for thee that thy faith fail not.' This society is made up of men, just as civil society is, and yet is supernatural and spiritual on account of the end for which it was founded and of the means by which it aims at attaining that end. Hence it is distinguished and differs from civil society and, what is of highest moment, it is a society chartered as of right Divine, perfect in its nature and in its title, to possess in itself, through the will and loving kindness of its Founder, all needful provision for its maintenance and action. And just as the end at which the Church aims is by far the noblest of ends, so is its authority the most exalted of all authority, nor can it be looked upon as inferior to the civil power or in any manner dependent upon it. In very truth Jesus Christ gave to His Apostles unrestrained authority in regard to things sacred, to gather with the genuine and most true power of making laws, as also with the two-fold right of judging and of punishing, which flow from that power. 'All power is given to Me in heaven and on earth going therefore teach all nations . . . teaching them to observe all things whatsoever I have commanded you.' And in another place, 'If he will not hear them, tell the Church.' And again, 'In readiness to revenge all disobedience.' And once more, 'That . . . . I may not deal more severely according to the power which the Lord hath given me, unto edification.' Hence it is the Church, and not the State, that is to be man's guide to heaven. It is to the Church that God has assigned the charge of seeing to, and legislating for, all that concerns religion; of teaching all nations; of spreading the Christian faith as widely as possible; in short, of administering freely and without hindrance, in accordance with her own judgment, all matters that fall within its competence.
RELATION BETWEEN THE TWO POWERS
In the same Encyclical the pope shows that this power has always been claimed and exercised by the Church, and then goes on to trace the relation which exists between the two powers.
The Almighty, therefore, has appointed the charge of the human race between two powers, the ecclesiastical and the civil, the one being set over Divine, and the other over human things. Each in its kind is supreme, each has fixed limits within which it is contained, limits which are defined by the nature and special object of the province of each, so that there is, we may say, an orbit traced out within which the action of each is brought into play by its own native right. But in as much as each of these two powers has authority over the same subjects, and as it might come to pass that one and the same thing -- related differently, but still remaining one and the same thing -- might belong to the jurisdiction and determination of both, therefore God , who foresees all things, and who is the author of these two powers, has marked out the course of each in right correlation to the other. ' For the powers that are, are ordained of God .' Were this not so, deplorable contentions and conflicts would often arise, and not infrequently men, like travellers at the meeting of two roads, would hesitate in anxiety and doubt, not knowing what course to follow. Two powers would be commanding contrary things, and it would be a dereliction of duty to disobey either of the two.
[:Two-Masters]
But it would be most repugnant to deem thus of the wisdom and goodness of God. Even in physical things, albeit of a lower order, the Almighty has so combined the forces and springs of nature with tempered action and wondrous harmony that no one of them clashes with any other, and all of them most fitly and aptly work together for the great purpose of the universe. There must, accordingly, exist between these two powers a certain orderly connection, which may be compared to the union of the soul and body in man. The nature and scope of that connection can be determined only, as we have laid down, by having regard to the nature of each power, and by taking account of the relative excellence and nobleness of their purpose. One of the two has for its proximate and chief object the well-being of this mortal life; the other the everlasting joys of heaven. Whatever is therefore, in things human is of a sacred character whatever belongs either of its own nature or by reason of the end to which it is referred, to the salvation of souls or to the worship of God, is subject to the power and judgment of the Church. Whatever is to be ranged under the civil and political order is rightly subject to the civil authority. Jesus Christ has Himself given command that what is Caesar's is to be rendered to Caesar, and that what belongs to God is to be rendered to God.
[For the image of the Caesar is for the rendering for the Caesar.
For the Silver and Gold are for the Lord-God of the Hosts.]
There are nevertheless occasions when another method of concord is available for the sake of peace and liberty: we mean when rulers of the State and the Roman Pontiff come to an understanding touching some special matter. (See CONCORDAT.) At such times the Church gives signal proof of her motherly love by showing the greatest possible kindliness and indulgence.
THE CHURCH'S TEMPORAL JURISDICTION
The pope then briefly describes the advantages which would follow from the establishment of this Christian scheme of society if both powers were content to keep within their legitimate sphere. Human nature, however, is prone to go wrong and many and bitter have been the conflicts between the two powers. While no Catholic would maintain that in these struggles the Church was always in the right, modern historians of the scientific school freely admit that the civil power was generally the aggressor. One cause of conflict was the jurisdiction over many merely temporal matters which the Christian emperors of Rome granted to the popes and to bishops. During the Middle Ages bishops continued to claim and to exercise this jurisdiction, which was sometimes enlarged, sometimes curtailed, by local customs and laws. In various ways the pope became paramount lord of whole kingdoms during the same period. Thus, by the voluntary act of King John and his barons, England was made a fief of the Holy See and became for a time tributary to it.
[For the ownership of the British-Empire is as a fief of the Holy-See by the Volition of the King: John.]
When the Church had once lawfully acquired such rights as these, it was natural that she should wish to retain them; indeed, no churchman could lawfully surrender the justly acquired rights of his church, even in temporal matters, without just cause and the leave of the Holy See . Still, the double jurisdiction led to strife between the two powers, and by degrees the State in most European countries not only deprived the Church of the jurisdiction in temporal matters which she once possessed, but made large inroads into the spiritual domain which belongs exclusively to the Church. Conflicts also arose over mixed causes, such as legitimacy, which belonged to both jurisdictions, and in consequence of the claim of the Church to an indirect and incidental jurisdiction in matters temporal. Thus the Church claims authority over the education of her children even in subjects which do not pertain directly to religion, and in all probability in the same way she obtained in England the power which she once enjoyed over testamentary dispositions. This is a matter of the greatest importance in the history of English law. Owing to it the English law of property at the present day is divided into halves, that of reality and that of personalty. The division is due to the fact that the Church, on account of her authority over pious causes and legacies to charitable purposes, early obtained jurisdiction over all testmentary dispositions of personalty, while the realty was left to the civil courts. There was a controversy among theologians and jurists as to the extent of the Church's power over temporal affairs. All admit that her authority does in some way extend to temporal affairs; indeed the proposition that she has no direct or indirect temporal authority was condemned by Pius IX in the Syllabus of Errors. To explain the nature of that power three systems have been devised by theologians and jurists.
[For the temporal-affairs of this journey to our Home/Heaven is with the authority of the Kingdom/Church of the Heavens.]
(a) Theory of Direct Power
One school, which comprised such men as John of Salisbury and his friend St. Thomas Becket, maintained that the pope had direct power over temporal as over spiritual matters. All power was given to Jesus Christ, the King of kings and Lord of lords, and he made over the plenitude of the power which He had received to His vicars, the Roman pontiffs. Consequently the popes are the supreme rulers of the world in both spiritual and temporal matters, they keep the spiritual power in their own hands, while they delegate the temporal to emperors and kings.
[For the popes and apostles of our Lord are by the authority of our Lord.
For the [de]legation of the authority of the Lord is with the lack of the knowledge of the truth.]
These, therefore, are directly responsible for their acts to the pope in whose name they govern. It is possible to quote expressions from papal documents which seem to support this opinion. Gregory VII, Innocent III, and other popes, used phrases which are capable of being interpreted in that sense; but if the scope of these documents be considered, and especially if the teaching of these popes on other occasions be taken into account, they must be explained in another way. Thus Innocent III , writing to the Patriarch of Constantinople, says that "not only the Church universal but the whole world was left to Peter to govern," But his aim is to show the universality of the pope's spiritual jurisdiction in contrast to that exercised over particular churches by other spiritual rulers. In his celebrated Decretal "Novit," Innocent III defends himself from the imputation of desiring to usurp or curtail the jurisdiction or power of the King of France: "Why", he asks, "should we desire to usurp the jurisdiction of another, while we are not competent to wield our own?" He explains that he had summoned the French king before his spiritual tribunal to answer for a sin, a matter which belonged to the ecclesiastical court. Similarly, in his Decretal "Per venerabilem", the same great pope says that he is well aware that Christ said "Render to Caesar the things that are Caesar's and to God the things that are God's ", but that, notwithstanding, in certain causes the pope exercises temporal jurisdiction casually and incidentally.
(b) Theory of Indirect Power
Hence there was another opinion defended by Hugo of St. Victor, Alexander of Hales, and others, according to which the power granted by Christ to the Church and to the pope was spiritual, and had reference only to religion and the salvation of souls. The Church had no merely temporal jurisdiction of Divine right; Christian emperors and kings were supreme within the limits of their temporal authority. However, in as much as all must give way when there is question of the salvation of souls, "For what doth it profit a man if he gain the whole world, and suffer the loss of his soul?" and, "If thy right eye scandalize thee, pluck it out and cast it from thee"; so all impediments to salvation must be removed. He, therefore, who has the care of the salvation of soul should have the power to remove any impediment to salvation, even if it be caused by a Christian emperor or kings. Besides, Christian emperors and kings are children of the Church, and as such subject to the supreme rulers of the Church. The first Christian emperors acknowledged this; great saints and bishops like St. Ambrose and St. Chrysostom taught it and acted on it; the popes of the Middle Ages were only following precedent when they acted like manner. Bellarmine, one of the chief exponents of this theory of the indirect power of the popes over temporal affairs, says that it was the common opinion of theologians; Suarez, another great upholder of the same view, in his volume against James I England, says that it was the more received and approved opinion among Catholics. In our time this opinion has become generally accepted, and Leo XIII seems to adopt it in his Encyclical quoted above on the Christian constitution of States. "Whatever", he says, "in things human is of a sacred character, whatever belongs either of its own nature or by reason of the end to which it is referred, to the salvation of souls or to the worship of God , is subject to the power and judgment of the Church."
