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"... an attempt at nothing less than the destruction of the Divine Constitution of the (Roman) Church by reducing her to the status of a state-controlled schismatical body, without the right to form, train and educate her own clergy, to have a sufficient number of them for the care of souls, to find means for her support, to develop works in accord with her mission of charity and enlightenment, and to apply the teachings of the Gospel to the formation of a public conscience." 28

In these words it will be observed that the claims of inherent juristic personality, of inherent right of propaganda and of property, are clearly asserted, and the area of Cardinal Gibbons' Twilight Zone is not reduced or its shadows in any wise relieved.

28 Pastoral Letter, p. 3.

CHAPTER XII

THE TWILIGHT ZONE OF MARRIAGE

WHATEVER may be the law of marriage, as taught by Christ, the modern State in its non-Christian development does not accept that law as obligatory, but enacts a marriage law of its own determined by the consensus of its citizens. The Christian churches claim that the marriage law as taught by Christ is obligatory upon them, but they differ in their interpretation of the law. Between the State and the churches the chief point of difference is over the indissolubility of marriage, and in respect to this some of the churches are recreant to the law of Christ and are as lax as the State.1

It is of common agreement that marriage is a matter of peculiar cognizance in law, both ecclesiastical and civil, that the contract is sui generis, and that there is a distinction between the contract and the status or

1"... Theoretically at least the Roman Church has consistently adhered to Christ's teaching. But in practice the technicalities of dispensations, nullities and the like have frequently been used to justify exceptions. The Church of England is clearly sound in its doctrine and Canon Law. . . . To-day that Church, because of its connection with the state, has very grave difficulty in maintaining the integrity of its matrimonial discipline in the face of recent divorce legislation. The American (Episcopal) Church, like the English, inherited the Western Canon Law, which forbids the remarriage of a divorcee while the other party lives. But in 1868 the General Convention enacted a canon in which it was provided that such prohibition 'shall not be held to apply to the innocent party in a divorce for the cause of adultery.'... Inevitably the lax ideas of American society at large infect the minds of many Churchmen.” F. J. Hall, Dogmatic Theology, vol. ix, (The Sacraments), pp. 277-278.

bond in which the contract results. The contract is the consent or agreement of the parties evidenced by prescribed formalities, and followed by cohabitation, a physical feature, which is essential to the completion of the contract. The contract being thus executed, the status or bond is established.

Neither over the contract nor the status of marriage could there be any conflict of jurisdiction between State and Church, prior to the Reformation, for, as has been pointed out, they were then substantially one. Marriage was unanimously confided to the jurisdiction of the Church. With the Reformation came the subdivision of the one State into many states and the one Church into many churches. There was no longer a Universal Church to which the State could concede jurisdiction over marriage. The only course open to the State was to assume jurisdiction itself sufficient to permit it to determine whether or not the status or bond of marriage existed. A large number of its people rejected the Christian theory of the indissolubility of marriage, and with it even its sanctity. Others held to the Christian theory and elevated marriage not only to sanctity but declared it to be, as between Christians, a sacrament. The State has established the minimum requirements of the marriage relation; the churches the maximum. The State so far has not imposed its minimum requirements to the exclusion of the churches' maximum requirements. Should it do so, the rights of Christians would seem adequately protected by their revolt in the exercise of freedom of conscience. The churches have been left free to administer church law, 2 Supra, p. 21-25.

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in respect to marriage, through the consciences of their members and through the conditions of church membership and discipline. To teach that marriage is a sacrament in addition to a contractual relation would harmonize with the law of the State, but the doctrine of the Church of Rome is that marriage between Christians becomes a sacrament, into which contract and status are merged, and over which the State can have no jurisdiction, although some of the civil incidents attaching by reason of State law may remain. Among baptized persons the State, in Roman Catholic doctrine, "... has no right either to declare valid a marriage that is null in the eyes of the (Roman) Church, or to pronounce null a marriage that is really valid." 3 The concrete result of this is that the Church of Rome and the State each claim a sovereign right to determine when two baptized persons are man and wife. The State by divorce, under certain conditions, assumes the right to terminate a marriage admittedly valid by its law, and the Roman Church by annulment, under certain conditions, assumes the right to determine that no marriage whatever has taken place. The State breaks the marriage bond; the Roman Church declares that no marriage bond has existed. In each case the union is dissolved. In the theory of the State, the Roman Church has no original and inherent jurisdiction over marriage to the exclusion of the State. In the theory of the Roman Church the State has no jurisdiction whatever over the bond of marriage between baptized persons; that jurisdiction belonging exclusively to the Roman Church. The antagonism is obvious.

8 Manual of Christian Doctrine, p. 494. "The civil power has no

The revision of the Code of Canon Law by the Roman Church in 1918 gave a final expression to its doctrine of marriage. Dr. Woywod in his Commentary on the Code states that

"... there can be no valid matrimonial contract between baptized persons which is not also necessarily a sacrament (Canon 1012).1

"Baptized persons" include Roman Catholics and all others who have been "validly" baptized according to the Roman Catholic doctrine of "valid" baptism.

"The great mass of Christians," [he says] "separated from the (Roman) Catholic Church do not admit the teaching of the (Roman) Church as to the sacramental character of marriage. There is a reason for this attitude," he continues, "for, if they admitted the teaching that marriage is a sacrament, they would have to admit the necessary and logical conclusion that the (Roman) Church alone, to the exclusion of all secular powers, has jurisdiction over the marriage contract of Christians." 5

authority over the bond itself or what is essential to it, and can establish no real impediment, diriment or impedient, to the marriage of Christians. It has authority over the civil effects." (Ayrinhac, Marriage Legislation in the new Code of Canon Law, p. 30). "The (Roman) Church claims full, independent and exclusive power over the marriage of all baptized persons-(Roman) Catholics, heretics, schismatics-. That power is exclusive . . . It includes the legislative, judicial, and coercive power; that is, the power of establishing impediments both diriment and impedient, of deciding all matrimonial causes, of constraining married persons to comply with their obligations, etc." (Ibid., p. 29). Cf. Petrovits, The New Church Law on Matrimony, §§ 6, 9, 13, 16.

4 Woywod, vol. i, p. 559.

5 Ibid., p. 560.