Case LVIII: Delegation for the Proper Pastor of Those About to Be Married

The rector of the parish church at X was summoned one morning from his confessional to the sacristy. He found there two people anxious to be married, and their witnesses. They all came from a town in another diocese, but they were accompanied by their parochus proprius, who asked the rector's permission to marry them there. The permission was readily granted, and the rector was careful to add that he also gave the delegation, which was necessary according to the decree " Ne temere." The other priest replied: " I do not need that, for I am the parish priest of the couple about to be married." This opinion was expressed so decidedly as to make any discussion then and there inadvisable. The strange priest then proceeded with the marriage ceremony, but when all was over, an argument arose on the subject, in the course of which he referred to a decision published in the Acta S. Sedis in answer to several questions, one of which (dubium IX) was said to run as follows: "Where and how may a pastor who has under him certain persons or families within territory assigned to other pastors assist at marriages?" The answer to this was: "Affirmatively, with respect only to his own subjects, everywhere in the said territory, after consultation with His Holiness."

It is asked which of the two views is the correct one?

Answer.—I. The priest from the other town quoted the decision of the Congregation of the Council of February 1, 1907, (Acta S. Sedis, V. xli, p. 1ll) quite correctly, but he entirely failed to understand it. The decree " Ne temere" states clearly that the priest can assist validly at a marriage only (dumtaxat) within the boundaries of his own parish. As soon as he goes beyond them, he ceases to be the parish priest able to act as testis auctorizabilis at a marriage, and if he desires to officiate at a marriage in another parish, he requires the authorization of the parochus loci.

The decision of the S. C. Concilii quoted by this priest applies to the right to officiate at marriages possessed by priests who exercise the cure of souls, not in a particular territory assigned to them, but over certain families or individuals living within the jurisdiction of another parish priest (for instance, army chaplains). It appears from the Votum Consultoris (Acta S. S., V. xli, p. 86, etc.) that the decision quoted was elicited by a question, asked by the Archbishop of Compostella, as to whether the priest of S. Maria de Coricela in Compostella, who held jurisdiction as parish priest over only a few families in the town, could validly officiate at the marriages of his parishioners. This question was drawn up in general terms by the S. C. C, and it was decided that such priests, having no parish of their own, might validly marry their subjects in the parishes of other priests, in spite of the " Ne temere " decree.

The priest from the other town was therefore entirely mistaken in appealing to this decision of the S. C. C. He appears to think that the old regulations of the Council of Trent are still in force on the subject of marriage, according to which a parish priest could validly marry his parishioners anywhere. The rector of X acted both correctly and courteously, in giving unasked the delegation that enabled his confrater to marry the couple in the church at X.

II. At this point, however, a peculiar difficulty arises in connection with the case. This priest declared decidedly that he did not need any delegation, being the parish priest of the people whom he was about to marry. These words were spoken with assurance, and seem to imply an absolute refusal to accept the delegation offered. He apparently united the couple on his own authority, and the rector of X, not quite knowing how to act, let him do as he liked.

Two questions present themselves: the quaestio juris: (a) Is the acceptance of the delegation on the part of the priest delegated to perform the ceremony essential to the validity of his action? and the quaestio facti: (b) Did this priest really not accept the delegation from the rector of X, who was competent to give it?

(a) Authorities on Canon Law do not all answer the first question in the same way. The chief priest in any parish, in virtue of his office, and quite irrespective of any arbitrary acceptance or refusal on his part, possesses the faculty to solemnize marriages. Whether he will or not, his presence confers upon the declaration of consent that he obtains without compulsion (Ne temere, IV. § 3) from the man and woman the necessary sanction, so that they enter into a true Christian marriage. If a priest is not in charge of a parish, he must obtain the faculty of testis autorizabilis before the wedding, and he must do so by requesting the priest who is competent to act to delegate to him his power. Before a legal tribunal no refusal to accept the power delegated can affect the matter at all, if the person receiving is canonically dependent on the person giving the delegation; the former has no power de jure to refuse it, therefore there is required no acceptance.

If, for instance, a Bishop delegates some particular priest to perform all the marriages in a certain district, he is eo ipso competent to officiate in virtue of the Bishop's orders, and he cannot destroy this canonical qualification even by a positive refusal to accept the delegation. As far as I know, all canonists agree up to this point. (Cf. Wernz, Jus Decretalium, IV. p. 287, n. 218, and the authors, early and recent, quoted in that passage.)

If, however, the priest receiving the delegation is not canonically dependent upon the priest giving it, then, according to the general principles governing transference of privileges, powers, and authority from one person to another, acceptance on the part of the person delegated is an essential condition for the validity and force of a marriage delegation. This view is taken by Wernz (l. c.); he defends it on theoretical grounds and also refers to the authority of the S. C. Concilii in the Causa Neapolitana seu Puteolana, 3 Julii, 1734 (given in Richter, Concil. Trident., p. 230, etc., n. 58), in which the third reason given for the decision is: "The vicar of Puteoli did not accept the permission or delegation of the pastor of Ruggiano, but was unwilling to use it, so that even if the curate of Ruggiano could at that time have been called Maria’s pastor, the marriage would not have been valid, because acceptance of the delegation is a condition altogether necessary for its validity."

Wernz quotes in support of his view Sanchez, Schmalzgruber, and Rosset; it is adopted, also by the following more recent writers, — Aichner (Compendium j. e. § 192, etc.), Binder- Scheicher (Praktisches Handbuch des katholischen Eherechtes, p. 172), Wouters (Commentarius in decretum " Ne temere," p. 63), Leitner (Lehrbuch des katholischen Eherechts, p. 328, etc.) and others.

Scherer (Handbuch des Kirchenrechts, II. pp. 204, n. 193) takes another view of the matter. It is true that he makes the validity of the delegation depend upon the delegate's knowledge of it, but he adds, on the point whether the formal acceptance of the delegated power is essential: " Consistency seems to require a negative answer." No one can deny this who adopts Scherer's view of the delegation as follows (/. c, p. 203): " Strictly speaking, a delegation confers upon the man and woman about to marry the permission to make their declaration of consent before the delegate instead of their proper priest or ordinary." If this definition is adequate, then undoubtedly not only the acceptance of the delegation, but even the knowledge of its existence, ceases to be essential to the validity of the delegate's action. Scherer quotes Engel (Collegium universi juris can., 1. VI. tit. III.) in support of his opinion; and Engel shows much skill in refuting the arguments of his opponents, but nevertheless the preponderance of authorities seems to be in favor of regarding acceptance of the delegation as a condition essential to its validity.

(b) The last question to consider is whether the strange priest accepted the delegation given him by the rector of X, or not. His categorical statement, " I need no delegation," seems to imply a rejection of it. It is, however, only the expression of the speculative mistake which the priest was making. The practical intention, which all the circumstances prove him to have possessed, was to marry his parishioners in a valid and correct way. Such an intention is quite compatible with a mistake. He came with his parishioners and asked the rector of X for permission to marry them in that church. He declared the delegation given him to be unnecessary, ex ignorantia invincibili or vincibili, but this does not affect the objective fact that he was really delegated and knew that he was, and intended to secure for his parishioners a valid and regular marriage. Even according to the stricter view this would suffice to render a marriage per delegationem valid. An express and formal acceptatio delegationis cannot be proved to be indispensable, either from any positive regulations or for theoretical reasons. The theory that an acceptance of the delegation is unessential is certainly a probable one, and in any case we may fall back on the consoling principle: " in dubio standum est pro valore actus." There is no reason at all for questioning the validity of the marriage.—Dr. W. Grosam.