(c) Theory of Directive Power
A third opinion was held by Fénelon, Gosselin, and a few others, that the pope has only a directing and guiding, not a constraining, power over temporal affairs. These writers taught that the Church should instruct, exhort, warn, and admonish temporal rulers she may declare that a civil law is unjust, but that she has no coercing power even indirectly in temporal matters. This position of the Gallican School is now abandoned by all Catholics, and has become obsolete. From what has been said it will be clear what are the nature, the extent, and the limits or civil allegiance according to the teaching of the Catholic Church. According to that teaching citizens are religiously bound to reverence and obey their civil rulers in all matters which belong to the sphere of civil government. That sphere comprises whatever may contribute to the temporal welfare of the whole body of citizens. As religion is a sacred duty and its practice contributes much to the well-being of the citizens, the State must not be indifferent to religion. Still the direct care of religion has not been committed to the state but to the Church founded by Christ, which is a society to which the baptized members of the State throughout the world belong, which has all the powers necessary for the attainment of its supernatural end, the sanctifcation and salvation of souls, and which is independent of the State. Hence, there are limits set to the duty of civil allegiance. The State is not competent to make laws in matter of religion, nor may it interfere with the rights of the Church.
[For the Sacrament of the Marriage is as a Matter of the Religion.]
If the State transgresses the limits assigned to it, the duty of obedience ceases: "We ought to obey God rather than men." This undoubted Christian principle is not invoked by the Catholic to shield his disloyalty and disobedience to the State under the specious pretext of following his conscience. The Catholic is not guided in matters of duty by private judgment, but by the public teaching and law of the Catholic Church. The State has nothing to fear from the action of the Catholic Church; her whole energies are bent on making her children good men, good Christians, good citizens. Moreover, the spiritual teaching, power, and influence of the Church are necessary in order to correct certain modern tendencies to exaggerate the power of the State. In proportion as certain doctrines of some socialists and idealists are translated into fact, the power of the State will be increased, and the liberty with which Christ has made free the Christian world will be in serious peril.
Theocracy
A form of civil government in which God himself is recognized as the head. The laws of the commonwealth are the commandments of God , and they are promulgated and expounded by the accredited representatives of the invisible Deity, real or supposed—generally a priesthood. Thus in a theocracy civic duties and functions form a part of religion, implying the absorption of the State by the Church or at least the supremacy of the latter over the State.
The earliest recorded use of the term "theocracy" is found in Josephus , who apparently coins it in explaining to Gentile readers the organization of the Jewish commonwealth of his time. Contrasting this with other forms of government—monarchies, oligarchies, and republics—he adds: "Our legislator [Moses] had no regard to any of these forms, but he ordained our government to be what by a strained expression, may be termed a theocracy [theokratian], by ascribing the power and authority to God , and by persuading all the people to have a regard to him as the author of all good things" (Against Apion, book II, 16). In this connection Josephus enters into a long and rather rambling discussion of the topic, but the entire passage is instructive.
The extent to which the ideals of the Mosaic theocracy were realized in the history of the Chosen People is a matter of controversy. Many eminent scholars are inclined to restrict its sway almost exclusively to the post-exilic period, when unquestionably the hierocratic rule and the ordinances of the Priestly Code were more fully carried into effect than in any of the preceding epochs. Be that as it may, and waiving critical discussion of the Old Testament writings with which the solution of the question is intimately connected, attention may be called to the fact that a belief in the theocratic rulership of nations and tribes is, in form more or less crude, characteristic of the common fund of Semitic religious ideas. The various deities were considered as having a territorial jurisdiction, fighting for their respective peoples and defending the lands in which they dwelled. This is amply proved by the extant historic and religious records of the Assyrians and Babylonians, and the same idea finds occasional expression in the Old Testament itself (see, for instance, Judges, xi, 23 sq.; I Kings, xxvi, 19; Ruth, i, 15, 16, etc.). In a passage of the Book of Judges, Gideon is represented as refusing to accept the kingship offered to him by the people after his victory over the Madianites, in terms implying that the establishment of a permanent monarchy would involve disloyalty to the rule of Yahweh. "I will not rule over you, neither shall my son rule over you, but the Lord shall rule over you" (Judges, viii, 23). More explicit and stronger expression is given to the same view in the First Book of Kings in connection with the appeal of the people to the aged prophet Samuel to constitute a king over them after the manner of the other nations. The request is displeasing to Samuel and to the Lord Himself, who commands the prophet to accede to the wishes of the people that they may be punished for their rejection of His kingship. "And the Lord said to Samuel: Hearken to the voice of the people in all that they say to thee. For they have not rejected thee, but me, that I should not reign over them" (I Kings, viii, 7). Again in chap. xii Samuel, in his final discourse to the people, reproaches them in similar words: "you said to me: Nay, but a king shall reign over us: whereas the Lord your God was your king". And at the call of the prophet the Lord sends thunder and rain as a sign of His displeasure, "and you shall know and see that you yourselves have done a great evil in the sight of the Lord, in desiring a king over you".
The bearing of these passages on the historic institution of the theocracy varies in the estimation of different scholars according to the date assigned by them to the sources to which the passages belong. Wellhausen and his school, chiefly on a priori grounds, consider them retouches of the post-exilic period, but it is far more probable that they form a part of a much older tradition, and indicate that a belief in the Lord's kingship over the Chosen People existed prior to the establishment of the earthly monarchy. At the same time, there is no sufficient warrant for assuming on the authority of these texts that the theocratic rule in Israel came to an end with the inauguration of the monarchy, as is plain from the narration of the Lord's covenant with King David and his descendants (II Kings, vii, 1-17). According to the terms of this covenant the earthly monarch remains under the control of the heavenly King, and is constituted His vicegerent and representative. And this direct dependence of the king on the Lord for wisdom and guidance is assumed throughout the historical records of the Hebrew monarchy. The supreme test of the worthiness of any king to occupy his exalted position is his fidelity to the Lord and His revealed law. The historical books, and still more the writings of the prophets, voice the constant belief that God exercised a special and efficient rule over Israel by blessings, punishments, and deliverances. In the post-exilic period the hierocratic rule became the dominant feature of the Jewish theocracy, and, in spite of its limitations and perversions, it prepared, according to the designs of a wise Providence, the way for the New Dispensation—the Kingdom of Heaven so often mentioned in the Gospels.
Civil Marriage
"Marriage", says Bishop, "as distinguished from the agreement to marry and from the act of becoming married, is the civil status of one man and one woman legally united for life, with the rights and duties which, for the establishment of families and the multiplication and education of the species, are, or from time to time may thereafter be, assigned by the law of matrimony." (I.Mar. and Div. Sec. 11.)
The municipal law deals with this status only as a civil institution. Though sometimes spoken of as a contract, marriage in the eyes of the municipal law is not a contract strictly speaking, but is a status resulting from the contract to marry. Justice Story speaks of it as "an institution of society founded upon the consent and contract of the parties". (Story, "Confl. Laws", Sec. 108.Note.) All competent persons may intermarry, and marriage being presumed to be for the interest of the State and of the highest public interest, is encouraged. It is held to be a union for life. The law does not permit it to be a subject of experimental or temporary arrangement, but a fixed and permanent status to be dissolved only by death or, where statutes permit, by divorce. In England, the solemnization of a marriage was required to be before a clergyman until the statute passed in 1836, and all other marriages excepting those of Quakers and Jews, were null. By that act civil marriages and those of dissenters from the Church of England are legalized and regulated. In order to constitute a valid marriage there must be a consent of the parties, and in some of the states of the Union no formality is necessary.
By the common law the age at which minors were capable of marrying, known as the age of consent, was fixed at fourteen years for males and twelve years for females. Marriages under the age of seven years for both were void, but between seven and the age of consent the parties could contract an imperfect marriage, which was voidable but not necessarily void. The marriage of parties who had attained the age of consent was valid even though they lacked parental consent, until in England the marriage act of 1753 declared such marriages void. This act, however, has never been the law in the United States. In England under the statute of 32 Henry VIII, c.38, all marriages were made lawful between parties not within the Levitical degrees of relationship; this was interpreted to mean all marriages excepting those between relatives in the direct line and in the collateral line to the third degree, according to the rules of the Civil Law, including both the whole and the half blood. In the United States, in the absence of statutes to the contrary, marriages are unlawful only in the direct ascending and descending line of consanguinity and between brothers and sisters. In most, if not all, of the States, however, there are statutes covering this subject, and in a number of them marriages between first cousins are forbidden. Marriages that are made without formalities, but by the mere consent of the parties, are known as common law marriages. In order to make such marriages effective, there must be a present intention to make the contract and it must be expressed accordingly,(in other words, "per verba de praesenti". Words expressing a future intention do not give the necessary consent, but when words are used with the future intention apparently, followed by consummation, or, as it is said, "per verba de futuro cum copula', a marriage is constituted, the future promise having been converted by action into an actual marriage. Marriages contracted without conforming to a statutory regulations are valid in a number of states and not in others. Formal solemnization is unnecessary. Where no penalty for disobedience of statutory formalities is provided, their omission does not invalidate the marriage.
