Clandestine marriage and the form of marriage

The juridic form is distinguished as twofold, ordinary and extraordinary. Hence we shall treat first of the ordinary juridic form, then of the extraordinary juridic form, and then of those who are subject to the aforesaid forms.

Vol. II, Bk. III, Tr. VIII, Diss. II, Appendix II. On the Separa…, Part II. On Semi-Full Divorce

Vol. IV, Appendix, Concerning Betrothals and Marriage · Vol. IV, Appendix, Concerning Betrothals and Marriage, Concerning Betrothals · Vol. IV, Appendix, Concerning Betrothals and Marriage, Concerning Marriage

II. Causes of temporary separation. 1. Causes of this kind are comprehended by canon 1131, § 1: If one spouse has given his name to a non-Catholic sect; if he has educated the offspring non-Catholically; if he leads a criminal and ignominious life; if he causes grave danger, whether of soul or of body, to the other; if by cruelties he renders common life too difficult: these and other things of this kind are for the other spouse so many legitimate causes of departing. It is said:

a) If he has given his name to a non-Catholic sect. Therefore it is required that he be formally joined to a sect, whether of infidels, or heretical, or schismatic, and that after the marriage has been entered.

b) If he has educated the offspring non-Catholically.

c) If he leads a criminal and ignominious life, as if he joins himself to a band of robbers.

d) If he causes grave danger, whether of soul or of body, to the other. Danger of soul, for example if he solicits to heresy, poisoning, etc. Add if the husband introduces others into the house with danger that they may tempt to adultery. Or if he wishes to exercise sodomy with the wife, even if she refused to consent (St. Alphonsus VI, 973). Danger of body, to which belongs, for example, a contagious disease of the spouse, unless, which today more easily has place, the danger can be removed in another way (St. Alphonsus VI, 973).

e) If by cruelties he renders common life too difficult, for example by treating the consort cruelly. Mere beating, however, unless it is grave and happens several times, is ordinarily not judged among common people to be a just cause for withdrawing. Besides, it suffices that a grave evil be prudently feared (St. Alphonsus VI, 970, 971, question 3°). To this can also be referred insanity from which danger is imminent to the spouse; likewise very troublesome cohabitation, namely on account of grave and frequent insults or quarrels, especially if they bring in a just fear of a greater evil. Here, however, as was likewise said concerning cruelty, the condition of the persons is considered (St. Alphonsus VI, 971, question 3°).

f) And other things of this kind, for example malicious desertion by the spouse.

All these causes of themselves furnish only the right of temporary separation. Wherefore canon 1131, § 2 says: In all these cases, when the cause of separation ceases, the custom of life must be restored; but if the separation was pronounced by the Ordinary for a definite or indefinite time, the innocent spouse is not bound to this except by decree of the Ordinary or when the time has been completed.

Vol. II, Bk. IV, Tr. II, Diss. III, Pt. I, Section III. Excommunications Simply Reserved to the Roman Pontiff

n. 896.

This excommunication is contracted by:

I. Those making gain from indulgences (canon 2327). By force of this canon, those are excommunicated who, after receiving a price, gain profit either by granting, publishing, or causing indulgences to be published. It is required that the price have been accepted, but not that a simoniacal intention was present; it does not matter whether the price is expended on pious works. By force of this canon those are also excommunicated who, because of indulgences, sell for more objects enriched with indulgences.

Bishops also can contract this censure.

II. Those giving their name to a Masonic sect or to other associations of the same kind which machinate against the Church or legitimate civil powers (canon 2335). For the penalty to regard a certain association, it is required that it machinate against the Church or legitimate civil powers. It is disputed whether there are also required, as obtains in the Masonic sect, a strict bond by which members are united and a hidden organization. Some deny this, because they take the words "which machinate..." as merely explanatory of "of the same kind." Others affirm it, because they judge the words "of the same kind" to be taken in a broader sense, so that they also include the hidden organization which obtains in the Masonic sect. Given the doubt, we follow the milder opinion, the more so because if it were enough that an association machinated against the Church or legitimate civil powers, the legislator would certainly have omitted from the new Code the words "of the same kind," which gave occasion to the dispute. Hence canon 2335 certainly regards, besides the sect of Masons, the societies of the Carbonari,¹ Fenians,² Anarchists, Nihilists, and Internationalists; but not, although they are prohibited, socialist,³ biblical,⁴ clerico-liberal societies; nor the workers' societies called Odd Fellows,⁵ Sons of Temperance, Knights of Pythias, Independent Order of Good Templars (Guttempler-Orden)⁶ and societies which promote the cremation of human corpses.⁷ Moreover:

Clerics who have committed the delict discussed under II are punished with the penalty of suspension or privation of the benefice, office, dignity, pension, or function itself, if perhaps they have any in the Church; religious, however, with privation of office and of active and passive voice and with other penalties according to the norm of the constitutions. In addition, clerics and religious giving their name to a Masonic sect and other similar associations must be denounced to the Sacred Congregation of the Holy Office (canon 2336).
The confessor to whom the faculty is granted of absolving from the censure set forth should require from the delinquent those things which the Holy See is accustomed to require: that they separate themselves entirely from the prohibited society and abjure it. But in a case in which great damage would flow from this for them, they can materially sustain the enrollment, but they are bound formally to renounce the society; and therefore: 1° let them promise that never again will it be the case that they involve themselves in any act of those societies, whether secret or public, and especially that they will never again pay the required contribution; 2° let scandal be removed in the best way that can be done; 3° let them be disposed in mind to withdraw their name if and when they can do this without grave damage.⁸

In the faculties of the Sacred Penitentiary it is established: 1° let them separate themselves entirely from the prohibited society and abjure it; 2° let them denounce ecclesiastical and religious persons, if they know any enrolled in it; 3° books, manuscripts, and signs pertaining to the same, if they retain any, let them hand over into your hands, to be cautiously transmitted to the Holy Office as soon as possible, or at least, if just and grave causes demand it, to be destroyed; 4° with a grave salutary penance joined according to the measure of the faults, together with frequency of sacramental confession and the obligation of repairing the scandals caused.

III. Those presuming, without due faculty, to absolve from an excommunication latae sententiae reserved to the Apostolic See in a most special or special manner (canon 2338, § 1). As to the word "presuming," see what was said in n. 858. For the rest, it is required that they actually absolve from the censure; it is not enough that they merely hear the delinquent or pretend to absolve him.

IV. Those furnishing any help or favor whatever to an excommunicated person to be avoided in the delict for which he was excommunicated; likewise clerics knowingly and spontaneously communicating with the same in divine things and receiving him in divine offices (canon 2338, § 2).

As to the former, it should be noted that it concerns a delict already committed, and therefore help or favor furnished by which someone can persist in the delict for which he was excommunicated.
As to the latter, observe: 1° since the law is to be interpreted strictly, religious do not come under the name of clerics unless they have received first tonsure (canon 108); 2° those communicating in divine offices are those who perform divine things with one to be avoided; 3° those receiving in divine offices are understood to be those who, enjoying the right or office of admitting to divine offices, admit an excommunicated person to be avoided to them.

V. If anyone against the prescription of canon 120 has dared to drag before a lay judge another, that is, not his own, Bishop, even merely titular, or an Abbot or Prelate nullius, or one of the supreme Superiors of religions of pontifical right (canon 2341). The prescription of canon 120, insofar as it must here be attended to, establishes that Bishops, even titular ones, Abbots or Prelates nullius, and supreme Superiors of religions of pontifical right cannot be summoned before a lay judge without the permission of the Apostolic See, unless in some place by special concession there has been derogation at least in part from the privilege of forum.

On the phrase "has dared," see n. 858; on the phrase "those dragging," p. 766.

Note. A cleric who, without having obtained permission from the local Ordinary, has dared to drag before a lay judge another person enjoying the privilege of forum, apart from those enumerated here and on p. 766 under IX, incurs ipso facto suspension from office reserved to the Ordinary; but a layman is to be punished by his own Ordinary with suitable penalties according to the gravity of the fault (canon 2341).

¹ Cf. Constitution of Pius VII, Ecclesiam, September 25, 1821, and Leo XII, Graviora, March 13, 1825.

² Cf. Holy Office, January 12, 1870.

³ Encyclical of Leo XII, Quod Apostolici, December 28, 1878.

⁴ Constitution of Pius IX, Qui pluribus, 1846.

⁵ Syllabus, § 178.

⁶ Holy Office, August 20, 1894.

⁷ Holy Office, August 9, 1893; Holy Office, May 19, 1886.

⁸ Holy Office, March 7, 1883 (Collectanea, n. 1593).

Vol. II, Bk. IV, Tr. II, Diss. III, Pt. I, Section IV. Excommunications Reserved to Ordinaries

n. 897.

Moreover, the following contract an excommunication reserved to the Ordinary:

I. Catholics: 1° who enter marriage before a non-Catholic minister against the prescription of canon 1063, § 1; 2° who are united in marriage with an explicit or implicit agreement that all or some of the offspring be educated outside the Catholic Church; 3° who knowingly presume to offer their children to non-Catholic ministers for baptism; 4° parents or those holding the place of parents who knowingly hand over children to be educated or instructed in a non-Catholic religion (canon 2319, § 1).

The prescription of canon 1063, § 1 is this: "Even if a dispensation has been obtained from the Church over the impediment of mixed religion, the spouses cannot, either before or after the marriage entered before the Church, also approach, whether by themselves or by proxy, a non-Catholic minister as one dedicated to sacred rites, in order to give or renew matrimonial consent." Hence it is not prohibited, indeed as § 2 has it, "it is not disapproved that, when civil law commands it, the spouses present themselves, even before a non-Catholic minister, performing only the function of a civil official, and that only for accomplishing the civil act, for the sake of civil effects." The censure is contracted, however, whether matrimonial consent is entered or renewed before a non-Catholic minister as one dedicated to sacred rites.
An implicit agreement is had, for example, when the Catholic party obliges himself to fulfill all the wishes of the non-Catholic party concerning religious education. The excommunication is incurred at the moment at which the marriage is contracted with the agreement, whether previously entered and not retracted or now entered.
On the word "knowingly" see what was said in n. 858. Since it is said "their children," for example, a midwife who offered another's offspring to a non-Catholic minister for baptism would be immune from the excommunication. For the rest, the excommunication is incurred also in a case in which baptism would probably be conferred invalidly.
Those holding the place of parents can be tutors or even others who are endowed with the right and office of looking after education or instruction.

Note. Those mentioned under 2, 3, and 4 are moreover suspected of heresy (canon 2319, § 2).

II. Whoever makes false relics, or knowingly sells, distributes, or exposes them to the public veneration of the faithful (canon 2326). The word "knowingly" refers to the acts of selling, distributing, and exposing to public veneration. Since it concerns false relics, one does not incur the excommunication who distributes or exposes for veneration relics whose document of authenticity has perished, or concerning whose genuineness he doubts (cf. canon 1285).

III. Whoever has laid violent hands on the person of other clerics, that is, clerics inferior to Bishops, or of religious of either sex (canon 2343, § 4). What violent laying on of hands imports, see p. 766 under X. For the excommunication to be incurred, it is required that the delinquent lay hands on the person of another, not on his own person, and that he know that person to be a cleric, religious, etc. The persons whose violent handling is punished with excommunication are:

Clerics, that is, those who by at least first tonsure have been assigned to divine ministries (canon 108, § 1), and have not been deprived of the privileges of clerics; hence even excommunicated, suspended, interdicted, and deposed clerics (cf. canon 2303, § 1), but not those perpetually deprived of the right of wearing ecclesiastical habit (canon 2304, § 2), the degraded (canon 2305, § 1), and all who have legitimately been reduced or have returned from the clerical state to the lay state (canon 213, § 1).
Religious of either sex, that is, those who have pronounced vows, whether solemn or simple, perpetual or temporary, in some religion (canon 488, 7°).
Male and female novices (cf. canon 614), but not postulants.
Members of either sex without public vows, living in common under the governance of Superiors according to approved constitutions (canon 680).

Note. The Ordinary should moreover punish the delinquent with other penalties, if the matter requires it, according to his prudent judgment (canon 2343, § 4).

IV. Those procuring abortion, the mother not excepted, the effect having followed (canon 2350, § 1).

Abortion is to be taken in the strict sense, that is, for the ejection of a fetus not yet viable (volume I, n. 733). Therefore the so-called acceleration of birth, the ejection of a dead fetus or a mere mole, and the expulsion of received semen, likewise embryotomy and similar illicit operations, are excluded. But no distinction is to be made between an animated and an unanimated fetus.
Those procuring abortion are understood to be the mother and others, whether female or male, who intend abortion and either physically cause it, or by command or by fear induced cause another to cause it. It is said, who intend abortion; hence one is immune from excommunication who, not intending abortion, for example, strikes his wife from anger, even if he foresees abortion. It is said, either by command or etc.; but if you were to deny that those commanding and those inducing fear come under the name of procurers, nevertheless one commanding, as the principal author of the delict, and one inducing fear, as inducing to the delict, are subject to the excommunication. Counselors and others concurring proximately are not counted among procurers, although as cooperators they contract the excommunication if the delict would not have been committed without their work (canon 2209, § 3). Those selling means do not ordinarily incur excommunication, both because ordinarily even without their work, namely with another selling the means, the delict would have been perpetrated, and because the concurrence is remote.
The effect having followed, that is, certainly followed; hence in doubt whether a fetus or a mere mole, whether a living or dead fetus, was ejected, the excommunication does not hold.

Whether one whom it repents of the committed crime before the effect follows incurs the excommunication, see p. 723.

Note 1. If the delinquent is a cleric, he is moreover to be deposed (canon 2350, § 1).

Note 2. Those who have procured the abortion of a human fetus, the effect having followed, and all cooperators, are irregular from delict (canon 985, 4°).

V. A religious, apostate from religion, incurs by the law itself an excommunication reserved to his own major Superior, or, if the religion is lay or non-exempt, to the Ordinary of the place in which he is staying (canon 2385).

One is called an apostate from religion who is professed from perpetual vows, whether solemn or simple, and who illegitimately leaves the religious house with the intention of not returning, or who, though having left legitimately, does not return with the intention of withdrawing himself from religious obedience (canon 644, § 1). The malicious intention mentioned in § 1 is presumed by law if the religious within a month has neither returned nor manifested to the Superior his intention of returning (canon 644, § 2).
The excommunication is reserved to his own major Superior if the religion is clerical exempt; if the religion is lay or non-exempt, it is reserved to the Ordinary of the place in which the delinquent is staying (canon 2385), that is, actually staying, even if he has domicile or quasi-domicile elsewhere.

Note. A religious apostate from religion is excluded from legitimate ecclesiastical acts and deprived of all privileges of his religion; and if he returns, he perpetually lacks active and passive voice, and moreover must be punished by the Superiors with other penalties according to the gravity of the fault, according to the norm of the constitutions (canon 2385).

VI. Professed members of perpetual simple vows, both in Orders and in religious Congregations, who presume to contract marriage even only civilly, both they themselves and all who contract with them (canon 2388, § 2). Note that the excommunication does not affect professed members of temporary vows. For the rest, see p. 772 under IX.

McHugh–Callan, Moral Theology

John A. McHugh, O.P., and Charles J. Callan, O.P. — 4 passages (filed under the subtopics)

Vol. II, Pt. II, Q. IV, Art. 4. Holy Orders; Matri…, The Celebration of Marriage

n. 2826.

The Celebration of Marriage

The Celebration of Marriage.—(a) Requisites for Validity.—In order to be valid, a Catholic’s marriage must be celebrated in the presence of the parish-priest or Ordinary, or of a priest delegated by either, and of at least two witnesses. There are two exceptions to this law, namely, in danger of death when the priest cannot be had and in the case of inability to appear before a priest within a month. This law is most suitable, since marriage is not a mere profane contract, but a Sacrament subject to the Church; the law is also necessary, since secret or clandestine marriages would be impossible of proof, and society and the family would be seriously harmed if they were permitted except in very extraordinary cases.

(b) Requisites for Lawfulness.—The pastor assists lawfully at a marriage if he has assured himself of the freedom of the parties to marry and of his own right to assist officially at their marriage. The pastor has the right to witness a marriage when the parties are his subjects by reason of their location in his parish, or when he has permission from their pastor or Ordinary to assist at the nuptials. When the bride is from one parish and the groom from another, the rule is that the marriage should be held before the bride’s pastor (Canons 1094 sqq.)

n. 2827.

The Rite of Marriage

The Rite of Marriage.—(a) The essential rite consists in the words of consent spoken by the bride and groom. The assisting priest asks for this consent, and then (except in a mixed marriage) blesses the newly married pair and the ring. Marriage by sign language or through an interpreter or proxy is not lawful without special permission, and marriage by letter is not recognized (Canons 1088 sqq.).

(b) The accidental rite is the nuptial blessing bestowed during the Nuptial Mass that follows on the marriage. This is omitted in mixed marriages, and also as a rule during Advent and Lent. The place for marriage is regularly in the parish church, if it is a Catholic marriage, but outside the church if it is a mixed marriage (see Canons 1100 sqq.). The Ordinary may dispense from the requirements of place (Canon 1109).

n. 2828.

