Page:Catholic Encyclopedia, volume 2.djvu/632

 BIGAMY

562

BIGAMY

Esairied become one flesh, and without which there is neither bipjamy nor irregularity.

Real bigamy demands two valid and legal and con- summated marriages with \irgins; therefore, two real wives one after the other. It is indifferent whether or not the marriages took place before or after baptism, or one before and the other after; the second successive marriage imperfectly sjinbolizes "the great Sacrament of Clirist in the Church" (Ephes., V, 32), and the irregularity is present (Pope Innocent I, Decret., can. 13, dist. 34). There is, therefore, no real bigamy (a) if either or both mar- riages are invalid, (b) if either or both have not been consummated, (c) if either or both women have not lieen virgins, (d) if one of the two ceremonies was a valid, consummated marriage, and the other a mere betrothal followed by carnal union.

Interpretative bigamy is the state of a man who has not as a matter of fact had two legal wives in succession, but whose matrimonial ventures — whether one or two — are accompanied with such circumstances as to warrant the law by a legal fiction to hold him a-s a bigamist and irregular. It is to be remembered that the laws which govern fictitious (similar and interpretative) bigamy must be strictly construed, for two reasons: (1) because there is question of an irregularity — something odious; and (2) it is a fiction of law and therefore does not hold unless in those cases expressly mentioned in the law (Fagnanus, cap. In Pntsea., n. 23, de Probat.). Pope Benedict XIV wisel.y remarks {Xd audientiam, 15 Februarj', 1753, par. 15), "It is the sole right of the legislator, and beyond the power of any private author or doctor, to draw legal conclusion from a fiction of law. Many, therefore, of the ablest canon- ists of recent years (v. g. D'.4nnibale, Gaspari, Icard, Wernz, Lombardi, Ballerini-Palmieri), as also the national sjTiods of the Copts and Sj-rians, restrict real and interpretative bigamies to the case where a man marries either two valid and legal wives, or a widow, or a corrupt woman, or knows his wife carnally after she has been corrupted by a third party.

Interpretative bigamy is threefold: —

(1) When a man contracts and consummates only one, and that a valid marriage, or weds one wife to whom he is united in one flesh, yet the circumstances are such that the law considers two marriages and two wives. Of this class there are three cases: (a) When a single man marries a widow already made one flesh with a former husband (Decretal Greg., Lib. I, Tit. xxi, Cap. iii). Here the woman has had two husbands and has divided her flesh with two instead of being cemented to only one. Her marriage to the second husband is defective in its resemblance to the marriage s'^mibol — union of Christ with the Church; the second husband is not the only husband of the one wife who herself should have been the wife of only one husband. .\3 the wife in this case has had two real husbands, so, by fiction of law, her husband is considered to have had two interpretative wives, (b) When he marries an unmarried woman, already by a third party corrupted (Pope Hilar}', Sjmod. Rom. Cap. ii, Dist. XXXIV, c. ix, Decret.). Here again is a division of flesh with two instead of union with one, and hence the defect, and, as a consequence, the irregularity, (c) When he carnally knows his own wife after she has committed adulterj- or has been forcibly oppressed (Decretum, c. xi; c. xii). The husband in this case is not barred from orders unless the adulterj' of the wife whom he as a laj-man has married was conclusively proved; nevertheless, in this case, as in cases (a) and (b), iOTorance on the part of the husband (sc. of the widowhood or corruf)- tion or adultery or rape of his wife) would not except him from bigamy and irregularity, since there is here question of an irregularity ex lejectu sacramenii and

not ex delicto. The defect is present irrespective of his knowledge.

(2) When he marries once, but the marriage is invahd. (a) The one in Sacred orders who marries a widow — marriage invalid on account of diriment impediment of S. Orders — and is carnally joined to her, is an interpretative bigamist and irregular (Cap. VII, Tit. XXI, De. Big.). Pope Innocent (loc. cit.) says that although this cleric is not a real bigamist, yet with him, as with a real bigamist, it was not law- ful to dispense as the husband of a widow, not be- cause of the defect in the sacrament, but on account of the marital intention joined with carnal union. Although not expressed in the above canon, yet it is the common opinion that the cleric in major order who marries a woman corrupted by a third party is a bigamist and irregular. He would not be irregular if he married a woman seduced by himself and known by no other man (Schmalz., Tit. XXI, De Bigam., n. 6). Civil marriage will suffice in this case, even where the Tridentine law is published (S. U. I., December 22, 1880). (b) Invalid by reason of a pre- existing marriage bond (ligamen), as, for instance, where the man marries a woman who has been di- vorced, repudiated, or rejected by a former husband, or who has divorced or left him. In this case the marriage is defective, the woman having shared her body with two, and hence he who married her is irregular for the above-mentioned reason (Lib. I, Tit. XXI, C. I; Dist. XXXIV, Can. xv). (c) If the marriage was invalid by reason of a diriment impedi- ment other than order and ligamen, the more promi- nent opinion holds that the irregularity is incurred. Fagnanus (Comment., Cap. iv, De Big., n. 45) asserts that the prelates of the Rota, to whom the case was specially referred by the pope, decided that a cleric in minor orders who contracted and consummated an invalid marriage with a widow was an interpreta- tive bigamist and irregular and stood in need of dispensation, and that Pope Urban, upon the strength of that decision, granted dispensation. Many of the best canonists of to-day (v. g. D'Annibale and Gas- pari) hold the contrary. The case is not expressed in law, they say, and is a legal fiction which at all times is dangerous and is totally unwarranted if the two cases differ in every respect, as do these — the one being in major, and the other in minor orders; the one in bad faith and the other in good faith. Yet, after all is said pro and con, it still remains true that the proximate cause of the irregularity in the law cited is identical with that of the second case, to wit, marital intent with carnal consummation.

(3) When a man marries twice and either or both marriages are invalid, as (a) he who having contracted and consummated a marriage with a virgin, upon her death received Sacred orders, and afterwards, without any deception on his part, contracts and con- summates a sacrilegious and invalid marriage with a virgin or widow, becomes an interpretative bigamist and irregular, not because of any defect in the sacra- ment in the second marriage, which is no marriage and no sacrament, but because of the marital intent followed by consummation by means of which the necessarj' division of his body with two has been effected (Innocent III, cap. iii, iv, De Big.). Should the cleric feign, rather than honestly intend, the second marriage, in order to accomplish the carnal union, some are of the opinion that he does not incur the irregularity, the marital intent required by the Innocentian law not being verified; others more commonly affirm that irregularity is contracted. The reason given by the affirmants is that the Inno- centian marital intent is not so much the intention to contract a valid marriage, as to externally contract and consummate, an intention that is always pre- sumed to be present in such cases. External mar- riages are always supposed to be free and voiuntary.