The requirement of a license to marry was first brought into England by Lord Hardwicke's Marriage Act of 1753. It is not part of the common law of the United States, but very generally licenses are required in the states, though not to the extent of making marriages invalid where they have not been granted. The Society of Friends or Quakers is excepted from the requirement in some of the states, and in others the parties may have recourse to the publication of banns instead of securing a licenses. Parental consent is required in almost all of the states, the age for males being from sixteen to twenty-one and for females from eighteen to twenty-one. In nearly all of the states, if either of the parties has been continuously absent for a number of years and has not been known to be living during that time, the other party may contract a new marriage. The general doctrine of the law on the subject of foreign marriages is that a marriage valid where celebrated is valid everywhere. Exceptions are made in a number of states where citizens go to another jurisdiction in order to evade the laws of the home domicile. In some of the states marriages between persons of different races are made void. If either of the parties is not of sound mind at the time of entering into the marriage, it is void unless confirmed when sanity is regained. Where a physical incapacity exists the marriage may be made void on the application of the other party who was ignorant of the fact. Under the common law a marriage can be annulled for mistake as to identity or fraud. There are certain kinds of fraud where an ordinary contract would be declared void, which do not affect a marriage contract because of public policy. In some of the United States annulment would be allowed for deception as to chastity, but not it is said, in England. Duress sufficient to overcome the will of the consenting party is a cause for annulment unless subsequently ratified. As in England, so in all of the United States there are statutes regulating the formalities in connection with marriages other than common law marriages, and in addition to ministers of the various churches, who for the purpose are looked upon as civil officers, other designated officials are authorized to perform the marriage ceremony, excepting in a few of the states. Marriages may be proved both by direct and circumstantial evidence, the presumption being in favor of a former marriage where there has been cohabitation and reputation.
Where marriages are annulled, the decree relates back to the date of the marriage, while divorce relates only to the date of its own decree (see DIVORCE). Penalties are usually prescribed for violation of statutory regulations relating to a marriage by ministers or other persons authorized to perform the ceremony. Marriage of itself gives to the husband and wife certain interests in the property of the other, both real and personal, which by modern legislation have been largely modified. Formerly the husband was to all intents and purposes owner of his wife's property, but now she has absolute control of it in England and in the United States, reserving to the husband certain rights which become effective after her death. In England under the common law, the marriage of partners after the birth of children does not legitmate them, but in most of the American states and in European continental countries it is sought to encourage marriage by providing that illegitimate children may thus be legitimated. The laws of most foreign countries make strict requirements as to mental capacity, and establish certain degrees of consanguinity and affinity within which marriage cannot be contracted. There are certain impediments, not known in the United States, imposing a period of delay in connection with military service, and providing a time within which a woman may not contract marriage after the dissolution of a previous one. The tendency in continental countries is to establish civil marriage as the only form recognized by the State. This is the law in Belgium, France, Germany, Hungary, Italy, the Netherlands, Rumania, and Switzerland, where the civil ceremony alone is recognized in the eyes of the law, and in most of these countries clergymen are prohibited under severe penalties from performing the religious ceremony before the civil marriage has taken place. A civil ceremony is required in Austria when both parties belong to no legally recognized Faith. There are similar provisions in Denmark, Norway and Sweden. Bulgaria, Finland, Croatia, Slavonia, and Servia recognize the religious ceremony alone.
In Japan a marriage code which became effective in 1898, contains sections dealing with the laws of family and of succession. The form of ceremony is not regulated, but the marriage itself is valid only under certain conditions. The laws of countries other than the United States provide in a number of instances for the consent of parents or guardian after the parties have attained the age of twenty-one years. Thus in Austria parties between the age of fourteen and twenty-four years are incapable of contracting a valid marriage without the consent of their father or, if he be dead or incapable of acting, both of their guardian and of the court. Even for those who have attained the age of twenty-four, but who for any reason are incapable of entering into a valid obligation, e.g. if they have been legally declared spendthrifts, such consent is necessary. In the case of minors of illegitimate birth, the consent both of the guardian and of the court is requisite. In general, persons in military service cannot contract a valid marriage without the written permission of their superiors. A law of 1889 provides that a man shall not be permitted to marry before reaching the age of military service, or before leaving the third age class, i.e., at the age of twenty-three years. In France the man must be at least eighteen years of age and the woman fifteen to contract a valid marriage, unless the President of the Republic grants a special dispensation. By a law dated 25 June, 1907, parental consent is no longer required for men and women over twenty-one years of age, but both men and women under thirty must ask for it and serve upon the dissenting parent or parents an instrument requesting it. The parties may marry three days after service has been made. Under the law previous to that date, men under the age of twenty-five and women under the age of twenty-one could not marry without the consent of their parents or the survivor if one of them was dead.
In England the common law rule of fourteen for males and twelve for females governs the marriage age. Consent of parents is necessary for persons under twenty-one, except for a widow or widower. The proper person to give consent is the father or, if he be dead, the mother, if unmarried, or finally a guardian appointed by the Court. Soldiers must get the consent of their commander. Violation of these provisions does not, however, invalidate the marriage; but in case of soldiers the woman is not recognized as having a military status. In Scotland the impediments are the same as in England, but no consent of parents or guardian is required. Regular marriages are celebrated by some minister of religion in the presence of at least two witnesses, after the publication of banns or issuance of registrar's certificate. Irregular marriages are clandestine marriages, celebrated without publication of banns or notice to the registrar. Such marriages may be made by mere consent without a clergyman and are valid. In Ireland provisions are made for marriages by Episcopalians, Catholics, and Presbyterians, by ministers of other denominations, and by the civil registrars. The impediments to marriage are substantially the same as in England.
In Germany a man may not marry, except in unusual cases, under the age of twenty-one or a woman under the age of sixteen. A legitimate child under the age of twenty-one must obtain the consent of the father or, if he be dead, of the mother; an illegitimate child, the consent of the mother; an adopted child, the consent of the foster parent. Military men, public officials, and foreigners, before marriage, must obtain a special permit, and military men in active service must also obtain the consent of their officers.
In Italy the consent of the parents or next of kin is required for men under twenty-five years of age and for women under twenty-one years of age. In case of refusal of consent, provision is made for an appeal to a court. Foreigners desiring to marry in Italy must present a certificate from a competent authority that they have satisfied the requirements of the laws of their own country. Foreigners ordinarily residing in Italy are subject to the requirements of the Italian law. Military officials cannot marry without the royal permission, which is not given unless they have an assured income of about eight hundred dollars at least, and have made a settlement for the benefit of the bride. Somewhat similar regulations are made for lower officers and privates in revenue service.
In the Netherlands the consent of parents is required of an individual under thirteen years of age. The marriageable age begins with men at eighteen and women at sixteen. If both parents are dead or incapacitated, an individual under twenty-one requires the consent of a grandparent or, in default of a grandparent, of a guardian and second guardian. Officers of the army and navy require the consent of the sovereign before they can marry, and no man between the ages of eighteen and forty may marry unless he has proved he has performed military service or has been excused from it.
In Switzerland the consent of parents is required of all persons under twenty years of age. The consent of parents is required also in Belgium of all persons under the age of twenty-five, the law being somewhat similar to that of France.
In Russia children must obtain the consent of their parents if living, without regard to their age, a man attaining the marriageable age at eighteen and a woman at sixteen.
In Denmark the marriageable age is twenty for men and sixteen for women, and consent of parents must be obtained by minors under the age of twenty-five.
In Sweden females under the age of twenty-one require the consent of a marriage guardian, usually her father or brother or some other male relative. Men require no parental consent. Men may marry at the age of twenty-one or over, and women at the age seventeen or over.
In Norway the marriageable age for men is twenty and for women sixteen. Parental consent is necessary for both parties under the age of eighteen.
Parental consent appears to be necessary, under certain conditions, in all European countries where the parties are under the age of twenty-one and in many where they are liable to military service. In Japan the consent of parents or of the family council is essential to the marriage of a man under thirty and of a woman under twenty-five. The marriage laws of the different Canadian province are not uniform but are quite similar. The minimum age for marriage in the Province of Quebec is fourteen for males and twelve for females. Parental consent is necessary for any one under twenty-one years of age. In Quebec alone of the Canadian Provinces illegitimate children are legitimated by the marriage of their parents. The laws of Australia and New Zealand are based upon the English statutes and common law.
Notes
Bishop, Marriage, Divorce and Separation (Chicago, 1891); AM. and Eng. Enc. of Law s.v. Marriage; Bouvier, Law Dictionary; special reports of the Census Office (Washington, 1867-1906, Part I), with a valuable summary of the marriage and divorce laws of all modern States, from which the foregoing facts in relation to foreign countries have been derived.

Byzantine Marriage Contract (726)

The Contract of Marriage, in the Ecloga of Leo III, (726): Byzantine marriage law progressively migrated from civil to church courts, with the eventual requirement that marriage services be conducted by the Church.

