154. Clandestinity

1. Gertrudis, a widow, has until now had domicile under the parish of St. Mary, with the brother of her deceased husband. Wishing to pass to second vows, leaving there her own furnishings, she betakes herself to the paternal home under the parish of St. Nicholas; where, in order that she may make the matter pleasing to her father, she intends to remain; so that after fifteen days, the banns having meanwhile been made, she can be joined in marriage.

It is asked: To which parish priest belongs, in the case, the right of celebrating the marriage?

R. Gertrudis the widow, when she betakes herself to the paternal home, either sincerely has the mind of remaining there and of contracting a new domicile, or she does not have it. - If the first: the celebration of her marriage belongs to the parish priest of the Church of St. Nicholas, under which the paternal house is situated. This is proved by the resolution of the S. C. C., Feb. 20, 1723, which judged valid a marriage contracted by two inhabitants of Cesena, who, in order to avoid the troubles from parents, had secretly fled to Forli, and there had celebrated marriage before the parish priest of St. Blaise, unexpectedly caught up in the matter. Indeed by that principle the Sacred Congregation judged that a marriage of this sort, although clandestine by law, was valid, because the woman had already confirmed by oath that she had come to Forli so that she might remain there with a sincere mind and choose her domicile with her maternal grandmother, who was living under the same parish of St. Blaise and whom she asserted to be her guardian or curator. From this species of fact it is openly evinced that, for the validity of marriage, that parish priest is to be judged proper in whose parish at the time of the contract the contracting parties dwell and to which they have gone so that they might remain there with a sincere mind. - If the second: if namely Gertrudis sought the paternal home not indeed with the mind of contracting domicile there, but with the sole mind of celebrating marriage there, so that namely she might make the matter pleasing to her father, then the celebration of the marriage of the same Gertrudis belongs to the parish priest of St. Mary in such a way that, if it were celebrated otherwise, the marriage would not be valid, just as is expressly had from the S. C. C., Feb. 22, 1631; Cas. Consc. Bonon. Dioec., year 1768, month of July, case 2; I. M. 1026.

2. Two persons originating from the place Spezzano, but dwelling in the place called Maranello, in the dispensation from the banns obtained from the bishop, erased the word Maranello and substituted Spezzano. The parish priest of Maranello, for that reason, having inspected the document, sent them to Spezzano. But the man, after two children had been received, left the woman and elsewhere married another.

It is asked: Was the first marriage valid?

R. Negatively, because namely it had indeed been celebrated before the parish priest of origin, but not before the parish priest of domicile. S. C. C., Nov. 18, 1702; I. M. 1026.

3. In a certain diocese the practice flourishes that often spouses pass from one parish into another parish of the same city, and contract marriage before a parish priest who is not proper, namely of the new parish in which they place their domicile. To avoid grave damages which can arise from this, parish priests mutually, yet without any writing, delegated to themselves the faculty of assisting at the marriages of new parishioners, and they did this with the Ordinary of the place approving.

It is asked: Are the marriages in the case valid?

R. Affirmatively. For from the Council of Trent, sess. 24, c. 1, de R. M., for a marriage to be validly contracted before a parish priest who is not proper, the permission of the proper parish priest or of the Ordinary is required. But in the case permission of this sort is had; since a general permission is a true permission, nor does the Tridentine decree require a particular permission. Likewise habitual permission is a true permission, nor does the Tridentine decree require an actual permission. Besides, permission given only by living voice is a true permission; nor likewise does the Tridentine decree demand permission consigned in writing. This is confirmed from the Resolution of the S. C. C., March 18, 1893. Cf. Reiffenst., l. 4, tit. 3, de Clandest. despons., § II, n. 18. Hence even permission given in writing by the parish priest suffices for contracting marriage before a priest to be chosen at the discretion of the contracting parties. S. C. C., June 15, 1586. But although marriages of this sort are valid, nevertheless a permission given generally is illicit and to be disapproved; rather a special and express permission is to be given in occurring cases, unless a grave reason for acting otherwise in some particular place is excluded, in the judgment of the Ordinary. The reason is that otherwise the aim of the Decree of the Council of Trent is frustrated in great part; and it is confirmed by the Response of the S. C. C., Dec. 22, 1891.