Cooperation in an Unworthy Marriage

Cooperation in an Unworthy Marriage.—(a) The Priest.—The clergyman acts as the official representative of the Church, and hence only a serious reason will permit his assistance when the unworthiness of one of the parties is known to him in an extra-confessional way. A serious reason would be a threat of bodily harm to the priest or great spiritual detriment to the parties, such as their continuance in the state of sin. A more serious reason is required if one of the parties is an excommunicatus vitandus. Finally, at times only passive assistance is permitted, as in certain mixed marriages in which the non-Catholic refuses to give guarantees, but there is greater danger of perversion without than with the assistance (see 2677 sqq.).

(b) The Spouses.—The bride and groom are the ministers as well as the recipients of Matrimony, and hence, if one of the parties knows that the other is not in the state of grace, there is an administration of a Sacrament to an unworthy recipient. But only charity would bid one to deny the Sacrament to that other party, if one could not induce him to dispose himself, and charity does not oblige with great inconvenience. Hence the worthy party, if he or she has a suitable reason for marrying, does not sin by reason of the other party’s unworthiness.

(c) The Witnesses.—The cooperation of the witnesses is less than that of the priest and of the worthy party, and hence only in an extraordinary case do the witnesses sin by assisting at a marriage contracted before the Church. They may presume that all is well, if the pastor has agreed to the marriage; and even though they are certain that the bride or groom is in mortal sin, the fear of incurring displeasure or harm will ordinarily excuse the best man or bridesmaid from all sin, or at least from grave sin.

n. 2829.

Registration of Marriages

Registration of Marriages.—The Code requires that marriages be recorded in the matrimonial and baptismal registers, and that notification be sent to the pastors of the parishes where the bride and the groom were baptized. This duty seems to be grave, since its end is to provide for stable conditions and secure proof of freedom to marry. The entries should be made without delay (i.e., within three days at least), lest they be overlooked or be made incorrectly (Canon 1103).

Bucceroni, Institutions of Moral Theology

Gennaro Bucceroni, S.J. — 37 passages

Vol. IV, Appendix, Concerning Betrothals and Marriage

To nn. 912, 1026.

"Lest clandestine unions be entered rashly, which the Church of God has always detested and prohibited for very just reasons, the Council of Trent prudently took care, chapter 1, sess. XXIV, de reform. matrim., declaring: 'Those who shall attempt to contract marriage otherwise than in the presence of the pastor, or of another priest with the permission of the pastor himself or of the Ordinary, and of two or three witnesses, the Holy Synod renders altogether incapable of contracting thus, and decrees contracts of this kind to be invalid and null.'

"But since the same Sacred Council had commanded that such a decree be published in individual parishes, and that it have force only in those places where it had been promulgated, it happened that several places in which that publication was not made lacked, and even today lack, the benefit of the Tridentine law, and remain still subject to the hesitations and inconveniences of the old discipline.

"But not even where the new law was in force was every difficulty removed. For often grave doubt exists in deciding the person of the pastor in whose presence marriage is to be contracted. Canonical discipline indeed established that the proper pastor must be understood as the one in whose parish the domicile or quasi-domicile of either contracting party is. But because sometimes it is difficult to judge whether there is certainty concerning quasi-domicile, not a few marriages were exposed to the danger that they were null; and many also, whether by ignorance of men or by fraud, were discovered to be altogether illegitimate and invalid.

"These things, long deplored, we see happening more frequently in our age, the more easily and swiftly intercourse is completed with peoples, even those very far separated. Wherefore it has seemed expedient to wise and very learned men that some change be introduced into the law concerning the form of celebrating marriage. Many sacred Prelates also from every part of the world, especially from the more celebrated cities where the necessity appeared graver, offered suppliant prayers to the Apostolic See for this.

"At the same time it was requested by Bishops, both most of Europe and of other regions, that there be provision against the inconveniences which are derived from betrothals, that is, mutual promises of future marriage privately entered. For experience has sufficiently taught what dangers betrothals of this kind bring with themselves: first, inducements to sin and cause by which inexperienced girls are deceived; afterwards disagreements and inextricable lawsuits.

"Moved by these circumstances, His Holiness Our Lord Pope Pius X, for that solicitude which he bears for all the Churches, desiring to use some moderation to remove the mentioned harms and dangers, committed to the Sacred Congregation of the Council that it should consider this matter and propose to Him what it judged opportune.

"He wished also to hear the vote of the Council established for reducing canon law into one, and also of the Eminent Cardinals who were chosen by a special commission for preparing the same code; by whom, as also by the Sacred Congregation of the Council, meetings for that end were held several times. But after the opinions of all had been obtained, His Holiness commanded the Sacred Congregation of the Council to issue a decree in which would be contained the laws approved by Him from certain knowledge and mature deliberation, by which the discipline of betrothals and marriage would be ruled in the future, and their celebration would be made expeditious, certain, and ordered.

"Therefore, in execution of the Apostolic mandate, the Sacred Congregation of the Council by the present letters establishes and decrees those things which follow.

Vol. IV, Appendix, Concerning Betrothals and Marriage, Concerning Betrothals

I. Only those betrothals are held valid and obtain canonical effects which have been contracted by a writing signed by the parties and either by the pastor or by the Ordinary of the place, or at least by two witnesses.

"But if both parties or either party does not know how to write, this is to be noted in the writing itself; and another witness is to be added, who, together with the pastor or Ordinary of the place, or with the two witnesses mentioned above, signs the writing.

II. Under the name of pastor here and in the following articles comes not only one who legitimately presides over a canonically erected parish; but in regions where parishes are not canonically erected, also the priest to whom the care of souls has been legitimately committed in some defined territory and who is equated to a pastor; and in missions, where territories are not yet perfectly divided, every priest universally deputed by the Moderator of the mission to the care of souls in some station.

Vol. IV, Appendix, Concerning Betrothals and Marriage, Concerning Marriage

"III. Only those marriages are valid which are contracted before the pastor or Ordinary of the place, or a priest delegated by either, and at least two witnesses, nevertheless according to the rules expressed in the following articles; and preserving the exceptions which are placed below in nn. VII and VIII.

"IV. The pastor and the Ordinary of the place validly assist at marriage:

"§ 1. only from the day of acquired possession of the benefice or of office begun, unless by public decree they have been excommunicated by name or suspended from office;

"§ 2. only within the limits of their territory, in which they validly assist at the marriages not only of their subjects, but also of non-subjects;

"§ 3. provided that, invited and asked, and constrained neither by force nor by grave fear, they request and receive the consent of the contracting parties. "V. But they assist licitly:

"§ 1. after it has been legitimately established for them concerning the free state of the contracting parties, the things to be observed by law having been observed;

"§ 2. after it has further been established concerning the domicile, or at least the monthly stay, of either contracting party in the place of marriage;

"§ 3. but if this is lacking, in order that the pastor and Ordinary of the place may licitly be present at marriage, they need the permission of the pastor or Ordinary of either contracting party, unless grave necessity intervenes which excuses from it;

"§ 4. as regards wanderers, outside the case of necessity, let it not be lawful for the pastor to assist at their marriages unless, the matter having been brought to the Ordinary or to the priest delegated by him, he has obtained permission to assist;

"§ 5. but in any case let it be held as a rule that marriage be celebrated before the pastor of the bride, unless some just cause excuses.

"VI. The pastor and the Ordinary of the place can grant permission to another priest, determinate and certain, that he assist at marriages within the limits of their territory.

"But the delegate, in order that he assist validly and licitly, is bound to observe the limits of the mandate and the rules established above for the pastor and the Ordinary of the place in nn. IV and V.

"VII. When danger of death is imminent, where the pastor, or Ordinary of the place, or priest delegated by either cannot be had, to provide for conscience and, if the case requires, for the legitimation of offspring, marriage can be contracted validly and licitly before any priest and two witnesses.

"VIII. If it happens that in some region the pastor or Ordinary of the place, or a priest delegated by them, before whom marriage can be celebrated, cannot be had, and that condition of things has already persevered for a month, marriage can be validly and licitly entered by the formal consent emitted by the spouses before two witnesses.

"IX. § 1. Once the marriage has been celebrated, the pastor, or the one who holds his place, is immediately to write in the book of marriages the names of the spouses and witnesses, the place and day of the celebrated marriage, and other things according to the manner prescribed in the ritual books or by his own Ordinary; and this although another priest, delegated either by him or by the Ordinary, assisted at the marriage.

"§ 2. Moreover the pastor is also to note in the book of the baptized that the spouse on such a day contracted marriage in his parish. But if the spouse was baptized elsewhere, the pastor of the marriage is to transmit notice of the contract entered to the pastor of baptism, either by himself or through the episcopal curia, so that the marriage may be entered in the baptismal book.

"§ 3. Whenever marriage is contracted according to the norm of n. VII or VIII, the priest in the former case, and the witnesses in the latter, are bound in solidum with the contracting parties to take care that the union entered be noted in the prescribed books as soon as possible.

"X. Pastors who have violated the things prescribed here up to now are to be punished by the Ordinaries according to the manner and gravity of the fault. And moreover, if they have assisted at someone's marriage against the prescription of § 2 and 3 of n. V, let them not make the stole fees their own, but let them remit them to the proper pastor of the contracting parties.

"XI. § 1. All baptized in the Catholic Church and those converted to it from heresy or schism, even if either the former or the latter afterwards defected from the same, are bound by the laws established above whenever they enter betrothals or marriage among themselves.

"§ 2. They are also in force for the same Catholics mentioned above if they contract betrothals or marriage with non-Catholics, whether baptized or not baptized, even after a dispensation has been obtained from the impediment of mixed religion or disparity of cult, unless it has been established otherwise by the Holy See for some particular place or region.

"§ 3. Non-Catholics, whether baptized or not baptized, if they contract among themselves, are nowhere bound to observe the Catholic form of betrothals or marriage.

"Let the present decree be held as legitimately published and promulgated through its transmission to the Ordinaries of places; and let those things disposed in it begin everywhere to have the force of law from the solemn day of Easter of the Resurrection of Our Lord Jesus Christ of the coming year 1908.

"Meanwhile let all Ordinaries of places take care that this decree be published among the people as soon as possible, and explained in the individual parish churches of their dioceses, so that it may be duly known by all.

"These presents to be valid by special mandate of His Holiness Our Lord Pope Pius X, anything whatsoever to the contrary, even worthy of particular mention, by no means standing in the way.

"Given at Rome on the second day of the month of August in the year 1907."

"I. Only those betrothals are held valid and obtain canonical effects which have been contracted by a writing signed by the parties and either by the pastor or by the Ordinary of the place, or at least by two witnesses.

"But if both parties or either party does not know how to write, this is to be noted in the writing itself; and another witness is to be added, who, together with the pastor or Ordinary of the place, or at least two witnesses mentioned above, signs the writing."

Only those betrothals, namely of Catholics among themselves or also of Catholics with non-Catholics. "By the pastor," namely the same one who below in the Decree is assigned for marriage. "By the Ordinary of the place," namely by the Bishop, or by his Vicar General, or by the Apostolic Administrator, or by an Abbot Nullius, or by a Vicar Capitular.

"By a writing signed": therefore without a writing, or without the signature of all, although the signature of only one party or witness is lacking, the betrothals are null. "Are held valid": wherefore those entered otherwise are invalid, both in the external forum and in the internal forum. "And obtain canonical effects": wherefore again, those entered otherwise produce no impediment of marriage.

But it is a question, as is evident, of betrothals, not of a simple promise of marriage made by one and accepted by the other, which consequently remains valid and obliging, as before the Decree, in the forum of conscience. A fortiori the obligation remains valid in the forum of conscience from the promise of the seducer who deflowered a girl under the offered execution of marriage.

Moreover, it is a question only of the form of betrothals; wherefore as regards all other things, those things have force which had force before the Decree, and thus betrothals entered, for example, after other betrothals are null, as intrinsically illicit.

"By the pastor, or by the Ordinary." Betrothals cannot be celebrated, besides before the Ordinary or Pastor, before one delegated by either. Sacred Congregation of the Council, March 28, 1908. An oeconomus, although delegated by the pastor or by the Bishop to the universality of causes, can neither licitly nor validly assist at betrothals. They do not necessarily have to be celebrated before the Ordinary or Pastor of domicile or of monthly stay; but they can be celebrated before any Ordinary or Pastor, provided it is within the limits of the territory of the same Ordinary or Pastor. Sacred Congregation of the Council, March 28, 1908.

"By a writing signed by the parties, and either by the Pastor or by the Ordinary of the place, or at least by two witnesses." Since betrothals contain a mutual promise, mutual acceptance of it is also required. Therefore, in order to enter valid betrothals, the parties are bound to sign together the writing, in one context, with the Pastor or Ordinary, or with two witnesses; and it does not suffice that the writing signed by one party with the Pastor or Ordinary, or with two witnesses, be remitted to the other absent party, who in turn signs with the Pastor or Ordinary, or with two witnesses. Sacred Congregation of the Council, July 27, 1908. If the bridegroom or bride lives in another place, this difficulty can then be met by constituting a procurator. For as marriage can be contracted validly and licitly through a procurator, because it is a contract, so also for the same reason betrothals can be contracted through a procurator.
Although in the Decree no mention is made of the date, nevertheless from the very nature of the matter it appears that for the validity of betrothals the date, or inscription of the day, month, and year, is to be placed in the writing. Sacred Congregation of the Council, July 27, 1908, ad 2. The reason is that otherwise the aforesaid writing remains altogether uncertain for making proof.

"II. Under the name of pastor here and in the following articles comes not only one who legitimately presides over a canonically erected parish; but in regions where parishes are not canonically erected, also the Priest to whom the care of souls has been legitimately committed in some defined territory and who is equated to a pastor; and in missions where territories are not yet perfectly divided, every Priest universally deputed by the Moderator of the mission to the care of souls in some station."
"Under the name of Pastor..." The Pastor in question is the Pastor for betrothals and for marriage. It does not say "under the name of the proper Pastor"; wherefore any pastor, nevertheless in his own territory, is the legitimate Pastor for betrothals and for marriage, every question of domicile or quasi-domicile of the spouses or those about to marry being removed. "A Pastor who legitimately presides over a parish; a Priest to whom the care of souls has been legitimately committed." Therefore a pastor, a Catholic priest; not a heretic, not a schismatic.
Whether bad Christians, heretics, pagans can be used as witnesses, in order to observe the prescriptions of articles II, III, VII, VIII: as regards the quality of witnesses, nothing has been changed by the Decree Ne temere. Sacred Congregation of the Sacraments, March 12, 1910.

n. ¶9.

By article 1 of the Decree there remains abrogated the special law which before the same Decree was in force in Spain, by force of which for the validity of betrothals a public writing signed by a notary was required. Sacred Congregation of the Sacraments, March 12, 1910.
"III. Only those marriages are valid which are contracted before the Pastor or Ordinary of the place, or a Priest delegated by either, and at least two witnesses, nevertheless according to the rules expressed in the following articles, and preserving the exceptions which are placed below in n. VII and VIII.

"IV. The Pastor and Ordinary of the place validly assist at marriage:

"§ 1. only from the day of acquired possession of the benefice or of office begun, unless by public decree they have been excommunicated by name or suspended from office;

"§ 2. only within the limits of their territory, in which they validly assist at the marriages not only of their subjects, but also of non-subjects;

"§ 3. provided that, invited and asked, and constrained neither by force nor by grave fear, they request and receive the consent of the contracting parties."

Therefore for the validity of marriage it is required that it be contracted: 1. before the Pastor or Ordinary, or a Priest, not a deacon, delegated by the Ordinary or by the Pastor; 2. before at least two witnesses; wherefore if there is one witness, the marriage will be invalid.

n. ¶10.

"Delegated." As regards delegation, whether special delegation is always required, or whether general delegation suffices, nothing has been changed, except the necessity of making it to a determinate and certain priest and restricted to the territory of the one delegating. Sacred Congregation of the Council, July 27, 1908. "Pastor": not the assistant of the Pastor. Pastor either by institution or by commission. Ordinary: Bishop, Vicar General, Chapter when the see is vacant, Vicar Capitular. Witnesses: any whatsoever who are capable of testifying, and therefore they must be present physically and morally and understand the consent of the contracting parties. Delegation can be made general, whether to one or to several, nevertheless certain and determinate, whether for one or for several marriages. A faculty of subdelegating can also be given to the delegate.

"The Pastor and Ordinary of the place," etc. Here are enumerated the conditions necessary so that the Pastor or Ordinary validly assist at marriage. The chief one is that they assist at marriage only within the limits of their own parish or diocese, their territory, although it is a question of those not their own subjects. And outside those limits they assist invalidly, although it is a question of their own subjects.

n. ¶11.

As regards pastors and military chaplains having absolutely no territory, not even cumulatively with another pastor, but exercising jurisdiction directly over persons or families, for example reigning persons, so that they follow these persons wherever they go, nothing has been changed; wherefore they will be able validly to assist at the marriages of their subjects, as they were able before. Sacred Congregation of the Council, February 1, 1908.

But pastors who do not have exclusively their own territory, but retain a territory cumulatively with another or other pastors, can assist at marriages in the territory held cumulatively. Sacred Congregation of the Council, February 1, 1908.

