Case XX: A Marriage Case Under the New Decree

Applied correction from Woywod's opening insert: Case XX, 1°.—The New Code drops the impediment of public honesty which according to the old law arose from valid engagement contracts. (Cf. Canon 1078.)

Titius, an assistant priest in St. Bartholomew’s parish, is aroused from sleep in the middle of the night and called to the neighboring parish of St. Thaddeus to administer the last Sacraments to one of his parishioners, named Cajus, who is taken suddenly very ill while visiting there in the house of Sempronia, a woman to whom he was never married, but by whom he has several children. Titius recalls, on the way thither, that Cajus is engaged to be married to Tiberia, Sempronia’s sister, which engagement is in writing and signed by Titius himself as well as by Cajus, but not by Tiberia, because she can not write. Now Titius has been warned quite severely by the pastor of St. Thaddeus against trespassing on his parish to administer the Sacraments or perform any other sacerdotal ministry. On the other hand, Titius has received authorization from the assistant priest of St. Thaddeus, who is a particular friend of his, to administer any of the Sacraments within the parish limits whenever he might desire to do so. Taking note of these things, and not wishing to disturb his friend, the assistant priest of St. Thaddeus, Titius resolves to marry Cajus and Sempronia without more ado. He makes two small boys, one ten and the other seven years old, act as witnesses. They are half asleep and grumbling because their sleep has been disturbed. Omitting the interrogations and the prayers, as found in the ritual, Titius marries the pair without any ceremony, simply having them express mutually their consent to the marriage. Returning home, Titius retains the fee for the marriage which Cajus gave him, and records the marriage on the books of St. Bartholomew’s parish, but neglects to make any entry in the baptism records. All this happened since Easter Sunday, April 19, 1908, on which day the new marriage law, “Ne temere,”’ of Pope Pius X, went into effect.

Unde quaeritur: An Titius egerit temere?

Answer.— ‘Nearly thirty years ago, 1880, Leo XIII, of blessed memory, acclaimed to the world the famous encyclical ‘Arcanum,’ which contains a most lucid and comprehensive exposition of the fundamental principles of Christian marriage; and Pius X, through the Sacred Congregation of the Council, in order to make most practical these principles at the present hour, issued the decree ‘Ne temere,’ which (1) changes the discipline of the Church with regard to ‘sponsalia’ (betrothal); (2) modifies the “Tametsi’ decree of the Council of Trent affecting clandestine nuptials: (3) provides for a more perfect registration of marriage.” (Pastoral of the Archbishop of New York on the new marriage law.)

The above case falls under this new law of Pius X, and in order to treat it clearly and orderly, we shall consider:

1. The sponsalia contracted by Cajus and Tiberia.

2. The validity of the marriage between Cajus and Sempronia, as performed by Titius.

3. The lawfulness of the said marriage.

4. Titius’ conduct in retaining the marriage fee and entering the marriage on the records of St. Bartholomew’s church.

I. The sponsalia contracted by Cajus and Tiberia. Since the Council of Trent, vera sponsalia, i. a, a true betrothal or marriage engagement, produced the following results: First, it created a diriment impediment publicae honestatis, to the subsequent marriage of either party to the betrothal, with a blood-relative in the first degree, of the other; that is to say, a man can not marry either the mother, sister or daughter of the woman with whom he has contracted vera sponsalia, nor can the woman marry validly either the father, brother or son of the man to whom she is betrothed.

Secondly, vera sponsalia create an obstructive or prohibitive impediment to the marriage of either party to them with any other person whatsoever. Now the new marriage law does not affect these consequences of vera sponsalia at all. They remain under the new law just what they have been since the Council of Trent. But the new law does affect the sponsalia themselves, restricting them to a written betrothal in the presence of witnesses and signed by the principals and the witnesses. Heretofore any kind of betrothal, verbal or written, with or without witnesses, provided only that it was a real and true promise of marriage, induced the above impediments. Henceforth a betrothal, in order to create the above impediments, must be:

1. A written contract, signed by the parties to the contract; and if either, or both, can not write, the name (X) mark must be placed on the contract, indicating the illiteracy.

2. The signature of one witness is sufficient if the witness be the ordinary of the place, or the parish priest; but if either or both the parties to the contract can not write, an additional witness, who can write, is required to attach signature.

3. The signature of two witnesses is essential if the ordinary of the place or fhe parish priest does not sign; these two witnesses need not be ecclesiastics; they may be laymen; in case either or both parties to the contract can not write, three witnesses are required, who will attach their signatures.

These things being so, the written betrothal that existed between Cajus and Tiberia was not a true betrothal within the meaning of the new marriage law; first, because it did not bear even the name mark of Tiberia, who could not write; and, secondly, because it lacked the signature of an extra witness, who should have signed it, together with the priest, since Tiberia did not know how to write.

Therefore, this written agreement to marry did not place any obstacle in the way of Cajus’ marriage to Sempronia, or to any one else.

II. As regards the validity of the marriage of Cajus and Sempronia, it must be borne in mind that a marriage, in order to be valid according to the new legislation, must be:

1. Contracted before the ordinary or the parish priest (or a priest duly delegated), provided the ordinary or the parish priest has jurisdiction over the place where the marriage is performed.

2. Contracted in the presence of two witnesses besides the officiating priest.

3. Contracted in the presence of a priest having jurisdiction, who assists of his own free will and without compulsion, and asks and receives the consent of the contracting parties.

