Page:Catholic Encyclopedia, volume 5.djvu/85

 DIVORCE

61

DIVORCE

has at least the authority of explaining the Pauline privilege, of limiting, and extending it. This would give rise to no difficulties if the Pauline privilege, as expressed in I Cor., vii, 15, were an immediate Apos- tolic ordinance and only mediately Divine, inasmuch as Christ would have granted the power in general in a case of necessity to dissolve in favour of the Faith a marriage contracted in infideUty. For the entire Apostolic power passed to the supreme head of the Church, and as the Apostle could determine fixed rules and conditions for the dissolution of the mar- riages in question, the pope would have precisely the same authority. Yet on this point there is a diversity of opinion among theologians, and the Church has not settled the dispute. For, even if the pri\'ilege as pro- mulgated by St. Paul was of immediate Divine right, the C'hurch's power to make at least modifications in case of necessity can readily be explained because such a power belongs to her without a doubt in othermatters that are of Divine right. The first opinion seems to have been hold in the fourteenth century by eminent scholars like P. de Palude and de Tudeschis, and in the fifteenth century by St. Antoninus ; in recent times it is defended by Gasparri, Rossi, Fahrner, and others. The second opinion is held by Th. Sanchez, Benedict XIV, St. Alphonsus, Perrone, Billot, Wernz, and others. The instruction of the Holy Office, 11 July, 1S66 (Collectan., n. 1353), calls the privilege a Di- vine privilege " promulgated by the Apostle ". How- ever, in spite of the disagreement in regard to the Pau- line privilege, the defenders of both opinions agree that there is another method for the dissolution of the marriage of infidels when one of the parties receives baptism, namely, by papal authority. This power is indeed not admitted by all theologians. Even Lani- ■ bertini (who later became Pope Benedict XIV) doubted it when he was secretary of the .Sacred Con- gregation of the Council, in the cau^a Florentina, in the year 1726. But earlier papal decisions, as well as the actual decision in this very case, leave no room for doubt that the popes attribute to themselves this power and act accordingly.

If the Pauline privilege alone be applied, it will fol- low that when a pagan is converted who has been liv- ing in polygamy, he can be permitted to choose any one of his wives who may be willing to receive bap- tism, provided his first wife is unwilling to live with him in peace or, under the circumstances, to be con- verted to the Faith. Hence it is that the answers of Roman Congregations based on the Pauline privilege always include the phrase nisi prima voluerit converti. Now several of the popes have at times granted per- mission to whole nations to choose any one of the sev- eral wives, without adding the clause "unless the first be willing to be converted". This was done for India by St. Pius V, 2 August, 1571. in the Constitu- tion "Romani Pontificis". Urban VIII, 20 October, 1626, and 17 September, 1627, did the same for the Soutli .American nations, and expressly declares: "Con- sidering that such [lagan marriages are not so firm that in case of necessity they cannot be dissolved"; simi- larly, Gregory XIII, 25 January, 1585 (cf. Ballerini- Palmieri, " Opus theol. mor.", 3d ed., VI, nn. 444, 451, 452). The theological proof of this papal authority is easy for those who, as has been said, regard the Pau- line privilege as an immediate Apostolic ordinance. For it is then expressly testified by Holy Scripture that the Apostolic authority, hence also the papal au- thority, can allow in favour of the Faith the dissolution of marriage contracted in infidelity. The method of procedure and the precise application in various cases would naturally be committed to the bearer of the Apostolic authority. Those who consider that the Pauline privilege is an immediate Divine determina- tion of the case in which marriage may be dissolved, prove the papal authority in another way. Since it follows from I Cor., vii, 15, that marriage contracted in

infidelity is not absolutely indissoluble according to Divine right, it follows from the general power of loos- ing which was granted to the successor of St. Peter, Matt., xvi, 19 — "Whatsoever thou shalt loose on earth, it shall be loosed also in heaven" — that this power extends also to our present matter. Moreover, the successors of St. Peter are themselves the best in- terpreters of their power. Whenever the exercise of an authority that has not hitherto been clearly recog- nized occurs, not merely on one occasion but fre- quently, there can be no more doubt that such au- thority is rightfully exercised. Now this is precisely what took place in the grants of Pius V, Gregory XIII, and Urban VIII for the vast territories of India, the West Indies, etc.

3. The Dissolution of Marriage Contracted in Infi- delily by Profession in a Religious Order. — When the doctrine explained above, which now is ]iruetically admitted bej'ond doubt, has been estalilished, the question, whether a marriage contracted in iufiilolity can be dissolved by the religious profession of the converted party, is not very important. It is so to be understood that the baptized party may choose the religious life, even against the will of the one still un- baptized, and, in consequence of this, the other may enter upon a new marriage. According to the doc- trine we have just explained, it is clear that the pope, at least in single cases, can permit this. Whether, ac- cording to a general law, and by immediate Divine ordinance, without the intervention of the pope,, this privilege belongs to the baptized party, is somewhat connected with another question, viz., for what reason Christian (i. e. sacramental) matrimony, not yet con- summated, can be dissolved by religious profession. This leads us to the third proposition about this sub- ject of divorce.

C. Christian Marriage before Consummation Can Be Dissolved by Solemn Profession in a Religious Order, or by an Act of Papal Authority.

1. Dissolution by Solemn Profession. — The fact that religious profession causes the dissolution of the mar- riage bond, provided the marriage has not been con- summated, is distinctly taught in the Extrav. Joan. XXII (tit. VI, cap. unic), and was solemnly defined by the Council of Trent (Sess. XXIV, can. vi). The reason why this dissolution takes place is a theological question. The definition reads: " If anyone shall say that a marriage contracted, but not consummated, is not dissolved by the solemn religious profession of either one of the parties to the marriage, let him be anathema." The expression, by the solemn profession, is important. Neither the mere entrance into a re- ligious order, nor life in the novitiate, nor the so-called profession of simple vows, even though they be for life, as is customary in modern congregations, is capa- ble of dissolving a previous marriage. The simple vows which are pronounced in the Society of Jesus, either as vows of scholastics or as vows of forme<l co- adjutors, do not dissolve a marriage which has been contracted and not yet consummated, though they cause a diriment impediment in regard to any future marriage. The question as to how and for what rea- son such marriage is dissolved by solemn religious pro- fession is answered by some by pointing to an imme- diate Divine right, as if God himself had so ordained immediately. Others, however, ascribe it to the power which the Church has received from God, and to its ordinance. The first opinion is defended by Dominic Soto, Th. Sanchez, Benedict XIV, Perrone, Rosset, Palmieri, and others; the second by Henry de Segusia (commonly called Hostiensis), Suarez, Lay- maim, Kugler, the Wiirzburg theologians, Wernz, Gasparri, Laurentius, Fahrner, and others. The tradition of the Christian Church for centuries bears witness that Christian marriage before consummation has not the same indissolubility as a consunmiated marriage. Scholars, however, are not unanimous