E- Freshfield, trans., A Manual of Roman Law: The 'Ecloga" (Cambridge, 1926) pp. 72-74. Reprinted in Deno Geanokoplos, Byzantium , (Chicago: 1984), 266-67

x Moral and Canonical Aspect of Marriage
Marriage is that individual union through which man and woman by their reciprocal rights form one principle of generation. It is effected by their mutual consent to give and accept each other for the purpose of propagating the human race, of educating their offspring, of sharing life in common, of supporting each other in undivided conjugal affection by a lasting union.
I. MARRIAGE INSTITUTED BY GOD
Marriage is a contract and is by its very nature above human law. It was instituted by God , is subject to the Divine law, and cannot for that reason be rescinded by human law. Those who contract marriage do so indeed by their own free wills, but they must assume the contract and its obligations unconditionally. Marriage is natural in purpose, but Divine in origin. It is sacred, being intended primarily by the Author of life to perpetuate His creative act and to beget children of God ; its secondary ends are mutual society and help, and a lawful remedy for concupiscence. Human law certainly takes cognizance of marriage, but marriage not having been established by man, its essential properties cannot be annulled by such law. Marriage is monogamic and indissoluble; death alone dissolves the union when consummated.
When men pretend to be the final arbiters of the marriage contract, they base their claim on the assumption that this contract is merely of human institution and is subject to no laws above those of man. But human society, both in its primitive and organized form, originated by marriage, not marriage by human society. Marriage was intended by the Creator for the propagation of the human race and for the mutual help of husband and wife. The monogamic and indissoluble properties of marriage were for a time dispensed by Divine permission. Thus in the patriarchal times of the Old Testament polygamous marriage was tolerated. The right of dismissal also by the bill of divorce was legal (Deut., xxiv sqq.; Matt., xix, 3-12). Still, marriage never lost its sacred character in the Old Dispensation. It continued a type and figure of marriage in the New Law. Other nations besides the Jews treated marriage with such regard and ceremony as betoken their belief in its superhuman character. Evolutionists, indeed, account for marriage by the gregarious habits of human beings. They consider it a developed social instinct, a matter of utility, convenience, and decency, a consequence of sexual intercourse, which human society decided to regulate by law, and thus encourage a state of affairs conducive to the peace and happiness of the race. They do not deny that the religious feeling latent in the human heart regarding marriage and the religious ceremonies attendant on its celebration have their utility, but they insist that marriage is entirely a natural thing. Socialists entertain this same view of marriage; they deprecate excessive state control of the marriage contract, but would impose the duty of providing for, and educating, children on the State. The ethical value of marriage is certainly lowered by such views. Marriage, though contracted to preserve order, would still remain subject to human caprice. It would not bind the couple to an inseparable union. It would exclude polyandry, but not polygamy or divorce. By principles borrowed from Christian tradition , polygamy, strange to say, is proscribed even by those whose ethics of marriage are naturalistic, evolutionary and socialistic.
II. MARRIAGE IN THE CHRISTIAN DISPENSATION
Christ revoked the dispensation granted in the Mosaic law. He promulgated the original Divine law of monogamic and indissoluble marriage; in addition, He raised marriage to the dignity of a sacrament (Gen., ii, 24; Matt., xix, 3 sqq.; Luke, xvi, 15 sqq.; Mark, x, 11 sqq.; I Cor., vii, 2 sqq.). "If any one should say, matrimony is not truly and properly one of the seven sacraments of the Gospel law, instituted by Christ, but an invention of man, not conferring grace, let him be anathema " (Council of Trent, Sess. XXI, can. 1). Under the Christian law, therefore, the marriage contract and the sacrament are inseparable and indivisible; for, in virtue of Christ's legislative act, the consent in marriage produces, besides sanctifying grace, its peculiar sacramental grace. Whenever the marriage contract is duly made, the sacrament is truly effected. That is undoubtedly the case when both parties to marriage are by baptism members of the mystical body of Christ, for "This is a great sacrament; but I speak in Christ and in the church" (Ephes., v, 32). Hence the moral and canonical aspect of matrimony in the Christian dispensation is necessarily determined by the sacramental character of the marriage contract.
A. The Church being the Divinely appointed custodian of all sacraments, it belongs to her jurisdiction to interpret and apply the Divine law of marriage. She cannot repeal or change that law. Marriage is, in its essential requirements, ever the same, monogamic and indissoluble. The contract validly made and consummated is dissolved by death alone. However, the Church must determine what is required for a valid and licit marriage contract. Doubt in so grave a matter, or uncertainty as to the form and duties of marriage, would be disastrous for the temporal and spiritual good of individuals and of society. The Church safeguards the sacramental contract by unremitting solicitude and directs the consciences and conduct of those who marry by moral teaching and canonical legislation. The procedure of her courts in cases where the validity or legality of a marriage is involved, is ordered by admirable insight. The Church derives her power to legislate in matrimonial affairs, not from the State, but from Christ; and acts, not on sufferance, but by Divine right. She recognizes the duty of the State to take cognizance of Christian marriage , in order to insure certain civic effects, but her jurisdiction is superior and of Divine origin.
B. The laws of the Church governing Christian marriage are fundamental and unchangeable laws; or accidental, circumstantial, and changeable laws. The natural law, Divine revealed law, and the Apostolic law of marriage are interpreted by the Church, but never repealed or dispensed from. Circumstantial laws are enacted by the Church, and may vary or be repealed. Hence disciplinary laws, regulating solemnities to be observed in marriage, and laws defining qualifications of parties to marry, are not so rigid as to admit of no change, if the Church sees fit to change them, owing to difference of time and place; the change too may affect the validity or the legality of a marriage. The Church, therefore, has laid down the conditions requisite for the validity of the matrimonial consent on the part of those who marry, and has legislated on their respective rights and duties. The marriage bond is sacred; married life symbolizes the union between Christ and His Church (Ephes., v 22 sqq) and the Church protects both by such rules as will maintain their Christian characteristics under all circumstances.
C. The moral law looks to the conduct of those who marry; canon law regulates matrimonial courts of the Church. There is no marked point of difference between them; they rather form a complete system of legislation concerning the Sacrament of Marriage. Of course baptized persons alone receive the sacraments. Some theologians regard a marriage in which only one party is baptized as a sacrament. Whether those who have been baptized, but are not members of the body of the Church, or unbaptized persons are exempt from all purely Church matrimonial law is a disputed question.
D. As citizens of the State, Christians should certainly comply with the civil laws regulating marriage for certain civil effects, though they must not consider the marriage contract as something distinct from the sacrament, for the two are inseparable. One result of the defection from the Church in the sixteenth century was a belief that marriage is a civil ceremony. The opinion of several canonists, who, wishing to justify this view taught that the contract of marriage might possibly be separated from the sacrament, was condemned in the syllabus of Pius IX in 1864 (numbers 65 and 66). It is likewise erroneous to consider the priest the minister of the sacrament; he is the authorized witness of the Church to the contract. The parties contracting really administer the sacrament to themselves.
E. It is historical fact that the Church always recognized the right of the State to legislate in certain respects concerning marriage, on account of its civil effects. The enactment of laws fixing the dowry, the right of succession, alimony and other like matters, belongs to the secular authorities according to the common teaching of canonists. When, however, the State enacts laws inimical to the marriage laws of the Church, practically denying her right to protect the sacred character of matrimony, she cannot allow her children to submit to such enactments. She respects the requirements of the State for the marriages of its citizens as long as those requirements are for the common good, and in keeping with the dignity and Divine purpose of marriage. Thus, for instance, she recognizes that a defect of mind or a lack of proper discretion is an impediment to matrimony. Certain defects of body, particularly impotency, disqualify likewise. The Church, on the other hand, justly expects the State to treat her laws, such as those of celibacy , with respect (see Schmalzgrüber, vol. IV, part I, sect. 2; and vol. IX, part II, title 22, for obsolete canonical rules). A marriage is said to be canonical or civil: canonical, when contracted in accordance with Church law; civil, if the ordinances of civil law are observed. In addition, we sometimes speak of a secret marriage, or a marriage of conscience, that is, a marriage of which the banns have not been published, celebrated by the parish priest and witnesses under bond of secrecy, with the bishop's permission. A true marriage is one duly contracted and capable of being proved in the ordinary way; a presumptive marriage, when the law presumes a marriage to exist; a putative marriage, when it is believed to be valid, but is in reality null and void, owing to the existence of a hidden diriment impediment.
There is, again, a special kind of marriage which needs explanation here. When a prince or a member of a ruling house weds a woman of inferior rank, especially if her family is plebeian, the marriage is generally known as a morganatic marriage. In this case it is as valid and licit before the Church as any other lawful marriage, but there are certain civil disabilities. First, the children born in such wedlock have no right to the title or crown of their father, since those who are to succeed him ought not to suffer from the social disadvantages arising from the inferior rank of their father's morganatic wife. In some countries, however, the law concedes a hope of succession to such children if all the direct heirs should die. The morganatic wife and her children receive, by agreement or stipulation, a dowry and means of support, the amount being in some countries at the discretion of the king or prince, in others fixed by law.
