Point XI. On the Impediment of Clandestinity

836. • A clandestine matrimony is called one which is contracted without the solemnity required by the Church, namely, without the assistance of the Pastor and of at least two witnesses. This impediment is of ecclesiastical law alone, since it was established by the Council of Trent, as is evident from session 24, chapter 1.

For the validity of matrimony any witnesses whatsoever suffice, whether they are men or women, adults or minors, provided that they have the use of reason and can testify to the contracted matrimony ¹.

¹ St. Alphonsus rightly observes after Sanchez and others (book 6, no. 1085) that even unbelievers can exercise the office of witnesses; nor is it necessary that they be called for this purpose, but they suffice even if they are passing by chance or are present there, provided that they have perceived what was done. Indeed, they suffice even if they were called deceitfully and for another purpose, and even if they are present unwillingly and detained by force. See Barbosa, On the Office of the Pastor, part 2, chapter 21, nos. 46 and 80.

Two matters must be treated: 1. the force of the Decree of the Council of Trent; 2. the assistance of the Pastor.

837. • The Council establishes thus: Those who attempt to contract matrimony otherwise than in the presence of the Pastor, or of another priest with the permission of that Pastor or the Ordinary, and of two or three witnesses, the Holy Synod renders altogether incapable of contracting in this manner, and decrees that contracts of this kind are invalid and null.... It declares further that a Decree of this kind shall begin to have its force in each parish after thirty days, to be counted from the day of its first publication made in the same parish.

838. Resolutions. - 1. Clandestine marriages are altogether invalid in all places where the Decree of the Council was promulgated. This is manifest from the Decree itself.

2. But they are not invalid in places where this promulgation was omitted either culpably or inculpably; for in those places they were valid before the Council, and there they must be held in the same condition in which they were held previously, as is evident from the Decree of the Council itself, which strikes with anathema those who deny their validity so long as the Church has not invalidated them.

3. Clandestine marriages are illicit everywhere and prohibited under grave sin ². For the Church has always detested them, as the Council of Trent declares and Benedict XIV plainly shows in On the Diocesan Synod, book 8, chapter 12, no. 4.

² The Council of Trent adds this sanction (ibid.): Moreover, it commands that the Pastor or another priest who was present at a contract of this kind with a smaller number of witnesses, and the witnesses who were present without a Pastor or priest, as well as the contracting parties themselves, be gravely punished at the judgment of the Ordinary. Hence, as Schmalzgrueber notes (book 4, title 3, no. 131), some complain undeservedly about Bishops who have inflicted a penalty of excommunication incurred by the fact itself where increasing malice requires this remedy. Moreover, as regards places where the Tridentine decree is not in force, the Doctors except certain cases in which matrimony can even be contracted clandestinely licitly, namely, for avoiding grave danger or harm. See Tanner, volume 4, disputation 8, On Matrimony, question 3, doubt 6, no. 111.

The Decree of Trent is recognized as received in Italy, Spain, Portugal, France, Holland, Belgium, Ireland, and in parts of Germany that were then Catholic. But it was not received in England, Sweden, Saxony, Denmark, and several places of Germany and Switzerland ³.

³ In a doubt whether this Decree was promulgated somewhere, promulgation is presumed where the Decree was observed for some time in the parish as a decree of the Council. Thus a Declaration of the Sacred Congregation reported by Benedict XIV, On the Diocesan Synod, book 12, chapter 5, no. 6. Cardinal Petra reports another declaration, Commentary on the Apostolic Constitutions, volume 4, folio 81, no. 35.

Moreover, Benedict XIV issued a Declaration in the year 1741 in which he establishes that clandestine marriages entered or to be entered in Holland and the Federated Provinces of Belgium between heretics, or between one heretical party and the other Catholic party, are valid. But he establishes nothing concerning marriages between Catholics themselves ⁴.

⁴ Indeed, Benedict XIV expressly declared that this disposition in no way concerns Catholics. Let them know, he says, that unless they celebrate the nuptials before a Catholic minister and two witnesses, they will never be true and legitimate spouses either before God or before the Church. Thus in the Letter of September 17, 1746, to Simon, Missionary in Holland, section 3, Bullarium, volume 3, supplement no. III. See also On the Diocesan Synod, book 6, chapter 7. Nor ought it move us that the opposite seems to be intimated in the Reply of the Congregation for the Affairs of the Church of France, April 22, 1795 - see Complete Course of Theology, volume 25, page 689 - where it is said that marriages before an intruded Pastor are null and that the Declaration of Benedict XIV for Holland does not assist them because the Apostolic See had not extended that Declaration to France, as though it would have applied to marriages between Catholics even if it had been extended to France! For that reason appears to have been added there no less superabundantly than irrelevantly.

But a list of the places to which the Benedictine Declaration was extended by the Apostolic See may be seen in Father Perrone (On Matrimony, book 2, section 1, chapter 6, article 4), concerning which, however, observe two things. First, the decrees reported there (page 270, Roman edition) which pertain to Ireland in 1785, to the whole Russian Empire and the Kingdom of Poland in 1844, likewise to the Rhenish Provinces under Prussian rule in 1830, and those (ibid., page 271) which concern Bavaria in 1834, Hungary in 1841, and Georgia in 1845, are not in fact extensions of the Benedictine Declaration. For besides the fact that this Declaration takes its origin from altogether different principles, it refers primarily to marriages of heretics and was afterward extended by a certain quasi-extension to mixed marriages, as Benedict XIV himself indicates (On the Diocesan Synod, book 6, chapter 6, no. 12); but the Decrees which pertain to the regions listed above contain a derogation from the Tridentine decree, or a certain dispensation, and refer only to mixed marriages. Second, with the decrees collected there by Father Perrone, two are intermingled: one for Japan, July 2, 1625, and the other for Curacao in 1851. Since each refers only to marriages of Catholics among themselves, it plainly has nothing in common with the Benedictine Declaration.

It would be superfluous to enumerate here the places to which this Declaration was in fact extended, for each person will easily learn this concerning his own domicile.

839. Questions. - QUESTION 1. Is the matrimony valid of those who, departing from a place where the Decree of the Council of Trent has been received, contract in a place where it has not been received?

Reply 1. They contract invalidly if they proceed to another place in fraud of the law, that is, with the intention of contracting clandestinely. This is established from the Decree of Urban VIII of the year 1627, etc., etc.

Reply 2. Nevertheless, they contract validly if they have or acquire a quasi-domicile there ⁵, because by force of this domicile they enjoy all the privileges of the inhabitants. And this holds even if they transferred their domicile from their homeland to that place for the purpose of contracting clandestinely there, because there is no fraud there, since the privilege of the place favors them just as it favors other inhabitants. This is established from the same Decree of Urban VIII ⁶. - St. Ligorius, no. 1080, etc.

⁵ There are some who think that, in order for someone to acquire a quasi-domicile and be considered not merely a guest but an inhabitant and resident, it is necessary that he intend to remain there for the greater part of a year. Nevertheless, those who hold that for this it suffices to have the intention of residing for several months, especially if a house, room, etc., has been rented, appear to think more conformably to the law. Thus Suarez, Navarrus, Laymann, etc., cited by Schmalzgrueber, book 2, title 2, no. 19. Moreover, as soon as someone actually has the intention of remaining there for as long as is required for an effect of this kind, the common opinion of all is that the matrimony is valid even if he contracted it immediately upon arriving there. The reason is that, just as domicile, so also quasi-domicile is acquired immediately when someone approaches a place of this kind with the intention of remaining there for the legitimate period. See Barbosa, On the Office of the Pastor, part 2, chapter 21, no. 36.

⁶ Benedict XIV discusses the threefold case to which the decree of Urban VIII refers in this manner (Instruction 33, no. 9): Therefore the matrimony set forth in the first and second place is decreed invalid, since fraud had intervened; the matrimony adduced in the third place is declared valid even with fraud, because a new domicile also had been acquired. You have these cases proposed by the Archbishop of Cologne, with the reply of the Sacred Congregation and the decree of Urban VIII, in Benedict XIV's Letters to Anthony, Archbishop of Goa, March 15, 1758, in the appendix to the Bullarium of the Propagation of the Faith, or in the other appendix to volume IV of the Bullarium of Benedict XIV.

