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result would follow: the marriage would be full, complete, and irrevocable (1081, § 1).

That is the rule, as everybody knows, in all other contracts when obstacles are removed the agreement is complete and entails its mutual obligations without any new act of will on either side. It is the rule all through nature : if two magnets are kept apart by a leaf of paper, the removal of the leaf will result in their union without any re-magnetising process. And, without travelling outside the matrimony tract, we may parallel the case with another (1092, 3°)-in which, according to the best view, the Church allows the natural law to operate. A and B exchange matrimonial consent, but on condition that their parents agree to the marriage. The parental assent is delayed for a day, a month, a year, or any period we may like to mention, A and B remaining faithful to their purpose in the meantime. When, finally, assent is given, A and B may not be thinking of the marriage; they may be unconscious and not thinking of anything at all; still, without further action on their part, they become at that very moment husband and wife.1 Why? For the reasons stated in the previous paragraph. The parental veto was the only obstacle that kept their wills apart at the beginning it was the only thing that continued to keep them apart as time went on: once it was removed the wills were irrevocably knit in the sight of God, and the marriage was final and complete. That is the accepted teaching in this department-apart from the intervention of the Church, it would be the accepted teaching in the sphere of 'validation' as well. For parental veto' substitute 'diriment impediment,' and the two cases are identical.

Now, if all this be true, as we believe it undoubtedly is, what happens when a sanatio in radice is conceded? Simply this. The impediment ceases by dispensation or otherwise; then the Church stands aside and allows the natural law to operate. For, apart from the legitimation of children (1138, § 1)—which may or may not extend to the past (§ 2), and which in any case affects only canonical disabilities and presents no special difficulty -the essential effect of the sanatio is that a new consent, not required by

1A few question it reason and authority are against them. Cf. Marc, Inst. Mor. Alph, 1974.

2 For a similar effect in case of penalties, cf. Canon 2232, § 2.

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the natural law, is not required by Church law either. The process is sometimes referred to as being mysterious' and unintelligible.' There is nothing mysterious' about it, except the very mysterious legends that imaginative commentators have woven around it. Some few of them speak as if, by some metaphysical impossibility, the marriage was 'healed' from the beginning (ex tunc), as if (that is) a marriage invalid for (say) twenty years past now became valid during those same twenty years. If theorists of that kind deserve a refutation, they will find it in the homely proverb that what is done cannot be undone the factum infectum fieri non potest' of the theologians, or the non tamen irritum quodcunque retro est efficiet (Pater)' of the pagan poet. And, having recovered their sanity, they will perhaps give some sound advice to their less extreme, but equally misguided, partisans who endow the Church with a kind of scientia media-claiming that, in connexion with marriages otherwise invalid, she withdraws her voiding law from the very beginning whenever a sanatio will, as a matter of fact, be granted at some future date by the Holy See. Minds that are capable of formulating theories of that kind stand in sore need of a sanatio in radice themselves. The marriage was invalid, and even the infinite power of God cannot alter the fact. If the partners were conscious of the real state of things, every usurpation of marital rights was, and could never be other than, a formal mortal sin-luendum aut lachrymis aut gehenna.' '

To sum up these remarks. The effect of a sanatio on a marriage is that the marriage becomes valid now without a new consent. That is in full harmony with the principles of the natural law. In ordinary life we have a sanatio in radice whenever two parties to an agreement secure the assent of a third person whose approval is required to give the contract full binding force. There is a sanatio when the leaf is removed and two magnets come into contact. So is there when parental assent is given to a marriage contracted on that condition. In none of these cases is a new act required on the part of the agents concerned. And, if it were not for very special legislation in this

1e.g., Scavini, iii. 1050; De Angelis, iv. t. 17, n. 3.

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department, the sanatio in radice process would be the ordinary natural method of validating every marriage that is void (not through defect of consent, but) by reason of a diriment impediment.

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In what we have stated, we have taken it for granted that, notwithstanding a diriment impediment, a true, matrimonial consent is possible. That is the common view. A few reject it; others admit it only in a half-hearted fashion-claiming, almost in the same breath, that the consent is not defective' but that a true consent is impossible' all the same,1 Perhaps the wording of the phrase sanatio in radice' is to some extent accountable for the confusion. It seems to suggest that the 'root' stands in need of a cure. Now, the marriage is 'cured' undoubtedly, and in the fullest possible sense-it passes from death to life, from non-existence to existence. Not so the consent, the 'root' itself. It is no more cured than a musician released from prison and allowed to sit at a piano. The musician is no better now than he was before, but, obstacles being removed, he produces more satisfactory results. So with the consent. It was 'valid' from the beginning, but an impediment prevented it from producing its effect: now the impediment is removed, and the consent is not merely 'valid' but 'effective.' To employ the words of the Code, it was always 'naturally sufficient' but till the present moment 'juridically inefficacious' (1139, § 1).

As the matter, however, is of fundamental importance in the whole discussion, we may be allowed to digress for a moment and take it on its merits.

