§ 1. On The Necessity Of The Tridentine Form

2068. By natural law matrimony indeed is perfected by mutual consent externally manifested; but the Tridentine Synod, wishing to meet the grave evils and sins which have arisen from clandestine marriages, established a solemn form under which consent is to be furnished, namely before the parish priest and witnesses, so that consent furnished otherwise is formless, and therefore invalid. - Hence the following are established.

Principles. I. Clandestine matrimony is everywhere GRAVELY ILLICIT. - The old canons established this, Innocent III confirmed it in the Fourth Lateran Council,¹ and the Tridentine Synod² fortified the same by its sanction, when it said that the Church always detested these things. - But if, on account of adjuncts of times or places, the law cannot be observed integrally, it is to be observed as to the possible part, according to the norm prescribed for missions among infidels.³

Hence: 1. The betrothed sin gravely, although in some place the nuptials are valid, if outside a case of necessity they contract between themselves alone, or before only the civil magistrate. 2. They sin more gravely, and are guilty of participation in heretical worship, if they contract before a non-Catholic minister.

2069. II. Clandestine matrimony, in places where the TRIDENTINE decree concerning the solemnity to be employed has been promulgated, is altogether INVALID. For thus it was defined by the Council itself: "Those who shall attempt to contract matrimony otherwise than in the presence of the parish priest, or another priest by license of the parish priest himself or of the Ordinary, and two or three witnesses, the holy Synod renders them altogether incapable of contracting thus, and decrees that contracts of this kind are void and null, as by the present decree it makes them void and annuls them.... It decrees besides that this decree of this kind shall begin to have its force in each parish after thirty days, to be numbered from the day of the first publication made in that same parish."

Moreover it is required that this PUBLICATION have been made in the individual parishes or quasi-parishes,⁴ either by mandate of the Ordinary as promulgation of the decree of the Council of Trent, or, from special Indult, in the name and authority of the Roman Pontiff, as Benedict XIV explains diffusely.⁵ - And the fact of promulgation ought to be indubitable. But as regards proof, S. C. C. on 29 Sept. 1602 defined: "publication is presumed where the decree had been observed for some time in the parish as a decree of the Council."⁶

We said in places where it has been promulgated, etc.; for it is certain that clandestine matrimonies "stand RATIFIED and FIRM in those places in which the decree of the Council of Trent either was never published, or was never observed as a decree of the same Council; or if it was ever observed, afterward by a long interval of time went into desuetude";⁷ or finally if a dispensation concerning it was granted by Pontifical authority.

Here also it must be NOTED that, as Benedict XIV says,⁸ "when one of the spouses, both by reason of the place in which he lives and by reason of the society in which he lives, is exempt from the law of the Tridentine Synod, the exemption which he enjoys remains communicated to the other party, on account of the individuality of the contract, by force of which the exemption which belongs to one of the parties is extended to the other, according even to civil laws, and is communicated to the same."

2070. III. The Tridentine law invalidating clandestine matrimonies is at once LOCAL and PERSONAL. Thus the Instruction to the Archbishop of San Francisco in California given by S. C. de Propaganda Fide, from the resolution of the Holy Office on Wednesday, 14 Dec. 1859.⁹

As LOCAL, the law affects the territory, and obliges all those who are to be joined in matrimony there, even if they do not have domicile or quasi-domicile there. Hence if two Catholics domiciled in England, where the law is not in force, travel in France where it is in force, and there contract clandestinely, the matrimony is invalid.

But as PERSONAL, the law obliges all those who, having domicile or quasi-domicile in a place where the Tridentine decree has been published and is in force, wish to contract matrimony in another place, where it is not in force. - And this is indubitable, if the nupturients pass over IN FRAUD OF THE LAW, i.e. with the sole intention of contracting matrimony, into an exempt place, unless either one has acquired domicile or quasi-domicile there.¹⁰ Nor is the restriction added to be held as an exception of the law, but it expresses the condition which is to be fulfilled so that one can be a participant in the privileges which inhabitants of the place enjoy. But whether the law also obliges those who passed over into the exempt place not indeed with the intention of marrying, but for another cause, is CONTROVERTED, with a great abundance of authors disputing on each side. This controversy standing, the validity of the matrimony indeed seems to us to have to be affirmed, from those things which we have set forth above concerning doubtful impediments¹¹ (cf. n. 1997, q. 4).

