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Objection 1: It would seem that one ought not to proceed by way of
accusation in order to sever a marriage contracted between persons
related by affinity or consanguinity. Because accusation is preceded
by inscription whereby a man binds himself to suffer the punishment of
retaliation, if he fail to prove his accusation. But this is not
required when a matrimonial separation is at issue. Therefore
accusation has no place then.
Objection 2: Further, in a matrimonial lawsuit only the relatives
are heard, as stated in the text (Sent. iv, D, 41). But in
accusations even strangers are heard. Therefore in a suit for
matrimonial separation the process is not by way of accusation.
Objection 3: Further, if a marriage ought to be denounced this
should be done especially where it is least difficult to sever the tie.
Now this is when only the betrothal has been contracted, and then it
is not the marriage that is denounced. Therefore accusation should
never take place at any other time.
Objection 4: Further, a man is not prevented from accusing by the
fact that he does not accuse at once. But this happens in marriage,
for if he was silent at first when the marriage was being contracted,
he cannot denounce the marriage afterwards without laying himself open
to suspicion. Therefore, etc.
On the contrary, Whatever is unlawful can be denounced. But the
marriage of relatives by affinity and consanguinity is unlawful.
Therefore it can be denounced.
I answer that, Accusation is instituted lest the guilty be tolerated
as though they were innocent. Now just as it happens through ignorance
of fact that a guilty man is reputed innocent, so it happens through
ignorance of a circumstance that a certain fact is deemed lawful whereas
it is unlawful. Wherefore just as a man is sometimes accused, so is a
fact sometimes an object of accusation. It is in this way that a
marriage is denounced, when through ignorance of an impediment it is
deemed lawful, whereas it is unlawful.
Reply to Objection 1: The punishment of retaliation takes place
when a person is accused of a crime, because then action is taken that
he may be punished. But when it is a deed that is accused, action is
taken not for the punishment of the doer, but in order to prevent what
is unlawful. Hence in a matrimonial suit the accuser does not bind
himself to a punishment. Moreover, the accusation may be made either
in words or in writing, provided the person who denounces the marriage
denounced, and the impediment for which it is denounced, be
expressed.
Reply to Objection 2: Strangers cannot know of the consanguinity
except from the relatives, since these know with greater probability.
Hence when these are silent, a stranger is liable to be suspected of
acting from ill-will unless he wish the relatives to prove his
assertion. Wherefore a stranger is debarred from accusing when there
are relatives who are silent, and by whom he cannot prove his
accusation. On the other hand the relatives, however nearly related
they be, are not debarred from accusing, when the marriage is
denounced on account of a perpetual impediment, which prevents the
contracting of the marriage and voids the contract. When, however,
the accusation is based on a denial of the contract having taken place,
the parents should be debarred from witnessing as being liable to
suspicion, except those of the party that is inferior in rank and
wealth, for they, one is inclined to think, would be willing for the
marriage to stand.
Reply to Objection 3: If the marriage is not yet contracted and
there is only a betrothal, there can be no accusation, for what is
not, cannot be accused. But the impediment can be denounced lest the
marriage be contracted.
Reply to Objection 4: He who is silent at first is sometimes heard
afterwards if he wish to denounce the marriage, and sometimes he is
repulsed. This is made clear by the Decretal (cap. Cum in tua,
De his qui matrim. accus. possunt.) which runs as follows: "If
an accuser present himself after the marriage has been contracted,
since he did not declare himself when according to custom, the banns
were published in church, we may rightly ask whether he should be
allowed to voice his accusation. In this matter we deem that a
distinction should be made, so that if he who lodges information
against persons already married was absent from the diocese at the time
of the aforesaid publication, or if for some other reason this could
not come to his knowledge, for instance if through exceeding stress of
weakness and fever he was not in possession of his faculties, or was of
so tender years as to be too young to understand such matters, or if he
were hindered by some other lawful cause, his accusation should be
heard. otherwise without doubt he should be repulsed as open to
suspicion, unless he swear that the information lodged by him came to
his knowledge subsequently and that he is not moved by ill-will to make
his accusation."
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