Case 26. General Leave of Parish Priest

Ursula, born in Dublin where her father had domicile, was making a journey in France with her mother. While she remained in Paris for some months, marriage was offered to her by Caius, who lived there, which Ursula accepted without delay with her mother’s consent. The consent of Caius’s parents had to be sought, not only because of the observance due to them, but also because under the prescription of civil law a marriage contracted without the parents’ consent would be of no effect. They, however, utterly refused consent. Caius went to the parish priest and, because the parents unjustly refused consent, tried to persuade him nevertheless to admit him to marriage. The parish priest refused, but at the same time said that he would willingly give permission for him to contract marriage before any priest in any place whatsoever. Despairing of other means, Caius and Ursula went to London and there asked Robert, who had charge of a quasi-parochial church, to bless their marriage. Hence it is asked:

1. What marriages are clandestine, and by what law are they prohibited?

2. What power concerning the marriages of Christians belongs to the civil authority?

3. What is to be said of the case?

The first question was answered above, p. 302-304.

2. What power over Christian marriage has the civil authority?

Leo XIII answers this question in his Encyclical letter Arcanum, Feb. 10, 1880: “ As then marriage is holy by its own power, in its own nature, and of itself, it ought not to be regulated and administered by the will of civil rulers, but by the divine authority of the Church, which alone in sacred matters professes the office of teaching. Next, the dignity of the sacrament must be considered, for through addition of the sacrament the marriages of Christians have become far the noblest of all matrimonial unions. But to decree and ordain concerning a sacrament is, by the will of Christ Himself, so much a part of the power and duty of the Church that it is plainly absurd to maintain that even the very smallest fraction of such power has been transferred to the civil ruler.” Therefore the civil authority has no power over the marriages of Christians; it can not make diriment or prohibitory impediments of marriage, but it can by its laws regulate the civil effects of marriage, such as the right of succession to property, titles, and offices, the property rights of married women, and similar matters.¹

1 Gasparri, De Matrimonio, vol. i, 278.

3. The case. The parties would not altogether escape from the jurisdiction of French civil law by coming to England. For the Marriage with Foreigners Act, 1906, was intended to secure as far as possible that such marriages shall not be celebrated if any legal impediment exists according to the law of either country.¹ However, we may consider the case purely from the point of view, of the law of the Church. The fact that the parish priest of Caius gave his permission for the marriage to take place before any priest, indicates that the parents unreasonably refused their consent to the marriage. Such a general delegation, though illicit, was not invalid before the decree Ne temere came into force. Therefore, if the case happened before April 19, 1908, after satisfying himself about the freedom of the parties to marry and the reality of his delegation, Robert might have published the banns and undertaken to assist at the marriage in due time. According to Ne temere, as he is the parish priest of the place, and he has the leave of the parish priest of the bridegroom, he will be able to assist at the marriage validly and lawfully when he has satisfied himself that the parties are free to marry.

1 Stephen’s Commentaries, vol. ii, 361, 15th edition.