Chapter — Slater, Back to Morality
Chapter XIV: Action for Breach of Promise of Marriage
SOME of the commentators on the new Code of Canon Law are in grave difficulties over the right interpretation of Canon 1017. It is laid down in that Canon that no other engagements to marry are valid but those that are in writing signed by the parties themselves and by the parish priest or the local Ordinary or two witnesses. The Canon, furthermore, provides that there lies no action in the ecclesiastical courts for breach of promise of marriage, even when the contract was expressed in writing, duly signed, and there was no good reason for breaking it off. All that is conceded to the aggrieved party is an action for damages if there were any. The difficulty is further increased by an answer to a question proposed to the Pontifical Commission for the interpretation of the Code. The case was put of a man who was going to marry a third party although he had been previously engaged to another girl, and it was asked whether, if this girl brought an action against him for damages, the celebration of marriage with the third party would be suspended till the issue of the trial was determined. The answer was that no action lay for the investigation of the question whether the breach of promise was justified or not, and that the celebration of the marriage with the third party would not be suspended by the trial of the action for damages.
The law of the Church as thus stated gives rise to some practical difficulties. Let us suppose that a parish priest is asked to publish the banns of marriage between two of his parishioners, A and B. On the banns being published a girl, C, comes to the parish priest and shows a written engagement to marry duly signed by A and herself and two witnesses. Let us suppose that the parish priest knows all the circumstances of the case out of confession and that A has no good reason for violating his engagement with C. Nevertheless, he must tell C that she has no remedy, that she may claim damages if she likes, but that such a claim cannot suspend or delay the marriage of A and B. The contract between A and C was valid, and produced a grave obligation in justice to fulfil it, nor has A any good reason for violating it. If A goes to confession to the parish priest the parish priest must refuse him absolution, for he is guilty of a grave sin and is unrepentant. But outside the confessional he is obliged to publish the banns of marriage between A and B, nor can the celebration of the marriage be deferred in consequence of the just complaints of C. Is not the Church bound to uphold the moral law and protect the rights of the innocent ?
If it is put in that way the difficulty can be made to look formidable enough. But we must look at the question from other points of view.
Perfect liberty of marriage is a matter of great importance for the public good. A marriage into which one of the parties has been forced can scarcely turn out well. No one should be forced to marry against his will. The laws of many modern states refuse to grant actions at law for breach of promise of marriage. The Church’s legislation in this matter is apparently suggested by the similar laws of those modern states. For motives concerning the public good the Church refuses to force anyone to marry against his will. She is justified in doing that, even though occasionally the rights of individuals are not vindicated in consequence. Private advantage must yield to the demands of the public welfare. When the engagement was entered into the provisions of the law were known, the parties knew that the law granted no redress for any failure to fulfil the contract, and the contract was made with that knowledge in the minds of both parties to it. They cannot, then, complain that an injustice is done them by the law when it merely denies a right of action to enforce the contract. To refuse to help a party to protect his rights is not to deny or abrogate his rights. Public authorities are not bound to protect all the rights of their subjects.
English law refuses to grant an action at law for the recovery of a debt barred by lapse of time. The law does not extinguish the debt when six years have elapsed from the time when payment became due. It regards the debt as still owing. It will support the action of a creditor who appropriates to the payment of a debt barred by lapse of time an unappropriated payment made by the debtor. An executor creditor may pay himself a debt barred by lapse of time, and the law will uphold him. So that laws which deny an action for the protection of a right do not of themselves take away the right, they leave it where they found it; it remains a right of natural obligation. They are not unjust laws if they are enacted on account of grave reasons connected with the public welfare. If, according to the laws of the Church, two parties are free to marry, their parish priest is bound to assist at their marriage; no option is given him. He may know that one or both of the parties are in a state of sin and unrepentant, and therefore unfit to receive absolution. He will do what he can to put them in better dispositions, but if he does not succeed in his endeavour he must nevertheless assist at the marriage. Otherwise he would not do his duty as parish priest and authoritative witness of the marriage on behalf of the Church.