Case XXXIX: A Mixed Marriage in a Town Where the “Tametsi” Is in Force

Applied correction from Woywod's opening insert: CASE XXXIX is after 19 April, 1908, applicable to all parts of the United States as far as the marriage in question would have to be contracted before a pastor assisting within the limits of his parish, while outside his parish he could not assist at the marriage even of his own parishioners unless he was delegated either by the bishop of the diocese or by the pastor of the parish where the marriage takes place.

Titius, a Protestant young man, and Caja, a Catholic young woman, both residents of New York City, joined a party of ex cursionists on a trip to the Yellowstone Park in the summer of 1905. While in Albuquerque, N. M., they were married by a Protestant minister. Some time after their return to New York Caja became uneasy about her marriage, and finally laid the matter before a priest. As clandestinity is not a diriment impediment to marriage in New York, the case was somewhat unusual, and at first sight perplexing. On one hand, it might appear that Titius, being a Protestant, is not bound by the laws of the Church regarding marriage, and therefore, neither is Caja "propter individuitatem contractus." Again, the priest recollects that some few years ago some new rulings were made by the Holy See in regard to clandestine marriages in the United States, making them valid in some cases where formerly they were doubtful; but just what was the import of these rulings he does not recall. On the other hand, he argues that all baptized persons are bound by the laws of the Church, otherwise a premium would be put on heresy. In this perplexity he takes the matter under consideration and comes to the following conclusion:

There are two kinds of Church laws; some Church laws are made for the public good, for the promotion of the public welfare and the protection of society. These laws are binding on all baptized persons, whether Catholic or non-Catholic. Of such are the marriage laws of the Church, creating diriment impediments to marriage, v. g., the laws of consanguinity and affinity. There are other laws of the Church which aim directly at the sanctification of the individual, v. g., the law of hearing Mass on Sunday, of abstaining from flesh meat on Friday, etc., and these laws the Church does not wish to bind baptized non-Catholics, for such an intention on the part of the Church would only multiply sin.^* Now, among the former laws, which the Church makes for the good of society, and not for the sanctification of the individual, is the law of clandestinity in regard to marriage, and this law, therefore, the Church wishes to bind all baptized persons, whether Catholic or non-Catholic, except in cases where she expressly dispenses from it. That baptized non-Catholics are bound by the marriage laws of the Church is clearly set forth in the letter of Pope Benedict XIV to the Cardinal, Duke of York, February 9, 1749, and has never been questioned by any theologian. Only where the Church issues a special dispensation from her marriage laws is a marriage of baptized persons valid, if the same is forbidden by a law of the Church under pain of invalidity. It makes no difference whether both parties to the marriage be Catholics, or both non-Catholics, or one Catholic and the other Protestant. Now we know that while the law of clandestinity does not create a diriment impediment to marriage between baptized persons in most parts of the United States, still there are some districts where it is in force, and where, consequently, the marriage of baptized persons, unless contracted before the parish priest and two witnesses, is invalid. What these districts are we learn from the Fathers of the third plenary Council of Baltimore. In the year 1884 the Bishops of the Council sent to Pope Leo XIII a list of both the places in the United States, where the decree "Tametsi," of the Council of Trent, was binding, and of the places where it had never been published, and therefore was never in force. This list has not the force of a law. neither has it ever received the official endorsement of the Holy See, nevertheless it is of paramount authority, since it was compiled with great care by the bishops and theologians of the Council. According to this list, the decree "Tametsi," of the Council of Trent, making clandestinity a nullifying impediment to marriage between baptized persons, is in force in the following places in the United States:

^* See Case xxxviii, page 160.

1. In the entire province of New Orleans. 2. In the province of San Francisco and in the State of Utah, except that part that lies east of the Colorado River. 3. In the province of Santa Fe, except that part of the State of Colorado that lies north of the Arkansas River. 4. In the diocese of Vincennes, Ind. 5. In the city of St. Louis, Mo., and in the villages of Ste. Genevieve, St. Ferdinand, and St. Charles, in the same State. 6. In the city of East St. Louis, Ill., as also in the villages of Centerville Station, Prairie du Rocher, Cahokia, French Village, and Kaskaskia (which has recently been obliterated by the Mississippi River), in the diocese of Belleville, Ill., now, but formerly in the older diocese of Alton, Ill.

In all other parts of the United States the "Tametsi" decree of the Council of Trent has not been published, and therefore clandestinity does not constitute a diriment impediment to marriage between baptized persons.

