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MARITAL CONSUMMATION ACCORDING TO ECCLESIASTICAL LEGISLATION by J. Edward Hudson A dissertation submitted to the Faculty of Canon Law of Saint Paul University, Ottawa, Canada, in partial fulfillment of the requirements for obtaining the degree of Doctorate in Canon Law W8UOTH*QU6S * ^ELAfi/ft^, ^ *? J ( ^ L.BkAKltS ^ Ottawa, Canada, 1977 tawa, Canada, 1977 UMI Number: DC53986 INFORMATION TO USERS The quality of this reproduction is dependent upon the quality of the copy submitted. Broken or indistinct print, colored or poor quality illustrations and photographs, print bleed-through, substandard margins, and improper alignment can adversely affect reproduction. In the unlikely event that the author did not send a complete manuscript and there are missing pages, these will be noted. Also, if unauthorized copyright material had to be removed, a note will indicate the deletion. UMI UMI Microform DC53986 Copyright 2011 by ProQuest LLC All rights reserved. This microform edition is protected against unauthorized copying under Title 17, United States Code. ProQuest LLC 789 East Eisenhower Parkway P.O. Box 1346 Ann Arbor, Ml 48106-1346 ACKNOWLEDGMENTS The writer wishes to thank most particularly those who made it possible for him to undertake this study, especially the Archbishops and Bishops of the Atlantic Provinces and the Halifax Regional Tribunal. A special debt of gratitude is owed to Rev. Francis G. Morrisey, O.M.I., who directed this work, and to Rev. Germain Lesage, O.M.I., Rev. Rene Latremouille, O.M.I., and Rev. Louis-Philippe Vezina, O.M.I., for their helpful comments from the outset of this dissertation. The invaluable services of Mrs. Gabrielle Nadeau, who typed the manuscript, and Sister Paula Moore, P.B.V.M., who acted as research assistant, are also deeply appreciated. CURRICULUM VITAE J. Edward Hudson was born April 10, 1939, in Rexton, New Brunswick. He was ordained to the priesthood for the Archdiocese of Moncton on June 9, 1963. He received a Diploma of Special Studies in Philosophy from the Seminary of Philosophy, Montreal, in 1959; a Bachelor of Theology degree from Holy Heart Seminary, Halifax, in 1963; a Bachelor of Arts degree from the University of Moncton in 1965; Bachelor of Canon Law degrees from St. Paul University and the University of Ottawa in 1975; a Licentiate in Canon Law degree from St. Paul University and a Master's degree in Canon Law from the University of Ottawa in 1976. He completed his premedical studies in the Faculty of Medicine of the University of Ottawa in 1970, and has also followed courses in zoology, biology, human anatomy and physiology at the University of Moncton, the Seminary of Philosophy, and the University of Ottawa. He is the editor and co-author of the Handbook on Marriage Nullity Cases first published in 1975. ABBREVIATIONS A..A . S. Acta Apostolicae Sedis A.C Annee canonique A.,C . R. Australasian Catholic Record A.,E . R. American Ecclesiastical Review C.,L . D. Canon Law Digest Comm. Communicationes D.,C . Documentation catholique E. ,1. C. Ephemerldes iuris canonici E.,T . L. Ephemerldes theologicae Lovanienses I. .C. Jus canonicum I, .D. ,E. II diritto ecclesiastico M,.E . Monitor ecclesiasticus N..R . T. Nouvelle revue theologique Per. Periodica R,.D . ,C. Revue de droit canonique R,.E . D.C. Revista Espanola de Derecho canonico R..Sc.R . Revue des sciences religieuses S..C . Studia Canonica S. ,T. Sal terrae TABLE OF CONTENTS Chapter page INTRODUCTION viii I.- THE JURIDICAL SIGNIFICANCE: THE PROBLEM UP TO THE TWELFTH CENTURY 1 A. The Development of the Consensual Theory: The School of Paris 3 1. The Influence of Roman Law 3 2. St. Ambrose 8 3. St. Augustine 11 4. Pope Nicholas I 14 5. St. Peter Damian 16 6. Hugh of St. Victor 18 7. Peter Lombard 22 B. The Development of the Copula Theory: The School of Bologna 25 1. Hincmar of Rheims 28 2. Ivo of Chartres 34 3. Gratian 38 C. Reconciliation of the Two Theories: Alexander III 45 1. The Doctrine of Rolando Bandinelli prior to His Election to the Papacy 45 2. The Response of Alexander III to the Archbishop of Salerno 49 3. The Response of Alexander III to the Bishop of Brescia 51 II.