Moreover, a certain third case pertains to the question proposed by the Author, one which he touches upon neither in the first nor in the second reply: namely, the case of one who proceeds to the aforesaid place not, however, with fraud, that is, with the intention of contracting clandestinely, but at the same time without the intention of establishing a domicile or quasi-domicile there. And indeed there is no question of a matrimony which that person contracts with a person who already has a domicile or quasi-domicile there, for then, as the Author soon teaches, according to the opinion of all, the other spouse enjoys the privilege of his or her consort. Rather, the question arises when in the aforesaid circumstances each contracting party is a stranger there.

The more common opinion, with Sanchez (book 3, disputation 18, no. 28), Pontius (On Matrimony, book 5, chapter 9, no. 2), Reiffenstuel (book 4, title 3, no. 123), Engel (same title, no. 20, conclusion 3), etc., holds that they contract validly even if they employ neither a Pastor nor witnesses for that contract. The reason is that strangers are not bound by the laws of their homeland when they travel outside it, and especially in regard to contracts, of which kind matrimony is, since in these they are subject to the laws and obtain the forum of the places in which they are staying, as is declared in the final chapter On the Competent Forum and law Si fundus 6, Digest, On Evictions. Nor does it obstruct this that the Council of Trent rendered persons incapable of contracting without the prescribed solemnity, while incapacity, as is said, follows the person as a shadow follows the body. For this proceeds only when the person was rendered incapable absolutely and simply, and individually by a sentence of a judge; but it is otherwise if the incapacity is general from a law. For then it follows the nature of the law, and consequently, where the law does not bind, there neither does the incapacity bind, nor does annulment of the act follow. Thus, besides those cited, Barbosa, On the Office of the Bishop, part 2, allegation 32, no. 153, and Schmalzgrueber, book 4, title 3, no. 110.

It is useful here to append concerning this matter what is read in the Acts of the Holy See, etc. (volume 7, page 557), where, on the occasion of a Declaration by which the Sacred Congregation pronounced a certain matrimony invalid, an Appendix is added so that it may be established that the Sacred Congregation arrived at that judgment for other causes:

> "It must not be thought that by this Declaration of the Sacred Congregation anything was taken away from the opinion both of theologians and of canonists when they establish that those who proceed to a place in which the Decree of Trent either was never promulgated or ceased to bind contract validly without observing the form prescribed by the Council, even if they do not have the intention of establishing a domicile or quasi-domicile there, provided, however, that they did not proceed there in fraud of the law, namely, with the intention of contracting clandestinely."

The most illustrious Father Anthony Ballerini, Professor of Moral Theology in the Roman College, summarized this doctrine of the Schools in a few words in the note to Gury, volume 2, section 839: The more common opinion with Sanchez, etc., as above.

And indeed the illustrious Ballerini spoke very moderately in calling this doctrine merely more common, since Reiffenstuel (book 4, title 3, no. 123), Pichler (book 4, title 3, no. 123), Marcus Struggl (On Matrimony, book 3, no. 180), and Ferraris (Impediment, article 2, no. 110) handed it down as absolutely common; indeed George Gobat (treatise IX, no. 484) professed it to be most common. Add that Ferraris (l.c.), Pichler (l.c.), and La Croix (book 6, part 3, no. 712) adduce Declarations of the Sacred Congregation in confirmation of this doctrine. Otherwise, you will find altogether very few who taught the contrary; among these the Defender of Alberti altogether undeservedly numbered the Holy Doctor Alphonsus. You will say more correctly that the Holy Doctor left this question aside. Indeed, you will see (book 6, no. 1081) that on this point of doctrine he opposes La Croix and the Salmanticenses to Sanchez. But both the Salmanticenses (treatise 9, chapter 8, no. 21) and La Croix (book 6, part 3, no. 712) certainly depart from Sanchez if there is question of those who arrive in those places with fraud, that is, with the intention of contracting matrimony; but if that intention and thus that fraud is absent, both the Salmanticenses (ibid., no. 19) and La Croix (l.c.) plainly agree with Sanchez that the matrimony is undoubtedly valid. Therefore St. Alphonsus was discussing those who departed in fraud, not others. This is brilliantly confirmed by the fact that the Holy Doctor attacks only that doctrine which has against it the Declaration confirmed by Urban VIII. But that Declaration strikes only those who depart in fraud of the law or with fraud. Therefore it does not strike the others.

The Defender of Alberti indeed contends that fraud of this kind is found even in the bare fact, although those departing had no intention at all of celebrating a clandestine matrimony there. But the unanimous consensus of all theologians and canonists rejects this interpretation of the Decree, entirely unheard of down to our times; not even one of them will be found who suspected that this sense of fraud pertained here. Since the Defender appeals to Benedict XIV in this matter, it will be helpful to present that Pontiff's genuine and most lucid opinion against this novel theory. After proposing the common doctrine that one who lives outside the territory of the legislator is not bound by the statutes of the place (On the Diocesan Synod, book 12, chapter 4, no. 9), he immediately excepts (ibid., no. 10) the case if someone departs from a place in fraud of the law, namely, with the sole intention of avoiding the obligation of the statute. By what examples does he explain the nature of this fraud? First, by those who departed from a place where the Tridentine decree was promulgated solely with the intention of contracting matrimony clandestinely and proceeded to a place where it was not promulgated. From the Declaration of the Sacred Congregation sanctioned by Urban VIII, he pronounces this matrimony invalid. Next, by the example of those who, having sins reserved in their own dioceses, migrate in fraud of the reservation to another diocese in order to obtain absolution from Regulars. He concludes: From this it is manifest that deceit and fraud avail no one for escaping the bond of the law, and that this fraud is truly committed by one who, WITH THE SOLE INTENTION OF ELUDING THE LAW, rushes from the place where it is in force. Therefore, according to Benedict XIV, the Defender of Alberti wrongly requires fraud in the bare fact if the intention of eluding the law is absent. This is also confirmed by the unanimous opinion of all who hold that absolution from reserved sins is valid whenever the intention of eluding the reservation is absent in the one migrating.

But what the Defender adds, that according to Benedict XIV (Instruction 33) fraud is committed against the Pastor, certainly applies when the matrimony is celebrated in another Diocese or Parish in which the Tridentine Decree is in force. For then the matrimony is invalid both if the nuptials are contracted without the assistance of a Pastor and if they are contracted with the assistance of a Pastor who is not their own, since by force of the Tridentine law the office of assisting as the legitimate witness so that the matrimony is valid belongs only to the contracting parties' own Pastor; and Benedict XIV (l.c.) is indeed speaking of this latter hypothesis. But when the nuptials are celebrated in a place where the Tridentine Decree is not in force, and therefore no Pastor is required by law to assist as witness for the validity of the contract, it is utterly vain to imagine that injury or fraud is present against a Pastor whose office would not be necessary even if the proper Pastor of the contracting parties happened to be in the same place.

From all these things it is now certainly permissible to conclude that the Sacred Congregation declared the matrimony of Albertus with Armanda invalid by reason of altogether different grounds.

Moreover, neither the doctrine handed down by the Author nor the things supplied here are obstructed by what Benedict XIV has in the cited Letter to the Archbishop of Goa, when he replies that for the validity of matrimony in the case it appears sufficient that, before the matrimony is contracted, the one contracting has lived for the space of at least one month in the place where the matrimony is celebrated. For the Pontiff did not intend there to establish that either a stay of one month suffices in the case of one who does not have the intention of acquiring a domicile or quasi-domicile, or that one who has this intention cannot validly contract before the month elapses, or finally that the space of one month suffices for acquiring a domicile or quasi-domicile. He intended merely to provide an indication by which it could be sufficiently presumed that the contracting party had the intention of acquiring at least a quasi-domicile, and therefore, unless something counsels otherwise, judgment must be made in favor of the validity of the matrimony.

QUESTION 2. Is the matrimony valid of those who, departing from a place where the Decree of Trent is not in force, contract clandestinely in a place where it is in force?