The question now arises, Is the assistant priest of a parish to be considered a parochus in respect of marriage. Yes; in missions all priests appointed to the universal cure of souls in any station come within the meaning of the term parochus. Fr. Noldin says: By the name of parish priest is understood one who actually exercises the care of souls in his own name, even if the habitual care belongs to another, for example, a chapter, or if the parishes have not yet been canonically erected (Mat. n. 646).

As regards the archdiocese of New York, the Archbishop has ordained:

“Every priest of this diocese (New York) having faculties can validly assist at marriage, 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.”

It is to be noted, continues the letter of the Archbishop of New York, first of all that it is not our intention to reserve to the pastors sole jurisdiction over marriage in their respective parishes. Every assistant priest, appointed to parochial work, is to exercise validly, in the parish to which he has been assigned, authority over marriage, similar to that invested in the pastor, except where, by special delegation, the pastor may receive extraordinary faculties for particular cases or circumstances. The assistant priests, however, will bear in mind that it is not becoming for them to grant authority to priests of other dioceses to perform the marriage ceremony in this diocese or to give permission to the faithful to marry outside their own parish or the diocese; these matters should be left to the pastors. The consent of the pastor is necessary that the assistant may, on any occasion, officiate licitly at marriage in the parish.

It is evident from this that in the archdiocese of New York the assistant priests have the same jurisdiction over marriage in respect of its validity as the pastors. And this will undoubtedly be the practise in all the dioceses, because it secures the validity of the marriage contract, without derogating from the orderly control of the pastors of parishes over the marriages contracted in their parishes. When, therefore, the assistant priest of St. Thaddeus’ parish granted authority to Titius to officiate at marriages within the limits of St. Thaddeus parish, the authorization was valid, although illicit, as against the will of the pastor of St. Thaddeus, and Titius could therefore assist validly at the marriage of Cajus and Sempronia. The papal decree says:

“vi. The parish priest (and, therefore, the assistant priest, in New York diocese, at least) and the ordinary of the place may grant permission to another priest, specified and certain, to assist at marriages within the limits of their districts.”

But apart from this, Titius was authorized to marry Cajus and Sempronia validly and licitly because Cajus was dangerously ill, and a marriage was necessary for the relief of conscience and for the legitimation of the offspring. To quote again the words of the decree:

“vii, When danger of death is imminent, and where the parish priest or the ordinary of the place, or a priest delegated by either of these, can not be had, in order to provide for the relief of conscience, and should the case require it, for the legitimation of offspring, marriage may be contracted, validly and licitly, before any priest and two witnesses.”

Titius assisted validly, therefore, and licitly at the marriage of Cajus and Sempronia. The assistant priests of New York diocese are admonished that it is not becoming for them to grant authority to priests of other dioceses to perform the marriage ceremony in this diocese, as that belongs to the pastors. If, however, they do grant such authorization, without the pastor’s leave, it is quite valid. Nor is it licit for the assistant priest to officiate on any occasion at marriage in the parish without the pastor’s consent.

III. The authorization, therefore, which Titius received from his friend, the assistant priest of St. Thaddeus, was valid, but illicit, as against the will of the pastor, and if Cajus had not been dangerously ill and a marriage necessary without delay, Titius would have committed sin in marrying Cajus and Sempronia. Under the circumstances, however, Cajus’ illness rendered the marriage ceremony as performed by Titius both valid and licit.

IV. The two small boys who were pressed into service as witnesses were competent, provided they were sufficiently aroused to understand what was going on. The new marriage law prescribes no qualifications for the witnesses. A minor who has reached the age of discretion, or a non-Catholic, may be a witness.

N. B.—In order to be licit the marriage ceremony must be performed by the pastor of the bride, and not, as heretofore, by the pastor of either the bride or the bridegroom. In this the new discipline differs from the old. He is considered the pastor of the bride in whose parish she has actually resided for one month, whether her intention was to remain there one month or no. Even though she had not resided in the parish for one month, “a case of grave necessity excuses from the obligation of seeking permission from the pastor or ordinary of either party.”

Titius, of course, must satisfy his conscience de statu libero of Cajus and Sempronia; that is, that they are free from every canonical impediment, and if from another diocese they must bear with them letters de statu libero from the competent authority. The marriage fee must be returned to the pastor of the place where the marriage is performed or to the parish priest of the contracting parties. Titius should have sent the names of Cajus and Sempronia and the witnesses to the pastor or assistant of St. Thaddeus parish, there to be entered on the marriage records. The decree says:

“ix. After the celebration of a marriage, the parish priest, or he who takes his place, is to write at once in the book of marriages the names of the couple and of the witnesses, the place and day of the celebration of the marriage, and the other details, etc., and this even when another priest, delegated by the parish priest himself or by the ordinary, has assisted at the marriage.” In this latter case the delegated priest is bound, conjointly with the contracting parties, to provide that the marriage is inscribed as soon as possible in the prescribed books.

It is also required by the new legislation that the marriage of Cajus and Sempronia be inscribed in the book of baptisms, opposite the record of their baptisms, and if they have been “baptized elsewhere, the parish priest who has assisted at the marriage is to transmit, either directly or through the episcopal curia, the announcement of the marriage that has taken place, to the parish priest of the place where the person was baptized, in order that the marriage may be inscribed in the book of baptisms.

“x. Parish priests who violate the rules thus far laid down are to be punished by their ordinaries, according to the nature and gravity of their transgression.” (Decree of the Congregation of the Council on marriage, August 2, 1907.)