2071. Questions. IT IS ASKED 1. Whether HERETICS are bound by the Tridentine law concerning clandestinity?

Resp. Since it is certain that heretics are generally subject to the laws of the Church, the whole question is concerned with this, whether the Church wills them to be bound by this law of hers (cf. n. 198). But the question must be answered thus: The more common and much more probable opinion affirms that heretics are bound by the law of clandestinity, no less than Catholics, unless there is had a declaration of the Church establishing otherwise. The reason is sought from many documents issued by the Holy See, which cannot be turned aside into another sense except by force.¹²

Most celebrated in this matter is the DECLARATION and concession of BENEDICT XIV as regards matrimonies contracted in HOLLAND, made on 4 Nov. 1741, through which the Pontiff "declared and established that matrimonies, in the said federated provinces of Belgium, contracted up to now among heretics, and which will be contracted in the future, even if the form prescribed by Trent was not observed in celebrating them, provided another canonical impediment did not obstruct, are to be held as valid."¹³ And he declared the same concerning mixed matrimonies, namely those which are contracted by Catholics with heretics.¹⁴

As regards the EXTENSION of this Declaration, the Congregation of the Holy Office, on 19 July 1818, declared: "The Decree of Benedict XIV, issued in the year 1741 concerning the matrimonies of Holland, looks taxatively only to matrimonies contracted in those provinces, but not to other matrimonies entered in other places and provinces, to which therefore it cannot be applied without a new and special declaration of the Holy See."¹⁵ But it is established that the aforesaid declaration afterward, from Apostolic clemency, was also extended to other regions, which were in the same necessity as Holland.

From these things you will gather: 1. If it is established that the Tridentine decree was not published in some place, or after its publication the Benedictine declaration was extended to that place: it is certain that the marriages of heretics, whether among themselves or with Catholics, entered there clandestinely, are valid. 2. The same must be said if this has been expressly conceded by a particular Indult of the Holy See.

And here it comes appositely to be NOTED that, for the effect of matrimony, under the appellation of HERETICS there are comprehended in the declaration of Benedict XIV the following FIVE CLASSES: - "1) Those who, baptized Catholic, from childhood not yet seven years old are educated in heresy, and profess heresy. - 2) Those who are educated not so much in heresy as by heretics, namely having received no, or scarcely any, instruction of heretical doctrine, and not frequenting worship, although sometimes having participated. - 3) Those who, while still children, falling into the hands of heretics, are joined to a heretical sect. - 4) Apostates passing from the Catholic Church to a heretical sect. - 5) Those who, born and baptized by heretics, grew up without having emitted any solemn profession of heresy, and as it were of no religion, etc." Thus C. S. OFFICII, 6 Apr. 1859.¹⁶

Concerning the matrimonies of heretics, S. Congregation of the Council also WARNS these things, in the Instruction to the Bishop of Rosnava (16 March 1780):¹⁷ they "must be so dissembled by you, that concerning their validity or invalidity you abstain altogether not merely from pronouncing judgment, but even from promoting a disputation, from which not so much fruit of utility as movement of offense and danger for the ruin of the Catholic religion would have to be expected." Besides, "If any have entered marriage invalidly in heresy, the form of Trent not being observed, and afterward having been converted to the Catholic religion, persevere in it in good faith and adhere to their marriage, they seem rather to have to be left in the same good faith than to be warned of nullity." Thus S. C. C. in the case Iprensis, 17 Aug. 1737.¹⁸ The same Congregation adds besides: "but particular cases and circumstances of those who are troubled by scruples concerning the validity of these matrimonies ought to be set forth distinctly by the Bishop."

IT IS ASKED 2. Whether, in places where the decree of Trent is in force, matrimonies celebrated without the assistance of the parish priest can be held valid, if ACCESS to him DOES NOT LIE OPEN to the parties?

Resp. 1. Affirmatively, if there is in some place a GENERAL impossibility, which is foreseen as about to last for at least a month. It is established from the Response of C. S. Officii, given on 1 July 1863 to the Bishop of Vallis Prati,¹⁹ in which these things are read: "The same Eminent Fathers declared: When access is difficult and not safe, and it is unknown when the Parish Priest can be had, and he is foreseen as about to be absent from the place for the space of at least one month, and there is no other who may supply the place of the Parish Priest: matrimony is valid without the presence of the parish priest, yet the form of the Council being observed in that in which it can, namely with at least two witnesses employed."