Reply. No, even if they contract while merely passing through, because here there is question of a general law of the Church. According to the general principle, however, an exemption from the common law is local, not personal. Therefore those who have a domicile there can use the exemption only so long as they are in that place; if they migrate to another place where the common law is in force, they become subject to the common law.

840. • QUESTION 3. Do spouses contract validly and clandestinely when one has a domicile in a place where the Decree of the Council of Trent has been received and the other in a place where it has not been received?

Reply 1. Yes, if they contract in the place where the Tridentine Decree has not been received. The reason is that the spouse belonging to the place where the Council of Trent has not been received is not bound by the law of the Council and communicates his privilege to the other because of the indivisibility of the contract. Thus Benedict XIV, On the Diocesan Synod, book 6, chapter 6, no. 12, and Clement XIII in the year 1767, in a reply to the Archbishop of Mechlin.

Reply 2. No, if they contract in the place where the Decree of Trent is in force. The reason is the same as in the second question.

QUESTION 4. Does inability to have recourse to one's own Pastor or Bishop excuse from the impediment of clandestinity?

Reply 1. Yes, if that inability is common in some province, for example, during some political and religious disturbance. The reason is that, if the law bound in such a case, it would be harmful to the common good and would tend to the detriment of society. Moreover, this is established from a Declaration of the Sacred Congregation reported by Benedict XIV, On the Diocesan Synod, book 12, chapter 3, no. 5, and also from various Decisions of Pius VI ⁷.

⁷ Thus Pius VI concerning this matter, in a Letter to the Bishop of Lucon on the occasion of the French disturbance in the year 1793: Since several of these faithful are altogether unable to have a legitimate Pastor, their marriages contracted before witnesses and without the presence of the Pastor, if nothing else obstructs them, will assuredly be both valid and licit, as has more frequently been declared by the Sacred Congregation for the Interpretation of the Council of Trent.

Recently, moreover, a decree was issued by the Supreme Congregation of the Inquisition, by which it is declared that the faculty of celebrating matrimony validly and licitly with two witnesses and without the presence of the Pastor is present when access to him is not safe for the space of a month. Hence it follows that when it can prudently be judged that within a month there will not be a faculty of safe access to the Pastor, from that time, without another delay intervening, matrimony can be contracted validly and licitly in that form.

Reply 2. No, if the inability concerns a particular case, because an invalidating law does not cease on account of a private inconvenience. - Recall what was said at no. 787 ⁸.

⁸ No decree has been issued up to the present by which this controversy is defined; nor does section 787, to which the Author refers, contain anything suitable for resolving this question.

St. Alphonsus, who otherwise denies validity in the case according to the stricter opinion (book 6, no. 1079), nevertheless writes elsewhere (On Privileges, no. 57): Indeed, Pignatelli asserts, AND PROVES in volume 3, consultation 66, no. 5, that in such a case, namely, of urgent necessity, not only the reservation, namely, of the dispensation, but even THE LAW OF THE IMPEDIMENT ceases, since it has now become harmful; for it is altogether certain that a harmful law does not bind, as all teach with St. Thomas. And from this Roncaglia and the Instructor of New Confessors, namely, Giordanini, praised elsewhere by us, infer that, when the case arises in which the spouses have already arrived at the Church and one of them manifests to the Confessor an occult impediment already contracted as a sin, and the matrimony cannot be deferred without scandal or infamy, the Confessor can then declare that in that case the law of the impediment does not bind and that the matrimony can be licitly contracted. Other examples of this necessity are brought forth both by Francis Amicus (Course of Theology, volume 9, disputation 7, section 43, no. 139) and by James de Graffiis (Golden Decisions, book 2, chapter 86), which can also be seen in Diana (volume 2, treatise 6, resolution 72, no. 4, and resolution 73 at the end, where in favor of the same opinion he cites the Tridentine theologian Dominic Soto, In IV Sentences, distinction 22, question 1, article 2); and also by the above-praised Pignatelli, who discusses celebrating matrimony when death is imminent.

Moreover, all the reasons which are customarily brought forward for the negative opinion - see Schmalzgrueber, book 4, title 3, no. 106, and St. Alphonsus, cited no. 1079 - are finally contained in this single reason proposed in various manners: that the Tridentine Decree is invalidating and nullifying.

But was not the impediment concerning which the same St. Alphonsus, with Pignatelli and others cited there, treated above likewise invalidating and nullifying and rendering persons incapable of contracting? And, what is principal, whence comes the reason for the distinction between the case of common inability and that of particular inability? Would not that reason, that there is question of an invalidating law, apply equally? For, as Francis Amicus acutely argues (l.c.), a difference would certainly exist if the Declarations, of which there are several concerning cases of common inability in some village or town, for example, had the force of a Dispensation from the law, which dispensation would not extend itself to cases of particular inability. But those Declarations do not present even the slightest appearance of a Dispensation. In declaring the validity of marriages which in those circumstances are celebrated apart from the form prescribed by the Tridentine Synod, they give the reason which applies equally to each case, namely, the necessity of the faithful, for whom it would be absurd that matrimony be taken away, and the physical or moral impossibility of observing the form established by the Holy Synod. Hence it is that Marchant (Sacred Tribunal, volume 3, treatise 1, title 7, question 8, conclusion 3), after establishing this thesis, There is epikeia and interpretation in that law concerning the presence of the Pastor in matrimony when from real causes that presence is impossible, etc., confirms this very thesis from a Reply of the Sacred Congregation to the Bishop of Tricarico, reported by Gallemart on session 24, chapter 4, On the Reformation of Matrimony, no. 11, because, namely, the reason adduced has the same force in both circumstances. Therefore it is not surprising that the affirmative opinion also appeared sufficiently probable to others cited by Sanchez, book 3, disputation 17, no. 3, and Diana, cited resolution 7. These things have been said so that the genuine state of the controversy may not be hidden from the reader.

Of the eighteen columns in which the VV. attack this Note (pages 807-815), we shall touch upon those things which have some appearance of an objection, omitting the empty taunts which you would say were substituted for reasons.

First, they object (page 809) that it is wrongly asserted in the Note that all the reasons for the negative opinion are finally contained in this one, that the Tridentine Decree is invalidating and nullifying. For, they say, the principal reason for that opinion is that the Council of Trent prescribed a substantial form, upon omission of which the contract becomes invalid and null, and those attempting to contract are rendered altogether incapable of contracting.

Reply. From what, I ask, is it inferred that this solemnity is substantial except from the fact that the Council of Trent renders those contracting otherwise altogether incapable of contracting in this manner? These are the words of the Decree, session 24, On the Reformation of Matrimony, chapter 1: Those who attempt to contract matrimony otherwise than in the presence of the Pastor, or of another priest with the permission of that Pastor or the Ordinary, and of two or three witnesses, the Holy Synod renders altogether incapable of contracting in this manner, and decrees that contracts of this kind are invalid and null, as by the present Decree it renders them invalid and annuls them. But we do not call the solemnity of the preceding Proclamations, which the Holy Synod prescribes in the same Decree, substantial but extrinsic, because the Holy Synod indeed condemns but does not render incapable of contracting those persons who attempted to contract in this manner, nor did it render contracts of this kind invalid or annul them. Therefore, since the reason why the circumstance of the presence of the Pastor and witnesses is called substantial is that the Tridentine Decree is not merely prohibiting but also invalidating, it is sufficiently evident why the Authors finally and in fact reduce the arguments for the negative opinion to this and only this.

Hence, as regards the present matter, the things which the VV. discuss (page 810) concerning the difference between this and other diriment impediments are altogether slight and even empty. In the contract of matrimony, whatever it may finally be, that is substantial or essential, and is so called, by reason of whose absence the contract is invalid, so that it is not apt matter for the Sacrament. Hence Schmalzgrueber, in the very place which the VV. cite (book 4, title 3, no. 106), reasons thus: The Tridentine Decree renders contracting parties altogether incapable of contracting

without a Pastor and witnesses. But no case of necessity can supply the incapacity of the matter of a Sacrament...; for because of a defect of natural water it is not lawful to baptize in wine, nor because of a defect of wine can Mass be celebrated with water...; just as in no necessity can blood relatives be joined without a dispensation, since by the law of the Church they have been rendered incapable of contracting with one another. Therefore the conclusion is always drawn from the fact that the contracting parties are incapable of contracting either by the natural law or by the positive law of the Church, whatever may be the cause of the incapacity and thus whatever may be the reason why the contract is rendered invalid.

