Page:Catholic Encyclopedia, volume 2.djvu/633

 BIGAMY

563

BIGAMY

Simulation is never presumed, but must, on the con- trary, be demonstrated, (b) Should the first mar- riage before receiving Sacred orders be invalid on account of any diriment impediment (v. g., consan- guinity or the like), although the case is not expressly stated in the law, the general opinion, with a few exceptions, is that he is an interpretative bigamist and irregular. In answer to tlieir opponents, the affirmants say that the marriage mentioned (Cap. iv, De Big.) may have been invalid, as there is no cer- tainty that it was valid, in which case the argument from one species to another would be legitimate, (c) Should both marriages be invalid, some assert there is no interpretative bigamy or irregularity. Certainly there is no law for it. Others, as St. Al- phonsus (Vol. VII, n. 455; Suarez., Disp. XLIX, Sect. II, n. 11) teach as the most common and notable opinion that there is present the marital intent with the carnal consummation which alone .suffices to induce the irregularity. Canonists differ in opinion as to the case where two invalid marriages were contracted and consummated in good faith. The most common and probable opinion is that irregularity is contracted, for the reason that it is not the guilt of the desire, but the intention to con- tract and consummate the two marriages which is the reason of the irregularity as laid dowTi by Inno- cent III (Cap. 4, De Big). By almost common con- sent the irregularity is said to be contracted by the cleric tonsured or in minor orders or layman who, after having contracted and consummated a mar- riage invalid on account of a known impediment and afterwards, whether his wife be living or dead, contracts and consummates another marriage even with a virgin. There is present in the case a division of flesh and the marital intent necessary to produce irregularity.

Similar Bigamy is nowhere clearly and expressly stated in the law. It owes its existence to the almost universal and constant teaching of canonists and theologians since the time of Durandus. Similar bigamy is twofold: (1) When a religious who has been solemnly professed in a religious order approved by the Church marries a virgin and carnally knows her as such. (2) When a cleric in Sacred orders, in vio- lation of the law of celibacy, contracts and consum- mates a marriage with a virgin. This form of bigamy presupposes only one carnal marriage and a spiritual marriage, which are interpretatively considered two marriages, and each putative husband is considered to have two interpretative wives. The carna: mar- riages are invalid by reason of the diriment impedi- ment of solemn religious profession and of orders respectively; but because of the marital intent fol- lowed by carnal consummation, some claim that similar bigamy and irregularity are incurred by reason of the defective signification of the sacrilegious marriage to the symbol of matrimony; some admit that there is no bigamy, but an irregularity arising from the sacrilegious marriage; others again insist that there is an irregularity on account of some kind of a defect in the sacrament, but there is no law declaring it to be bigamous and irregular. Gas- pari (De Sacra Ordin., nn. 393 sqq.) and others re- ject the first opinion altogether and very conclusively show that the canons of common law and the canons of Gratian upon which the first opinion is grounded are not to the point. Gaspari shows that the decrees (Decretales— Lib. IV, Tit. 6, Cap, i, 2 and 4) of Pope Alexander III do not refer to bigamy or irregularity, but speak of suspensions and excommunications; that the Gratian canons treat of religious men and women who have broken their vows and are to be removed from their grade, and subjected to the same penances as were at that period imposed upon biga- mists. Pope Clement, in his decree (Lib. i, Tit. Unicus de Cons, et aff. Clem.) also speaks of excom-

munication and not irregularity. The constitution of Pius IX, "ApostolicEB Sedis" imposes upon similar bigamists excommunication reserved to the ordinaries, and nothing more. It is evident, there- fore, that the law affi.xes no note of irregularity to a so-called similar bigamist. Practically speaking, however, there is little difference, as the so-called similar bigamists are prevented, on account of the censure and the infamy of their act, from receiving higher orders or exercising those already received; and should they solemnly exercise the functions of their grade, they would become irregular on ac- count of the violated censure. The bishop can, when they have put away the woman, done penance, and led edifying lives, absolve them from the censure and dispense them from any irregularity, if any has been incurred, and promote them to higher orders. It is certain, however, that religious, not in Sacred orders, with simple vows, who contract and con- summate marriage with a virgin or with a renegade nun who has broken her solemn vows, is neither a bigamist nor irregular. No such case is found in the canon.

Effects. — Bigamy begets irregularity, the prin- cipal effect of which is to entirely exclude from the reception and use and exercise of any ecclesiastical order and benefice attached to any order. Pope Gregory X (Lib. I, Tit. XII, Cap. Unic. in Sexto) furtTier declared that bigamists should be stripped of every clerical privilege, removed from the pro- tection of the ecclesiastical, and subjected to civil, jurisdiction, deprived of the canon safeguarding their person from personal attack, and forbidden to wear the tonsure and clerical garb, under penalty of excommunication to be incurred at the moment of their attempted marriage. The Council of Trent also forbids to bigamists the exercise of any office or function of minor orders, even of such functions as are usually, by permission, allowed to married laymen on account of scarcity of celibate clerics (Se.ss. XXIII, C. 17, De Reform). Clerics in minor orders whose marriages were invalid are not com- prehended under the Tridentine law. Clerics in Sacred orders and religious clerics, who, by virtue of the law of celibacy and religious profession, are spiritually wedded to the clerical and religious states respectively, are not comprehended under the law stripping them of every clerical privilege, and the use of tonsure and clerical garb, and this out of respect to their sacred character. Clerics on the other hand, in minor orders are not wedded to the clerical state; hence they come under the law. Bishops who know- ingly and without permission confer Sacred orders on a bigamist are by the Third Council of Aries (Dist. LV, Can. 2) suspended from saying Mass for one year, and by the decretal law (Lib. 1, Tit. 21, Cap. ii) were deprived of the power of giving to others the orders they had conferred on a bigamist. Since the constitution "Apostolica? Sedis", the only pun- ishment is that which the Holy Father may deem fit to impose upon the bishop violating the canons.

Dispensation. — This irregularity is removed nei- ther by baptism nor religious solemn profession, but by dispensation. The pope, and he alone, can dis- pense with this prohibition to receive orders. He can dispen.se with a mere ecclesiastical law, such as i.- the Pauline injunction, although it is of Apostolic origin. Pope Lucius III, whilst urging the unlaw- fulness of granting a dispensation in face of St. Paul's prohibition, did, however, grant it to Nicholas de Tudescliis, a celebrated canonist, better known as Abbas Panormitanus (Glossa, ad verb. FiM, C. Lec- tor, XVIII, Dist. XXXIV). Dispensations in cases of one who marries two real wives or a widow are exceedingly difficult to obtain (Lib. I, Tit. 9, De Renunt. Sec. Persona'). Worthy of note is the fact that the dispensation does not efface the defect in