A pastor who in territory assigned to other pastors has some persons or families subject to himself can assist at marriages, as regards his own subjects only, everywhere in the said territory. Sacred Congregation of the Council, February 1, 1908.

Chaplains or rectors of pious places of any kind, for example of a hospital, exempt from parochial jurisdiction, can assist at marriages without delegation of the pastor or Ordinary as regards persons entrusted to them, nevertheless in the place where they exercise jurisdiction, and provided it is established that full parochial power was committed to them. Sacred Congregation of the Council, February 1, 1908.

n. ¶12.

Those living in places of the Indies in which a double jurisdiction is in force, with attention to the peculiar circumstances occurring in the case, in order that they enter marriage validly and licitly, are bound to present themselves only before the personal pastor, and cannot also before the pastor of the territory. Sacred Congregation of the Sacraments, May 27, 1910.
"Only within the limits of their territory." Exempt regular churches, according to the tenor of the Decree, can and do have force to be considered as the territory of the Pastor or Ordinary in whose territorial district they are, for the effect of assistance at marriage. Sacred Congregation of the Sacraments, March 12, 1910.
"Only within the limits of his territory." In an audience of May 1, 1910, the Most Holy Father deigned graciously to grant to the Most Reverend Abbot Nullius of Saint Paul, by way of delegation, a permission by which, either personally or through a delegate, in the Churches of Saint Paul outside the Walls and of Saint Callistus beyond the Tiber, he may validly and licitly assist, the things to be observed being observed, at the marriages of his subjects only. That is, outside the limits of his territory.

n. ¶13.

Moreover, for the validity of marriage the Pastor and the local Ordinary must be not only elected, but also placed in possession of his office, either possession of the benefice having been taken by the usual formalities, or equivalently by the very beginning of the exercise of his proper office; nor, by a public decree, may he be suspended from office, or, by a public decree, by name excommunicated. Therefore mere nomination to the office or benefice is not sufficient; possession of it is required. Likewise, for validity it is required that the Pastor and the local Ordinary be invited and asked, all force and grave fear being removed; and that they themselves question the contracting parties and receive their consent. Invited and asked, not only explicitly but also implicitly, they validly assist at marriages. Sacred Congregation of the Council, March 28, 1908.
Since, however, by the present Decree, in order to contract marriage validly it is generally required that the Pastor ask for and receive the consent of the contracting parties, it follows that also for mixed marriages to be contracted validly the consent of the contracting parties must be sought and received by the Ordinary or by the Pastor, while, as to liceity in other respects, the prescriptions and instructions of the Holy See are to be observed. Sacred Congregation of the Council, July 27, 1908. By these prescriptions and instructions, however, it is provided that the Pastor not assist at the marriage in a sacred place, but outside the church; that he not recite any ecclesiastical prayers over the contracting parties; that he in no way bless them, unless, however, according to the prudent judgment of the Ordinaries, in order to avoid greater evils, something of these can be tolerated, while the celebration of Mass is always excluded.

n. ¶14.

By a Decree of the Holy Office, June 21, 1912, however, it was declared that the prescription concerning the Pastor's asking for and receiving consent for the validity of marriage, "in mixed marriages in which the parties obstinately refuse to furnish the due cautions, shall hereafter have no place, but one must stand exactly by the preceding concessions and instructions of the Holy See on the matter, especially those of Gregory XVI in the Letter of April 30, 1841, to the Bishops of Hungary." A.A.S., vol. 4, p. 443.

But, having regard to the special difficulties set forth by the Chinese Ordinaries, the Sacred Congregation granted to the aforesaid Ordinaries the faculty of dispensing from the substantial form of marriage for cases only of true necessity, with power also habitually to subdelegate this faculty to mission rectors, the matter having been spoken of with the Most Holy Father. Sacred Congregation of the Council, July 27, 1908.
V. "They assist licitly, however:

§ 1. when they have lawfully established for themselves the free state of the contracting parties, the things to be observed by law being observed;

§ 2. when, moreover, the domicile, or at least the monthly stay, of one or other contracting party in the place of marriage has been established;

n. ¶15.

§ 3. if this is lacking, in order that the Pastor and local Ordinary assist licitly at the marriage, they need the permission of the proper Pastor or Ordinary of one or other contracting party, unless grave necessity intervenes which excuses;

§ 4. as regards wanderers, outside the case of necessity, it is not lawful for the Pastor to assist at their marriages unless, the matter having been referred to the Ordinary or to the Priest delegated by him, he has obtained permission to assist;

§ 5. but in any case, let it be held as the rule that the marriage be celebrated before the Pastor of the bride, unless some just cause excuses."

"When they have lawfully established for themselves the free state of the contracting parties, the things to be observed by law being reserved."

The Sacred Congregation of the Sacraments "judged that the following things should be prescribed:

I. Let pastors be reminded that it is not lawful for them to be present at a marriage unless they have lawfully established for themselves the free state of the contracting parties, the things to be observed by law being observed (cf. Decree Ne temere, n. V, § 1); and let the same especially be warned not to omit requiring from the contracting parties the testimony of baptism, if this was conferred in another parish.

n. ¶16.

II. But in order that the things prescribed in n. IX, § 2 of the aforesaid Decree may be duly observed, the announcement of a celebrated marriage, to be sent to the pastor of baptism, should carry with it the written names and surnames of the spouses and of their parents, the age of the contracting parties, the place and day of the nuptials, and the names and surnames of the witnesses who were present, and should have the pastor's subscribed name with the parochial seal added. The address, moreover, should accurately indicate the parish, diocese, town or place of the spouses' baptism, and those things which pertain to the safe transmission of writings through the public carriers.

III. If perhaps it should happen that, even with the precautions of which in n. I having been employed, the pastor of baptism, in receiving the announcement of the marriage, discovers that one or other contracting party is already bound by another marriage, he shall as quickly as possible signify the matter to the pastor of the attempted marriage.

IV. Let Ordinaries watch diligently that these prescriptions be religiously observed, and let them take care to recall transgressors, if they find any, to their duty, even by applying canonical penalties where there is need." March 6, 1911.

n. ¶17.

"When they have established for themselves," etc. Therefore for liceity the Pastor or Ordinary must make an inquiry concerning the free state of the contracting parties, and accordingly he is bound as to the examination of these parties, the examination of witnesses, and the proclamation of the banns. The Pastor himself, therefore, can conduct the summary process concerning the free state.
Nevertheless, the law or custom in force in some dioceses has not been abolished, by force of which acts are to be carried out by the episcopal Curia by which the free state of the contracting parties is established, and then leave is granted to pastors to assist at marriages. Sacred Congregation, February 1, 1908.
If betrothed persons contract marriage in another parish by leave of their own pastor, it is evident that the marriage proclamations cannot on that account be omitted in their own parish.
On feasts recently suppressed, however, as is gathered from the Decision of the Sacred Congregation of the Council, April 7, 1862, in Pinerolien., announcements can be made for marriages and for sacred orders; care must nevertheless be taken that they be made at the time of the divine office, when a more numerous gathering of the faithful is accustomed to be present in church, and with the permission of the Bishop.

n. ¶18.

"When moreover it has been established," etc. It is further required for liceity that the contracting parties have domicile, or reside for an entire month in the diocese, if the Bishop assists at the marriage; in the parish, if the Pastor assists at it. The contracting parties: both, or at least one of them. "Reside": the fact of residence for an entire month is required, and nothing else is required. Therefore, although they have had neither domicile nor quasi-domicile elsewhere, but have been wanderers, they can now contract marriage before the pastor of the place of monthly residence, the things to be observed by law concerning their free state being observed.
"But if this is lacking," etc. If domicile, or at least monthly residence, in the place is lacking, the permission of the Pastor or Ordinary of the place of domicile, or at least of monthly residence, of one or other contracting party is required, except in a case of grave necessity. Permission is required, not delegation; and accordingly permission reasonably presumed, and even interpretative permission, is valid. But grave necessity ought to be established in writing, so that it can be shown if some difficulty should afterwards arise. Moreover, the Pastor who assists at a marriage by permission of another Pastor makes the stole fees his own.

n. ¶19.

"As regards wanderers," etc., "or to the priest delegated by him." Permission is to be given either by the Ordinary or by the Priest delegated by the Ordinary. As regards wanderers, even if not both contracting parties, but only one, is a wanderer. Therefore a Priest, or several Priests, are to be delegated by the Bishop in several principal places of the diocese, who shall inquire into the condition of wanderers in order to the contracting of marriage. "Outside the case of necessity": again the case of grave necessity is excluded; when it exists, the Pastor can proceed to the marriage without the aforesaid permission.
Under the name of wanderers, of whom article V, § 4 treats, come all and only those who nowhere have their own Pastor or Ordinary by reason of domicile or monthly residence. Sacred Congregation of the Sacraments, March 12, 1910. For the licit celebration of marriage regard must be had only to monthly residence, and not also to quasi-domicile. Sacred Congregation of the Council, March 28, 1908. Monthly residence: in the Diocese, if the Bishop or local Ordinary assists at the marriage; in the Parish, if the Pastor assists at the marriage.
"In any case." When both contracting parties do not have domicile, or at least have not resided for an entire month in the same place, regularly the pastor of the bride must assist at the marriage, unless some just cause, not grave, excuses. This too is to be recorded in writing, for the case in which some difficulty could afterwards arise.

n. ¶20.

Marriages between faithful of mixed rite, Latin and Ruthenian, in the Canadian region, as also among Ruthenian faithful, must be contracted with the form of the Decree Ne temere being observed. During the marriage, the wife can follow the rite of the husband. When the marriage has been dissolved, the woman may resume her own original rite. Marriages of mixed rite are to be blessed in the rite of the man and by his pastor. Dispensations, however, are to be given and requested from the Bishop of the bride. Sacred Congregation de Propaganda Fide, August 8, 1913, arts. 34-38.

But, in the United States of North America, marriages between faithful of mixed Latin and Ruthenian rite, and also among the Greek-Ruthenians themselves, must be contracted with the form of the Decree Ne temere being observed, and therefore are to be blessed in the rite of the woman by the pastor of the woman. Sacred Congregation de Propaganda Fide, August 17, 1914. Cf. First Supplement to the Institutions of Moral Theology and Enchiridion Morale, ed. 3, p. 18 ff.

"VI. The Pastor and local Ordinary can grant permission to another determinate and certain Priest to assist at marriages within the limits of their territory.

n. ¶21.

But the delegate, in order to assist validly and licitly, is bound to observe the limits of the mandate, and the rules laid down above for the Pastor and local Ordinary in n. IV and V."

Therefore there are four conditions in order that assistance at marriage can validly and licitly be furnished by another Priest than the Pastor or Ordinary: 1. that permission be given to him by the Ordinary or by the Pastor, not by another; 2. that permission be given only to a Priest; 3. that permission be given to a certain and determinate Priest; 4. that he assist at the marriage in the territory of the one giving the permission. But it is by no means required that delegation be made only in individual cases. For as regards delegation, by the present Decree nothing has been changed, except the necessity of making it to a determinate and certain Priest, and restricted to the territory of the delegator, namely when the delegation is made to a simple Priest. Sacred Congregation of the Council, July 27, 1908. Therefore valid will be the permission, given generally, that he assist at marriages, to a vice-pastor or to another Priest who supplies for the Pastor in case of absence. For it is not also required that permission be given only for a certain and determinate marriage. But if permission is given to another Ordinary or Pastor, they can validly and licitly assist at the marriage within the limits of their own territory. Since, however, the delegate is bound to observe the limits and the things which are laid down for the Pastor and local Ordinary in paragraphs IV and V, it follows that there can be committed to the delegate both assistance at the marriage and also those things which regard the inquiry concerning the free state of the contracting parties, and the summary process concerning it; and that delegation cannot be made to a Pastor who, by public Decree, is suspended from office, or by name excommunicated by public Decree. Delegation, moreover, cannot be made in general, but altogether in particular, to a determinate and certain priest. To a determinate and certain Priest, whether from the secular clergy or from the regular clergy.

n. ¶22.

If a Pastor and Ordinary who are not proper have obtained permission from the proper Pastor and Ordinary to assist at a marriage, they can delegate the faculty of assisting at the marriage to another determinate and certain Priest, within the limits of their territory. For since they have obtained permission, they can assist licitly; but, since they are Pastor and Ordinary, they have, by force of their own office and by their own right, the faculty of validly assisting at the marriage, and consequently they can delegate it to another certain and determinate priest, within the limits of their own territory.

Since the local Ordinary and the Pastor can, by ordinary power, delegate permission to another certain and determinate priest, that he may assist at marriages within the limits of his territory, they can indeed delegate that permission to him with the faculty of subdelegating; but evidently with the faculty of subdelegating not anyone whatever, but another certain and determinate priest. For this, contrary to the Decree, would equivalently be to grant the faculty, by an indirect way, to an uncertain and indeterminate priest.

"VII. When danger of death is imminent, where the Pastor, or the local Ordinary, or a Priest delegated by either, cannot be had, for the care of conscience and, if the case requires, for the legitimation of offspring, marriage can be contracted validly and licitly before any Priest and two witnesses."

n. ¶23.

"Danger," and not only the article, of death. "Cannot be had": morally speaking, and accordingly probably cannot be had, or even in doubt whether he can be had. "For the care of conscience, and... for the legitimation of offspring." Therefore in these two cases, if the Pastor or Ordinary or duly delegated Priest cannot be had, any other Priest licitly and validly assists at the marriage. For the care of conscience, therefore, for avoiding the danger of sinning and consequently the danger of the eternal salvation of the dying person. For the care of conscience, if likewise the dying person is otherwise held by a grave obligation. "For the care of conscience" is general; and accordingly it is not in the sole case of concubinage, as had expressly been held before in the Decree of the Holy Office, February 20, 1888. And for the legitimation of offspring, which consequently is not sacrilegious, incestuous, or adulterine. "Before any Priest": even one publicly excommunicated or suspended.
In the aforesaid danger, therefore, there is no need of any leave of the Ordinary or Pastor, much less is there need of the Pastor himself or of another Priest delegated by the Ordinary or Pastor; but any Priest, with two witnesses however, can assist at the marriage. But if witnesses are lacking, can there be place for legitimate epikeia? There are those who affirm it. But it does not seem so. For this is implicitly presupposed in the proposition condemned by the Holy Office, January 19, 1661; E.M., n. 1044. Moreover, in the present Decree there is question precisely of a most urgent case, when danger of death is imminent, and the law is invalidating. And if place is given to epikeia when witnesses are lacking, then one would have to say that place is also given to epikeia when the Priest too is lacking.

n. ¶24.

"Any priest, however, who according to the norm of article VII of the Decree Ne temere, when danger of death is imminent, where the pastor or local Ordinary or priest delegated by either cannot be had, can validly and licitly assist at marriage before two witnesses, can also, in the same circumstances, dispense from all impediments, even public ones, which by ecclesiastical law invalidate marriage, except the sacred order of priesthood and affinity in the direct line from lawful intercourse." Sacred Congregation of the Sacraments, May 14, 1909. "This further faculty is valid not only for concubinarii; but also, even if there is no question of concubinarii, if another cause is present for the care of conscience, and, if the case requires, for the legitimation of offspring." Sacred Congregation of the Sacraments, August 13 and 15, 1909. Moreover it is valid for all impediments, with only two excepted. Therefore it is valid also for the impediment of clandestinity, and consequently the priest can dispense even from the presence of the two witnesses, if they cannot be had.
"VIII. If it happens that in some region the Pastor, or local Ordinary, or Priest delegated by them, before whom marriage can be celebrated, cannot be had, and this condition of things has already persisted for a month, marriage can validly and licitly be entered upon by the betrothed parties giving formal consent before two witnesses."

n. ¶25.

"If it happens": in whatever place this happens; whence it follows generally: "that in some region," namely whether in some whole Nation or Province, or in another determined part or place; whether the local Ordinary is lacking, or only the Pastor, or the Priest delegated by the Ordinary or by the Pastor is lacking; and for whatever cause this happens, whether because, for example, the missionary does not return to the place except after six months, or because the betrothed parties cannot go to the missionary; for then also it is verified that he cannot be had.
Therefore, on the other hand, in remote places to which the missionary does not come each month, but in which, nevertheless, if he were requested, he could be had, and the betrothed parties could go without grave inconvenience either to him or to another missionary who is a Pastor in the sense of the Decree, marriages contracted without the presence of the missionary or pastor are to be held invalid. Sacred Congregation of the Council, July 27, 1908. Nevertheless, in the aforesaid case, with a grave cause urging, marriage can freely be contracted before another Pastor; for by the present Decree marriage is validly contracted before any Pastor. The proper Pastor is required only for liceity; only his permission would be needed, and this, with a grave and most just cause standing, can well be omitted and presumed.

n. ¶26.