Second, the VV. object (pages 810-811) that the doctrine which Suarez defends (On Laws, book 5, chapter 28), that epikeia has no place in a law invalidating an act by the fact itself and before any sentence, applies here. And they especially note these words of Suarez: Therefore in no case can the invalidation which arises from a defect of such a form, namely, a substantial form, cease.

Reply 1. The jurisconsult Albertus Brunus (On Form and Solemnity According to Jurists), cited by Barbosa (On the Office and Power of the Pastor, part 2, chapter 21, no. 81), places forty exceptions or limitations upon the aforesaid principle, That an act is null if the substantial form is not observed (the cited work, article 15, from folio 44 verso to folio 65). Of these limitations, the thirty-third (folio 63) is this: Thirty-third: the aforesaid Rule, that when the form is not observed the act is null, fails when a necessity of law or fact is imminent. But the thirty-fourth is of this kind (folio 63 verso): Thirty-fourth: the aforesaid Rule, that when the form is not observed the act is null, is limited so that it does not proceed against one prevented from fulfilling the form and employing the solemnities, which happens in many ways. Brunus confirms these exceptions or limitations by many examples. Concerning the latter, Barbosa himself (l.c.) relates that, although chapter Quia propter 42, On Elections, establishes as substantial form that an election must be made through three scrutiners, nevertheless, if there are not three in the College who can be chosen as scrutiners, an election made by a smaller number or without them is valid. Those things which can be read in St. Alphonsus concerning contracts celebrated without the due solemnities (book 3, no. 711), and concerning a testament made for non-pious causes without the solemnities required by law (book 3, no. 927), could also be referred here not altogether inappropriately.

Reply 2. But we do not need these things. For the VV. themselves (l.c.) adduce the aforesaid doctrine of Suarez not only as regards the impediment of clandestinity but also as regards other diriment impediments. Nor can it be conceived, says Suarez in the passage cited by the VV., that the incapacity ceases of itself, or that it was introduced under this condition, that it be removed or, as it were, suspended in a case of necessity;... as is evident of the incapacity to contract with a blood relative in a prohibited degree, which in no case can cease without a dispensation. Therefore, if they oppose the doctrine of Suarez as unshaken concerning the impediment of clandestinity, they must likewise hold it as unshaken concerning the impediment of consanguinity. For the same principle applies in each case.

But if this principle is unshaken, how then does the Holy Doctor Alphonsus, whose words are read in the Note, approve the opinion of Pignatelli that in a case of necessity even the law of the impediment ceases, since it has now become harmful? How does he approve what Roncaglia and Giordanini infer from it: that, when the case arises in which the spouses have already arrived at the Church and one of them manifests to the Confessor an occult impediment already contracted as a sin, and the matrimony cannot be deferred without scandal or infamy, the Confessor can then declare that in that case the law does not bind

3. Because this is gathered from the Declaration of Benedict XIV concerning the marriages of the impediment and that the matrimony can be LICITLY contracted? How do the words of Suarez which the VV. object to us - IN NO CASE CAN THE INCAPACITY CEASE - cohere with the proposition approved by St. Alphonsus - IN A CASE OF NECESSITY THE LAW OF THE IMPEDIMENT CEASES; HE CAN DECLARE THAT IN THAT CASE THE LAW OF THE IMPEDIMENT DOES NOT BIND AND THAT MATRIMONY CAN BE LICITLY CONTRACTED?

I said that these things are approved by St. Alphonsus. For he adds (On Privileges, no. 57): But it must be observed that this applies when the Bishop is absent; for when recourse can be had to him, it must necessarily be had. Therefore the Holy Doctor Alphonsus was so far from holding that principle of Suarez as unshaken that he embraces an opinion diametrically opposed to that principle. Therefore the VV., unless they wish to condemn the doctrine of the Holy Doctor Alphonsus, ought not to press the aforesaid doctrine of Suarez. And since, as was observed in the Note, no Decree has been issued up to the present by which this controversy is defined, and the sole reason adduced for the negative opinion does not otherwise appear peremptory or convincing, it certainly does not seem fitting that the VV. should prevent someone, according to the reply of the Sacred Penitentiary which the VV. themselves so often repeat, both opportunely and inopportunely, from being able with a safe conscience either to follow in the tribunal of Penance or to profess in the schools the opinions of the Holy Doctor Alphonsus. And if the Sacred Penitentiary replies that these are not to be disturbed, neither ought the VV. themselves disturb them nor proclaim that those persons are to be disturbed.

Third, the VV. object (pages 814-815) that St. Alphonsus, as is also indicated in the Note (book 6, no. 1079), denies that a clandestine matrimony is valid even in a case of necessity. Therefore, rather than suppose the Holy Doctor to be less consistent with himself, we ought to seek a reconciliation of the two passages. And this appears easy according to the VV. if it is observed that in one passage (On Privileges, no. 57) there is question of an impediment from which the Supreme Pontiff can and is accustomed to dispense. But from the impediment of clandestinity in particular cases the Supreme Pontiff never dispenses. Moreover, in the former passage St. Alphonsus speaks of an occult impediment, but this in no way pertains to the impediment of clandestinity. Thus indeed the VV.

Reply. Anyone who proposes a fitting mode of reconciliation is certainly to be received most willingly; but the one which is proposed by the VV. does not appear to be of this kind. The difficulty is in this: where St. Alphonsus denies that the impediment of clandestinity is removed in a case of necessity, he gives the reason thus with the Salmanticenses: Because necessity cannot render capable those whom the Council of Trent declared altogether incapable. Elsewhere, however (On Privileges, no. 57), the Holy Doctor admits that in such a case, namely, of so great a necessity, the law of the impediment ceases, the law of the impediment does not bind, and matrimony can be contracted licitly and thus validly. But the law of the impediment is that which renders persons altogether incapable; therefore, when the law of the impediment ceases, the contracting parties are no longer incapable. But necessity, as the Holy Doctor admits, is that which brings it about that the law of the impediment ceases, does not bind, and that matrimony can be contracted validly and licitly. Therefore necessity can render capable those whom the law otherwise renders altogether incapable.

And indeed the difficulty is further increased from the fact that where the Holy Doctor speaks of that necessity on account of which the law of the impediment ceases, a certain general principle is established. For it is said (On Privileges, no. 57) that in a case of so great a necessity the law of the impediment ceases, since it has now become harmful; for it is certain that a harmful law does not bind, as all teach with St. Thomas. Hence the many things which the VV. bring forward on pages 811-812 against what is said in the Note now fall away, namely, that the same reason applies to each case, that is, both the common and the particular inability to observe the solemnities: namely, the necessity of the faithful, etc. For according to the foregoing, in that case of necessity the law becomes harmful and injurious. Now, to the question whether a law ceases when its adequate end ceases IN A PARTICULAR CASE, the Holy Doctor Alphonsus (book 1, no. 199) replies most clearly: If it ceases contrarily, namely, when the matter of the law would become HARMFUL IN THAT CASE or very difficult, THEN ALL ASSERT THAT THE LAW DOES NOT BIND. Therefore, according to the general principles admitted by St. Alphonsus, even in a particular case necessity renders capable of contracting those whom the law otherwise renders incapable in general.

