THE NEW SCHAFF-HERZOG
being the distinction between contractus sacramentalis and naturalis (see above). The obligatorycivil ceremony thus introduced was adopted in the civil Code Napoleon, and remained authoritative in those parts of Germany where it had become naturalized under French rule. The same theory forms the basis of the obligatory civil ceremony in Holland, Italy, Chile, Mexico, Rumania, Hungary, and Japan [and in some parts of the United States]. In England, Scotland, and Ireland the civil ceremony was introduced in 1653 to free the Church from secular affairs. Abolished at the Restoration (1660), civil marriage was again introduced as optional into England for practical reasons in 1836. In Germany the obligatory civil ceremony, first introduced by the law of Feb. 6, 1875, was based on the principle of the separation of Church and State according to the Belgian precedent. In case the State permits a marriage when a religious ceremony is impossible, the civil ceremony is employed in Austria, Denmark, Sweden, Norway, Spain, Portugal, and Russia. In North America, where the principle prevails that consensus facit nwptias, both ministers of the different denominations and judicial officers have the right to perform marriages.
According to the law of the Roman Catholic Church, a marriage performed by a civil magistrate may become ratum and legitimum matrimonium only where the Tridentine Decree has not been promulgated; where it has been promulgated, or is practised without being promulgated, the civil ceremony becomes a ratum matrimonium only by a subsequent religious marriage according to the form prescribed by the Decree. The Protestant Church, on the contrary, must consider marriage as binding the conscience from the instant the civil ceremony is performed, and can not, therefore, regard a subsequent religious ceremony as a marriage.
The validity of marriage in the Roman Catholic Church underwent a very important development under Pius X. by the constitution " Provide " of 1906 (see below) and by the decree " Ne temere " of Aug. 2, 1907 By the decree " Ne temere " there was introduced a special form for betrothal (a written contract to be signed by the parties, the priest, or ordinary, or by at least two witnesses) ; the validity of the Tridentine form of consummating marriage (which, of course, is acknowledged everywhere) is made actual by the presentation of the decree " Ne temere " to the diocesan bishop and extends to all people baptized in the Roman Catholic Church and to those that have returned to her from heresy or schism. The declaration in contracting a marriage must take place before the priest whose presence has been requested, who officiates of his own will (these are innovations), and before two witnesses. The priest must be chosen from the proper diocese; but if that is not the case, marriage is not declared void as formerly, provided the priest officiates within his own official district.
3. Impediments to Marriage: Impediments to marriage, or those circumstances which impede the proper or legal state of marriage, fall into certain general categories: (a) Public and private impediments (impedimenta publico and privata), according as the impediment has the character of the marriage
itself, or exists merely in the rights of individuals, so that the impediment concerns either the community or only individuals. Thus, a
1. la ssi - pU);)jjc impediment is too close consancation of r . ., • . • i-
Impedi- Sumlty> a Prlvate impediment is coerments. c^on- W Diriment and obstructing impediments (impedimenta dirimentia and tantum impedientia) , according as the impediment either renders void the legal status of the marriage, or, while it exists, merely delays the proper conditions of its contraction. In case of the latter, the marriage is simply to be postponed till they are removed; but if this is not done, the marriage does not therefore become invalid, but is at most punishable. In case of diriment impediments, on the other hand, the marriage may be annulled if the causes are private, and must be annulled if the causes are public; but such annulment must not be construed as divorce, being merely a declaration of the invalidity or nonexistence of the marriage. Diriment impediments are, e.g., a previous marriage still existent, and the impotence or sterility of one of the parties, the former being a public, and the latter a private, diriment impediment. Obstructing impediments are betrothal (sponsalia de futuro) and the times when matrimony is forbidden, (c) Absolute or relative impediments, according as the cause impedes the legality of the marriage in general or only between certain persons. Thus, an absolute impediment is impuberty, and a relative one is difference in religion. The various canonical impediments are as follows: (a) Impuberty, i.e., when the male is not yet fourteen years of age, and the female
2. Canoni- not yet twelve years old. The law cal Impedi- both of the Roman Catholic and the
ments. Protestant Church considers this a public diriment impediment; but in canon law this holds only when the marriage has not been consummated because of the previous development of puberty. The civil law has everywhere raised the age of marriage, (b) A previous and still existing marriage of one of the contracting parties (impedimentum ligaminis) is a public diriment impediment, since by its very nature marriage can exist only between one man and one woman. Ignorance of the continuance of a former marriage precludes only the crime of bigamy, but not the necessary severance of the second marriage, the latter being a sham marriage which can not be legalized even by the consent of the injured party or by a dispensation, since the impediment must be considered as based upon divine law. (c) The impediment which exists in consequence of a still existing marriage is found by canon law in the reception of a higher consecration and in the solemn vow of chastity taken when entering a religious order approved by the Holy See. (d) On account of consanguinity the Mosaic law (Lev. xviii. 7 sqq., xx. 17 sqq.; Deut. xxvii. 20 sqq.) forbids a man to marry his mother, sister (whether uterine or not), granddaughter, and paternal or maternal aunt. In Roman law marriages between relatives in the ascending and descending lines are unrestricted, but wedlock is forbidden between brothers and sisters (whether uterine or not) and between all collat-