"For a month," that is, for thirty days, although after the month has elapsed the Pastor, or Ordinary, or Priest delegated by them is soon to come. "And this condition of things has already persisted for a month." This condition of things is not considered interrupted by reason of the momentary, unexpected, and entirely unknown passage to the faithful through some place of a missionary who has already been absent from it for a month. Sacred Congregation of the Council, July 27, 1907.
"In some region," whatever place it may be, marriage can validly and licitly be contracted before witnesses alone, without the presence of a Priest competent to assist, whenever, a month having already elapsed, a competent Priest cannot be had or approached without grave inconvenience. Sacred Congregation, March 12, 1910.
"If it happens that in some region." He validly enters marriage before witnesses alone who goes into that region in fraud of the law. Sacred Congregation of the Sacraments, March 12, 1910.
"IX. § 1. When marriage has been celebrated, the Pastor, or he who takes his place, shall immediately record in the book of marriages the names of the spouses and witnesses, the place and day of the celebrated marriage, and other things according to the manner prescribed in the ritual books or by his own Ordinary; and this even if another Priest, delegated either by himself or by the Ordinary, assisted at the marriage.

n. ¶27.

§ 2. Moreover, let the Pastor also note in the book of the baptized that a spouse contracted marriage on such a day in his Parish. But if the spouse was baptized elsewhere, the Pastor of the marriage shall transmit notice of the contract entered into, either personally or through the episcopal curia, to the Pastor of baptism, so that the marriage may be entered in the baptismal book.

§ 3. Whenever marriage is contracted according to the norm of n. VII or VIII, the Priest in the former case, the witnesses in the latter, are bound in solidum with the contracting parties to take care that the entered marriage be noted as soon as possible in the prescribed books."

"The Pastor... shall immediately record": that pastor, namely, who furnished his assistance to the marriage, although not the proper pastor, by leave of the proper pastor. "Shall record," namely those things which are enumerated: the names of the spouses and witnesses, the place and day of the celebrated marriage, and the name of the Ordinary, Pastor, or delegate who was present at the marriage. "And other things, according to the manner prescribed in the ritual books or by his own Ordinary"; wherefore the Ordinary can prescribe other things to be added besides the aforesaid.

n. ¶28.

"He shall record in the book of marriages," and moreover he shall note the marriage in the book of the baptized. And if the contracting parties were baptized elsewhere, the Pastor must transmit notice of the marriage, either personally or through the episcopal curia of his own diocese, or of the diocese of the contracting parties, to the Pastor of that parish in which the contracting parties were baptized.
The priest or the witnesses are bound in solidum with the contracting parties to take care as soon as possible for this notation of the marriage, when the marriage is celebrated in extremis, or when the Pastor or Ordinary or their delegate is lacking. But the Pastor to whom this notice is transmitted must note it in the book of marriages and in the book of the baptized; and if the contracting parties were baptized elsewhere, he himself is bound to transmit it to the pastor of baptism. They are bound in solidum; wherefore, if one neglects the notation, the others are obliged to take care of it; if one takes care of it, the others remain free.
"X. Pastors who shall have violated the prescriptions made thus far shall be punished by the Ordinaries according to the measure and gravity of the fault. And moreover, if they have assisted at someone's marriage contrary to the prescription of § 2 and 3 of n. V, let them not make the stole fees their own, but send them to the proper Pastor of the contracting parties."

n. ¶29.

"Pastors who": not others. "The prescriptions made thus far," that is, as regards both validity and liceity. "Let them be punished": the penalties, therefore, are to be imposed by sentence of the Ordinary. "Contrary to the prescription of § 2 and 3 of n. V," namely if a Pastor assists at the marriage of those who belong to another parish, without the leave of the proper Pastor or Ordinary of one or other contracting party, and outside a case of necessity. "He shall not make them his own"; and accordingly no sentence is required for undergoing this kind of penalty. "Let him send them to the proper Pastor of the contracting parties": proper by reason of domicile, of the contracting parties, namely of the bride, if they are of different parishes.
"XI. § 1. All those baptized in the Catholic Church, and those converted to it from heresy or schism, are bound by the laws laid down above, although either these or those later defected from it, whenever they enter betrothal or marriage among themselves.

§ 2. They are also in force for the same Catholics spoken of above, if they contract betrothal or marriage with non-Catholics, whether baptized or not baptized, even after a dispensation from the impediment of mixed religion or disparity of cult has been obtained, unless for some particular place or region the Holy See has otherwise established.

n. ¶30.

§ 3. Non-Catholics, whether baptized or not baptized, if they contract among themselves, are nowhere bound to observe the Catholic form of betrothal or marriage."

"All those baptized in the Catholic Church, and converts, although they later defected." The law, therefore, is universal for every place, with consequently any other contrary law or custom, whether general or particular, abolished.
"All those baptized in the Catholic Church." The Decree is not extended to Catholics of the Eastern rite. Sacred Congregation of the Council, February 1, 1908. Therefore marriages of Catholics among themselves are valid, or their mixed marriages, if namely they contract with a schismatic or heretic, even when the form of the Decree is not observed. Nevertheless a marriage contracted by a Catholic of the Latin rite with a Catholic of the Eastern rite is not valid if the form established by the Decree Ne temere is not observed. Sacred Congregation of the Council, March 28, 1908. Cf. moreover the things which were said above concerning the Ruthenians, n. 30, paragraphs 2 and 3. Whether those also are bound by the aforesaid Decree who, born of non-Catholic parents, were baptized as Catholics and from earliest age grew up heretically, infideliter, or according to the rite of atheists, has not yet been defined, and recourse must be had in individual cases. Holy Office, March 31, 1911.

n. ¶31.

"Later defected": after baptism in the Catholic Church, or after conversion to it. Even in the German Empire, Catholics who have gone over to a heretical or schismatic sect, or converts to the Catholic faith who afterwards defected from it, even in youth or infancy, in order to contract validly with a Catholic person, must employ the form established in the Decree Ne temere, namely in such a way that they must contract before the pastor and at least two witnesses. Sacred Congregation of the Council, February 1, 1908. And the reason is that the Decree Provida, which alone is excepted, regards only marriages of heretics among themselves and with Catholics. Cf. n. 55.
"For the same Catholics, if with baptized non-Catholics," and accordingly all marriages of mixed religion, saving the exception indicated, are subject to this law. "Mixed religion." Those things remain unchanged which have been established for such nuptials, to be celebrated without the Catholic rite and outside the church. Cf. what was said above, n. 18, paragraph "By a Decree." "If with non-Catholics." Under the name of non-Catholics are also comprehended schismatics and heretics of the Eastern rites. Sacred Congregation of the Council, March 28, 1908.

n. ¶32.

"Unless for some particular place or region the Holy See has otherwise established." Only the Constitution Provida of Pius X, January 18, 1906, for the German Empire is comprehended. Nor are the other Indults and Declarations regarding the impediment of clandestinity by any means comprehended. Sacred Congregation of the Sacraments, February 1, 1908. But the aforesaid Constitution Provida was extended, as regards mixed marriages, to the Kingdom of Hungary. Sacred Congregation of the Sacraments, February 9, 1909.
After the extension of the Constitution Provida to the Kingdom of Hungary, between Germany and Hungary, as regards the validity of clandestine mixed marriages, a reciprocal relation is not had, such that two spouses both born in the Kingdom of Hungary do not validly contract, even clandestinely, in Germany, and, vice versa, two spouses both born in Germany do not validly enter a mixed clandestine marriage in the Kingdom of Hungary. Sacred Congregation of the Sacraments, June 18, 1909. Nor likewise does one born in Germany with one born in the Kingdom of Hungary validly enter a mixed marriage either in Germany or in the Kingdom of Hungary. But, in any case, both spouses must have been born in Germany, or respectively in the Kingdom of Hungary. Sacred Congregation of the Sacraments, June 18, 1909.

n. ¶33.

Heretics and schismatics, all of them, on the other hand, are not bound by the present Decree. They can validly contract betrothal and marriage in any place whatever.
"Let the present Decree be held as lawfully published and promulgated by its transmission to the local Ordinaries; and let the things disposed in it begin everywhere to have the force of law from the day of the solemn Pasch of the Resurrection of Our Lord Jesus Christ in the next year, 1908.

Meanwhile let all local Ordinaries take care that this Decree be published among the people as soon as possible, and explained in the individual parochial churches of their dioceses, so that it may be duly known by all.

These presents to have force by special mandate of our Most Holy Lord Pius, Pope X, anything whatsoever to the contrary, even things worthy of particular mention, notwithstanding."

"Everywhere to have the force of law." The Decree, therefore, has the force of a universal law in the whole Church. It is considered published and promulgated by its very transmission to the local Ordinaries. It abolishes any contrary law and custom whatsoever, even particular, anything whatsoever worthy of particular mention notwithstanding. Finally, its obligation begins from the day of the solemn Pasch of the Resurrection of the present year 1908, that is from April 19, from the beginning of that day, which is from midnight after the preceding day. Hence Ordinaries are warned to take care that this Decree be published among the people as soon as possible, and moreover be explained in the individual parochial churches of their dioceses; for this is altogether necessary so that the aforesaid Decree may be duly known and observed by all.

Gury-Ballerini, Compendium of Moral Theology (8th ed., 1884)

Jean-Pierre Gury, S.J.; notes by Antonio Ballerini, S.J. — 67 passages

Vol. II, Treatise on Matrimony, Ch. VI, Art. II, § II, Point XI. On the Impediment of Clandestinity

n. 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.

n. 836.

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.

n. 836.

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

n. 837.

Section I — On the Force of the Decree of the Council of Trent

- 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.

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.

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.

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.

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.

- 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.

- 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:

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.

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.

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.

n. 842.

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

n. 842.

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.

n. 843.

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

n. 843.

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.

n. 843.

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.

- 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.

Section II — On the Assistance of the Pastor

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

n. 845.

I. What Kind of Pastor Ought to Assist

- 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.

n. 845.

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.

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....

144. The Nature of Marriage · 154. Clandestinity · 171. A Parish Priest Illegitimately Assisting at Marriage

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.

n. 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.

…and 27 more passages — all of them are listed on the topic page.

Bucceroni, Cases of Conscience

Gennaro Bucceroni, S.J. — 7 passages (filed under the subtopics)

144. The Nature of Marriage

n. 7.

"Many Protestants, without any intention of embracing the Catholic religion, often request that, either before one of their own ministers or before the bishop himself, they furnish consent for contracting marriage. It is to be noted that in such circumstances the bishop and priests would act not as priests, but as civil magistrates, which is permitted by the laws of the republic. Now he asks, whether it is permitted to him and to his missionaries to preside over such marriages?

n. 7.

"R. If there is question of marriage between two heretical parties, although an intervention of this sort is not so reproved that it can never be licit, nevertheless commonly it must be dissuaded. But if one party is Catholic, with a dispensation having been obtained from the impediment of mixed religion, and with the usual clauses and conditions being observed, it is permitted." S. O., Dec. 20, 1837. Cf. Enchir. Moral. 1016.

154. Clandestinity

n. 3.

In a certain diocese the practice flourishes that often spouses pass from one parish into another parish of the same city, and contract marriage before a parish priest who is not proper, namely of the new parish in which they place their domicile. To avoid grave damages which can arise from this, parish priests mutually, yet without any writing, delegated to themselves the faculty of assisting at the marriages of new parishioners, and they did this with the Ordinary of the place approving.

n. 3.

It is asked: Are the marriages in the case valid?

n. 3.

R. Affirmatively. For from the Council of Trent, sess. 24, c. 1, de R. M., for a marriage to be validly contracted before a parish priest who is not proper, the permission of the proper parish priest or of the Ordinary is required. But in the case permission of this sort is had; since a general permission is a true permission, nor does the Tridentine decree require a particular permission. Likewise habitual permission is a true permission, nor does the Tridentine decree require an actual permission. Besides, permission given only by living voice is a true permission; nor likewise does the Tridentine decree demand permission consigned in writing. This is confirmed from the Resolution of the S. C. C., March 18, 1893. Cf. Reiffenst., l. 4, tit. 3, de Clandest. despons., § II, n. 18. Hence even permission given in writing by the parish priest suffices for contracting marriage before a priest to be chosen at the discretion of the contracting parties. S. C. C., June 15, 1586. But although marriages of this sort are valid, nevertheless a permission given generally is illicit and to be disapproved; rather a special and express permission is to be given in occurring cases, unless a grave reason for acting otherwise in some particular place is excluded, in the judgment of the Ordinary. The reason is that otherwise the aim of the Decree of the Council of Trent is frustrated in great part; and it is confirmed by the Response of the S. C. C., Dec. 22, 1891.

171. A Parish Priest Illegitimately Assisting at Marriage

n. 1.

From the Council of Trent, s. 24, C. 1, de R. M., I. M. 1235: "If any parish priest... shall have dared to join in marriage spouses of another parish without the permission of their parish priest... by the law itself let him remain suspended for so long until he is absolved by the Ordinary of that parish priest, etc." Whether is this suspension a mere penalty, or a true censure?

n. 1.

R. It would be a mere penalty if it were at will. But this formula, "let him remain suspended for so long until he is absolved by the Ordinary, etc.," signifies in the obvious sense only that the absolution of this suspension is reserved to this Ordinary when the delinquent has repented. Wherefore it seems that this suspension is a true censure, but reserved.

Tanquerey

Adolphe Tanquerey, S.S. — 18 passages

Vol. I, Matrimony, and Holy Orders, On Marriage (Volume I), Chapter III: On the Impediments of Matrimony

n. 1017.

1° On the places in which this decree was in force. (A) From what has been said, the decree was not in force except where it had been promulgated, at least implicitly through immemorial observance.

Hence marriages entered without the Tridentine form were valid: in England, Scotland, several districts of Switzerland, Denmark, Sweden, Norway, the regions of Europe and Asia under Turkish and Persian rule, the Vicariate of Sutchuen, Abyssinia, the island of Madagascar. - The matter remained doubtful for almost the whole of Wallachia, Bulgaria, Syria, the island of Cyprus, Malabar, the Cape of Good Hope, and Upper Canada.

(B) From the constant interpretation of the Roman Congregations, the aforesaid law also bound baptized non-Catholics wherever it had been promulgated.

Nevertheless the places were to be excepted for which the Benedictine declaration¹ was given or to which it was extended. Since there had long been dispute concerning the validity of marriages of heretics in Holland, from the fact that very many Catholics there had fallen away from the Catholic faith, Benedict XIV, wishing to put an end to the dispute, declared and established that clandestine marriages in Holland, whether entered between heretics or between heretics and Catholics, or to be entered in the future, were to be held as valid, provided no other impediment stood in the way. This declaration was afterwards extended to the places which follow:

¹ Constit. Matrimonia, November 4, 1741.

The Federated Orders of Belgium, the whole Empire of Germany from April 15, 1906, Constantinople and its suburbs, Pondicherry, Coromandel, Malabar, Bombay, Canada, the Island of the Most Holy Trinity, the dioceses of the United States of America, except the province of Santa Fe.

(C) Moreover mixed marriages were valid not only in the aforesaid regions, but also where derogation had been made from the Tridentine decree with respect to mixed marriages; these are: Hungary, Ireland, the Russian Empire and the part of Poland subject to it, Georgia.

n. 1018.

2° On the subject of the Tridentine law. Principle: The law of clandestinity was at once local and personal.

(A) Insofar as it was local, it directly affected the territory in which it had been promulgated, and indirectly all who were staying there, or were traveling through the territory, even if they had no domicile or quasi-domicile there.

(B) Insofar as it was personal, it directly bound subjects, so that they could not validly contract in an exempt territory (where the law was not in force), if they went to this territory in fraud of the law, that is, for the purpose of marrying, without the intention of acquiring there a domicile or quasi-domicile.

(C) But when those about to marry dwelt in diverse places, a marriage celebrated without the Tridentine form was valid in a place where Tametsi was not in force, if one of the betrothed had there his domicile or quasi-domicile; for the privilege of one was communicated to the other.

n. 1019.

3° On the solemnities required by the Tridentine law. - Two things were required: 1° the presence of the proper pastor, or Ordinary, or delegate; 2° the presence of witnesses.

1° On the presence of the pastor. (A) Who is the proper pastor? It is twofold: the pastor of the domicile or quasi-domicile of either of the contracting parties, that is, either of the bridegroom or of the bride; hence the pastor of one is the pastor of each with respect to marriage.

n. 1020.

(a) For domicile two things were required at the same time: habitation in the parish where marriage is contracted, and the intention of remaining there perpetually for a notable part of the year. Domicile was acquired as soon as habitation began with the intention of remaining externally manifested; nor was it lost by a long absence, provided there was the intention of returning.

n. 1021.

(b) For quasi-domicile two things likewise were required: habitation in the parish, and the intention of remaining there for the greater part of the year or at least for six months. Hence one could have a domicile in one parish, and a quasi-domicile in another.

n. 1022.

(c) Vagi, who have neither domicile nor quasi-domicile, can validly and licitly contract before the pastor of the place where they actually dwell; indeed probably, according to some, before any pastor.

n. 1023.

(B) Who came under the name of pastor with respect to marriage? All who have care of souls in a parish, with the general permission of administering the sacraments, although they are not pastors in the strict sense, namely:

(a) Not only irremovable pastors, but also removable ones; (b) rectors, or administrators of a vacant parish; (c) pro-pastors, vice-curates, for example, vicars of an absent pastor, or of a pastor present but infirm or worn out by old age, or of a suspended pastor, etc.; or cooperating vicars enjoying full authority of administering all the sacraments; but not those vicars who are deputed to help the pastor in those things which he will commit to them.