In all places, therefore, in the United States, where, according to the list of the bishops of the third plenary Council of Baltimore, the "Tametsi" is in force, the marriages of Catholics are invalid unless entered into before the parish priest and two witnesses. In all these districts the marriages of baptized non-Catholics would likewise be invalid, were it not for the fact that the dispensation of Pope Benedict XIV has been applied to them, removing the impediment of clandestinity in the case of non-Catholic marriages. But has the "declaratio Benedictina" been extended, for a certainty, to all the territory of the United States where the "Tametsi" is in force? According to the Fathers of the third plenary Council of Baltimore, the "declaratio Benedictina," declaring valid the marriages of baptized non-Catholics, contracted in places where the "Tametsi" is in force, provided, of course, they be not invalid for some other reason, has been extended, for certain, to: I. The Archdiocese of New Orleans, and to the dioceses of Natchitoches, Natchez, Little Rock, and Mobile, in the province of New Orleans. 2. The province of San Francisco and the State of Utah. 3. The diocese of Vincennes, Ind. 4. The Archdiocese of St. Louis, Mo. 5. The diocese of Belleville, Ill.

According to the same Council of Baltimore, the "declaratio Benedictina" has never been extended to the province of Santa Fe, N. M.

Whether the "declaratio Benedictina" had ever been extended to Texas, i. e., to the dioceses of San Antonio, Galveston, and Brownsville, the bishops of the third plenary Council could not say for sure, and therefore, to remove the doubt, in the case of Texas, and to render the practice uniform for the whole country, the bishops of the United States, in 1884, petitioned the Holy See to extend the "declaratio Benedictina," not only to the dioceses of Texas, In case it had never been extended to them, but also to the province of Santa Fe. In reply to this petition of the bishops the Holy See, in November, 1885, agreed to extend the "declaratio Benedictina" to the dioceses of Texas, but not to the province of Santa Fe. Therefore the province of Santa Fe is the only territory, in the United States, where clandestinity operates as a nullifying impediment in the case of marriages of baptized non-Catholics.

What is true of clandestine marriages of baptized non-Catholics, among themselves, is true also of clandestine mixed marriages. (Tanquerey, de Mat. n. 408.)

The marriage of Titius and Caja took place at Albuquerque, N. M., in the province of Santa Fe. As the "declaratio Benedictina" has never been extended to that province, the marriage was subject to the law of clandestinity, which rendered ft null and void, because it was not contracted "coram parocho et duobus testibus." Had it been contracted in any other part of the country, where the "Tametsi" is in force, it would have been valid, on account of the dispensation of Benedict XIV.

This law of clandestinity is both territorial and personal. In as far as it is territorial, it affects directly the territory where it has been published, and indirectly it affects or binds all those who dwell there, as well as those journeying through it, even though they have no domicile or quasi-domicile there. Thus, two Catholics of the archdiocese of New York, where the "Tametsi" is not in force, journeying through the province of New Orleans, where the "Tametsi" is in force, and while there, contracting a clandestine marriage, contract invalidly. Two baptized Protestants, however, contracting marriage under the same circumstances, contract validly, on account of the "declaratio Benedictina." Their marriage, however, would be invalid, if contracted in Santa Fe, for the papal dispensation removing the impediment of clandestinity for them in New Orleans has never been extended to the territory of Sante Fe.

As far as the law of clandestinity is personal, it affects all baptized persons dwelling in the territory, in this way, that it forbids them to leave the territory and to go elsewhere, where the "Tametsi" is not in force, in order to get married clandestinely, that is "in fraudem legis," in order to cheat the law, without the sincere intention of acquiring there a domicile or quasi-domicile.

In 1886 the Holy See made a special ruling for the United States in regard to the length of time required for acquiring a quasi-domicile "in ordine ad matrimonium." The general rule is that, in order to acquire a quasi-domicile, "in ordine ad matrimonium," a residence "per majorem anni partem" is required. That is, there must be a de facto residence and an intention of remaining there "per majorem anni partem." But since 1886, in the United States, a residence of one month outside of the territory governed by the "Tametsi" is all that is required to gain a legal residence in the eyes of the Church, for the purpose of marriage (Coll. P. F. n. 1413).

Therefore, Titius and Caja are not validly married, and besides Caja is excommunicated for appearing before a Protestant minister. She must first procure a dispensation from the excommunication, then a dispensation from the impediment "mixtae religionis," and after the non-Catholic party has made the necessary promises regarding the faith of the children issuing from the marriage, provided there is no other obstacle or impediment, Titius and Caja may be united in lawful wedlock.