But what is added by the VV., that the Pontiff can and is accustomed to dispense from the impediment of consanguinity but never dispenses from the impediment of clandestinity in a particular case, is nothing. For, first, the foregoing principles of St. Alphonsus are general and apply to any law of an impediment whatsoever, just as the principle by which he resolves the question proposed concerning some occult impediment is general. The VV., on their own authority, suppose that impediment to be consanguinity. But the general principle employed there is this (On Privileges, no. 57): Where matrimony cannot be deferred without scandal and infamy, the Confessor can declare that in the case the law of the impediment does not bind and that matrimony can be licitly contracted. Therefore recourse is made here in vain to a distinction between one impediment and another. Second, what is said, that the Supreme Pontiff does not dispense from the impediment of clandestinity, is likewise empty. For to what purpose is there talk of seeking a dispensation from the Supreme Pontiff when there is question of a case of necessity in which access to Superiors is supposed impossible? And if recourse to the Superior were available, would not another remedy be ready at hand, since the Superior can substitute another priest for the Pastor? Third, to what purpose is talk of dispensation intermingled here when, as St. Alphonsus says, in that necessity the law of the impediment ceases? Does any theologian or canonist teach that a dispensation must be sought in those cases in which the law ceases and does not bind? A dispensation is certainly defined as a relaxation of a law or obligation; but it is absurd to seek relaxation of a law or obligation when the law or obligation does not exist. Hence also is evident the reply to those many things which the VV. discuss in order to transform the Declarations of the Sacred Congregation concerning the validity of clandestine matrimony in a case of necessity into so many Dispensations, as Jansen, cited by them on page 811, absurdly asserted.

To this also pertain those things which the theologians commonly hold when they ask: Whether, in order to revalidate a matrimony null because of an occult impediment but already celebrated in the face of the Church, it must be revalidated again before the Pastor and witnesses. Those who stood for the affirmative opinion employed a reason which could by no means appear futile. For the first matrimony had been invalid because of an occult impediment; but the second, unless the form prescribed by the Council of Trent is observed, must be called invalid because of the defect of substantial form, which can be supplied by nothing, just as, to use the words of Schmalzgrueber cited above, water in Baptism cannot be supplied by wine, nor can wine be supplied by water in the celebration of Mass. But do those who hold the negative opinion, now confirmed also from Declarations of the Sacred Congregation, have recourse to obtaining a dispensation? In no way; and behold the reason which St. Alphonsus also adduces after others (book 6, no. 1110): The reason is that the Council, in prescribing the presence of the Pastor and witnesses for the validity

of matrimony, is deservedly presumed not to have wished to comprehend this case. But one who reasons thus uses not the remedy of dispensation but epikeia. For epikeia - see Schmalzgrueber, book 1, title 2, no. 44 - is called a restrictive interpretation or restriction of the law according to equity and goodness, when, namely, we interpret some particular case not to be contained under a law enacted universally because of its circumstances. Nor does St. Alphonsus say otherwise (book 1, no. 201): Epikeia is the exception of a case on account of circumstances from which it is judged certainly, or at least probably, that the legislator did not wish that case to be comprehended under the law. Therefore St. Alphonsus finally admits epikeia even in that Tridentine law in which the VV. contend with so great an apparatus (page 810) that epikeia can have no place.

Fourth, the VV. object (page 812): If, as Suarez says, license were given to feign and invent cases, the widest door would be opened to innumerable errors and abuses eluding the disposition of the Council of Trent.

Reply. This argument proves too much. Even when a law ceases not contrarily but merely privatively, St. Alphonsus (book 1, no. 199) indeed says that the opinion permitting the use of epikeia is less pleasing to him, because, as he says, commonly speaking, the danger of error almost never ceases altogether in a particular case. Nevertheless, he adds: But if at some time a case should occur in which someone was altogether certain and secure that every danger of error was absent, I would then not dare to reject the second opinion, which permits the use of epikeia. But if the Holy Doctor affirms this where there is question of a law ceasing only privatively, a fortiori it applies where there is question of a law ceasing contrarily, an example of which he himself had proposed in On Privileges, no. 57.

These things have been said thus far so that the state of this controversy may be understood more fully. For the VV. (page 813) censure these words of the Note: These things have been said so that the genuine state of the controversy may not be hidden from the reader. And they add: Father B. would indeed be deserving of praise if he had truly accomplished this and had not rather proposed a spurious state of the controversy to the reader by either passing over in silence or reporting less correctly the true and most grave reasons which the patrons of the negative opinion adduce. Now, therefore, the reader will have the condition of the controversy even more clearly understood when he has before his eyes all the reasons for the other opinion proposed by the VV. and can judge what they are worth, even with the authority of the Holy Doctor Alphonsus being employed.

841. • QUESTION 5. Are clandestine marriages of heretics considered valid where the Tridentine law is in force?

Reply. It is disputed. Several affirm it because, as they say, the Church is not considered to will that so many marriages be invalid. But it appears that this must altogether be denied for the following reasons:

1. Because where the Tridentine law was published, it binds all indiscriminately; therefore it binds heretics just as Catholics, since they too are subject to the jurisdiction of the Church.

2. Because if heretics were exempted from that general law of the Church, they would obtain an advantage from their rebellion, which is certainly absurd. of heretics, or mixed marriages, in Holland. For the Pontiff declared that these marriages are valid although clandestine. Therefore without that Declaration they would have been invalid, as has more frequently been declared by the Sacred Congregation. But the exception confirms the law.

4. Because this is established from several Decisions of the Sacred Congregation, as may be seen in Father Perrone, On Christian Matrimony, volume 2, book 2, section 1, chapter 6 ⁹.

⁹ In order that it may be evident where this controversy also stands, these few things will now suffice from the many which could be said.

Therefore let the judgment which Pius VII generally rendered concerning this question in the Letters to Charles Dalberg, Archbishop of Mainz, be examined and carefully retained. It is reported by Roskovany, On Mixed Matrimony, volume 2, page 86, and Catholic Monuments, volume 2, page 94, and is as follows: The opinion of those teaching that the marriages of heretics entered before a non-Catholic minister are null, and that therefore second nuptials will be valid provided that they are contracted before a Catholic Pastor, is neither universally true nor sufficiently safe, and therefore is not to be followed indiscriminately in practice in every case.... Hence it has happened that the aforesaid opinion, which maintains that marriages contracted among heretics before a non-Catholic minister are generally null and invalid, has always had adversaries both more numerous and of the highest authority, so that it has scarcely retained any degree of probability, especially after the publication by Benedict XIV in the year 1741 of the most celebrated Declaration concerning the marriages of Holland. Beware therefore, Venerable Brother, and teach your suffragan Bishops by your example and admonitions lest in examining and judging the aforesaid matrimonial cases they be deceived by these depraved doctrines and fallacious reasons, etc.

It is certainly remarkable that Pius VII attributes especially to the Benedictine Declaration the fact that scarcely any probability now remains to the opinion asserting the nullity of these marriages; but the Author, on the contrary, has recourse to the same Declaration in order to seek support for that opinion! Nor will anyone hesitate greatly about which is more to be believed.

Indeed, while the Author asserts that the nullity of those marriages is established from Decisions of the Sacred Congregation reported by Father Perrone, Benedict XIV, on the contrary, affirms that nothing had yet been defined generally by the Apostolic See through any decree, but that the replies of the Sacred Congregations referred only to certain particular circumstances and for that reason had not always been uniform. Thus the Pontiff in the constitution Matrimonia, section 2: Although His Holiness is not unaware that at other times, in certain particular cases and with attention to the circumstances then set forth, the Sacred Congregation of the Council replied in favor of their invalidity, nevertheless having it equally established that nothing had yet been defined generally and universally by the Apostolic See concerning marriages of this kind, etc. And again, concerning the same matter in On the Diocesan Synod, book 6, chapter 6, no. 4: We indeed, during the space of many years before We ascended to higher dignities, exercised the offices of Secretary of the Congregation of the Interpreters of the Council of Trent, Doctor of Decrees in the Office of the Apostolic Penitentiary, and Consultor of the Supreme Inquisition, and were present at the discussion of the aforesaid cases; but We were never able to acquiesce in that opinion by which the aforesaid marriages are judged null. Therefore it was continually in Our desires that some opportunity offer itself in which a general rule and law might be established concerning either the nullity or validity of the same marriages, for in the preceding time only particular decrees had been made in this or that case, which had not even always been conformable to one another because of the variety of circumstances which were present in one kind of fact but absent in another. From these things it is apparent that the Decisions of the Sacred Congregation were so far from establishing a general law that the Congregation itself sometimes defined the opposite, and Benedict XIV therefore professes that in a matter still altogether uncertain he had always stood for the contrary. And if the replies of the Sacred Congregation then left the matter uncertain, this must be said a fortiori of the replies rendered after the Benedictine Declaration down to our age. Therefore nothing concerning any general principle can be concluded from Decisions of the Sacred Congregation.

