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 IMPEDIMENTS

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IMPEDIMENTS

and with it the terminology. The distinction between diriment and prohibitory impediments is sharply marked, and a more or less successful attempt is made to classify the diriment impediments. Their number is not yet determined, not because the doctrine is un- certain, but because several of them may be included imder the same title. Certain canonists try to limit them to the quasi sacred number fourteen (twice seven) ; others reckon twelve, sixteen, or even more. The gloss of the "Decree" (Causa xxvii, q. 1, v" "Quidam", before can. i) says there are sixteen mat- rimonial impediments, fourteen of which are diriment; it enumerates them without order in the following distichs:

Votum, conditio, violentia spiritualis, Proximitas, error, dissimilisque fides, Culpa, dies vetitus, honor, ordo, ligatio, sanguis, Quae sit et affinis, quique coire nequibit, Additur his eetas, habitum conjunge furoris; His interdictum subditur EcclesiiE. Haec, si canonico vis consentire rigori Te de jure vetant jura suljire tori. In spite of its insertion in the gloss, this enumera- tion was not adopted permanently, doubtless because it did not separate the prohibitory from the diriment impediments, and because the former class was incom- plete. The list that was received almost universally, and which, with a few changes, still figures in most canonical treatises on marriage, and is followed step by step, by many authors including St. Liguori (Theol. Mor., I, VI, n. lOO.S), was composed byTancred (1210- 1214). It contains four proliibitory impedunents sep- arated from thirteen diriment :

Ecclesis vetitum, tempus, sponsalia, votum, Impediunt fieri, permittunt facta teneri. Error, conditio, votum, cognatio, crimen, Cultus disparitas, vis, onlo, ligamen, honestas, Dissensus, et affinis, si forte coire nequibis, Haec facienda vetant connubia, facta retractant. But after the Council of Trent, which created the im- pediments of abduction and clandestinity, these thir- teen were increased to fifteen; the last hemistich, "si forte coire nequibis ", was replaced by " si clandes- tinus, et impos"; and for abduction was added the hexameter " Raptave sit mulier, loco nee reddita tuto". Though this method of enumerating them is so common, it is not satisfactory, being somewhat con- fused. No official list of impediments has ever been promulgated, and indeed it would be very difficult to compile such a Ust, as there are many ways of reckon- ing the impediments improperly so called, all of which may be included under a defect of consent, such, for instance, as error, insanity, constraint, dissimulation and others. It is possible likewise to count in different ways the prohibitory impediments among which that of "mixed religion" must be included. Of the many definitions of matrimonial impediments formulated by canonists, we prefer that of D'Annibale (Summula, III, n. 42S): "Any circumstance of which the law takes cognizance that is opposed to a licit or valid marriage."

Impediments have been classified and divided in many ways, of which the following are the more im- portant. (1) The chief division is that which distin- guishes between prohibitory and diriment impedi- ments, the former rendering the marriage illicit, the latter making it void; we have already said enough about this. (2) They have been divided according to their juridical cause: some ari.se from natural law, as the different forms of defective consent, impotency, relationship in direct ascending or descending line; others arise from Divine law, which demands unity and perpetuity of marriage, thus forbidding polygamy and marriage after divorce; others, finally, while sug- gested by natural and Divine law have been created by ecclesiastical law. (.3) A distinction must be made between absolute and relative impediments. The for-

mer forbid any marriage of the person on whom the impediment falls, for instance, impotency, Holy or- ders, etc., the latter forbid the marriage with certain definite persons only ; such for example are relationship, crime, etc. (4) Impediments may be also pulilic or hidden according as the fact giving rise to them is known or secret, or in other words, may be proved easily or with difficulty. Examples of public impedi- ments are relationship, lawful affinity. Holy orders, etc.; hidden impediments are those arising from purely private and especially concealed facts, for in- stance, affinity arising from illicit intercourse, certain forms of "crime", etc. (5) A very practical division is based on the nature of the dispensation that is granted or refused by the church. Most of the impedi- ments arising from ecclesiastical law are dispensed from with more or less felicity (cf. Lehnikuhl, "Theol. Mor.", II, n. 792). (6) Finally, it is important to dis- tinguish impediments properly so called from those that are only imjjroperly so termed. The former are those that arise from an absence of capacity to con- tract on the part of one of the individuals, who cannot enter into a vahd marriage even if he performs all the customary external acts and has a firm intention of marrying. Such would be the case of a marrietl man, who had obtained a divorce, he being thereby abso- lutely incapable of validly marrying another woman. Such al.so is the impediment of form, or clandestinity, which renders the contract null and void, if the req^ui- site conditions of publicity have not been complied with, namely the presence of the [larish priest of the locality or his delegate, and of two witnes.ses; it is an impediment properly so-called, though it does not act directly by affecting the personal cajiacity of the con- tracting party. On the other hand, impediments improperly so called do not imply the juridical inca- pacity of the agent, but the absence of a due consent on his part, whether from want of knowle<lge, liberty, or will. In that case it is the contract that is non- existent, because it lacks an cs.sential element ; where- fore, such impediments arc not, properly speaking, created or established by the law, and are not matter for dispensation. They .spring from the natural law in the sense that they are the application to Matrimony of the laws that regulate all contracts and arise from the verj' nature of things. Ecclesiastical law cannot intervene directly; it is limited to pointing them out and applying opportune measures to prevent as far as possible marriages affected by these different forms of defective consent.

Marriage is juridically a contract, and a Christian marriage does not cease to be a contract because it is a sacrament. Being a sacrament it is a sacred thing, and as such is subject to the authority of the church; and, being a contract, the church can establish im- pediments to matrimony, either personal or formal. Having the power to establish them, she can abrogate them, modify them, and, consequently, dispense from them in individual cases (see Makriage; Dispensa- tion).

III. I.MPEDIMENT8 TO MaRRIAGE, IN PARTICULAR.

The following is the Ust of the impediments of mar- riage arranged in what seems the most logical order, with the essential notions on each, except where refer- ence is made to special articles.

A. Prohibitory impediments, that is to say, those which render a marriage illicit, but do not impair its validity. (1) Bclrothal. — .\ valid engagement to marry, entered into by two individuals, constitutes an absolute, prohibitory impediment, that is, an obstacle to any other marriage: by plighting his troth, the man creates a correlative right on the part of the woman, and any other marriage would be a violation of that right (see Betrothal). (2) Vow. — Such also is the case of a vow, not any vow whatsoever, but a vow of chastity, and moreover a simple vow, for a solemn vow of chastity constitutes a diriment impediment. The