Case I: Some Points Regarding the New Marriage Legislation

Applied correction from Woywod’s opening insert: Case I, No. 3, page 12.—The New Code in Canon 2319 declares that those who contract marriage before a non-Catholic minister incur the excommunication reserved to the bishop. Before the New Code the parties did not only incur excommunication on account of the law of the III Baltimore Council but also on account of the law of the Bull "Apostolicae Sedis" which excommunication was specially reserved to the Holy See.

Rev. and Dear Sir.—Will you kindly give me some information on a few points concerning the new marriage legislation, Ne temere, August 2, 1907.

1. I have heard it maintained that in the Archdiocese of New York any pastor or his assistants may marry validly any place within the limits of the diocese, although they marry licitly only within the limits of their own parish. Do you know if this is the case?

2. Is it not sufficient for vera sponsalia, under the new legislation, that the written document or betrothal be signed by both parties in the presence of the ordinary or the parish priest, though the parties to the contract do not sign in the presence of one another? This is all that is required for other contracts in writing, and it would seem to be sufficient for a betrothal.

3. Do Catholics who, under the new marriage legislation, contract or attempt to contract marriage before a non-Catholic minister of religion, incur excommunication as formerly? The reason I ask is that since the excommunication was intended to deter Catholics from approaching a non-Catholic minister of worship, and that now a greater penalty being provided to deter them from such a ceremony, namely the invalidity of such unions, it seems to me that the lesser penalty, i. e., the excommunication, serving little or no purpose at present, would become inoperative. For if the nullity of their marriage, when contracted before a non-Catholic minister of the Gospel, will not deter Catholics from such a ceremony, certainly dread of the excommunication incurred by such conduct will have no influence with them.

Answer.—1. It is evidently incorrect to say that a priest, having faculties in the diocese where he resides, may marry validly any place within the limits of the diocese to which he belongs. The text of the decree Ne temere, of the Congregation of the Council, August 2, 1907, states explicitly that “the parish priest and the ordinary of the place assist VALIDLY at a marriage only within the limits of their territory; within which they assist validly at marriages not only of their own subjects but also of those not subject to them” (“Ne temere,” IV, 11).

Now while the territory of the ordinary is the whole diocese, and he assists validly at the marriages within the limits of the diocese, the territory of the pastor is his parish, and therefore only within the limits of his parish does he assist validly at marriages. As regards the Archdiocese of New York, and the same will hold good for the other dioceses of the United States, it is expressly stated in the letter of the Archbishop, March 2, 1908, to all the priests of the archdiocese, on this matter that “as far as this diocese is affected in the matter of validity, every priest of this diocese, having faculties, can validly assist at marriages, within the limits of his own parish, and can marry validly, within the limits of his own parish, not only his own parishioners, but also people from other parishes and other dioceses, provided there be no diriment impediment. A marriage performed by a priest (without being duly delegated) outside the limits of his own parish is null and void” (cf. Letter of Archbp. Farley, March 2, 1908, p. 6). As far as it has been possible to consult the pastoral letters of the other Bishops of the United States on this new legislation, they all lay down the same rules for the guidance of their clergy, namely, that within the limits of their respective parishes, the pastors assist validly at all marriages, but outside the limits of their parishes they can not assist VALIDLY, unless delegated by the ordinary or by the parish priest of the district where the marriage takes place. Whatever may be said concerning the intention of the ordinaries of dioceses to extend the jurisdiction of parish priests in the matter of marriages to the whole diocese, it is evident from the printed letter of the Archbishop of New York that such is not his intention. In any case it would require very exceptional circumstances to justify a Bishop in extending the jurisdiction of his priests in the matter of marriages to the whole diocese, since it is the intention of the Congregation of the Council, by whose authority the new legislation was enacted, to limit the parish priest’s jurisdiction over marriage to the limits of his own parish. This appears from a casual perusal of the text of the decree Ne temere itself, or of the commentaries on it issued by the canonists here and abroad.