The Author then argues from the general doctrine that heretics are subject to ecclesiastical laws and consequently to this law of the Tridentine Synod. But Benedict XIV most expressly signifies, on the contrary, that the marriages of heretics in Holland were declared valid because those marriages are not comprehended by the Tridentine law. Thus he says in the constitution Singulari Nobis of February 9, 1749, to Henry, Cardinal of York, section 17: For it has been proved by the truest arguments and conjectures that the Council of Trent, when it established that new diriment impediment, did not extend its decree to those marriages which gave occasion to the dispute resolved by Us in the year 1741, as can conveniently be gathered from the opinions of the theologians and canonists who wrote concerning this matter, etc. He urges the same thing again in the Letters to Anthony, Archbishop of Goa, speaking of the Fathers of Trent: That consideration raised a scruple in others, namely, lest by the abolition of clandestine marriages, that is, those which are celebrated without the Pastor of the man or woman,

the minds of the heretics could thereby be gravely exasperated, whose marriages would have been null, and consequently their offspring illegitimate, since they had never been celebrated before a Catholic Pastor and two witnesses. But since the Fathers of the Council wisely established in this manner: It decrees further that a decree of this kind shall begin to have its force in each parish after thirty days, to be counted from the day of its first publication made in the same parish; since it was not credible that a decree of this kind was to be promulgated by them, it followed that their marriages made without the presence of a Pastor and two witnesses could never have been called invalid, as Cardinal Pallavicini continues, etc.

Nor is what the Author adds firm: that from the fact that the Pontiff declared those marriages in Holland to be valid although clandestine, it follows that without that Declaration they would have been invalid. For the Declaration did not give those marriages intrinsic firmness or validity, but merely extrinsic firmness, that is, it authentically declared what they already were and what was to be judged concerning them; it did not bring it about that they were intrinsically such, that is, valid. Conversely, the absence of the Declaration does not bring it about that they are invalid, but only that their validity is not authentically established for us.

842. • QUESTION 6. Is the Tridentine Decree considered to be in force in a Church recently formed among heretics or unbelievers?

Reply. Yes, if the Tridentine decree was published in those parishes. Although by ordinary law this Decree must be promulgated, nevertheless, where it has not been published, the founders of a new Church could sometimes defer promulgation of this Decree by reason of a special difficulty, namely, when Priests are so rare in a large province that from time to time they cannot assist at marriages. But in a similar case it would be more prudent to have recourse to the Apostolic See, to which it belongs to judge what is more expedient in so grave a matter.

843. • QUESTION 7. When the faithful cannot have recourse to their own Pastor, ought they to contract before another Priest if they easily can?

Reply 1. They ought to seek permission from the Pastor or Bishop by letter, if this can easily be done, so that some Priest may be delegated to assist at the matrimony.

Reply 2. If they cannot request or obtain this faculty, they can contract validly before two witnesses even without any assistance of a Priest. - Thus commonly. - The reason is that a simple Priest, and likewise another Pastor who is not the proper Pastor of at least one of the contracting parties, can contribute nothing to the validity of the act. This is also established from the reply of the Sacred Congregation of April 22, 1795, approved by Pius VI. For it replied that in these circumstances only a blessing should be received from some Catholic Priest. - See the collection of Decisions of the Roman Curia concerning matrimonial matters at the end of the little work On the Impediments of Matrimony, published at Louvain in the year 1827.

844. • QUESTION 8. Are spouses who, in the absence of a Pastor, contracted clandestinely bound to receive the blessing when an opportunity is given?

Reply. They are not indeed bound, but they are to be exhorted to this. Priests, however, ought to declare to the spouses that a blessing of this kind in no way pertains to the validity of the matrimony. This is evident from the reply of the Congregation mentioned in the preceding question, given on the same day and approved by the same Pontiff. - See the little work just cited, page 175.

Two matters must be treated: 1. what kind of Pastor ought to assist; 2. how he ought to assist.

845. • I. Only that Pastor can validly assist at a matrimony who is the proper Pastor of either contracting party, and therefore one who has jurisdiction over them or at least over either one. For it is established from the Council of Trent that only the Pastor can validly assist at matrimony. From several Declarations of the Sacred Congregation of the Council of Trent, we have it established that Pastor is to be understood in this manner.

II. The jurisdiction of the Pastor is constituted through the habitual domicile or quasi-domicile of the contracting parties, or of either of them, in his parish, but not through domicile of origin or through mere habitation for a brief time. This is gathered from Declarations of the Sacred Congregation and from Benedict XIV, etc. - Thus by the unanimous consent of the theologians.

846. Questions. - QUESTION 1. What period is required so that a stranger can contract matrimony in a place not his own?

Reply. Residence for one month suffices. This is deduced from the Declaration of Benedict XIV in the Letter to the Archbishop of Goa, A Few Weeks Ago, March 19, 1758 ¹⁰, which is as follows:

¹⁰ Compare what was said above in the notes to no. 839, question 1.

After these things We judge it necessary to add something so that it may be manifest what is required for acquiring a quasi-domicile. But in this matter no other reply can be given than that, before the matrimony is contracted, the one contracting must have resided for the space of at least one month in the place where the matrimony is celebrated. The definitions of the Congregation of the Council concerning this matter can be observed in Fagnanus..., where, after considering their context, he has the following: A man and woman of Utrecht, fearing an impediment from their parents, proceeded to the neighboring city of Aachen and, after remaining there for some time, contracted matrimony. When the Sacred Congregation was consulted concerning its validity, it judged that the time for which the contracting parties remained at Aachen must be expressed; and if it was at least one month, a decision in favor of validity was to be given....

It could be doubted, however, whether, for acquiring a quasi-domicile for the sake of matrimony, not only preceding residence but also subsequent residence for some space of time is required. But since We have observed that subsequent residence is regarded by those authors who have treated this matter as an aid of great importance for saying that a new domicile was sought, while nothing concerning it was prescribed by the Congregation of the Council in the definition adduced a little above, We are unwilling to decree anything new concerning this matter ¹¹.

¹¹ These things manifestly confirm what was said above in the note to no. 839, namely, that the space of one month was not established by Benedict XIV as though a stay of one month without the intention of remaining there for as much time as suffices for acquiring a quasi-domicile were sufficient, or as though, when this intention is present, it were necessary for a month to elapse before the nuptials are celebrated. For it is expressly said that a stay of one month is considered in the case as an aid by whose assistance the intention of establishing at least a quasi-domicile in that place can be presumed. Otherwise, that monthly stay would not be a mere aid for presuming or proving something, but would itself be the manifest establishment of a quasi-domicile. The same thing is evidently gathered from the fact that the Pontiff immediately adds that he is unwilling to resolve the question whether, beyond the preceding residence of a month, some subsequent stay in the same place is further required after the nuptials have been contracted. For if he had defined that the space of a month sufficed for constituting that quasi-domicile which was already adequate for validly contracting matrimony there, by that very fact he would also have defined that this subsequent stay was in no way necessary. Thus, with no one dissenting, the matrimony would in fact be considered valid of one who, coming from France to London with the intention of establishing a quasi-domicile there - suppose, for example, a man attached to the French Ambassador to the King of England - contracted nuptials on the day after his arrival and on the same day, according to the example proposed, was recalled to Paris by an entirely unforeseen command of the Prince. For by the right of quasi-domicile he could validly contract; but for one who already legitimately possesses this right, it is indifferent whether some unforeseen cause leads him elsewhere contrary to what he had determined.

But that mention of subsequent residence there is made by Benedict XIV as another aid for presuming whether there was an intention of establishing a domicile in that place is also evident from the same Benedict's Instruction XXXIII, no. 9, where, speaking of the same Decisions of the Congregation of the Council mentioned by Fagnanus, which he also calls Decisions here, he has the following: It must nevertheless be observed that those entering matrimony in this manner had acquired a domicile or quasi-domicile in that place before they completed the matter. For they had remained there for a long time before the matrimony, nor did they afterward depart from there in order to return to their first residence and domicile. Here you see both the preceding residence and the things which followed it invoked as mere aids by which both the acquisition of domicile or quasi-domicile and consequently the validity of the contracted matrimony were established.