4. Paschalis, a priest, by permission of the parish priest, was present at the marriage of Lucius and Lucia. But on the preceding night, the parish priest, seized by a grave illness, had died. Hence, the matter having become known after the marriage had already been contracted, doubt began concerning the validity of such a marriage.

It is asked: What is to be said to the case?

R. If the death of the parish priest was commonly unknown when the marriage was contracted, the marriage was valid. But if it was not commonly unknown, then the marriage was invalid. The reason is that it is a general rule that, the one delegating being dead and the matter still intact, the power of the one delegated for one special and determined act in favor of some determined person perishes. But the case is excepted in which the death of the one delegating is commonly unknown; for on account of common utility, then, according to the commonly handed down rule, common error sustains the value of those things which are done by the delegated person. Lugo, Resp. Mor., l. 1, d. 20 and 35; Sanchez, de Matrim., l. 3, d. 22, n. 55-55; l. 8, d. 28, n. 72, 73, 89; Baller., de Matr., Op. Mor., n. 1231.

Hence the marriage is also valid if the parish priest had secretly revoked the permission of assisting at the marriage, legitimately conceded, while common ignorance of the revocation stands, because the permission is still retained by reason of the title initially had and the common error. Thus Sanchez, l. c.; Lugo, l. c. But in reality here the application of the doctrine of common error is altogether difficult, for the error in the case is only private and particular. Perhaps it would be better said that the marriage is valid because that occult revocation, as also a merely internal revocation, can produce no effect until it is sufficiently manifested and made known to the party. - A deacon who is publicly considered a priest, delegated by the parish priest, is validly present at marriage. Sanchez, l. 3, d. 22, n. 61; De Iust., l. 2, c. 19, n. 72. Indeed even a layman who by common error was held as a priest, and obtained from the parish priest the faculty of assisting, would also validly assist. De Iust., l. c.; Bonacina, de Matr., q. 2, p. 8, n. 30. Likewise the parish priest himself whose jurisdiction has occultly ceased, for example after resigning the parish, would validly assist.

5. Eligius and Vibiana, having set out from France into Spain so that they might remain there for a month, and thus acquire a quasi-domicile, and then be able to celebrate marriage, after a whole month had passed, celebrated marriage before the parish priest of the place and witnesses, and returned to France the following day.

It is asked: Was the marriage valid in the case?

R. The resolution of the question depends in the case on the time required for acquiring a quasi-domicile. Schmalz., l. 2, tit. 2, n. 19, raises the question: "To how much time ought this purpose of remaining extend itself, so that someone acquires a quasi-domicile and is judged not a guest but an inhabitant and resident?" And he responds: "Sylvester, Sanchez, and others think that it is necessary that he wish to dwell there for the greater part of a year. Those seem to think more conformably to the Law who say that the purpose of dwelling for some months suffices, especially if a house, room, shop, etc., has been rented. Thus Navarrus, Suarez, Laymann, and most recently Fr. Friderich." Fr. Ballerini also holds thus, Comp. Fr. Gury, n. 839; and Fr. Gury, n. 846, is content even with one month. But from the Sacred Congregation of the Council, June 7, 1867, habitation is required for the greater part of the year. Only one month would suffice if there were question of the United States of America, from a special Decree of the same S. I. C., May 6, 1886, approved and confirmed by Leo XIII. Hence it is clear that the marriage of Eligius and Vibiana cannot be held as valid. Cf. Lugo, Resp. Mor., l. 1, d. 37; Enchir. Moral. 1026; I. M. 1026.

6. Bertha, a Catholic woman, having domicile at Rome, enters marriage with a certain English Protestant man in the house of the English Legation. Now, desiring to enter a Catholic union with a Catholic, she asks whether the aforesaid union was valid.

R. Negatively. S. O., Aug. 1, 1900; M. E., v. 12, p. 241; A. S. S., v. 33, p. 211.