2. As regards the manner of signing the written sponsalia, the Congregation of the Council has recently issued instructions that the written agreement must be signed by both parties to it and by the parish priest, or the ordinary of the diocese, or in the absence of the parish priest or of the ordinary, then by two witnesses, in the presence of all the parties required by the new law to sign it. It is not necessary that the document be drawn up in the presence of the parties signing it, but it is necessary for its validity that it be signed by the contracting parties in the presence of one another and of the parish priest or the ordinary of the diocese, who shall also sign it, then and there, in the presence of the contracting parties. It would not suffice, for instance, if the man signed it in the presence of his parish priest, and then sent it to the woman to be signed by her, together with the parish priest, in the presence of one another. The written document must be signed by both parties to it in the presence of one another and in the presence of the parish priest, who shall then sign it in the presence of the two contracting parties. It is of paramount importance that these formalities be observed, otherwise the document will be null and void. It is also required by the new legislation that the document contain the date on which it was signed, that is to say the day, the month and the year. If such date is omitted, the omission will invalidate the sponsalia, As all this is positive legislation, one may not conclude that because certain formalities are not required for contracts in general, therefore they are not required for the validity of a very special contract like sponsalia. In this respect sponsalia or the written agreement to marry resembles a last will and testament, in the way it must be signed, in order to be valid.

The law in most of the States requires that a last will and testament, in order to be valid, must be signed by the testator in the presence of two witnesses, who shall then sign it also, in the presence of one another and of the testator. It must also bear the date of the day, month and year. If these formalities are not observed, the testament will not stand in court. The same is true of the written betrothal or sponsalia. Every one required by the new law to sign the sponsalia must sign in the presence of every one else so signing.

The purpose of the law is to prevent fraud and deception as well as misunderstandings and legal complications.

3. Do Catholics still incur excommunication who are married by a non-Catholic minister of religion?

Yes, Catholics so marrying incur excommunication. The excommunication attaching to such marriages has not been removed by the new legislation. In this connection it may be well to recall that the excommunication incurred by Catholics in the United States who marry before a Protestant minister, is a twofold one, papal and episcopal. The papal excommunication is contained in the Bull of Pius IX (Apostolicae Sedis), and runs as follows:

“All apostates from the Christian faith and all and each heretics, by whatever name they are designated and of whatever sect they may be, and those who believe them, and their receivers, supporters, and in general any of their defenders.”

The Holy Office has repeatedly affirmed that those who contract or attempt to contract marriage before a non-Catholic minister of religion incur this excommunication (S. Officium, August 28, 1888; May 11, 1892). It is pretty well understood that the reason why Catholics, marrying before a Protestant minister, incur this excommunication, is that by so doing they profess themselves, in foro externo, believers in heresy. For by consenting to receive the Sacraments from an heretical minister of the Gospel according to an heretical rite, they implicitly profess their belief in heresy and are therefore excommunicated. Now this papal excommunication is still in full force, notwithstanding the new marriage laws, and is incurred the same as formerly. As ignorance of its existence exempts from incurring it, and moreover, since faculties to dispense from it are granted to all confessors in this country, it need not cause embarrassment.

The other excommunication, incurred by Catholics marrying before a non-Catholic minister of religion, is episcopal, provided by the Bishops of the third plenary Council of Baltimore. Neither has this excommunication been revoked by the new marriage legislation. Nor does ignorance of its existence excuse from incurring it. The power to remove this latter excommunication is reserved to the Bishops or ordinaries and must be received from them by the confessor wishing to absolve from it, each time that he desires so to absolve. All Catholics, therefore, in the United States who go before a non-Catholic minister of religion to be married, are now, as formerly, excommunicated and reserved to the ordinary. The purpose of the excommunication is to punish Catholics by cutting them off from the communion of the faithful, for aiding and abetting heresy. This purpose is served under the new legislation just as much as under the former laws, and there remains the same reason now as formerly, for punishing those who betray their faith by professing heresy and engaging in a false worship. Under the new legislation Catholics who marry before a civil magistrate are no more validly married than if they had been married by a non-Catholic minister of religion. But marrying before a civil magistrate is not a communicatio in divinis, nor is it an implicit profession of heresy, not even in foro externo; and therefore the Church has not judged it necessary to punish it by excommunicating the guilty parties. Hence in the whole matter of incurring excommunication by marrying before a non-Catholic minister of the Gospel, the present discipline is identical with the discipline that prevailed before Easter, 1908, ‘