III. MATRIMONIAL COURTS IN THE CHURCH
Doubtful marriage cases are decided in courts provided by the canon law for that purpose. The doubt may arise from a supposed hidden or occult impediment or from a public impediment. In the former case (occult impediment) the question is decided pro foro interno in the tribunal of penance or by the penitentiary Apostolic at Rome. In such cases strict secrecy, similar to that of the confessional, is observed, particularly with regard to names and places of residence. In the latter case (public impediment) the doubt has always to be settled pro foro externo in the matrimonial courts; for no general laws can be made to cover all possible circumstances, and the practical application of the canonical and moral laws of marriage to actual cases, just as happens with civil laws, involves at times questions de jure and de facto , which must be settled by competent judges. In every diocese presided over by a bishop and especially in every metropolitan see, the canon law requires a matrimonial court. Such a court has no power to legislate, but adjudicates according to the laws and the precedents of the Roman courts. Bishops of dioceses, national and provincial councils may, however, enforce stricter observance of the general laws in their respective jurisdictions; if peculiar circumstances require it, they can legislate against abuses and insist on special points of law; for instance, they may demand certain qualifications in witnesses to marriage, and prescribe certain preliminaries for mixed marriages, binding on priest and people under pain of sin. From the decisions of the diocesan and the metropolitan courts, particularly in questions involving nullity of marriage, appeal can be taken to the courts of the Holy See . the decisions of these courts are final, especially when the Holy Father approves them. In rare cases a reopening is allowed, and then, usually, because new evidence is offered. Since Pius X reorganized the Roman Curia by the Constitution "Sapienti consilio" (29 June, 1908), such appeals must be made to the congregation, tribunal or office specified in that Constitution to deal with them: For the future every question regarding mixed marriages is to be brought before the Congregation of the Holy Office; likewise, all points which either directly or indirectly, in fact or in law, refer to the Pauline Privilege" (Answer of the Congregation of the Consistory to letter of Holy Office, 27 March, 1909). (For the procedure in case of appeals from countries under the jurisdiction of Propaganda, see PROPAGANDA.)
IV. THE NEW MARRIAGE LEGISLATION
The marriage law, known by its initial words, "Ne temere", went into force on Easter Sunday , 18 April, 1908. The principal changes it made in the Church's matrimonial legislation relate to clandestine marriages (which it makes null and void for all Catholics of the Latin Rite) and to questions incidental thereto. The law enacts that a marriage of Catholics of the Latin Rite is licit and valid only if contracted in the presence of the ordinary, or the parish priest, or a priest delegated by either, and at least two witnesses. Any priest may revalidate a sinful or an invalid marriage of those who, through sickness, are in serious danger of death, unless their case is such as admits of no revalidation — as for instance, if they are in holy orders. Again, in the case of those who live in districts where no priest resides, and who cannot without serious hardship go to one, the new law provides that, if such condition has lasted a month, they may marry without a priest, but in the presence of two witnesses, the record of their marriage being properly made as prescribed. The law makes no exception in favour of mixed marriages, not even when one party is a Catholic of an Eastern Rite. By a special dispensation, mixed marriages — i. e., both parties being baptized, one a Protestant , the other a Catholic — of Germans marrying within the boundaries of the German Empire are valid, though clandestinely contracted. A like dispensation has been granted to Hungarians marrying within the boundaries of Hungary; and according to the Secretary of the S. Congregation of Sacraments (18 March, 1909), Croatians, Slavonians, inhabitants of Transylvania, and of Fiume enjoy a similar dispensation. Catholics of the various Eastern rites, who are in union with the Holy See , are exempt from the law; likewise all non-Catholics, except those who have been baptized in the Church, but have fallen away.
The law is not retroactive. Marriages contracted before its promulgation will be adjudicated, in case of doubt, according to the laws in force at the time and place of marriage. It simplifies procedure. Former difficulties arising from quasi-domicile are done away with by a month's residence even when taken in fraudem legis; the ordinary or the parish priest is the authorized witness of the Church, and he or a priest delegated by him by name, can assist validly at any marriage within his territory, even though the parties come from without it; though, of course, such ordinary or parish priest needs, and should ask for, letters of permission from the proper authority to assist licitly at such a marriage. The local authorities may increase the punishment assigned in the text of the law for any infraction of this provision. By a decree of the Sacred Congregation of the Sacraments (7 March, 1910), the power to dispense kings or royal princes from impediments, diriment or impedient, is henceforth reserved in a special manner to the Holy See , and all faculties granted heretofore in such cases to certain ordinaries are revoked. In the peculiar circumstances of certain Indian dioceses (see INDIA, Double Jurisdiction ), the question has been asked: Whether for persons residing in India within a double jurisdiction, it is sufficient, in order to a valid and licit marriage, to stand before the personal parish priest of one or both; or whether they must also stand before the territorial parish priest. The question having been referred to the Holy Father, the Congregation of the Sacraments replied, with the approbation of His Holiness, in view of the peculiar circumstances, affirmatively to the first part; negatively to the second part.
V. MARRIAGE INDISSOLUBLE EXCEPT BY DEATH
It must again be repeated here that the Church teaches, and has always taught, that death alone can dissolve a ratified and consummated Christian marriage . When the death of either party is not proved by such evidence as is required by canon law, there is no permission to re-marry. The instruction "Matrimonii vinculo" (1868) is still strictly followed, as appears from an answer of the Sacred Congregation of the Sacraments to cases that arose in the earthquake district in Southern Italy in March, 1910. Marriages ratified but not consummated by sexual intercourse are sometimes dissolved by the Roman Pontiff in virtue of his supreme power; sometimes they are dissolved by entrance into the religious life and by actual profession of solemn vows. Such dissolutions of marriages that are merely ratified are in no sense subversive of "what God hath joined let no man put asunder" (Matt., xix, 6). Again the matrimonial courts may find on the evidence adduced that a marriage is null and void; there may have been a known or a hidden diriment impediment when the marriage was contracted. In some instances such a marriage is revalidated after securing the required dispensation, if such be possible, by a renewal of consent in proper form, or, accepting the previous consent, which was never actually retracted, by remedying the defect in radice . In other instances, the marriage being by juridical sentence declared null and void, the parties to it are free to enter new alliances. But that is quite different from granting a divorce in the case of a valid consummated marriage.
VI. MATRIMONIAL CONSENT
Those who marry do so by signifying their consent to be man and wife. Consent is of the very essence of marriage, and it is in consequence of their free, deliberate consent that a man and a woman become husband and wife. Marriage being a contract forming essentially an indissoluble union, it is important to know whether the consent can be so defective as to make a marriage morally and canonically invalid.
A. (1) The act of being married is the mutual consenting of the parties, the giving and accepting of each other. "Thus the wife hath not power of her own body, but the husband. And in like manner the husband also hath not power of his own body, but the wife" (I Cor., vii, 4). It is not sufficient to give the consent internally only, it must be signified by some outward sign. Canon law does not absolutely require the personal presence of both parties to marriage; but, one being present, giving his consent to marry the absent party, the absent party must signify her consent by proxy or by letter. The Sacred Congregation of the Rota recently decided a marriage to be valid at which the consent of one party was given verbally, and that of the other by letter. "Now although matrimony was raised to the dignity of a sacrament by Christ, it did not lose the nature of a contract; hence, like other contracts, it is perfected by consent of both parties. There is no obstacle, consequently, to contracting marriage by letter" (see Acta Apostolicæ Sedis, year 2, vol. II, no. 7, 30 April, 1910, p. 300). The consent, however, must be signified in such a manner as to make the consent of both parties clear and unmistakable to the priest and witnesses. The nature of the contract as well as its consequent duties and properties are independent of the will of the parties contracting. Hence, if by any implied or expressed condition one or both parties qualify the contract in its essentials, the contract itself would be vitiated and nullified.
(2) The consent must be free and deliberate. Violence or coercion by fear in a degree so great as to deprive either party of his freedom to dissent would invalidate the consent given. The motives that prompt consent may be improper, but still they are compatible with the freedom required, and hence do not nullify the contract. The fear need not be absolute but if it be relatively so strong as to prompt external consent while the party dissents internally, canon law considers the requisite freedom wanting, and the contract null and void (see "Acta Apostolicæ Sedis", vol. II, n� 8, p. 348, 26 Feb., 1910).
(3) The party or parties giving consent in the act of marriage might be in error as to the person or quality of person whom they are actually marrying. An error is an impediment based on natural law. Natural law protects the marriage contract; it requires that the object of the consent shall be, not only naturally capable of the contract, but personally intended. The marriage contract requires that the persons contracting should be definite. Ecclesiastical law confirms this, and even extends its natural limits: if the error is as to the person, the contract is null and void — e. g., if, instead of the girl he consents to marry, her sister were given in marriage by some accident or fraud. If the error is as to a personal quality, then the law, to recognize a plea of non-consent, requires that the quality should have been absolutely intended by the party contracting, and it must be shown that such quality was a condition sine qua non of the marriage. Thus, in ancient canon law, if a freeman married a woman whom he believed to be free while in fact she was a bondwoman, his marriage was null and void, unless, after discovering his error, he continued to live and cohabit with her.