Moreover, observe that all the things which the Author adduces from the Letters of Benedict XIV to the Archbishop of Goa have no relevance unless you suppose, what the Author otherwise does not indicate, that there is question of a stranger who, without abandoning his own domicile, proceeds purposely to another place in order to celebrate matrimony there. See what we said in the note to no. 839, question 1.

847. • This doctrine of Benedict XIV is confirmed by a recent Decision of the Sacred Congregation of the Inquisition of December 6, 1843. For to this petition: John and Mary, having domiciles at Mechlin, come to London and, without the authority or permission of their Pastors, after only one month has elapsed, contract matrimony in London. It is asked whether this matrimony is invalid because of the aforesaid Council of Trent, session 24, chapter 1, On the Reformation, or not. The Sacred Congregation of the Inquisition replied to the proposed doubt on December 6, 1843: Let the Letter of Benedict XIV to the Bishop of Goa stand.

But residence for one month in some place does not suffice to confer jurisdiction upon the Pastor of that place so that he can validly assist at matrimony if it is made for the sake of recreation or a stay in the country, or for rural business; because then neither a domicile nor a true quasi-domicile is present ¹², as is established from a Declaration of the Sacred Congregation reported by Benedict XIV, Instruction 33, no. 7. See Analecta of Pontifical Law, volume 2, section 1886, and St. Ligorius, no. 1086.

¹² When the intention of establishing a domicile or quasi-domicile somewhere is absent, it makes no difference whether a brief or long stay is prolonged there. Thus, for example, if as a traveler you remain in some city awaiting an opportunity to buy merchandise, a companion for a journey or voyage, the outcome of some lawsuit, the cessation of difficulties which delay your return to your homeland, or something of this kind, even if you remain there for five or even ten years, prolonging a stay precarious from day to day, you will never acquire that right of domicile which suffices for validly contracting matrimony before the Pastor as though he were your own.

848. • QUESTION 2. Can persons without domicile contract before any Pastor?

Reply 1. Yes, if both contracting parties are persons without domicile. The reason is that they have no proper Pastor.

Reply 2. If only one is without domicile, they can still contract before any Pastor, because the spouse having a fixed domicile can use the privilege of the other. - Thus commonly. - St. Ligorius, no. 1089 ¹³.

¹³ Benedict XIV defines a person without domicile in Instruction 33, no. 10, as one who, having abandoned his domicile, seeks a residence in foreign lands. This must be understood both if he has determined where he will establish his residence and if he has not yet determined it; for in each case he still equally lacks a domicile, as Sanchez notes (On Matrimony, book 3, disputation 25, no. 3). Add that it is not necessary for him to seek a residence; for one who nowhere has or wishes to have a certain and constant residence is equally, indeed a fortiori, called a person without domicile, as the same Sanchez observes, l.c., no. 1. Moreover, for the present matter, in order for someone to be called without domicile in relation to a parish, it is not even necessary that he seek a domicile in some remote or foreign region. Rather, it is generally sufficient that, after abandoning his prior parish, he has not yet established a residence in another, because he is then truly without a parish, since he has lost the prior parish and has not yet acquired another. Therefore: 1. one who, after abandoning a parish, has not yet found a house in which to live and meanwhile lodges in some place is without domicile; 2. even if he has found the house in which he will live, but lodges elsewhere while the found house is being vacated by its former inhabitant, he is likewise without domicile as regards the parish; 3. thus also if he has arrived in a city and has not yet determined in what part he will live, he is numbered among persons without domicile or without a parish. Sanchez, l.c., no. 4.

The Holy Council of Trent, moreover, commands Pastors two things regarding persons without domicile, session 24, chapter 7, On the Reformation of Matrimony: 1. that they not be present at their marriages unless they have first made a diligent inquiry; 2. that, after the matter has been reported to the Ordinary, they obtain from him permission to do this. You have the manner of the inquiry in the Instruction which the Holy Inquisition, with Clement X approving, added; Giraldi (Exposition of Pontifical Law, section 656), Ferraris (Instruction of Pastors, nos. 36-53), and in part St. Alphonsus, book 6, no. 1089, report it in full with other encyclicals of the same Inquisition.

QUESTION 3. Can a suspended, irregular, excommunicated, or schismatic Pastor assist VALIDLY at matrimony?

Reply. Yes, provided that he has not renounced the title or been canonically deposed from it. - Thus commonly. - But generally he would assist illicitly ¹⁴. - St. Ligorius, nos. 1085, 1084.

¹⁴ The Pastor in the case is not a minister of the Sacrament, but a mere witness; and the Doctors do not agree among themselves whether he sins when he assists after being requested by the contracting parties. But St. Alphonsus appears to require too much when he requires in the contracting parties a most grave cause for requesting him, since otherwise he does not require so grave a cause in order that Sacraments may licitly be sought from an unworthy minister.

Add here that a Pastor validly assists at a matrimony even if he is not yet a Priest, and although the Bishop has prohibited this to him. The same must be said of the Vicar General if, contrary to the prohibition of the Bishop, either he himself assists at a matrimony or gives some Priest the faculty of assisting. See St. Alphonsus, book 6, no. 1081, and Benedict XIV, Canonical Question 98.

Both Cardinals in their respective Titles and in churches subject to them, and Pontifical Legates in provinces entrusted to them, have the faculty of assisting at marriages. See Ferraris, Matrimony, article 3, nos. 12, 20, 45.

The VV. observe here (page 816, in the Note) that the things said in the first part of this Note do not cohere with the Note to no. 960, where it is said that a Pastor who is to be avoided assists at matrimony validly but illicitly.

Reply. That in the one place it is merely affirmed that the Doctors do not agree among themselves concerning the proposed question, as is seen in the present Note, while in the other one of several opinions is admitted, as is contained in the Note to no. 960, involves no conflict, all the more because in the latter place the principal question, namely, whether the Pastor sins gravely or lightly, is not resolved by the word ILLICITLY, but at most the opinion of those who exempt the Pastor from every sin is set aside. For St. Alphonsus in fact reports three opinions thus (book 6, no. 1083): Whether a Pastor excommunicated as one to be avoided sins gravely by assisting, Coninck and Pontius... affirm. But Sanchez, Bossius, Hurtadus, Diana, Villalobos, Leander, etc., deny it; some of these hold that he does not even sin lightly. Indeed, the question is not altogether resolved against the third opinion either, because there is no inquiry there concerning whether the Pastor did or did not first take care to substitute another Priest for himself in that office.

But against what is said in the Note, namely, that St. Alphonsus appears to require too much in the case when he requires in the contracting parties a MOST GRAVE cause for requesting the Pastor, they object (page 817) that a most grave cause is required, because otherwise, without necessity, there would be communication in a sacred and grave matter with a person to be avoided.

Reply. For some necessity to exist in a matter of this kind, a most grave cause is not required, but even a necessity or merely grave, or non-light, cause can suffice. Hence, although Suarez treats of a graver matter, namely, seeking Sacraments from one to be avoided, he does not require a most grave cause but some just necessity (On Censures, disputation 16, no. 27); the Doctors generally call a cause just which is considered sufficient to excuse from the ecclesiastical precept in question. In this matter it must also be kept before one's eyes that, when the Church excommunicates someone by name, it certainly imposes a precept both upon the excommunicated person not to mingle with the faithful, especially in a sacred matter, and upon the faithful to avoid communication with him. Nevertheless, it is sufficiently clear that by this the Church intends to inflict a grave penalty upon the contumacious guilty person, not to punish the faithful, as it were, by imposing a most grave burden. Hence the Doctors cited by the Salmanticenses (treatise 9, chapter 8, no. 48) find a sufficient necessity which excuses the person to be avoided from sin, at least grave sin, in assisting at marriages when when he executes his office for the utility of others. Therefore their utility suffices for excusing the others. For it is well known - see Suarez, l.c. - that a cause which excuses the one conferring also excuses the recipients, and conversely. Nevertheless, the Pastor will not be excused from sin if, when he can easily and without burden to others, he does not commit the office of assisting at the matrimony to another.