Resp. 2. Negatively, if the necessity is PARTICULAR to the nupturients, since an invalidating law does not cease on account of the inconvenience of a private person.²⁰ Thus the more common opinion, against others thinking otherwise.

IT IS ASKED 3. Whether matrimonies entered against the law of Trent have ANY EFFECTS?

Resp. From matrimonies of this kind there arises the impediment of PUBLIC HONESTY, as was said above (n. 2033). - But if the matrimony was consummated, it is clear that peculiar obligations arise from this head. - Besides, there are not lacking those who adjudge to such matrimonies the force of betrothals, because an act which does not have force as it is done nevertheless has force as it can be done. But this must plainly be denied, at least if there is question of persons who have reached puberty, as is clear from various decisions of S. C. C.²¹

2072. It helps here to add a LIST of the principal places in which the Tridentine Decree must be held as promulgated or not promulgated.²²

A) All clandestine matrimonies, i.e. whether of Catholics, or of heretics, or mixed, are INVALID in Spain, yet at Gibraltar the matrimonies of heretics and mixed matrimonies have force; in Portugal, Italy and the adjacent islands, in France as it existed before the war of 1870, in Germany with the exceptions to be excepted below, in modern Belgium, the grand duchy of Luxembourg, the Ecclesiastical Province of Goa; the Mexican Republic, and the regions of CENTRAL and SOUTH AMERICA, except those to be indicated under C 12; finally in all colonies of the Portuguese or Spaniards.

B) In various northern regions of Europe, which in the year 1564, in which the Council of Trent was confirmed, had already defected from the faith, the Decree concerning clandestinity DOES NOT OBLIGE. - Thus the matter stands in England, Scotland, Denmark, Norway, Sweden, which is not to be confused with Suevia, as some confuse them, and in the greater part of northern Germany. - The same is commonly handed down concerning the primitive provinces of Prussia, and concerning Saxony. - In some cantons of Switzerland, as Zurich, it does not oblige. The same has force, as regards Bavaria, in the non-Catholic places of Onoldina and Pappenheim, and in the district of the formerly imperial cities of Nuremberg and Weissenburg. - In Russia, one diocese or perhaps another is not obliged. In some more remote parts of Turkey it does not seem to be in force. - In some parishes of Persia and of other regions in that part of the East, even Catholic ones, no publication or observance of the Decree has had place. The same must be said of Greece. In China, Tonkin, and Cochinchina it is not in force, only a few places excepted. In Japan it is now nowhere in force, from the declaration of S. C. of the Holy Office, 11 March 1868.²³ - Nor is it in force in Abyssinia and nearly all other regions of Africa.

C) From the declaration of BENEDICT XIV for Holland and its extension, or from other Pontifical acts, clandestine matrimonies have force, whether of heretics among themselves, or mixed; but not, except those enumerated under B, of Catholics among themselves:

1. In all the Netherlands, except Limburg,²⁴ where nevertheless they have force as regards the inhabitants of the city of Maastricht and the suburb of St. Peter, and likewise excepting certain places of the dioceses of Utrecht and Bois-le-Duc. - 2. At Strasbourg, in Alsace. - 3. In all Ireland. Note. From the directory of the year 1851 approved by all the Bishops of Ireland, Catholics contracting among themselves are bound by the Decree, and indeed everywhere from 1 Jan. 1828.²⁵ - 4. In Silesia subject to Prussia and in the duchy of Cleves, and, from 25 March 1830 inclusive, in the dioceses of Cologne, Trier, Paderborn, and Münster: with faculty given to the Bishops for revalidating matrimonies contracted before this day. - 5. In the Kingdom of Württemberg the Benedictine declaration was certainly extended to the city of Ulm. Concerning other places of the ecclesiastical province of the upper Rhine there can also be doubt.²⁶ - 6. In Russia and in the whole part of Poland subject to the Russians. - 7. In Hungary and Transylvania, within the limits which they had in the year 1841. - 8. In Turkey, Moldavia and Wallachia; in Serbia, Albania, Bulgaria, Turkish Bosnia. - 9. In Persia and other regions in that part of the East. - 10. In Greece. - 11. In the Vicariate of Pondicherry and on the whole Malabar coast, in the Apostolic Vicariates of Bombay and Calcutta, and in the Indian possessions of the English and French, with only some places excepted as regards Catholics. - Likewise in Algeria. - 12. In the islands of Central or South America and other places, formerly existing under the dominion of Catholics, but now subject to the dominion of the English, Dutch, Danes.