(d) Not only the proper pastor, but also the Ordinary of the diocese validly assists at marriages, that is, the Bishop; the Vicar General; or the Capitular Vicar, the see being vacant; the Roman Pontiff for the whole Church; the Apostolic Legate for his own territory.

n. 1024.

(C) On delegation for marriage. Not only the pastor, but one delegated by the pastor or Ordinary could validly assist at marriage.

The delegate could subdelegate another priest, if this power had been expressly committed to him, or if he had been delegated for the universality of matrimonial causes, or by the Supreme Pontiff even for a particular case.

n. 1025.

(D) What sort of presence of the pastor or delegate was required? There was required and sufficed for validity a moral presence, which the office of an authorized witness requires.

Hence if the pastor had rightly been warned beforehand, no special address was necessary, but it sufficed that he hear the contracting parties. Nor was it required that he had been expressly called to assist at the marriage; whether he was present by chance, or called under some other pretext, it sufficed that he understand what was being done.

Nevertheless a merely physical presence did not suffice, since the pastor ought to notice, as a witness, those things which are being done; hence one unaware, drunk, sleeping, insane, or hypnotized did not validly assist.

The pastor and witnesses had to assist at the marriage together.

n. 1026.

2° On witnesses. Since Trent requires no special qualities in witnesses, those which natural law demands suffice. Therefore all those are qualified who, enjoying the use of reason, can know the fact and give testimony concerning it.

II. On the Form of the New Law.

n. 1027.

1° Extension of the law. (A) The decree Ne temere and the Code have now been promulgated for the whole world. But they do not reach, at least directly, Orientals, who, from immemorial custom and with can. 1 approving, are not subject to disciplinary laws unless they are included by express declaration.

n. 1028.

(B) But in the Latin Church, can. 1099 declares who are subject to this law, namely:

(a) All baptized in the Catholic Church, when they contract among themselves, even if afterwards they have fallen away from the faith; - that is, all who by Baptism itself are freely enrolled in the Catholic Church, if adults are in question; with parents consenting, if little children are in question; but not those who are baptized by a heretical or schismatic minister by the will of the parents, even if the parents were Catholic; nor, at least more probably, the children of non-Catholics who, with the parents unaware and unwilling, were baptized by a Catholic maidservant. But the doubtfully baptized, with respect to marriage, are presumed validly baptized.

(b) All also who have been converted from heresy or schism and already baptized; but not the children of converts, unless they themselves also embrace the Catholic faith. - This holds good even if afterwards they fall away from the faith, because it is not fitting that this defection profit them.

(c) All likewise the aforesaid Catholics or converts, when they contract with non-Catholics, even after a dispensation has been obtained from the impediment of mixed religion or disparity of cult¹. Likewise Catholics who contract with Orientals. - Thus the discipline is reformed by which an immune party communicated his immunity to the other, while on the contrary today the bound party communicates his bond to the other.

¹ By the Constitution Provida (January 18, 1906), Pius X had exempted any mixed marriages to be contracted in Germany from the decree Ne temere. But that exemption is to be considered abrogated according to the mind of can. 6, 1° (Pontifical Commission, December 9, 1917).

(d) But non-Catholics, whether baptized or not baptized, are by no means subject to the law of clandestinity when they contract among themselves; therefore under this head the marriages of non-Catholics will not be invalid, which, as regards form, are subject only to natural and civil law. But if a baptized non-Catholic party contracts with an infidel, the marriage will be null from the impediment of disparity of cult, which has by no means been removed (above, n. 924).

n. 1029.

2° Form to be observed in ordinary cases. - The matter must be examined both as regards validity and as regards liceity.

(A) For validity. "Only those marriages are valid which are contracted before the pastor, or the local Ordinary, or a priest delegated by either, and at least two witnesses..." (can. 1094); all these things must be weighed carefully.

(a) Pastor is to be understood in the sense of can. 451, that is, not only he who presides over a canonically erected parish, but also a quasi-pastor, who rules a quasi-parish, and all parochial vicars who are endowed with full parochial power. Now these are: 1. the actual vicar, or curate, who administers a parish united to a chapter or moral person (can. 471); 2. the vicar-economus, who rules a vacant parish (can. 472, 473); 3. the substitute vicar, who supplies for an absent pastor (can. 474); 4. the assistant vicar, who is given to an infirm pastor, if nevertheless he supplies for him in all things (can. 475). - But the cooperating vicar, who is given on account of the multitude of the people, can in no way be called endowed with full parochial power, according to the mind of can. 451, § 2, 2°, and therefore he cannot assist at marriages by his own right; but he can, as will be said below, as a delegate.

(b) Ordinary is anyone who has ordinary jurisdiction or jurisdiction equivalent to ordinary jurisdiction in the external forum, for example, a Bishop in his own diocese and his vicars general, the Capitular Vicar when the see is vacant, an Abbot nullius, etc. (can. 198).

(c) Delegate. - Those who can assist by their own right can delegate (can. 1095, § 2), and therefore all whom we have just enumerated, but only for marriages to be entered within the boundaries of their territory.

This delegation can be given in any manner, by writing, word, or sign, but expressly, and a presumed delegation does not suffice.

It must be given to a determinate priest for a determinate marriage; otherwise it is invalid. Therefore a delegation given for any priest whom those about to marry might choose would not be valid, nor one given for all marriages perhaps occurring (can. 1096).

Nevertheless a general delegation given to a cooperating vicar for the parish to which he is assigned is valid, as is the custom for the first vicar in the parishes of the diocese of Paris. Indeed, from can. 476, § 6, we think that the cooperating vicar has a general delegation by law, unless something else is expressly provided in the letters of the Ordinary or from the determination of the pastor himself¹.

¹ In this matter it is necessary to remember that the Church supplies jurisdiction both in doubt of law and in common error (can. 209), which must also be applied to the pastor and the Ordinary.

But the delegate can subdelegate according to the general rules fixed by law (can. 199), namely: 1. if he has received permission from the one delegating; 2. if he has been delegated for the universality of causes, and therefore, in our interpretation, the cooperating vicar could subdelegate even without a special concession.

(d) Witnesses must be at least two. Since no special qualities are demanded in them, all those are qualified who, enjoying the use of reason, can know the fact and give testimony concerning it, whether they are of age or not of age, faithful or infidels, seculars or regulars.

These are the persons who must assist at marriage; moreover the Code commands that the assistance be done according to certain rules which we explain (can. 1095, 1096).

n. 1030.

(e) The Ordinary or pastor validly assists only from the day of possession obtained or of office begun, up to the day of their cessation from office; these two moments are determined thus for the pastor:

From can. 1444, the pastor acquires right over subjects when he is placed in possession of his parish according to the law or custom of the diocese - "unless for a just cause the Ordinary has expressly dispensed him in writing from that manner or rite: in which case this dispensation takes the place of possession taken."
The pastor loses jurisdiction in the case of transfer "when he canonically takes possession of another office," unless something else has been prescribed (can. 194), and in the case of resignation, when it has been accepted and the acceptance notified (can. 190).
Those assist invalidly who are by sentence excommunicated, interdicted, or suspended from office, or declared such.

(f) The competent pastor and Ordinary are the pastor and Ordinary of the place (of the parish and diocese respectively) within whose boundaries the contract is entered; hence from now on, otherwise than under the Tridentine discipline, a pastor outside the parish and an Ordinary outside the diocese cannot validly assist at the marriage even of subjects; and on the contrary, in his own territory he validly assists at the marriage even of outsiders. - The same must certainly be said if they assist not by themselves but through a delegate.

(g) As regards the manner of assisting, it is necessary that, "constrained neither by force nor by grave fear, they ask and receive the consent of the contracting parties"; therefore, otherwise than under the old discipline, marriages contracted before the pastor silent and unwilling, or deceitfully and unexpectedly (par surprise), would be invalid. But the fear which a legitimate threat of recourse to the superior produces, if the pastor does not wish to join the betrothed, would not invalidate the marriage.

n. 1031.

(B) For liceity the following things are to be observed (can. 1097):

(a) Before the Ordinary or pastor or their delegate assists at marriage, it is required that he himself be certain of the free state of the contracting parties, as we said above, n. 851.

(b) One of those about to marry must be a subject of the assisting priest, which is done in a fourfold manner: by domicile, quasi-domicile, monthly residence, and, if it is a question of a vagus, by actual presence in the place. - Hence if there are several pastors of this kind, any one of them assists licitly, without any permission. If the marriage is celebrated elsewhere than in the place of domicile, quasi-domicile, or monthly habitation, the pastor of the place where it is celebrated must have permission (not delegation), unless grave necessity intervenes, from one of those whom we have just enumerated.

Vagi can be united in the place where they now dwell, but, from can. 1032, for celebrating their marriages the permission of the Ordinary must be had beforehand.

It remains that we explain the notions of domicile, quasi-domicile, and monthly residence according to the recent discipline (can. 92).

Domicile is acquired in two ways: either by actual residence in a parish with the intention of remaining there perpetually, if nothing calls one away from there, - or likewise by actual residence already prolonged for a completed decade. But understand residence not as bodily presence, but as presence resulting from facts which manifest the intention of having one's seat there: for example, by buying a house there and transporting into it one's household goods, or by accepting a permanent office there. Once acquired, domicile is not lost except by a positive intention, externally manifested, of not returning. A minor necessarily retains the domicile of him to whose power he is subject (can. 93).
Quasi-domicile likewise is had in two ways: by actual residence with the mind of remaining there at least for the greater part of the year, if nothing calls one away from there, - or likewise by actual residence in fact prolonged for the greater part of the year.
Monthly residence, however, does not consist in the intention of staying somewhere, but in the fact itself, whatever the intention may be. A completed month, or at least thirty days, is required. This residence must be morally continuous: an absence of some hours, even daily, does not obstruct this continuity, provided on each day of the month the principal residence in the place of marriage truly was present. Say the same very probably concerning the absence of one day. But if someone is absent for two or three days with the intention of returning, the residence is suspended, but the preceding residence can be joined with the following, for completing thirty days: thus Titius, who had rented a room in parish N. for one or more months, after ten days is called elsewhere for two days on account of urgent business; having returned, after twenty other days, he licitly contracts marriage in parish N. If he had departed without the intention of returning, the time previously elapsed will not be computed.

(c) If the proper priest does not assist, permission is to be had from the proper pastor or Ordinary, unless it is a question of the marriage of vagi, as was said, or necessity urges which excuses from seeking permission. Permission given in any manner is valid, and sometimes can be presumed.

(d) "Let it be held as a rule that marriage be celebrated before the pastor of the bride, unless a just cause excuses," for example, the reasonable desire of the parties or custom (can. 1097, § 2).

n. 1032.

3° Form to be observed in extraordinary cases. Can. 1098 decrees that "if the pastor or Ordinary or delegated priest cannot be had or approached without grave inconvenience," marriage is contracted validly and licitly before witnesses alone in a twofold case: 1) in danger of death; 2) when it is foreseen that this condition of things will endure for a month. - Concerning these things note:

(A) For validity two things are required: (a) that the proper priest or delegate cannot be had; (b) that two witnesses be present.

This impossibility of having or approaching the proper priest is not required to be physical, but moral suffices, which is induced by "grave inconvenience" of any kind, whether on the part of the contracting party, or of his own, or even, as it seems, of the priest himself.

Here it is permitted to observe that in the Code it is not a question of a difficulty which affects some region, or parish, or village, but that a personal difficulty suffices. On this occasion it has been asked whether that case is verified if the pastor cannot assist without grave inconvenience for himself, for example, because the civil marriage cannot be performed within a month, and the law of the region gravely prohibits ministers of worship from assisting at the marriage of those who are not joined civilly? The matter had recently been much agitated, on the occasion of various responses which the Sacred Congregations had given before the promulgation of the Code; but now, with the new law in force, several grave authors judge that can. 1098 is to be applied, and that such a marriage before witnesses alone is valid and licit. Thus De Smet, 3rd ed., n. 135-136; Vlaming, 3rd ed., n. 590. Otherwise Lehmkuhl (Questions... novo juri adaptatae, p. 55). Hence the Ordinary should prudently be consulted in so grave a matter, if time permits.

(B) For liceity two things also are to be observed: (a) if there is present another priest, he should be had, who assists with the witnesses. But it is not said that such a priest, lacking delegation, must ask and receive the consent; it suffices that he assist passively.

(b) Let either the assisting priest or the witnesses, or the contracting parties, take care that the marriage entered be noted in the ritual books (can. 1103, § 3). - It is also fitting that, given the opportunity, the spouses receive the nuptial blessing from a sacred minister (can. 1101).

n. 1033.

4° On the registration of marriages. (a) Immediately after the celebrated marriage, or as soon as possible, the pastor or he who takes his place, for example the first vicar, must write in the book of marriages the names of the spouses and witnesses, the place and day of the marriage. Since it is not said by his own hand, the act can be written by another, but the pastor himself or he who takes his place must see to it that all things are written accurately. - In many regions, as in France, the act is signed not only by the pastor or delegated priest, but also by the witnesses, immediately after the marriage has been celebrated.

(b) Besides this, the pastor shall also note in the book of the baptized that the spouse contracted marriage on such a day in his parish. But if the spouse was baptized elsewhere, the pastor of the marriage shall transmit notice of the contract entered to the pastor of Baptism, either by himself or through the episcopal curia, so that the marriage may be entered in the baptismal book¹. This was wisely provided so that marriages already entered may thus be more easily detected. Wherefore it is expedient to demand from the betrothed a recent document of Baptism, by which it may be more safely known whether they have contracted another marriage.

¹ Ne temere, IX, 2; Code, c. 1103. - Cf. Instr. S. Cong. de Sacram., March 6, 1911, A. A. S., III, 102-103; a commentary on which is handed down by Nouv. Rev. theol., 1911, p. 261-276.

n. 1034.

5° Sanctions. Pastors who, without the permission of the proper pastor and outside a case of grave necessity, have assisted at the marriage of non-subjects, must remit the stole fees to the proper pastor of the contracting parties (can. 1097, § 3). - The suspension from priestly office inflicted by Trent on a priest who had dared to join in marriage the betrothed of another parish without the permission of their pastor has been abrogated.

Vermeersch, Theologia Moralis

Arthur Vermeersch, S.J. — 9 passages

Vol. III, Bk. II, Tr. VIII, Chapter II: On the Form of Celebration of Matrimony

n. 794.

— Law before the Code. Although, as the Tridentine synod warned, the Church always detested and prohibited clandestine marriages, nevertheless the same were contracted validly; and in the Council of Trent itself the clause introducing nullity was not admitted without difficulty and hesitation. The form of celebration thereafter was governed by c. Tametsi, Council of Trent, by which this form of celebration was prescribed, not for Catholics alone but for all the baptized, as substantial, namely that mutual consent be given before the Ordinary or pastor of the domicile or quasi-domicile of either spouse, or before one delegated by him or by the local Ordinary, and two witnesses. But only those places were subject to this decree in which, as a decree of the Holy See, it had been promulgated. Nevertheless little by little this interpretation of the decree prevailed, which recognized in it a force at once personal and local. Wherefore this form had to be observed under sanction of nullity: a) by spouses in whose domicile and quasi-domicile the decree had been promulgated, and this even in exempt places, unless in some excepted place either party had acquired quasi-domicile; b) by any spouses contracting in a subject place. But c) either excepted spouse communicated his exemption in an immune place with a subject spouse. Besides, there were certain regions, especially Holland, from the declaration of Benedict XIV, where marriages of non-Catholics between themselves or with a Catholic party were valid, although clandestine, or celebrated without a competent priest and witnesses.

The present discipline was introduced by the decree Ne temere, which Pius X promulgated through the Sacred Congregation of the Council on August 2, 1907: its prescriptions were reported almost entirely in the Code.

n. 795.

— I. Principle and general rule of valid celebration. For the very validity of matrimony, it is regularly required that it be contracted before the pastor or local Ordinary or a priest delegated by either, and at least two witnesses (c. 1091).

Under the name of pastor comes: a) the pastor strictly so called, to whom a canonically erected parish has been conferred as the title at least of office. He is commonly called pastor. To the territorial pastor is assimilated the personal pastor, constituted for persons of a certain rite, or of a certain class, indeed for a definite family; b) the quasi-pastor, or rector of a quasi-parish, i.e., of a determined territory, in places where parishes have not yet been canonically erected, e.g., in an apostolic vicariate or prefecture, which have distinct territorial parts with their own rector (cc. 216, §3, and 451, §2, 1°); c) the parochial vicar who with full power presides over a parish whose habitual care is in the hands of a college or chapter, or over a vacant parish, or who supplies for a pastor permanently unable. Such also is a substitute vicar who supplies for an absent pastor, provided he has been approved by the local Ordinary, or there is question of the vicar whom the pastor himself, suddenly and for a grave cause called away, is then permitted to substitute for himself without approval of the Ordinary, according to c. 465, §5 (cf. c. 474 and the response of the Commission of the Code, March 13, 1921, to II); d) a chaplain of soldiers, if the prescriptions of the Holy See so provide (c. 451).
Who the local Ordinary is has already been indicated in n. 455.
A priest delegated by either. This delegation, which is also called by the name license, because it does not communicate jurisdiction properly so called but the quality of an authorizable witness, must be expressly given; and, unless there is question of cooperating vicars for the parish to which they are assigned, it cannot validly be given except to a determined priest for a determined marriage. Any general delegations are excluded. Wherefore the one delegating cannot safely concede the faculty of subdelegating unless he himself indicates the priest whom the impeded delegate is permitted to substitute for himself; nor can he give it for marriages which will occur except to cooperating vicars, but the marriages themselves must already have been defined. And note that the competence of a particular delegate can give place to no common error.