B. A condition expressed or implied in the marriage contract may regard the past, the present, or the future. It must be noted, however, that canon law, in foro externo , takes into account such conditions only as are definitely expressed — "De internis non judicat". Conditions or intentions implied by both or either party consenting in marriage may establish a case of conscience to be settled in the tribunal of conscience; but the courts take no cognizance of it. Before the law a marriage is valid until the vitiating condition or intention is established by certain proof. Hence a possible anomaly: a marriage invalid in reality, yet valid before the law. In general, conditional consent in marriage is forbidden. A parish priest may not permit it on his own authority. Parties to a marriage, however, might, when they make the compact, put conditions, implied or expressed. Would that vitiate the contract of marriage? If the condition concern the past or the present, the contract is valid if the condition is verified at that moment, thus: "I take you for my husband, if you are the man to whom I was betrothed." If the condition regard the future, it must be noted that, if it frustrates any essential property of marriage, it nullifies the act of marriage; if it postulates an act against the very nature of marriage, the marriage is null. Again, the mutual rights acquired and given in marriage being exclusive and perpetual, any condition added by both or one party to frustrate marriage in its natural consequences nullifies the contracts. A resolve or intention, however, to sin against the nature of marriage, or to prove unfaithful, is, of course, no such condition. But a consent in marriage qualified by conditions such as to avoid procreation or birth of children, to have other wives or husbands — conditions excluding conjugal fidelity, denying the sacrament or perpetuity of the marriage bond — is a radically vitiated consent, and consequently of no value. Thus: "I marry, but you must avoid having children"; or, "I marry you until I find someone to suit me better." The condition must be actual, predominant in the will of one or both, denying perpetual union or interchange of conjugal rights, or at least limiting them, to make the marriage null and void (Decretals, IV, tit. v, 7).
There might be a sinful agreement between those contracting marriage which likewise nullifies their marriage — e. g., not to have more than one or two children, or not to have any children at all, until, in the judgment of the contracting parties, circumstances shall enable them to be provided for; or to divorce and marry someone else whenever they grow tired of each other. Such an agreement or condition denies the perpetual duties of matrimony, limits matrimonial rights, suspends the duty consequent on the use and exercise of those rights; if really made a sine qua non of marriage, it necessarily annuls it; the parties would wish to enjoy connubial intercourse, but evade its consequences. The agreement to abstain from the use of conjugal rights is, however, quite different, and does not nullify the marriage contract. The parties to the marriage fully consent to transfer to each other the conjugal rights, but, by agreement or vow, oblige themselves to abstain from the actual use of those rights. Now, if, contrary to their agreement or vow, either party should demand the actual use of his or her right, it would not be fornication, though a breach of promise or vow. Such a condition, though possible, is not frequent nor even permissible except in cases of rare virtue.
Again, Christian marriage being a sacrament as well as a contract, can matrimonial consent be such as to exclude the sacrament and intend only the contract? Christian marriage being essentially a sacrament, as we have seen, any condition made to exclude the sacrament from the contract would nullify the latter.
History of Marriage
The word marriage may be taken to denote the action, contract, formality, or ceremony by which the conjugal union is formed or the union itself as an enduring condition. In this article we deal for the most part with marriage as a condition, and with its moral and social aspects. It is usually defined as the legitimate union between husband and wife. "Legitimate" indicates the sanction of some kind of law, natural, evangelical, or civil, while the phrase, "husband and wife", implies mutual rights of sexual intercourse, life in common, and an enduring union. The last two characters distinguish marriage, respectively, from concubinage and fornication. The definition, however, is broad enough to comprehend polygamous and polyandrous unions when they are permitted by the civil law; for in such relationships there are as many marriages as there are individuals of the numerically larger sex. Whether promiscuity, the condition in which all the men of a group maintain relations and live indiscriminately with all the women, can be properly called marriage, may well be doubted. In such a relation cohabitation and domestic life are devoid of that exclusiveness which is commonly associated with the idea of conjugal union.
(1) The Theory of Primitive Promiscuity
All authorities agree that during historical times promiscuity has been either non-existent or confined to a few small groups. Did it prevail to any extent during the prehistoric period of the race? Writing between 1860 and 1890, a considerable number of anthropologists, such as Bachofen, Morgan, McLennan, Lubbock, and Giraud-Teulon, maintained that this was the original relationship between the sexes among practically all peoples. So rapidly did the theory win favour that in 1891 it was, according to Westermarck, "treated by many writers as a demonstrated truth" (History of Human Marriage, p. 51). It appealed strongly to those believers in organic evolution who assumed that the social customs of primitive man, including sex relations, must have differed but slightly from the corresponding usages among the brutes. It has been eagerly adopted by the Marxian Socialists, on account of its agreement with their theories of primitive common property and of economic determinism. According to the latter hypothesis, all other social institutions are, and have ever been, determined by the underlying economic institutions; hence in the original condition of common property, wives and husbands must likewise have been held in common (see Engles, "The Origin of the Family, Private Property, and the State", tr. from German, Chicago, 1902). Indeed, the vogue which the theory of promiscuity for a time enjoyed seems to have been due far more to a priori considerations of the kind just mentioned, and to the wish to believe in it, than to positive evidence.
About the only direct testimony in its favour is found in the fragmentary statements of some ancient writers, such as Herodotus and Strabo, concerning a few unimportant peoples, and in the accounts of some modern travellers regarding some uncivilized tribes of the present day. Neither of these classes of testimony clearly shows that the peoples to which they refer practised promiscuity, and both are entirely too few to justify the generalization that all peoples lived originally in the conditions which they describe. As for the indirect evidence in favour of the theory, consisting of inferences from such social customs as the tracing of kinship through the mother, religious prostitution, unrestrained sexual intercourse previous to marriage among some savage peoples, and primitive community of goods,(none of these conditions can be proved to have been universal at any stage of human development, and every one of them can be explained more easily and more naturally on other grounds than on the assumption of promiscuity. We may say that the positive arguments in favour of the theory of primitive promiscuity seem insufficient to give it any degree of probability, while the biological, economic, psychological, and historical arguments brought against it by many recent writers, e.g. Westermarck (op. cit., iv-vi) seem to render it unworthy of serious consideration. The attitude of contemporary scholars is thus described by Howard: "The researches of several recent writers, notably those of Starcke and Westermarck, confirming in part and further developing the earlier conclusions of Darwin and Spencer, have established a probability that marriage or pairing between one man and one woman, though the union be often transitory and the rule frequently violated, is the typical form of sexual union from the infancy of the human race" (History of Matrimonial Institutions, I, pp. 90, 91).
(2) Polyandry and Polygamy
One deviation from the typical form of secular union which, however, is also called marriage, is polyandry, the union of several husbands with one wife. It has been practised at various times by a considerable number of people or tribes. It existed among the ancient Britons, the primitive Arabs, the inhabitants of the Canary Islands, the Aborigines of America, the Hottentots, the inhabitants of India, Ceylon, Thibet, Malabar, and New Zealand. In the great majority of these instances polyandry was the exceptional form of conjugal union. Monogamy and even polygamy were much more prevalent. The greater number of the polyandrous unions seem to have been of the kind called fraternal; that is the husbands in each conjugal group were all brothers. Frequently, if not generally, the first husband enjoyed conjugal and domestic rights superior to the others, was, in fact, the chief husband. The others were husbands only in a secondary and limited sense. Both these circumstances show that even in the comparatively few cases in which polyandry existed it was softened in the direction of monogamy; for the wife belonged not to several entirely independent men, but to a group united by the closest ties of blood; she was married to one family rather than to one person. And the fact that one of her consorts possessed superior marital privileges shows that she had only one husband in the full sense of the term. Some writers, e.g. McLennan (Studies in Ancient History, pp.112, sq.) have asserted that the Levirate, the custom which compelled the brother of a deceased husband to marry his widow, had its origin in polyandry. But the Levirate can be explained without any such hypothesis. In many cases it merely indicated that the wife, as the property of her husband, was inherited by his nearest heir, i.e. his brother; in other instances, as among the ancient Hebrews, it was evidently a means of continuing the name, family, and individuality of the deceased husband. If the Levirate pointed in all cases to a previous condition of polyandry, the latter practice must have been much more common than it is shown to have by direct evidence. It is certain that the Levirate existed among the New Caledonians, the Redskins, the Mongols, Afghans, Hindoos, Hebrews, and Abyssinians; yet none of these peoples shows any trace of polyandry. The principal causes of polyandry were the scarcity of women, due to female infanticide and to the appropriation of many women by polygamous chiefs and strong men in a tribe, and to the scarcity of the food supply, which made it impossible for every male member of a family to support a wife alone. Even today polyandry is not entirely unknown. It is found to some extent in Thibet, in the Aleutian Islands, among the Hottentots, and the Zaporogian Cossacks.