849. • QUESTION 4. Does a Priest who is falsely considered the Pastor assist validly?

Reply. Yes, if he has a colorable title and is regarded as the Pastor from common error. The reason is that the Church then supplies jurisdiction for the common good. - Thus all. It also appears more probable that the same must be said if common error alone is present without a colorable title, for the same reason, as was said concerning jurisdiction in the internal forum in the Treatise On Penance, no. 548.

QUESTION 5. Does any Priest validly assist at matrimony with the presumed permission of the Pastor?

Reply. No, because it is not true permission; tacit permission, however, or even permission extorted by fear or deceit, suffices. - St. Ligorius, no. 1088, and others commonly.

850. • QUESTION 6. Can a Vicar validly assist at matrimony apart from the delegation of the Pastor?

Reply 1. Yes, if the Vicar supplies the place of a deceased or absent Pastor; for then he is certainly delegated for the universality of causes. Indeed, then he can also subdelegate another, for by law one delegated for the universality of causes can subdelegate another for a particular case. - Recall what was said in the Treatise On Laws, no. 116, and On Penance, no. 545.

Reply 2. But if the Vicar is the cooperator of a present Pastor, there is greater difficulty, nor can the matter be defined by a general and absolute rule. Therefore attend to the statutes or custom of the dioceses. For a Bishop constituting Vicars as assistants of the Pastor can either confer upon them immediately the right of assisting at marriages or leave that right to be committed to them by delegation of the Pastor. But according to the custom more commonly received in France and in other places, it appears that the following can be established:

1. The Vicar can assist at the matrimony of parishioners celebrated in the parish itself, because he exercises the office of the Pastor himself.

2. The Vicar can also appoint another Priest to assist at matrimony in a particular case. The reason is that, while the aforesaid custom is in force, he is delegated for the universality of causes and consequently can subdelegate another. - Bouvier, chapter 7, article 6. - Carriere, no. 1344.

851. Principles. - I. It is required and sufficient for the validity of matrimony that the Pastor be morally present, like a witness who must give testimony concerning a completed matter. The reason is that the Pastor is employed here as the principal witness deputed by the Church, as is established from Benedict XIV, On the Diocesan Synod, book 13, chapter 23.

II. It is required that the Pastor be addressed and advised concerning what the contracting parties wish to do, or that he be employed by them. The reason is that otherwise the Pastor is not considered to attend to what is being done, nor can he judge that those who act wish to act seriously ¹⁵. It is not required, however, that he was expressly called for this purpose. For it would suffice if he were present there by chance, or had been summoned under another pretext. This is evident from a Declaration of the Sacred Congregation. - Carriere, Compendium, no. 309. - Bouvier.

¹⁵ It suffices that while the contracting parties express consent they give some sign, for example, with the eyes, modulation of the voice, a nod, etc., by which they indicate to the Pastor that they wish to have him as a witness, even though he was not previously informed or called, and by chance, thinking nothing of it, hears them after he has been called to it, etc. These are the words of a Declaration of the Sacred Congregation reported by Benedict XIV, On the Diocesan Synod, book 13, chapter 23, no. 1.

Hence:

1. The merely physical presence of the Pastor does not suffice, since he must attend to what is being done. Hence one who is drunk, sleeping, or insane cannot assist at matrimony.

2. It is not necessary that he see the contracting parties, provided that he hears them clearly expressing their consent. Therefore a blind man can assist at matrimony, but not one both blind and deaf.

852. Questions. - QUESTION 1. Does a Pastor coerced by force and fear assist validly?

Reply. Yes, because according to law it suffices that he be present and know what is being done, whether willing or unwilling. This is manifest from a Declaration of the Sacred Congregation. - See St. Ligorius, no. 1092 ¹⁶.

¹⁶ The case must not be omitted in which the Pastor, wishing to resist lest he be regarded as a witness, closes his eyes, blocks his ears, or shouts and attempts to flee, so that he may render the act invalid because he can afterward affirm that he saw or heard nothing. But the Sacred Congregation has already replied a hundred times with what is also contained in the reply to the Bishop of Jaen in the year 1581, reported by Benedict XIV, On the Diocesan Synod, book 13, chapter 23, no. 1: namely, that the matrimony is invalid if the Pastor neither saw nor heard the things being done, UNLESS, HOWEVER, HE AFFECTED NOT TO UNDERSTAND.

Weighing this clause, Benedict XIV (l.c., no. 11) teaches that it must be understood of the case in which the Pastor, unwillingly employed for the contract of matrimony, therefore neither sees nor perceives because he deliberately wished neither to see nor to perceive, although he naturally could have both seen and perceived in the same manner as the witnesses employed for that same contract admit that they saw and perceived. He then treats of a case argued in the year 1753: Celebrated in the preceding year 1753 was the Carthaginian matrimonial case, argued and judged in the Congregation of the Council, in which there was question of a certain matrimony contracted before a Pastor unexpectedly found in his own house, who had indeed seen the man and perceived his words, but had neither seen nor heard the woman. After recalling the studies of theologians and opinions of the Doctors, he concludes: But when the fact itself concerning which there was question had been accurately weighed and all its circumstances diligently examined, it was manifestly established that, if the Pastor did not see the woman and did not understand her words, this happened because he himself, with a fixed mind, was unwilling to see and hear her, although he could easily have seen and heard her, just as the witnesses employed for that act had seen well and heard correctly. Therefore judgment was rendered, and with Our assent a sentence proceeded in favor of the validity of the matrimony.

QUESTION 2. In what place can the Pastor or a Priest deputed by him assist at matrimony?

Reply 1. He can assist validly everywhere, even outside the parish. Reply 2. Apart from a grave cause, he cannot assist licitly except: 1. in his own parish church; 2. in another parish church with the consent of the Pastor of that place; 3. in private chapels or oratories with the permission of the Bishop in whose territory the place is situated.

853. • QUESTION 3. Can or ought a blessing be given to the spouses in every case?

Reply 1. If by the name blessing are understood the words, I join you together, etc., it must always be given under grave obligation ¹⁷ in a matrimony of Catholics, because it is prescribed by the Council of Trent.

¹⁷ This resolution is opposed to the canon received by all, that nothing is to be condemned as mortal unless it is certainly established. See volume 1, no. 152, in the note. Only a few, against many others cited by St. Alphonsus, no. 1094, have said, merely as an opinion, that this omission can be regarded as grave.

The VV. here oppose the opinion of St. Alphonsus (page 947, no. 159), who writes in book 6, no. 1094: Pontius, Sanchez, Palaus, and the Salmanticenses with Gutierrez and Bonacina teach probably that it is not mortal if the Pastor omits, "I join you together," etc. Add Coninck, Villalobos, and Diana, cited by Busembaum in that place. But Bossius with Rebellus, Barbosa, Veracruz, and Salsedus still probably, and perhaps more probably, say that it is mortal, because it appears to be a transgression in a matter of great moment.

Reply. The Note recalls the Canon received by all, that nothing is to be condemned as mortal unless it is certainly established; and St. Alphonsus himself most earnestly inculcates this Canon both in the Moral System, final proposition, and in the Treatise On Penance, book 6, no. 604.

Moreover, in the present question St. Alphonsus admits that each opinion is probable and, merely with some doubt, says that PERHAPS the latter is more probable. Therefore, since the Holy Doctor himself defines the matter to be plainly uncertain, this doubtful greater probability can now serve for mere erudition, but not for the use of confessors or as a rule of consciences. Indeed, it is especially suited for confirming that this omission cannot be condemned as a grave fault.

Reply 2. But the blessing which is called solemn and is given at Mass must always be given unless the bride is a widow ¹⁸. - Recall what was said at nos. 770, 829, and following.

¹⁸ The Doctors disagree wonderfully concerning this. Some generally will that any nuptials whatsoever be blessed, provided that they are just; others contend that they are not to be blessed when each spouse, or at least either spouse, has received the blessing; others with St. Thomas say that they are to be blessed when a widower marries a virgin, but otherwise if she is a widow. Schmalzgrueber rightly concludes (book 4, title 21, nos. 41-42) that one who conforms himself to the Ritual of his own Church will act best, for in this the custom of his own Church will appear.