Authors sufficiently agree that a determination left to the will of those about to marry, "I delegate whomever they shall choose," does not suffice. Whether a delegation given to a religious priest "whom the Superior is going to send tomorrow to act in my place on such a day" is valid, Linneborn, Grundriss des Eherechts, p. 321, admits, while Vlaming, op. cit., n. 572, excludes every choice left to some third person, although, n. 575, he seems to admit the validity of an expressly conceded faculty of subdelegating. Yet they are not accustomed distinctly to examine the case of a license which, for a determined marriage, the pastor has given to a definite priest, with the faculty added of subdelegating another priest whom only the delegate himself will indeed determine. And for the validity of that subdelegation it can be said that it seems consonant with the general principles of law (c. 199, §4), and that no determination is wanting. But if you compare c. 1095 with c. 1096, the determination of the assisting priest seems to have to be made by the delegator himself, and we have learned that this is the mind of the Sacred Congregation of the Sacraments.

Approved authors, moreover, admit that several can be delegated at once by the delegator in this manner, for example: for assistance at such a marriage I delegate all the priests of such a monastery (although, if they are several, this is less consonant with the mind of the Code). But it is clear that the delegate can be designated not less by name than by quality.

The marriage must be determined in the same way. To someone other than a cooperating vicar, the faculty cannot be given for all marriages which will occur on these days, or for the marriage which will occur first; although it can be given for the marriage which, at such an hour, I have learned is to be celebrated.

Finally, license can be expressed not only by words or writings but also by deed, so that only presumed license or mere tolerance is excluded. But that all ambiguity may be removed, it is better to express the license by words or writings.

The pastor and local Ordinary validly assist, or concede license to another, only from the day of acquired canonical possession of the benefice or of office begun (c. 1095, §1, 1°).

Residential bishops take canonical possession of the diocese as soon as personally or by procurator they have shown the apostolic letters to the chapter of the cathedral church (or, this lacking, to the council by which the chapter is supplied), in the presence of the secretary of the chapter or the chancellor of the curia; but pastors, when mission or "installation" has been made "according to the manner prescribed by particular law or received by legitimate custom," or by dispensation from that manner expressly conceded in writing by the Ordinary (cc. 334, 1444).

The same persons can no longer validly assist at matrimony after they have been excommunicated, interdicted, or suspended from office by sentence, or declared such.

Yet this does not prevent the Church from supplying the defect, if common error concerning their ability has intervened. For what all say concerning a putative pastor must be said likewise concerning a true pastor but suspended by sentence: c. 209 falls upon each case.

But those who approach a non-Catholic minister as sacred commit forbidden communication in sacred things and are punished by an excommunication reserved to the Ordinary ipso facto (c. 1319).

They do not validly assist except within the limits of their territory; but there they assist validly at the marriage of all persons, although not always licitly.
The manner of assisting, necessary for validity, must be such that: a) constrained by no force or grave fear, b) they ask for and receive the consent of the contracting parties.

Therefore they must formally and freely ask for and receive the consent.

By this prescribed manner, marriages are effectively impeded which, beyond his expectation and will, would be celebrated before the pastor.

Passive assistance is insufficient for validity. Yet what if in some place assistance at a mixed marriage is tolerated, the cautions having been omitted? After the decree Ne temere, the Sacred Congregation of the Holy Office, on June 21, 1912, willed that in that case no interrogation be made and that the priest assist in a merely passive manner. Prummer, q. 334, scholion, judges that decree still to have force, while several others think the same has been suppressed (cf. De Smet, n. 111, note 3). Wherefore we judged above, n. 767, that it is safer that, until the Holy See, if it should seem necessary, declares the matter, the interrogations be made. I say "if it should seem necessary," for I do not know whether in no place now assistance itself at such nuptials is permitted.

Two witnesses are required besides. All who are actually possessed of reason are fit (Cappello, III, 652; Vlaming, II, 576; c. 1757, §1). But it is not required that they be formally called or assumed, but it suffices that, even by chance, they be present, provided those about to marry, conscious of their presence, at least tacitly employ them in this way, and they themselves have observed the words or signs of mutual consent; and this together with the pastor, not only before or afterward. For then in reality the marriage is made before two witnesses. The same presence in the pastor would not suffice, not only because now he must interrogate the parties and receive their consent, but also because matrimony must be celebrated before him as pastor or competent priest. Wherefore if a civil marriage is made before the syndic and two witnesses, of whom one is the pastor, the marriage is not judged to have been celebrated before the pastor (cf. De Smet, I, p. 96, note 1 from Rev. du Clergé français, t. 54, p. 209 ff.). Concerning the required presence of the witnesses, cf. Gasparri, II, 1163-1166.

Where Catholics can be had, non-Catholics are illicitly assumed. Yet, on August 19, 1891, the Holy Office declared that this can be tolerated by the Ordinary for a grave cause, provided scandal is not had.

n. 796.

— II. Concerning licit celebration. Licit celebration requires:

previous proof of free status, according to the norm of law. And those delegating are warned not to concede delegation except "after all things which the law establishes for proving freedom of status have been completed" (c. 1096, §2);
domicile, quasi-domicile, or at least a monthly stay of either contracting party in the place of celebration, or the license (not delegation) of the proper pastor by reason of domicile, quasi-domicile, or monthly stay. Vagi, however, have as proper pastor the pastor of the place where they are staying. But if they are actually itinerant, so that they have no seat of stay, any pastor is judged proper (c. 1097). You should observe that this license can be given by one who himself would not even validly assist at a marriage celebrated outside his territory. Besides, grave necessity excuses from seeking this license;
celebration in the place where the bride obtains a proper pastor. Yet any just cause excuses the choice of another place.

The marriages of Catholics of mixed rite, however, unless something else has been provided by particular law, must be celebrated in the rite of the man and before his pastor (c. 1097, §2);

The competent pastor who assists at a marriage without the license required by law does not make the stole fees his own, and must remit them to the proper pastor of the contracting parties (c. 1097, §3).

The decree Ne temere had substituted monthly stay in place of domicile or quasi-domicile, which c. 1097 joins to domicile or quasi-domicile for defining the ratio by which a pastor becomes proper and by which spouses are not judged vagi in relation to matrimony.

Monthly stay is a morally continuous stay of thirty days. You should observe that license can proceed from a pastor who is proper at least through monthly stay, but not from him where a vagus is merely actually staying. Wherefore an itinerant vagus is simply permitted to contract matrimony in the place where he is present, but the pastor ought not to assist at his marriage without license of the local Ordinary.⁽¹⁾ License is regularly to be sought from the pastor of the bride; but any just cause suffices that it be sought from the proper pastor of the bridegroom. A grave cause which excuses from seeking the license can be an urgent reason for celebrating the marriage or a grave reason for not revealing the matter to the proper pastor. Where there are several proper pastors, choice is allowed of the proper pastor from whom license is to be sought. Finally, the proper pastor of the man need not seek license from the pastor of the bride, since from c. 1097, §2, a just cause suffices. Wherefore, even if a just cause is lacking, he himself seems to escape the penalty of c. 1097, §3, since this is established only against non-proper pastors who assist at a marriage without the required license. But the fees are of themselves to be remitted to the pastor of the bride. If there are several proper pastors, they seem to be divided among them, or the one is to be preferred who would have celebrated the marriage, or the pastor of domicile. An authentic declaration is desired (cf. our De forma sponsalium, etc., n. 86).

⁽¹⁾ Indeed, license of the Ordinary is required even if the persons have a monthly stay, but lack a domicile or quasi-domicile, at least diocesan. Thus De Smet, I, n. 129, gathers well from c. 1032 referring to c. 91, against Wouters and [OCR appears to read: Schakman; possibly Standaert, since De Smet's older parallel discussion names Standaert with Wouters on this question].

Can the bishop or local Ordinary prescribe more strictly that marriages be made before the pastor of the bride, so that a just cause of acting otherwise does not suffice, but a grave cause is required, or formal license must be sought? De Smet, I, p. 105, note (1), relying upon the particular law of Bruges, thinks this can be done. But, unless a centenary custom is added, that derogation from common law does not seem to be within the power of the bishop. For a particular law derogates from the Code which by strict precept forbids what the Code permits for a just cause.

n. 797.

— Cases excepted by law. Whenever the pastor, or Ordinary, or delegated priest who would assist at marriage according to the form prescribed for validity, cannot be had or approached without grave inconvenience:

in danger of death, a marriage contracted before witnesses alone is valid and licit; and 2. even outside danger of death, provided it is prudently foreseen that this condition of things will last for a month (c. 1098, 1°).

"In either case, if another priest is at hand who can be present, he must be called and, together with the witnesses, assist at the marriage, saving the validity of the marriage before witnesses alone."

Therefore matrimony is validly celebrated before only two witnesses: a) in danger of death of either spouse, when a competent priest cannot be had or approached without grave inconvenience; b) even outside such danger, if the difficulty is prudently foreseen to be going to last for a month. If, however, a non-competent priest can be called, he must be called for liceity and must assist with the witnesses. Therefore an obligation is imposed upon the contracting parties of calling such a priest, and upon the priest of assisting.

In danger of death, the case can be had if from a delegation requested from the pastor or Ordinary, a suspicion of sin sacramentally accused could arise with the one delegating. Suppose a sick man who enjoys intact reputation although he exercises a secret concubinage with a maidservant. If, because of the permanent occasion of sin, it is expedient that they be legitimately joined, the penitent will not have to give permission for seeking delegation. It will then be sufficient that before the priest, as a simple witness, and another person, those about to marry express their consent (cf. Cappello, III, 691).

Outside danger of death, the case certainly occurs where the absence of every competent minister or other circumstances physically impede his assistance. But what where an impediment of another kind stands in the way, especially where it proceeds from a law which punishes with penalties the pastor or delegate who assists at marriage before the civil ceremony has been completed?

Some deny that then there is place for c. 1098. For in a region where priests are in great number, they cannot be said not to be able to be had or approached without inconvenience, although perhaps they themselves do not assist at marriages without inconvenience. And the same are confirmed in their opinion by the danger of abuses and inconveniences which can arise from many marriages deprived of civil protection.

Others, with attention to the general words of the canon, judge that one must respond more benignly.

And we are persuaded, both by the text itself and by the historical adjuncts, that the case of moral difficulty is included, even that which is created by civil law.

By the text itself. The canon has been written in such a way that it seems to have foreseen the obstacle of civil law and to have included it in its disposition. It uses general words. Nor does it demand that the pastor cannot be at hand absolutely or simply, but without grave inconvenience. The pastor or the spouses can be impeded by grave inconvenience. The pastor is impeded when he cannot be had, but the spouses, when he cannot be approached. But by what law do you understand inconvenience restrictively of physical inconvenience? Is not a civil penalty to be feared a grave inconvenience? But why mention another priest who himself can be at hand, unless because laws are accustomed to punish the competent minister, but not the priest who is neither proper nor delegated? Does it not seem that, on account of this difficulty of civil law, provision was made that another priest should assist?

We are confirmed by the historical adjuncts themselves. For, expressly asked concerning the case, the Holy See did not wish in express words to admit it in a general way; which, as is easily seen, it could not prudently do; but it did not openly exclude the case, which it could have done without inconvenience. But in responses of March 12-13, 1910 (Periodica, V, p. 115 ff.), with mention of the region omitted,⁽¹⁾ the Sacred Congregation of the Sacraments declared that marriage is validly and licitly contracted before witnesses alone "whenever ... a competent priest cannot be had or approached without grave inconvenience." Finally, in the year 1916 the same Sacred Congregation ordered that in particular cases recourse be had to it.

But now, after these responses, the Code restored the more general form proposed in the response of 1910, and adds the caution in n. 2°, by which provision is made for a more prudent and more religious celebration of matrimony. Wherefore, not only theoretically but also practically, the opinion is at least more probable which says that the celebration of matrimony before two witnesses and a priest is valid and licit when, on account of civil prohibition, the pastor or delegated priest cannot be at hand without grave inconvenience. This is not to be doubted if the case cannot be proposed to the Holy See in due time.

But here one must act prudently. Nor are nuptials to be contracted rashly without the solemnity of the present pastor and civil ceremonies when their happy outcome is not morally certain. For nuptials which are contracted without the protection of civil law, at least outside danger of death, are dangerous. Wherefore the Ordinary also can by general law forbid (not, however, under sanction of nullity) that, without recourse to himself or to the Holy See, marriages prohibited by civil law be celebrated before two witnesses and a non-delegated priest (cf. De Smet, I, 135-138).

Nor can the case where civil law forbids a marriage permitted by the Church be confused with the case where legitimate celebration merely removes certain undue profits. Thus it happens that "annual pensions" are conceded to widows who remain unmarried. This is a most just condition. That they may elude it, the spouses cannot appeal to the present canon so that they contract before witnesses alone, because the pastor is unwilling to assist at a religious marriage, the civil solemnities having been omitted.

The witnesses or the non-delegated priest himself before whom the marriage is made have no interrogation to make, but it is enough that they can testify to the consent mutually given.

But when the civil solemnities are omitted for a grave cause, R. D. De Smet, n. 138, prudently warns that these things are to be procured: 1. that they be supplied as soon as possible, and that the spouses promise that they will do this; 2. that the fact of marriage be accurately inscribed; 3. that the scandal of supposed concubinage be avoided.

Under the decree Ne temere a similar exception was admitted, but regard was had to the past, while it was required that the state of things impeding celebration before the pastor or delegate had lasted for a month.

The Sacred Congregation of the Sacraments, practically, follows the opinion which requires common difficulty, and therefore, in particular cases, it responded: "In individual cases let recourse be had" (this before the Code); or it even sanated marriages celebrated without a competent priest. Yet no authentic interpretation has been given, nor is there any general order urging the stricter opinion, which very many authors oppose. Wherefore, with Cappello (III, 694), we shall say: "While the controversy stands, a doubt of law is had, and therefore the prescription of c. 15 is to be applied (which in a doubt of law does not urge nullities or inabilities). Practically, unless grave necessity urges, for liceity it is to be urged that 'recourse be had in individual cases' to the Holy See; but, once marriage has been celebrated, 'one must stand altogether for its validity.'"

⁽¹⁾ In c. 8 of the decree Ne temere it had been said: "If it happens that in some region the pastor ... cannot be had."

n. 798.

— Those bound to the solemn form. The form explained just now must be observed by:

"all those baptized in the Catholic Church and those converted to it from heresy or schism, even if either the former or the latter afterward defected from the same, whenever they enter marriage between themselves";
the same persons contracting with baptized or non-baptized non-Catholics, even with a dispensation obtained;
Orientals contracting with Latins bound to this form.

Therefore, contrary to the situation under Tridentine law, not the immunity but the obligation of one party is shared by the other party.

The decree Ne temere tempered this rule thus (art. XI, 2): "unless for some particular place or region it has been otherwise established by the Holy See." By these words was indicated the exception made by the Constitution Provida, January 18, 1896, for Germans born in Germany and contracting there between themselves; which was extended by the Sacred Congregation of the Sacraments, February 27, 1909, to Hungarians born in Hungary and contracting there between themselves. The exception was understood so strictly that it was not permitted to be applied even to a Hungarian contracting with a German, or conversely. Now every exception has been removed, and the Holy See has declared that the Constitution Provida has been revoked.

n. 799.

— Immune from this form to be observed are: 1. non-Catholics, whether baptized (and never converted to the Catholic Church) or non-baptized, contracting between themselves;

"those born of non-Catholics, even if baptized in the Catholic Church, who from infancy grew up in heresy, or schism, or infidelity, or without any religion, whenever they contract with a non-Catholic party" (c. 1099, §2). Before, recourse had to be made to Rome for the marriages of these persons each time (response of the Holy Office, March 31, 1911).

n. 800.

— Concerning accidental forms or rites to be observed. - 1. "Outside a case of necessity, in the celebration of matrimony, the rites prescribed in ritual books approved by the Church, or received by laudable customs, are to be observed" (c. 1100). The Council of Trent itself, sess. XXIV, c. 1, De ref. matr., had permitted diocesan rituals to be observed. This rite is performed before Mass and is accustomed to comprise: a) the interrogation concerning mutual consent, and the response of mutual consent, sometimes according to a definite formula; b) a certain formula of joining, e.g., "I join you in matrimony"; c) the blessing of the bride's ring. Today both are accustomed to present a ring to be blessed, but there is no formula except for the bride. But nothing stands in the way of the bridegroom's ring being endowed with priestly blessing and sprinkled with blessed water; d) prayers over those joined.

