Case X: Betrothal and Marriage Under the New Law

John and Mary, having made up their minds to get married, draw up a written engagement to that effect, signed by both of them. Informed, however, by Father B., their parish priest, that such a document has no value in the eyes of the Church under the new marriage law, unless signed also by the ordinary of the diocese, or by the parish priest, or at least by two witnesses besides themselves, they resolve to bring the document to Father B. so that he may add his signature. Accordingly they invite Father B. to dine with them and a party of friends at a country house, which John owns at some distance beyond the limits of Father B.’s parish, when the betrothal document is to be given to him to sign it. When the day appointed for the dinner arrived, Father B. was called elsewhere on important business, and he delegated his curate to take his place and to sign the written espousals between John and Mary. This the curate did, with much satisfaction to all concerned. Shortly after, however, John and Mary quarrelled about some matter of little importance, and John, without Mary’s consent, even against her earnest protest, broke off his engagement to her, and sought the hand of her sister Margaret in marriage. Margaret lived in another town. She was fully advised about the engagement of her sister Mary to John. But being convinced that things were at an end between her sister and John, and believing that an alliance with John was something to be desired, Margaret agreed to marry him, provided there be no delay. To this John consents, and together they call upon Father W., parish priest of the town where Margaret lives, to make the necessary arrangements for a speedy marriage. Father W. knows nothing of John’s former betrothal to Margaret’s sister, but he refuses to marry Margaret and John, because of Margaret’s youth. Hereupon Margaret and John framed a document purporting to be the written consent of Margaret’s parents to the marriage and they forged Margaret’s father’s name to the document. Still Father W. refused to marry them. They now threaten that unless Father W. agrees to marry them, John will revoke a bequest of many thousands of dollars which he made to Father W.’s church, and which Father W. was very anxious to receive, as it would liquidate a heavy debt with which the church was burdened. Very much perturbed by this threat, and deceived by John and Margaret as to Margaret’s parents, consent to the marriage, moreover ignorant of John’s former betrothal to Margaret’s sister Mary, Father W. finally consents, and marries Margaret to John in the chapel of a convent, situated within the limits of his parish, but altogether exempt from his jurisdiction, and having a chaplain of its own, who possesses the faculties and jurisdiction granted to rectores piorum locorum. This chaplain was absent at the time and knew nothing about the affair, but the superioress of the convent had gladly given her consent, as Margaret was a former pupil of the convent, and socially quite prominent. Are these espousals and this marriage valid or invalid?

Answer.—We will take up, first, the question of the sponsalia, which John and Mary contracted in writing and which they signed and afterward presented to the delegated curate, who also signed for and in the name of Father B., the parish priest. These sponsalia were null and void in foro externo ecclesiae, under the provisions of the new marriage law “Ne temere,” for three reasons, any one of which, of itself, was sufficient to invalidate the espousals. (a) It is required for the validity of espousals that they be signed simultaneously by the contracting parties and by the ordinary of the diocese or the parish priest, or at least by two witnesses, in the presence of one another. Asked recently “whether, in order to enter into valid Espousals, the parties are bound to sign the document in a single act together with the pastor or Ordinary, or with two witnesses; or whether it is sufficient instead that the document, signed by one party together with the pastor or with two witnesses, be sent to the other party, who in turn signs with the pastor or with two witnesses,” the Congregation of the Council, on July 27, 1908, answered: “Yes to the first part, no to the second.” The purpose of this requirement is to prevent fraud and deception, the same as the civil law requires that a last will and testament must be signed by the testator in the presence of the witnesses and by the witnesses in the presence of the testator and of one another. The espousals of John and Mary were not signed by them unico contextu with the parish priest; therefore, they were invalid. Recent commentaries, v. g., Noldin, Devine, etc., must be revised to agree with this decision.

(b) The sponsalia were invalid because they were not signed by the parish priest himself, but by his curate. The parish priest can not subdelegate his curate to sign the sponsalia. Neither can the ordinary of the diocese delegate another to sign for him. In case either the bishop or the parish priest can not or do not sign the sponsalia, then two witnesses must sign. The question was proposed to the Congregation of the Council: “Whether espousals, besides being celebrated before the Ordinary or pastor, may also be celebrated before someone delegated by either”; and the Sacred Congregation answered, March 28, 1908: “No.” The ordinary of the diocese and the parish priest are the authorized witnesses of the Church for this purpose, testis auctorizabilis or qualificatus. The Church is willing to trust them, and to rely on what they do, but she is not willing to accept the testimony of one whom either of them may subdelegate. In the absence of either the ordinary or the parish priest, the law requires that two witnesses shall sign the sponsalia, even though these witnesses be priests and delegated by the ordinary or the parish priest. There is a difference here between the Sponsalia and the marriage under the new law. The ordinary or the parish priest may delegate another priest to assist at a marriage, provided it take place within their territory; but they can not delegate validly another priest to sign the written sponsalia, even though the document be signed within their territory. S. Congr. Concilii, die 4 Feb. 1908, ad VII.