- ECCLESIASTICAL LEGISLATION FROM THE TWELFTH TO THE TWENTIETH CENTURY 57 A. Pre-Code Documents on Problems Related to the Consummation of Marriage 60 1. The Brief "Cum frequenter", Sixtus V, June 27, 1587 60 2. Documents on Procedural Law 75 B. The Teaching of the Code of Canon Law on the Consummation of Marriage 88 1. Canon 1015, §1 and §2 89 2. The Notion of Conjugal Copula Consummative of Marriage: Its Elements and Its Effects 91 TABLE OF CONTENTS vi Chapter page C. Post-Code Documents on the Consummation of Marriage and Related Problems 98 1. Decree "Catholica Doctrina", and Norms "Regulae servandae in processlbus super matrimonio rato et non consummato", S.C. Sacr., May 7, 1923 99 2. Norms "Ad praecavendam dolosam personarum substitutionem", S.C. Sacr-, March 27, 1929 106 3. Instruction "Quo facilius", S.C. Eccl. Orient., June 10, 1935 108 4. Instruction "Provida Mater", S.C. Sacr., August 15, 1936 109 5. Letter "In plenariis", S.C. Sacr., January 5, 1937 110 6. Reply "De copula perfecta et de consummatione matrimonii", S.C. S. Off., March 1, 1941 111 7. Decree "De quibusdam cautelis adhibendis in causls matrimonialibus impotentiae et inconsummationis", S.C. S. Off., June 12, 1942 113 8. Reply "De consummatione matrimonii", S.C. S. Off., February 3, 1949 115 9. Motu proprio "Crebrae allatae", Pius XII, February 22, 1949 118 10. Motu proprio "Sollicitudinem nostram", Pius XII, January 6, 1950 119 11. Instruction "Instructionem quo facilius", S.C. Eccl. Orient., July 13, 1953 119 12. Motu proprio "Cleri sanctitati", Pius XII, July 11, 1957 120 13. Apostolic Constitution "Regimini Ecclesiae Universae", Paul VI, August 15, 1967 121 14. Instruction "Dlspensationis matrimonii rati", S.C. Sacr., March 7, 1972 122 TABLE OF CONTENTS vii Chapter page III. - A BIOLOGICAL PERSPECTIVE 136 A. The Physical Contribution of Husband and Wife to Consummation 137 1. Requirements for Consummation on the part of the Husband 137 2. Requirements for Consummation on the part of the Wife 140 B. Impotence as a Defect Impeding Biological Consummation 143 1. The Impediment of Impotence in Early Ecclesiastical Sources 144 2. The Notion and Division of the Impediment of Impotence in the Code of Canon Law 156 C. The Problem of the Verum Semen 171 1. The Problem in its Historical Context and its Subsequent Influence on Rotal Jurisprudence 172 2. The Practice of the Sacred Congregation of the Holy Office regarding the Marriage of the Bilaterally Vasectomized 194 IV.- THE PROPOSED NEW LAW 210 A. The Proposed Revision of Canon 1015 of the Code of Canon Law 214 1. The Text of Canon 245 of the Proposed Law and Canon 1015 of the Code of Canon Law 215 2. A Comparative Study and Evaluation of Canon 245 of the Proposed Law 217 B. The Proposed Revision of Canon 1068 of the Code of Canon Law 251 1. The Text of Canon 283 of the Proposed Law and Canon 1068 of the Code of Canon Law 253 2. A Comparative Study and Evaluation of Canon 283 of the Proposed Law 254 SUMMARY AND CONCLUSIONS 292 BIBLIOGRAPHY 304 INTRODUCTION In the past decade or so, due no doubt to the influence of the Second Vatican Council, there has been a revival of interest in the importance of the sacramental life of the Church. The sacrament of marriage, in particular, has received the special attention of ecclesiastical writers. These have strived to renew, to re-express the traditional theology of marriage in terms of the conciliar teaching, as found especially in Gaudium et spes, Part II, Chapter I, Marriage and the Family in the Modern World. There is a marked tendency today to speak of marriage as a covenant, as "an intimate community of life and love" rather than as a mere contract. Likewise, the advances in anthropology, psychology and sociology have occasioned a re-examination of the entire marital relationship. It is not surprising, therefore, that the traditional notion of marital consummation as the first act of sexual intercourse following the exchange of consent, is criticized as inadequate within the context of the renewal of the theology on marriage. Many see this notion of consummation as too biological, as a rather automatic type of concept, which fails to involve the whole human person over an extended period of time. INTRODUCTION ix A number of serious studies have already been done in the area of the consummation of marriage and other related topics. In 1969, for example, Guy St-Hilaire prepared a doctoral dissertation on the subject of azoospermia in Rotal jurisprudence (L'azoospermie dans la jurisprudence rotale), which treats incidentally and at some length of copula satiativa or copula whereby ordinary semination, irrespective of testicular content, is required and is sufficient to consummate marriage. In 1971, John A. Alesandro presented a dissertation, also at the Gregorian University in Rome, on Gratlan's Notion of Marital Consummation, treating in some detail of Gratlan's view of consent and consummation. Such studies as the above are a valuable contribution to the literature on marital consummation. They clarify problem areas while acting as an incentive to further research along the same lines. However, they do tend to concentrate (as we expect from their titles) on one particular aspect. Consequently, an overall synthesis of the notion of consum mation seems still to be lacking. It is with a view to supplying for this deficiency in legal circles that this present work is undertaken.