The solemn blessing is given in the Mass itself, according to the Missal itself, nor can it be separated from it. To be given, it is reserved to the priest who can validly and licitly assist at matrimony. Not rarely one is delegated to the marriage, another to celebrate the Mass with the blessing. In ferial time, i.e., from the first Sunday of Advent up to and including the day of the Nativity of the Lord, and from Ash Wednesday up to and including Easter, the solemn blessing is forbidden to be given. But afterward, even long afterward, it can be supplied. For a just cause Ordinaries of places can concede that, even in ferial time, it be joined with matrimony; but they cannot permit it separated from matrimony in ferial time. It is never given to a widow who has already received the blessing (c. 1113), nor can it be given in mixed nuptials.

The pastor must take care that the spouses receive the solemn blessing; but it is not established concerning a precept made to spouses of receiving the same.

The blessing coheres with the Mass in such a way that the votive Mass for spouses cannot be said when the blessing must be omitted.

Now, however, to several bishops, e.g., of America, a quinquennial faculty is conceded of giving the nuptial blessing outside Mass according to a formula recently approved by the Sacred Congregation of Rites.

Mixed marriages are of themselves to be celebrated outside the church, in a decent place, such as the sacristy, the pastor's house, and without sacred rites, but with the usual interrogations concerning consent. But, for avoiding graver evils, the Ordinary can permit some sacred ceremony, but not the celebration of Mass (c. 1102).

Understand the Mass for spouses, which would be part of the sacred ceremony. For since today Mass can be said for all, nothing stands in the way of the priest, after the completed ceremony, privately applying the Mass to the intention of the spouses, and the spouses themselves assisting at the sacred rite, as generally it is tolerated that non-Catholics be present during Mass. But care must be taken lest that Mass appear joined with the marriage. Much more is it licit for the spouses, after the marriage has been celebrated, to be present at some Mass.

n. 801.

— Inscription of marriage. 1. The pastor himself or the one who takes his place, although another delegated person assisted at the marriage, must record the celebrated marriage in prescribed and accustomed form in the book of marriages.

Yet it happens not rarely that the delegate writes and signs everything by his own hand, and then the pastor, with his name appended, virtually testifies to the same.

The marriage must also be recorded in the book of the baptized. Wherefore, if a spouse was baptized elsewhere, the pastor of the marriage, either personally or through the diocesan curia, must transmit notice of the marriage to the pastor of baptism.

But whenever a marriage has been celebrated before witnesses alone, the priest (not delegated), if he assisted, otherwise the witnesses are held in solidum with the contracting parties by the obligation of taking care that the marriage be noted as soon as possible in the prescribed books (c. 1103).

n. 802.

Summary

— I. Form required of itself for validity. Matrimony, for validity, must be contracted: 1. before the pastor or local Ordinary. Pastor is understood as strictly such, or the rector of a quasi-parish, a parochial vicar who with full power presides over the parish, as also the substitute vicar himself and, if the prescriptions of the Holy See so provide, a chaplain of soldiers;

or before a priest delegated by either. Express delegation is required, and, unless there is question of a cooperating vicar for the parish to which he is assigned, it cannot be given except to a determined priest for a determined marriage. The pastor and local Ordinary validly assist or delegate from the moment of office canonically begun, and as long as they have not been condemned by sentence or declared excommunicated, interdicted, or suspended.

They are competent for all within the limits of their territory.

It is necessary for validity that, constrained by no force or grave fear, they ask for and receive the consent of the contracting parties.
Besides, two witnesses are required: any persons possessed of themselves, who have observed the signs of mutual consent and have at least tacitly been admitted by those about to marry.

II. Liceity demands: 1. previous proof of free status;

domicile, quasi-domicile, or monthly stay in the place of celebration, or the license of the pastor or Ordinary thus proper;
unless a just cause stands in the way, celebration before the pastor of the bride. The pastor who, without license of the proper pastor, has unduly intervened, must remit the fees to the proper pastor.

III. Excepted cases. Provided a competent priest cannot be had or approached without grave inconvenience: in danger of death, or if the difficulty is foreseen as going to last for a month, two witnesses suffice. If, however, another priest can assist, he must be called for liceity.

Is there place for this exception when the penalties of civil law impede the presence of the competent minister? This is disputed.

IV. Immune from the solemn form are: non-baptized non-Catholics, or also baptized persons who never belonged to the Church, if they contract between themselves; those born of non-Catholics, even if baptized in the Catholic Church, who from infancy grew up in heresy, schism, infidelity, or without any religion, whenever they contract with a non-Catholic party.

V. The rite is to be observed; it can be diocesan. In Mass the solemn blessing is given, which, unless the local Ordinary dispenses, is forbidden to be given in ferial time, i.e., from the first Sunday of Advent to the Nativity of the Lord inclusive, and from Ash Wednesday up to Easter inclusive. It is not established concerning a precept of receiving the solemn blessing.

Mixed marriages are of themselves to be celebrated outside the Church with only the interrogations concerning consent. Some sacred ceremony, but not the celebration of Mass, can be permitted by the local Ordinary for avoiding greater evils.

VI. Notation. By the pastor himself or the one taking his place the marriage must be recorded in the book of marriages and of baptisms. Whenever it was contracted before witnesses alone (and perhaps a non-competent priest), the priest, or the witnesses and contracting parties in solidum, are obliged to take care of the inscription.

Merkelbach, Pastoral Questions

Benedict H. Merkelbach, O.P. — 10 passages

Ch. VII, Article I: The Law Before the Code

n. 211.

- a) If you attend only to the law of nature or even to divine-positive law, it must be confessed that every matrimony, however clandestine, provided the contracting parties, not impeded, express true consent concerning the present, is true and valid, and, if there is question of baptized persons, a true sacrament.

n. 212.

- b) Nevertheless it is not licit to turn into doubt that the Church, with respect to the matrimonies of the faithful, can not only establish impediments properly so called, even diriment ones, but with equal right prescribe the form of celebrating matrimony under penalty of nullity of the matrimonial contract.

n. 213.

- c) Indeed, the Church always abhorred and interdicted clandestine matrimonies, as being the source of many and grave evils. But up to the Council of Trent she did not hold them invalid.

n. 214.

- d) 1. The Tridentine synod, through the celebrated decree beginning Tametsi,¹ prescribed the form of celebrating matrimony, from defect of which unions would be not only illicit but even plainly invalid.

¹ Sess. XXIV, cap. I, De reform. matrim.

n. ¶6569.

"Those who attempt matrimony otherwise than in the presence of the parish priest, or of another priest with the permission of that parish priest or of the Ordinary, and of two or three witnesses, the holy Synod renders altogether incapable of contracting thus, and decrees that contracts of this kind are invalid and null, just as by the present decree it makes them invalid and annuls them."

n. ¶6570.

Nevertheless, the Tridentine Fathers commanded, lest innumerable matrimonies of heretics become invalid on this head, that the decree should not exert its force except after thirty days from its promulgation made in each parish.

n. ¶6571.

In fact, in many regions it was never promulgated. What were the places in which it was promulgated, and which inhabitants of those places the decree obliged, often was not established.

n. ¶6572.

Under Tridentine legislation, the parish priest (or Ordinary) of domicile or quasi-domicile was competent to assist with respect only to his own subjects, and indeed everywhere on earth, whether through himself or through a delegate. Passive assistance of the parish priest was sufficient, even if forced and unwilling.

n. ¶6573.

The state of legislation introduced by the Tridentine Council with respect to the celebration of matrimony in the Church was in force up to 19 April 1908.

n. 215.

- On 2 August 1907 the Sacred Congregation of the Council issued the decree Ne temere, which nevertheless began to oblige from the following feast of Easter, on 19 April 1908. This law, which, with few things changed, was received into the Code of Canon Law, introduced a new discipline with regard to the form of matrimony.

Merkelbach, Summa Theologiae Moralis

Benedict Henry Merkelbach, O.P. — 7 passages

Vol. III, Special Moral Theology: On…, Treatise: On Matrimony, Second Part: On the Celebr…, Question Three: On the Form or Rite of the Celebration of Matrimony

844. General principle. - For the validity of the conjugal contract, from the nature of the thing there suffices deliberate mutual consent manifested in any way whatever; but by positive law conditions and formalities can be required for liceity or for validity: for it concerns the public good, namely, that a contract of such great moment not be entered unless it can be proved. Hence it has come about that among almost all peoples nuptial consent has been adorned with solemnities, and has been clothed with a varied liturgical or juridic form. Conditions and formalities can be prescribed by the civil power in the marriages of unbelievers; but in the marriages of Christians they are reserved to the power of the Church (n. 827, 1°). Therefore, just as the civil law can require a solemn form for the validity of a contract, or prescribe conditions for the validity of a testament, so the Church can establish a form as a necessary condition that matrimony be valid.

From what has been said it follows that clandestine matrimony, namely, which juridically cannot be proved by witnesses, is not of itself and by natural law invalid, indeed not even illicit. Before the Council of Trent no form had been prescribed for the validity of matrimony, and clandestine marriages entered without witnesses were not invalid; nevertheless the Church always held them as regularly, and excepting exceptional circumstances, altogether illicit, as is clear from Innocent III and from the decree itself of the Council of Trent confessing this, sess. 24, de ref., c. 1: "Holy Mother Church, for most just causes, has always detested and prohibited them," on account of the great dangers and inconveniences which are wont to be joined to private unions.

Hence from the beginnings of the Church the Fathers require that matrimony be entered before the Church. Thus, for example, Ignatius, ad Polyc. 5; Tertullian, de Pud. 4.

That it might more efficaciously remove clandestine marriages and their inconveniences, the Council of Trent, in the year 1564, established this law: "Those who shall attempt to contract matrimony otherwise than in the presence of the pastor, or of another priest with the license of the pastor himself or of the Ordinary, and of two or three witnesses, the holy synod renders wholly incapable of so contracting, and decrees contracts of this kind to be invalid and null." Thus it decreed lest spouses afterward could with impunity turn aside to other nuptials, nor be compelled to remain with an illegitimate spouse on account of earlier nuptials unknown.

But the Tridentine decree was not obligatory except in individual parishes where it had been promulgated, which in many places was not done. Hence in several regions it did not oblige, and in certain others it was dispensed in for marriages either of heretics or mixed marriages, so that those entered clandestinely were valid. Wherefore there existed a great diversity in matrimonial legislation for the various parts of the Church.

To remove this diversity, a new discipline was introduced and became obligatory from April 19, 1908, by which matrimony not entered before the pastor or Ordinary, or a priest delegated for this, and two witnesses, would be everywhere null, certain exceptions being preserved; and this was admitted almost unchanged into the new Code of law. And thus uniformity was obtained in the whole Latin Church. Yet there is a certain difference between the new law and the Tridentine law, because in the latter clandestinity was an incapacity of the person for contracting matrimony, whereas now it is rather a defect of the juridic form required for the validity of the contract, and therefore it no longer constitutes an impediment taken in the stricter sense.

Vol. III, Pt. II, Tr. X, Ch. VIII, Article I. Who Are Bound to the Prescribed Form · Vol. III, Pt. II, Tr. X, Ch. VIII, Art. II, § 1. The Valid and Licit Ordinary Celebration of Matrimony · Vol. III, Pt. II, Tr. X, Ch. VIII, Art. II, § 2. The Valid and Licit Extraordinary Celebration of Matrimony

They object that the Church cannot change the matter and form of the sacraments instituted by Christ, and therefore cannot make it so that a valid clandestine matrimony is invalid. - But the Church does not change the matter and form of matrimony, which is the legitimate and valid contract between baptized persons; rather it posits the conditions required for this, that the contract be legitimate and valid: when these, namely, have been posited, the matter and form are present; and when they have not been posited, the matter and form of the sacrament are no longer had. In the same way, the Church cannot make it that the absolution of a priest enjoying jurisdiction is not the sacrament of Penance, but it can establish the conditions required that he have jurisdiction and so absolve validly, or on the contrary, if those are lacking, invalidly.

Prümmer, Manuale Theologiae Moralis

Dominic M. Prümmer, O.P. — 22 passages (filed under the subtopics)

Vol. III, Pt. II, Tr. X, Ch. VIII, Article I. Who Are Bound to the Prescribed Form

n. ¶105.

Those bound to observe the prescribed form are:

n. 754.

754. 1. "all baptized in the Catholic Church and those converted to her from heresy or schism, although either the former or the latter afterward defected from her, whenever they enter matrimony with one another";

"the same persons, if they contract matrimony with non-Catholics, whether baptized or non-baptized";
"Orientals, if they contract with Latins bound to this form." -

"Non-Catholics, whether baptized or non-baptized, if they contract among themselves, are nowhere bound to observe the Catholic form of matrimony; likewise those born of non-Catholics, even if baptized in the Catholic Church, who from infancy grew up in heresy or schism or infidelity or without any religion, whenever they contract with a non-Catholic party."⁷

Explanation. To 1. It is not so clear how the words "baptized in the Catholic Church" are to be understood. Saving a better opinion, all those who at the time of baptism were destined for Catholic worship by parents or guardians or others legitimately disposing of them are judged to have been baptized in the Catholic Church.⁸ Hence, for example, an infant of Catholic parents, baptized in necessity by a Jewish physician, is judged baptized in the Catholic Church. But if an infant of Protestant parents is baptized by the same physician, that infant is not judged baptized in the Catholic Church. If Catholic parents were to have an infant baptized by a Protestant minister and afterward educated in heresy, the infant is not judged baptized in the Catholic Church. But if parents who entered matrimony with a dispensation from the impediment of mixed religion or disparity of worship (but not Catholic parents) were to have an infant baptized in the Catholic Church but afterward educated in heresy, the infant is judged as a heretic.⁹

To 2. Mixed marriages, in which one party is Catholic but the other non-Catholic (whether baptized or non-baptized), must be celebrated in precisely the same essential form as purely Catholic marriages.

⁷ Code of Canon Law, can. 1099.

⁸ Van den Acker, Decr. "Ne temere"², p. 101 f., thinks almost the same; Cappello, De sacr. III, n. 411; Wernz-Vidal, Ius can. V, n. 551.

⁹ Cf. Holy Office, November 17, 1835, and April 6, 1859, and Pontifical Commission, July 20, 1929 (Acta Ap. Sed. XXI, 573); this declaration is not extensive but declarative (Pontifical Commission, July 25, 1931: Acta Ap. Sed. XXIII, 388).

n. 756.

756. To 3. Although the Code of Canon Law ordinarily does not bind Orientals, nevertheless it binds them here accidentally because of the Latin party. This follows from those things which we said above concerning the individuality of the matrimonial contract. For if there is an impediment on the part of one contracting party, the matrimony can no longer be validly contracted. But in these cases there is an impediment on the part of the Latin Catholic, who cannot contract unless the prescribed form is observed. Therefore such mixed marriages are invalid.¹⁰

Note. In former times there was much dispute concerning the validity of marriages celebrated by non-Catholics without the Tridentine form; today this controversy is ended, since the marriages of non-Catholics, if they contract among themselves, are valid, provided that no diriment impediment other than the defect of the required assistance of the parish priest stands in the way, for example, the impediment of bond, impotence, relationship, and so forth. Schismatics¹¹ are also held as non-Catholics, as are those born of non-Catholics (among whom are included those born of apostates and of those who are or were enrolled in an atheistic sect^11a), even if baptized in the Catholic Church, who grew up outside the Catholic religion from infancy.

From what has been said it follows that the following are certainly not bound by the prescribed form, provided that they contract among themselves:

a) all born and educated in heresy or schism;

b) all Catholics of an Oriental rite.¹²

¹⁰ "Whether a matrimony contracted by a Catholic of the Latin rite with a Catholic of an Oriental rite is valid when the form established by the Decree Ne temere has not been observed? - Negatively." Thus the Sacred Congregation of the Council, March 28, 1908, ad 1.

¹¹ Sacred Congregation of the Council, March 28, 1908.

^11a Pontifical Commission, February 17, 1930 (Acta Ap. Sed. XXII, 195), and July 30, 1934 (Acta Ap. Sed. XXVI, 494).

¹² "Whether Catholics of an Oriental rite are also bound by the Decree Ne temere? - Negatively." Thus the Sacred Congregation of the Council, February 1, 1908, ad 1. Sometimes, however, the Decree Ne temere was extended to the faithful of an Oriental rite. Thus, for example, by the Sacred Congregation for the Propagation of the Faith on May 5, 1911, this Decree was extended to the Ruthenian dioceses of the Province of Galicia.

Vol. III, Pt. II, Tr. X, Ch. VIII, Art. II, § 1. The Valid and Licit Ordinary Celebration of Matrimony

n. 756.

756. General rule. "Only those marriages are valid which are contracted before the parish priest or the local Ordinary or a priest delegated by either of them, and at least two witnesses." Thus the Code of Canon Law, can. 1094.

Therefore, in the ordinary celebration of matrimony, the assistance of one of the following is altogether required, together with two witnesses:

the parish priest of the place;
the local Ordinary;
a priest duly delegated.

We shall first speak generally of the requirements on the part of the parish priest of the place, etc., and then of those which are required on the part of the two witnesses.

n. 757.