(c) The sponsalia were invalid, because the country house where they were signed was outside the limits of Father B.’s parish. Any ordinary of a diocese and any parish priest may sign the sponsalia, both validly and licitly, provided they sign within the territory subject to their jurisdiction. To the question: “Whether espousals may be celebrated only before the Ordinary or pastor of the domicile or month-long residence, or also before any Ordinary or pastor,” the Congregation of the Council replied, March 28, 1908: “They may be celebrated before any Ordinary or pastor, provided it is within the territorial limits of that Ordinary or pastor.” ‘Therefore, even though Father B. himself had signed the sponsalia, under the circumstances they would be invalid, because signed outside the parish limits. These espousals, therefore, being invalid, created no canonical impediments of any kind to the subsequent marriage of John to any relative of Mary. He was canonically free to marry whomsoever he might choose, as far as these sponsalia were concerned.

When, therefore, he appeared with Margaret, Mary’s sister, before Father W. and requested to be married, he had a right to do so. The consent of Margaret’s parents was not necessary ad validitatem matrimonii between Margaret and John. It might have been required ad liceitatem, but not ad validitatem. Moreover, Father W. was not deceived regarding the purpose of John and Margaret. When the new marriage law says that for the validity of a marriage, the parish priest must assist “provided that, invited and requested, and constrained neither by force nor by grave fear, he asks for and receives the consent of the contracting parties,” it means that the mere passive presence of the parish priest is not sufficient, but that he must know what the parties want him for; he must not be deceived as to the purpose for which his presence is required, nor must his presence be secured by force or intimidation. In this case, Father W. is perfectly well aware what is wanted of him. He is deceived as to a point of minor importance, not required for the validity of the marriage, and in no way interfering with Father W.’s full knowledge of what John and Margaret desire to do, and desire him to witness. If while they were conversing with Father W. two witnesses had appeared, and John and Margaret had exchanged mutual vows, the marriage would be invalid, because deception was practised within the meaning of the law. But as things stand, Father W. is invitatus et rogatus. But did not John use threats and intimidation when he threatened to revoke his bequest? No, not within the meaning of the law. It was not an unjust threat that John made. He had a perfect right to revoke his bequest. He was doing Father W. and his church no unjust injury in threatening to revoke his bequest. John might have threatened to go to the bishop about the matter, or even to the apostolic delegate. That would not be using unjustifiable intimidation, for it was within John’s rights to go to the bishop or the apostolic delegate about the matter, if he choose to do so, and he would not invade any rights of Father W. in so doing, nor would he do him any unjust injury. Therefore, when Father W. finally made up his mind to witness John’s marriage, he was neither vi aut metu gravi constrictus, but properly invitatus et rogatus, and there only remained for him to require and to receive the mutual consent of the contracting parties, so that he may ask for and receive the consent of the contracting parties.

That Father W. performed the marriage in the chapel of a convent that was removed from his jurisdiction, did not invalidate the marriage. The convent was within the territory of Father W.’s parish, although exempt from his jurisdiction. Now the chaplain of such a convent, if he be altogether exempt from the jurisdiction of the parish priest, has jurisdiction only over such persons as are under his care, and not over such persons as may visit the convent. All persons within the territory of the convent, who are not personally committed to the care of the chaplain, are subject to the jurisdiction of the parish priest of the parish in which such convent is situated. Such is the ruling of the Congregation of the Council. Asked “whether chaplains or rectors of pious places of any kind exempt from parochial jurisdiction can validly assist at marriages without delegation from the pastor or Ordinary,” the Congregation of the Council answered, February 4, 1908: “Yes, for persons entrusted to them, but in the place where they exercise jurisdiction, provided it is established that full parochial power was committed to them.” All other persons within the parish limits of Father W.’s parish are subject to Father W.’s jurisdiction, even while within the exempted territory of the pii loci.