Polygamy (many marriages) or, more correctly, polygyny (many wives) has been, and is still much more common than polyandry. It existed among most of the ancient peoples known to history, and occurs at present in some civilized nations as in the majority of savage tribes. About the only important peoples of ancient times that showed little or no traces of it were the Greeks and the Romans. Nevertheless, concubinage, which may be regarded as a higher form of polygamy, or at least as nearer to pure monogamy, was for many centuries recognized by the customs and even by the legislation of these two nations (see Concubinage). The principle peoples among whom the practice still exists are those under the sway of Mohammedanism , as those of Arabia, Turkey, and some of the peoples of India. Its chief home among uncivilized races is Africa. However widespread polygamy has been territorially, it has never been practised by more than a small minority of any people. Even where it has been sanctioned by custom or the civil law, the vast majority of the population have been monogamous. The reasons are obvious: there are not sufficient women to provide every man with several wives, nor are the majority of men able to support more than one. Hence polygamous marriages are found for the most part among the kings, chiefs, strong men, and rich men of the community; and its prevailing form seems to have been bigamy. Moreover, polygamous unions are, as a rule, modified in the direction of monogamy, inasmuch as one of the wives, usually the first married, occupies a higher place in the household than the others, or one of them is the favourite, and has exceptional privileges of intercourse with the common husband.
Among the principal causes of polygamy are: the relative scarcity of males, arising sometimes from numerous destructive wars, and sometimes from an excess of female births; the unwillingness of the husband to remain continent when intercourse with one wife is undesirable or impossible; and unrestrained lustful cravings. Still another cause, or more properly a condition, is a certain degree of economic advancement in a people, and a certain amount of wealth accumulated by some individuals. In the rudest societies polygamy is almost unknown, because hunting or fishing are the chief means of livelihood, and female labour has not the value that attaches to it when a man's wives can be employed in tending flocks, cultivating fields, or exercising useful handicrafts. Before the pastoral stage of industry has been reached scarcely any one can afford to support several women. When, however, some accumulation of wealth has taken place, polygamy becomes possible for the more wealthy, and for those who can utilize the productive labour of their wives. Hence the practice has been more frequent among the higher savages and barbarians than among the very lowest races. At a still higher stage it tends to give way to monogamy.
We may now sum up the whole historical situation concerning the forms of sexual union and of marriage in the words of one of the ablest living authorities in this field of investigation:
It is not, of course, impossible that, among some peoples, intercourse between the sexes may have been almost promiscuous. But there is not a shred of genuine evidence for the notion that promiscuity ever formed a general stage in the history of mankind . . . although polygamy occurs among most existing peoples, and polyandry among some, momogamy is by far the most common form of human marriage. It was so among the ancient peoples of whom we have any direct knowledge. Monogamy is the form which is generally recognized and permitted. The great majority of peoples are, as a rule, momogamous, and the other forms of marriage are usually modified in a monogamous direction. We may without hesitation assert that, if mankind advance in the same direction as hitherto; if, consequently, the causes to which monogamy in the most progressive societies owes its origin continue to operate with constantly growing force; if, especially, altruism increases and the feeling of love becomes more refined and more exclusively directed to one, (the laws of monogamy can never be changed, but must be followed much more strictly than they are now. (Westermarch, op.cit., pp. 133, 459,510)
The experience of the race, particularly in its movement toward and its progress in civilization, has approved monogamy for the simple reason that monogamy is in harmony with the essential and immutable elements of human nature. Taking the word natural in its full sense, we may unhesitatingly affirm that monogamy is the only natural form of marriage. While promiscuity responds to certain elemental passions and temporarily satisfies certain superficial wants, it contradicts the parental instinct, the welfare of children and of the race, and the overpowering forces of jealousy and individual preference in both men and women. While polyandry satisfied in some measure the temporary and exceptional wants arising from scarcity of food or scarcity of women, it finds an insuperable barrier in male jealousy, in the male sense of proprietorship, and is directly opposed to the welfare of the wife, and fatal to the fecundity of the race. While polygamy has prevailed among so many peoples and over so long a period of history as to suggest that it is in some sense natural, and while it does seem to furnish a means of satisfying the stronger and more frequently recurring desires of the male, it conflicts with the numerical equality of the sexes, with the jealousy, sense of proprietorship, equality, dignity and general welfare of the wife, and with the best interests of the offspring.
In all those regions in which polygamy has existed or still exists, the status of woman is extremely low; she is treated as man's property, not as his companion; her life is invariably one of great hardship, while her moral, spiritual, and intellectual qualities are almost utterly neglected. Even the male human being is in the highest sense of the phrase naturally monogamous. His moral, spiritual, and aesthetic faculties can obtain normal development only when his sexual relations are confined to one woman in the common life and enduring association provided by monogamy. The welfare of the children, and therefore, of the race, obviously demands that the offspring of each pair shall have the undivided attention and care of both their parents. When we speak of the naturalness of any social institution, we necessarily take as our standard, not nature in a superficial or one-sided sense, or in its savage state, or as exemplified in a few individuals or in a single generation, but nature adequately considered, in all its needs and powers, in all the member of the present and of future generations, and as it appears in those tendencies which lead toward its highest development. The verdict of experience and the voice of nature reinforce, consequently, the Christian teaching on the unity of marriage. Moreover, the progress of the race toward monogamy, as well as toward a purer monogamy, during the last two thousand years, owes more to the influence of Christianity than to all other forces combined. Christianity has not only abolished or diminished polyandry and polygamy among the savage and barbarous peoples which it has converted, but it has preserved Europe from the polygamous civilization of Mohammedanism , has kept before the eyes of the more enlightened peoples the ideal of an unadulterated monogamy, and has given to the world its highest conception of the equality that should exist between the two parties in the marriage relation. And its influence on behalf of monogamy has extended, and continues to extend, far beyond the confines of those countries that call themselves Christian .
(3) Deviations from Marriage
Our discussion of the various forms of marriage would be incomplete without some reference to those practices that have been more or less prevalent, and yet that are a transgression of every form of marriage. Sexual license amounting almost to promiscuity seems to have prevailed among a few peoples or tribes. Among some ancient peoples the women, especially the unmarried, practised prostitution as an act of religion. Some tribes, both ancient and relatively modern, have maintained the custom of yielding the newly married bride to the relatives and guests of the bridegroom. Unlimited sexual intercourse before marriage has been sanctioned by the customs of some uncivilized peoples. Among some savage tribes the husband permits his guests to have intercourse with his wife, or loans her for hire. Certain uncivilized peoples are known to have practised trial marriages, marriages that were binding only until the birth of a child, and marriages that bound the parties only for certain days of the week. Although any general exercise of the so-called jus primae noctis has no historical basis, and is now admitted to be an invention of the encyclopedists, at times serf women were required to submit to their overlords before assuming marital relations with their husbands (Schmidt, Karl,"Jus Primae Noctis, a historical examination"). Japanese maidens of the poorer classes frequently spend a portion of their youth as prostitutes, with the consent of their parents and the sanction of public opinion.
Concubinage, the practice of forming a somewhat enduring union with some other woman than the wife, or such union between two unmarried persons, has prevailed to some extent among most peoples, even among some that had attained a high degree of civilization, as the Greeks and Romans (for detailed proof of the foregoing statements, see Westermarck, op, cit., passim ). In a word, fornication and adultery have been sufficiently common at all stages of the world's history and among almost all peoples, to arouse the anxiety of the moralist, the statesman, and the sociologist. Owing to the growth of cities, the changed relations between the sexes in social and industrial life, the decay of religion, and the relaxation of parental control, these evils have increased very greatly within the last one hundred years. The extent to which prostitution and venereal disease are sapping the mental, moral, and physical health of the nations, is of itself abundant proof that the strict and lofty standards of purity set up by the Catholic Church, both within and without the marriage relation, constitute the only adequate safeguard of society.
(4) Divorce
This is a modification of monogamy that seems to be no less opposed to its spirit than polyandry, polygamy, or adultery. It requires, indeed, that the parties should await a certain time or a certain contingency before severing the unity of marriage, but it is essentially a violation of monogamy, of the enduring union of husband and wife. Yet it has obtained among practically all peoples, savage and civilized. About the only people that seem never to have practised or recognized it are the inhabitants of the Andaman Islands, some of the Papuans of New Guinea, some tribes of the Indean Archipelago, and the Veddahs of Ceylon. Among the majority of uncivilized peoples the marital unions that endured until the death of one of the parties seem to have been in the minority. It is substantially true to say that the majority of savage races authorized the husband to divorce his wife wherever he felt so inclined. A majority of even the more advanced peoples who remained outside the pale of Christianity restrict the right of divorce to the husband, although the reason for which he could put away his wife are, as a rule, not so numerous as among the uncivilized races. In all those countries that adopted the Catholic religion, however, divorce was very soon abolished, and continued to be forbidden as long as that religion was recognized by the State. The early Christian emperors, as Constantine, Theodosius, and Justinian, did, indeed, legalize the practice, but before the tenth century the Catholic teaching on the indissolubility of marriage had become embodied in the civil legislation of every Catholic country (see Divorce). The Oriental Churches separated from Rome, including the Greek Orthodox Church, and all the Protestant sects, permit divorce in varying degrees, and the practice prevails in every country in which any of these Churches exercise a considerable influence. In some of the non-Catholic countries divorce is extremely easy and scandalously frequent. Between 1890 and 1900 the divorces granted in the United States averaged 73 per 100,000 of the population annually. This was more than twice the rate in any other Western nation. The proportion in Switzerland was 32; in France, 23; in Saxony, 29; and in the majority of European countries, less than 15. So far as we are informed by statistics, only one country in the world, namely, Japan, had a worse record than the United States, the rate per 100,000 of the population the Flowery Kingdom being 215. In most of the civilized countries the divorce rate is increasing, slowly in some, very rapidly in others. Relatively to the population, about two and one half times as many divorces are granted now in the United States as were issued forty year ago.