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Matrimonial Consent in Face of an Impediment.-There are, as we have seen, writers who claim that the thing is impossible. If a diriment impediment exists, they say, there is no suitable matter on which the consent can fall; the consent is, therefore, invalid; and what is invalid has no existence-invalidum esse et non esse paria censentur.2 That view, we may remark at once, is condemned in Canon 1085: 'conviction, correct or incorrect (scientia aut opinio), of the nullity of a marriage does not necessarily exclude matrimonial consent.'3 At the other extreme we have the view that, no matter what the impediment be-divine or

1 Cf. I. T. Quarterly, July, 1912, pp. 305, 311.
2e.g., Sanchez, ii., a. 35; Anacletus, iv., n. 591, etc.

3 'Non necessario excludit' would, we think, express the meaning better.

human, real or supposed-a true matrimonial consent is always possible. It is discountenanced slightly by the Code (1139, § 2), but we think it correct notwithstanding. Anyhow, between these two extremes there are innumerable positions that may be, and have been, assumed. They are all quite tenable, so far as the Code is concerned: the wording of Canon 1085 is too vague to compel their friends to renounce them.

Everyone admits, of course, that when a diriment impediment exists, the marriage is invalid. But the question at issue is whether the invalidity arises from the impediment merely, or whether, like the marriage itself, the consent also is vitiated. The various cases may be summarized under the following headings :—

I. 1°. An ecclesiastical impediment exists, but is unknown to the parties. A and B, for instance, are second cousins, but neither is aware of the fact: can they exchange a real matrimonial consent? Some have denied it1: their principle is the one given a moment ago:-an impediment exists; therefore, marriage itself being impossible, matrimonial consent is equally so. The position, it will be noted, is even more extreme than that directly condemned in Canon 1085 if an impediment, really existing and known to the parties, is compatible with their giving true matrimonial consent, a hidden impediment cannot surely be so fatal as the writers in question would have us believe. And, as a fact, the opinion is so much opposed to reason and practice that it hardly calls for refutation. The parties are perfectly bona fide; there is surely nothing to prevent their wishing to grant and accept full, perpetual, and exclusive marital rights-even though, by reason of a hidden obstacle, the wish is rendered ineffective. Moreover, these men will admit, even the Church cannot do the impossible : yet, in countless cases of the kind, she grants a sanatio an utterly impossible concession, unless the consent given in the past was naturally sufficient' (1139, § 1). Independently, therefore, of ecclesiastical pronouncements on which we might rely, we can have no hesitation in saying that the consent given in the past, though ineffective' at the moment, was 'true' and 'valid' all the same.

And the distinction just given, may we add, will meet

1 Those cited already.

2 e.g., that of Boniface VIII, de spons. in VIo.

nearly every difficulty raised in connexion with the remaining cases.

2°. There is no ecclesiastical impediment at all, but the parties think there is (opinio nullitatis,' c. 1085). A and B imagine they are second cousins: as a matter of fact, there is no relationship: can : can they give matrimonial consent? The case need cause no trouble: even the rigid men of the last section admit the possibility; and Roman replies show that they are right. The only disquieting feature is that, in this case and in others to be mentioned in a moment, the parties, thinking_marriage impossible, may intend a life of concubinage. In given cases the Roman authorities thought that the evidence supported that presumption. But that is a matter for proof in each individual instance. The decisions do not prove that matrimonial consent is impossible; they only prove that, in certain cases, matrimonial consent was not actually given.

3°. An ecclesiastical impediment exists and is known to the parties ('scientia nullitatis,' c. 1085). A and B are second cousins and they know it can they possibly intend married life? The case is more difficult than those already given but not by any means hopeless. The arguments given above hold good: for, 1°, even in this case, a sanatio is occasionally granted; 2°, if it be asked how people can wish to do what they know to be impossible, we may answer that

there is nothing to prevent a person (notwithstanding his conviction, correct or incorrect, that a diriment impediment exists) from wishing in his own mind to grant and accept marital rights, either because in his own mind he abstracts altogether from the voiding law, or because for some reason or other (however absurd) he fancies himself excused from it, or because he thinks that matters may be set right in the future, or even because he takes up a definite stand against the law, saying (as it were) in his heart: 'I am well aware that it has been so ordained, but, notwithstanding that, I, in so far as it depends on my own will, wish to grant-and-accept matrimonial rights.' a

It would be a strange position for a Catholic to adopt, but, unfortunately, many do adopt it when they

1e.g., a Constantinople case, decided 1st October, 1785. The parties contracted before a Turkish judge, and thought that the Tametsi bound them. This is not reckoned an 'impediment' in the Code, but the principle is the same (1139, § 1).

2 e.g., in a Parisian case, decided 15th August, 1882. The girl contracted marriage in a registry office in London. For particulars, see Gasparri, n. 906; 3 Gasparri, n. 906. Cf. I. E. RECORD, October, 1918, p. 289.

VOL XIII-21

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