But the practice of attempting to dissolve the bond of marriage by law, is not confined to Protestant , schismatic, and pagan countries. It obtains to some extent in all the Catholic lands of Europe, except Italy, Portugal, and Spain. South America is freer from it than any other continent. The majority of the countries in the geographical division do not grant absolute divorce. A notable fact in the history of divorce is that those countries which have never been Christianized , and those which remained faithful to the Christian teaching for only a short time (e.g., the regions that fell under the sway of Mohammedanism ) conducted the practice on terms more favourable to the husband than to the wife. About the only important exception to this rule was pagan Rome in the later centuries of her existence. In modern countries which permit divorce, and yet call themselves Christian , the wife can take advantage of the practice about as easily as the husband; but his is undoubtedly due to the previous influence of Christianity in raising the civil and social status of woman during the long period in which divorce was forbidden. In the long run divorce must inevitably be more injurious to a women than to men. If the divorced woman remains single generally has greater difficulty in supporting herself than the divorced man; if she is young her opportunities of marrying again may, indeed, be about as good as those of the divorced man who is young; but if she is at or beyond middle age the probability that she will find a suitable spouse is decidedly smaller than in the case of her separated husband.
The fact that in the United States more women than men apply for divorces proves nothing as yet against the statements just set down; for we do not know whether these women have generally found it easy to get other husbands, or whether their new condition was better than the old. The frequent appeal to the divorce courts by American women is a comparatively recent phenomenon, and is undoubtedly due more to emotion, imaginary hopes, and a hasty use of newly acquired freedom, than to calm and adequate study of the experiences of other divorced women. If the present facility of divorce should continue fifty years longer, the disproportionate hardship to women from the practice will probably have become so evident the number of them taking advantage of it, or approving it, will be much smaller than today.
The social evils of easy divorce are so obvious that the majority of Americans undoubtedly are in favour of a stricter policy. One of the most far-reaching of these evils is the encouragement of lower conceptions of conjugal fidelity; for when a person regards the taking of a new spouse as entirely lawful for a multitude of more or less slight reasons, his sense of obligation toward his present partner can not be very strong or very deep. Simultaneous cannot seem much worse than successive plurality of sexual relations. The average husband and wife who become divorced for a trivial cause are less faithful to each other during their temporary union than the average couple who do not believe in divorce. Similarly, easy divorce gives an impetus to illicit relations between the unmarried, inasmuch as it tends to destroy the association in the popular consciousness between sexual intercourse and the enduring union of one man with one woman. Another evil is the increase in the number of hasty and unfortunate marriages among persons who look forward to divorce as an easy remedy for present mistakes. Inasmuch as the children of a divorced couple are deprived of their normal heritage, which is education and care by both father and mother in the same household, they almost always suffer grave and varied disadvantages. Finally there is the injury done to the moral character generally. Indissoluble marriage is one of the most effective means of developing self-control and mutual self-sacrifice. Many salutary inconveniences are endured because they cannot be avoided, and many imperfections of temper and character are corrected because the husband and wife realize that thus only is conjugal happiness possible. On the other hand, when divorce is easily obtain there is no sufficient motive for undergoing those inconvenience which are so essential to self-discipline, self-development, and the practice of altruism.
All the objections just noted are valid against frequent divorce, against the abuse of divorce, but not against divorce so far as it implies separation from bed and board without the right to contract another marriage. The Church permits limited separation in certain cases, chiefly, when one of the parties has been guilty of adultery, and when further cohabitation would cause grave injury to soul or body. If divorce were restricted to these two cases some pretend that it would be socially preferable to mere separation without the right to remarry, at least for the innocent spouse. But it would surely be less advantageous to society than a regime of no divorce. Where mere separation is permitted, it will in a considerable proportion of instances need to be only temporary, and the welfare of parents and children will be better promoted by reconciliation than if one of the parties formed another matrimonial union. When there is no hope of another marriage, the offenses than justify separation are less likely to be provoked or committed by either party, and separation is less likely to be sought on insufficient grounds or obtained through fraudulent methods. Moreover, experience shows that when divorce is permitted for a few causes, there is an almost irresistible tendency to increase the number of legal grounds, and to make the administration of the law less strict. Finally, the absolute prohibition of divorce has certain moral effects which contribute in a fundamental and far-reaching way to the social welfare. The popular mind is impress with the thought that marriage is an exclusive relation between two persons, and the sexual intercourse of itself and normally calls for a lifelong union of the persons entering upon such intercourse.
The obligation of self-control, and of subordinating the animal in human nature to the reason and the spirit, as well as the possibility of fulfilling this obligation, are likewise taught in a most striking and practical manner. Humanity is thus aided and encouraged to reach a higher moral plane. In the matter of the indissolubility, as well as in that of the unity of marriage, therefore, the Christian teaching is in harmony with nature at her best, and with the deepest needs of civilization. "There is abundant evidence", says Westermarck, "that marriage has, upon the whole, become more durable in proportion as the human race has risen to higher degrees of civilization, and that a certain amount of civilization is an essential condition of the formation of lifelong union" (op. cit., p. 535). This statement suggests two tolerably safe generalizations: first, that the prohibition of divorce during many centuries has been a cause as well as an effect of those 'higher degrees of civilization" that have been already attained: and, second, that the same policy will be found essential to the highest degree of civilization.
(5) Abstention from Marriage
With a very few unimportant exceptions all peoples, savage and civilized, that have not accepted the Catholic religion, have looked with some disdain upon celibacy , Savage races marry much earlier, and have a smaller proportion of celibates than civilized nations. During the last century the proportion of unmarried persons has increased in the United States and in Europe. The causes of this change are partly economic, inasmuch as it has become more difficult to support a family in accordance with contemporary standards of living; partly social, inasmuch as the increased social pleasure and opportunities have displaced to some degree domestic desires and interests; and partly moral, inasmuch as laxer notions of chastity have increased the number of those who satisfy their sexual desires out side of marriage. From the viewpoint of social morality and social welfare, this modern celibacy is an almost unmixed evil. On the other hand, the religious celibacy taught and encourage by the Church is socially beneficial, since it shows that continence is practicable, and since religious celibates exemplify a higher degree of altruism than any other section of society. The assertion that celibacy tends to make the married state seem low or unworthy, is contradicted by the public opinion and practice of every country in which celibacy is held in highest honor. For it is precisely in such places that the marriage relation, and the relations between the sexes generally, are purest. ( See CELIBACY .)
(6) Marriage as a Ceremony or Contract
The act, formality, or ceremony by which the marriage union is created, has differed widely at different times and among different peoples. One of the earliest and most frequent customs associated with the entrance into marriage was the capture of the woman by her intended husband, usually from another tribe than that to which he himself belonged. Among most primitive peoples this act seems to have been regarded rather as a means of getting a wife, than as the formation of the marriage union itself. The latter subsequent to the capture, and was generally devoid of any formality whatever, beyond mere cohabitation. But the symbolic seizure of wives continued in many places long after the reality had ceased. It still exits among some of the lower races, and until quite recently was not unknown in some parts of Eastern Europe. After the practice has become simulated instead of actual, it was frequently looked upon as either the whole of the marriage ceremony or an essential accompaniment of the marriage. Symbolic capture has largely given way to wife purchase, which seems to prevail among most uncivilized peoples today. It has assumed various forms. Sometimes the man desiring a wife gave one of his kinswomen in exchange; sometimes he served for a period his intended bride's father, which was a frequent custom among the ancient Hebrews; but most often the bride was paid for in money or some form of property. Like capture, purchase became after a time among many peoples a symbol to signify the taking of a wife and the formation of the marriage union. Sometimes, however, it was merely an accompanying ceremony. Various other ceremonial forms have accompanied or constituted the entrance upon the marriage relation, the most common of which was some kind of feast; yet among many uncivilized peoples marriage has taken place, and still takes place, without any formal ceremony whatever.
By many uncivilized races, and by most civilized ones, the marriage ceremony is regarded as a religious rite or includes religious features, although the religious element is not always regarded as necessary to the validity of the union. Under the Christian dispensation marriage is a religious act of the very highest kind, namely, one of the seven sacraments. Although Luther declared that marriage was not a sacrament but a "worldly thing", all the Protestant sects have continued to regard it as religious in the sense that it ought normally to be contracted in the presence of a clergyman. Thanks to Luther and the French Revolution, civil marriage is in almost all of Europe and North America, and some of South America. In some countries it is essential to the validity of the union before the civil law, while in others, e.g., in the United States, it is merely one of the ways in which marriage may be contracted. Civil marriage, is not, however a post-Reformation institution, for it existed among the ancient Peruvians, and among the Aborigines of North America.

Whether as a state or as a contract whether from the viewpoint of religion and morals or from that of the social welfare, marriage appears in its highest form in the teaching and practice of the Catholic Church. The fact that the contract is a sacrament impresses the popular mind with the importance and sacredness of the relation thus begun. The fact the union is indissoluble and monogamous promotes in the highest degree the welfare of parents and children, and stimulates in the whole community the practice of those qualities of self-restraint and altruism which are essential to social well-being, physical, mental, and moral ( see FAMILY; DIVORCE; CELIBACY ).