757. a) By the name of parish priest are here understood 1. all parish priests properly so called, whether irremovable or removable; 2. all who are equivalent to parish priests, that is, those who by reason of their office must supply the place of the parish priest.

The following are equivalent to parish priests in this matter:

Quasi-parish priests. "In regions where parishes have not been canonically erected, even the priest to whom the care of souls in some definite territory has been legitimately committed is equivalent to a parish priest; and in missions where territories have not yet been perfectly divided, every priest universally deputed by the director of the mission to the care of souls in some station."¹³
The one serving, or administrator of, a vacant parish, who in the Code of Canon Law, can. 472, is called the vicar economus (Pfarrverweser). Likewise a substitute vicar, assistant vicar, or cooperator vicar, if he supplies the place of the parish priest in the whole parochial ministry.¹⁴
A curate, that is, one who exercises the full care of souls in a determinate territory which, however, has not been erected to the dignity of a true parish.¹⁵ Such curates are called in some places expositi or local chaplains.
The perpetual or temporary vicar of an incorporated parish. Parishes are not rarely incorporated into the chapter of a cathedral church or into some monastery. Then the cathedral chapter or monastery must legitimately designate a perpetual or temporary vicar to exercise the parochial care of souls, who is now called the actual vicar.
Chaplains or rectors of pious places of any kind exempt from parochial jurisdiction. It is required, however, that they possess true parochial power and that they assist only at the marriages of their subjects, and this in the place of their jurisdiction.¹⁶ Today pious places of this kind not rarely exist, for example, hospitals, in which some spiritual rector entirely exempt from parochial jurisdiction exercises the ministry of souls.

¹³ Thus the Decree Ne temere, II; cf. Code of Canon Law, can. 216, § 3.

¹⁴ Cf. Pontifical Commission, May 20, 1923 (Acta Ap. Sed. XVI, 115).

¹⁵ Thus the Sacred Congregation of the Council, March 10, 1908. In practice it must first be seen whether such curates, expositi, or local chaplains truly have full jurisdiction in the territory designated to them by the bishop or by legitimate custom, or whether they are rather mere vicars conceded to the parish priest.

¹⁶ Sacred Congregation of the Council, February 1, 1908, ad 10.

n. 758.

758. 6. All personal parish priests, such as, for example, military chaplains and certain parish priests in the East Indies. Personal parish priests are those who exercise parochial jurisdiction not in a determinate territory but over determinate persons.

It is much disputed whether the jurisdiction of personal parish priests of this kind in assisting at matrimony is exclusive or rather cumulative with that of the territorial parish priest. With respect to the East Indies, the Sacred Congregation of the Sacraments on June 2, 1910,¹⁷ decreed that, in view of the peculiar circumstances, personal parish priests alone, to the exclusion of territorial parish priests, can licitly and validly assist at the marriages of their subjects, so that the jurisdiction of personal parish priests in the Indies is exclusive and not cumulative. But with respect to other personal parish priests, and notably with respect to camp or military parish priests, authors do not agree. Hinschius,¹⁸ Noldin,¹⁹ Dr. Vollmar²⁰ (formerly chief chaplain of the Prussian army), the chief chaplain of the Austrian army,²¹ and others teach that the jurisdiction of military chaplains is exclusive. On the contrary, Vogt,²² Wernz-Vidal,²³ De Smet,²⁴ Scherer,²⁵ and others assert that this jurisdiction is cumulative with that of the territorial parish priest. The decree of the Sacred Congregation of the Sacraments cited above manifestly favors them, saying: "The resolution [concerning the rights of personal parish priests], as regards validity and liceity, does not seem to prejudice the rights of territorial parish priests; who therefore, according to the Decree Ne temere, appear always validly to assist in their own parish, and licitly also, after the month's residence of either contracting party has preceded, at the marriages even of exempt faithful." - Since this controversy is of great moment in practice (because the validity of the sacrament of matrimony is at issue), the legitimate customs prevailing in the diverse regions where military parish priests are present must be observed until the Holy See issues an authentic decree on this matter. Besides, no private author can establish a general rule concerning the jurisdiction of military chaplains, since the same agreements between the Holy See and governments do not prevail in diverse regions. Certainly it is contrary to the words and mind of the new law that soldiers cannot at least validly contract matrimony before the territorial parish priest as can other faithful; nevertheless, since the Sacred Congregation of the Council on February 1, 1908, ad 7, declared that "with respect to military chaplains ... nothing has been changed," and since civil or military authorities sometimes urge (even with grave penalties added) that the military chaplain assist at the marriages of soldiers and other persons belonging to the military, it is much better that territorial parish priests abstain from assisting at marriages of this kind unless they have special permission.²⁶

¹⁷ Acta Ap. Sed. II, 449.

¹⁸ System d. kath. Kirchenr. II, 340.

¹⁹ De sacram., n. 643.

²⁰ According to the Brief of Pope Pius IX of May 22, 1868, the chief chaplain of the [formerly] Prussian army possesses jurisdiction, separate from the other Ordinaries and in no way subject to them, over each and every one of the faithful who belong to the Prussian army according to the laws (Acta S. Sed. XLI, 91).

²¹ Archiv f. kath. Kirchenrecht LXXXVIII (1908), 729 ff.; XC (1910), 142.

²² Das kirchl. Eherecht, § 25.

²³ Ius can. V, n. 535.

²⁴ De spons. et matr., n. 64.

²⁵ Kirchenrecht II, 199.

²⁶ Today there are military chaplains having jurisdiction independent of local Ordinaries in Spain (cf. Sacred Congregation of the Council, May 22, 1909 [Acta Ap. Sed. I, 554]), England (cf. Sacred Congregation for the Propagation of the Faith, May 15, 1906), and Chile (Motu proprio of Pius X, May 3, 1910 [Acta Ap. Sed. II, 502]). The faculties granted to military chaplains in diverse regions are not the same. Hence the particular statutes must be observed.

n. 759.

759. b) By the name of the local Ordinary are understood diocesan bishops (not titular bishops), apostolic administrators, vicars, and prefects, prelates or prefects having jurisdiction with a separate territory,²⁷ and their officials or vicars general in spiritual matters, and, when the see is vacant, the capitular vicar or legitimate administrator.²⁸ The chief military chaplain is the Ordinary for all persons belonging to the military according to law,²⁹ although he does not have territorial jurisdiction.

The Ordinary can validly assist (whether personally or through a delegated priest) at all marriages within the boundaries of his territory, even without the knowledge and against the will of the parish priests.

²⁷ For example, an abbot and prelate nullius.

²⁸ Cf. Code of Canon Law, can. 198, § 2.

²⁹ Nor is the legislation concerning persons belonging to the military uniform in diverse regions.

n. 760.

760. c) A legitimately delegated priest is one who has delegation from the parish priest or local Ordinary, or from those who are equivalent to a parish priest, concerning whom above, n. 757.

Delegation is fittingly distinguished from permission to assist, although this distinction is not expressly contained in the law itself. For delegation is a faculty granted to another priest by a parish priest (territorial or personal) to assist validly at some matrimony; but permission is a faculty granted to someone to assist licitly, who even without such permission would assist validly. From these things it follows that a personal parish priest never needs delegation to assist at the marriages of his subjects; but a territorial parish priest almost never needs delegation to assist at marriages celebrated in his territory. Certain marriages in the East Indies and perhaps the marriages of soldiers, concerning which above, are excepted. A territorial parish priest, however, needs the permission of another parish priest if he wishes to assist at the matrimony of persons about to marry who have not yet lived for a month in his parish, as will be said below. A parish priest and Ordinary within their own territory can delegate any priest (not publicly excommunicated or suspended) to assist at matrimony. But a parish priest and Ordinary who have only personal jurisdiction can delegate another priest in any place whatsoever to assist at the marriages of their subjects.

Concerning this delegation, the following things must be noted:

n. 761.

761. 1. In no way can it be extended beyond the territory of the delegating person, because the delegating person himself does not validly assist at matrimony outside his own territory.

Under pain of nullity it is required that this delegation be special, that is, made to a determinate priest for a determinate matrimony or even for several marriages, provided that they are determinate. Therefore all general delegations are excluded, such as were not rarely in use formerly, for example, that matrimony could be celebrated before one of the priests living in some celebrated place of pilgrimage,³⁰ or before the priest who would be deputed by the religious superior to say Mass in the church.³¹ Cooperator vicars alone can be habitually and generally delegated by the bishop or by the parish priest of the territory to assist at matrimony in the parish to which they are attached.³²
The delegation must be express or at least quasi-express, which is manifestly gathered from conclusive acts.

The whole doctrine concerning express, tacit, and presumed delegation is thus briefly expressed in the cause Balzan Adami:³³ "In order that another priest besides the proper parish priest of either contracting party be constituted the qualified witness of the matrimony, there must precede a positive act of the will, externally expressed, of the proper parish priest or the proper Ordinary, by which permission to assist, concerning which the Decree speaks, is conceded to him. Therefore presumed or interpretative permission, which does not really exist but would exist only upon some given hypothesis, does not suffice to constitute an authorized witness of matrimony.... But by tacit permission, insofar as it is distinguished from presumed or interpretative permission, the positive will of the proper parish priest or Ordinary to delegate another priest to fulfill the office of authorized witness can be sufficiently expressed. Since, moreover, this general faculty of delegating is nowhere in law restricted to express delegation alone, it must be said that delegation is present where facts preceding the matrimony and truly conclusive show that this was the mind of the one to whom it belongs by law to delegate." - Hence, for example, a cooperator vicar who is sent into some parish to assist the parish priest in all things can validly assist at marriages, even if he does not have the express delegation of the parish priest who is silent and does not contradict. On the contrary, when the parish priest is absent, another priest cannot presume delegation. The matter of delegation in assisting at marriages is often determined by the particular statutes of dioceses. - Of itself, indeed, nothing prevents delegation from being given by telegraph or telephone; but, except in a case of urgent necessity, a transmission of this kind is not expedient, because doubts and ambiguities not rarely arise from it.

One delegated for the universality of causes can subdelegate this delegation; on the contrary, one delegated for a particular case does not have this faculty of subdelegation unless it was expressly conceded to him.³⁴

Hence, for example, a cooperator vicar of a parish priest who has obtained general delegation to assist at all marriages to be celebrated in the parish can subdelegate another priest for a particular case; but the latter, subdelegated for this case, cannot again subdelegate another. Likewise, a parish priest or local Ordinary who delegated a determinate priest to assist at a determinate matrimony can also give him permission to subdelegate another determinate priest to assist at the same matrimony.

Delegation ceases a) by revocation, b) when the time prefixed has elapsed.

Delegation does not cease by the death of the delegating person or by the right of the delegating person being otherwise terminated,³⁵ although some have opined the contrary. If a parish priest suddenly dies, his cooperator vicar or even the nearest parish priest validly and licitly assists at the matrimony, as is customarily determined by particular statutes.³⁶

³⁰ Noldin-Schmitt, De sacr.¹⁸, n. 642, asserts: "Nothing prevents several determinate priests from being delegated, whether they are named singly or all collectively: all the Servite Fathers in Weissenstein; the parochial clergy of church N." Since here there is question of the validity of the assistance and therefore of the matrimony itself, I think collective delegations of this kind are not sufficiently safe.

³¹ Pontifical Commission, May 20, 1923 (Acta Ap. Sed. XVI, 115).

³² Code of Canon Law, can. 1096, § 1.

³³ Acta Ap. Sed. II, 208; cf. also Acta Ap. Sed. XI, 154 ff., where it is judiciously observed that for greater security express delegation is to be sought in practice before the celebration of the matrimony, but tacit delegation suffices for the validity of the matrimony.

³⁴ Cf. Code of Canon Law, can. 199, § 5, and Pontifical Commission, December 28, 1927 (Acta Ap. Sed. XX, 62).

³⁵ Code of Canon Law, can. 207.

³⁶ Ibid., can. 472. Thus, for example, the following is contained in the Pastoral Instruction of Eichstätt, n. 488: "If it happens that, when all things have been prepared for the nuptials, the parish priest suddenly departs this life, for this unforeseen case we delegate, from ordinary power and solely for this occasion, any diocesan and approved priest perhaps staying in the place or to be summoned from the vicinity, so that the nuptials can validly be contracted before him if they cannot be further deferred without inconvenience."

n. 762.

762. I. Conditions required on the part of the parish priest and the Ordinary for valid assistance. There are three; namely, it is required:

That he canonically possess his benefice or office and not have been excommunicated or interdicted or suspended from office by a sentence, or declared such.³⁷

The Sacred Congregation of the Council on March 2, 1908, responded: "By the name of possession here is understood that act which, whether it is called corporal institution, enthronement, installation, or otherwise, nevertheless always effects this: that the one instituted into the benefice thereby acquires the free exercise of the power annexed to his office." The manner of conferring this corporal institution is customarily determined by particular law or by custom.³⁸

A bishop acquires the episcopal office when he has presented to the chapter the letters of institution given by the Supreme Pontiff, or, where no chapter exists, when those letters have been legitimately published in the diocese.³⁹

The right of assisting at marriages is lost: a) by removal from office or benefice. This is evident of itself. b) By excommunication or suspension or interdict from office, provided, however, that these have been imposed by a condemnatory or declaratory sentence; which indeed is wont to happen quite rarely. An excommunication which a parish priest incurs, for example, by the absolution of an accomplice or by the public striking of a cleric, does not yet deprive him of the right of assisting at marriages unless a declaratory or condemnatory decree imposing the penalty of excommunication has been added.⁴⁰

Note. Since in common error the Church supplies jurisdiction,⁴¹ a matrimony celebrated before a putative parish priest is also valid.⁴²

³⁷ Code of Canon Law, can. 1095, § 1.

³⁸ Ibid., can. 1444. Cf. De Smet, De sponsal. et matrim., n. 64; Vogt, Das kirchl. Eherecht, § 25; Van den Acker, loc. cit., c. 1, a. 4.

³⁹ Code of Canon Law, can. 334, § 3.

⁴⁰ Before the Decree Ne temere, even a publicly excommunicated and suspended parish priest could validly assist at matrimony. Cf. Benedict XIV, De syn. dioec., l. 12, c. 5, n. 2.

⁴¹ Code of Canon Law, can. 209.

⁴² Even a putative parish priest, who by common error is held to be the true parish priest but who, because of an occult defect, invalidly received the parochial office, validly assists at matrimony. It seems, however, to be required that such a parish priest be duly instituted by an ecclesiastical superior; for if he was instituted by the civil government alone, he is an intruded parish priest and lacks all jurisdiction. Wherefore Pius VI wrote to the bishops of France on September 26, 1791: "Since an intruder is in no way a legitimate parish priest and has no title, either true or colorable, a matrimony contracted before him is certainly of no force." (Cf. Van den Acker, Decreti "Ne temere" interpret., c. 1, a. 2.) Besides, such intruders incur an excommunication most specially reserved to the Supreme Pontiff (Code of Canon Law, can. 2334), and if by a public decree they have been excommunicated by name or suspended from office, by that very fact they are incapable of assisting at matrimony.

n. 763.

763. 2. That he assist at the matrimony within the boundaries of his territory.⁴³

Therefore, as regards the validity of the matrimony, it matters nothing whether those about to marry are his own parishioners or outsiders. From this statute it appears that the new law concerning the assistance of the parish priest has been made territorial, and thus the former law concerning the necessity of domicile or at least quasi-domicile, which not rarely caused most intricate questions, has been entirely changed. Churches of exempt religious situated within the territory of a parish are also held to be within it, and therefore the parish priest or local Ordinary validly assists at marriages there.⁴⁴ But if such a church has, as they say, active exemption, or if it is after the manner of an abbey nullius which has the privilege of extraterritoriality, then the faculty of assisting there does not seem to have been conceded to the parish priest or local Ordinary. On the other hand, no priest can validly assist at a matrimony in any church or chapel situated within the territory of the parish unless he has been delegated by the parish priest of the place. Hence, for example, in churches of religious or of the military, no one can validly assist at any matrimony, even of outsiders, unless he has been delegated by the parish priest or local Ordinary. Yet personal parish priests, so called, are excepted, who validly assist at the marriages of their subjects everywhere in the world. This has been expressly sanctioned for the personal parish priests of the East Indies;⁴⁵ thus it has been established for military chaplains, whose faculty held before has not been changed by the new law.⁴⁶ Wherefore a military chaplain validly and licitly assists at the marriages of persons belonging to the military according to the laws of each region, but he cannot (without due delegation) validly assist, even in his own church, at the marriages of other persons. For he does not have the rights of a territorial parish priest.⁴⁷

⁴³ Code of Canon Law, can. 1095, § 1, n. 2.

⁴⁴ Sacred Congregation of the Sacraments, March 12, 1910.

⁴⁵ Sacred Congregation of the Sacraments, June 2, 1910 (Acta Ap. Sed. II, 449).

⁴⁶ Sacred Congregation of the Council, February 1, 1908, ad 7.

⁴⁷ We have written more broadly concerning this matter in Linzer Theol.-prakt. Quartalschr. 1913, 121-127.

n. 764.

764. 3. That, constrained neither by force nor by grave fear, he ask for and receive the consent of the contracting parties.⁴⁸

Hence the parish priest or delegated priest must not only receive but also ask for the consent of those about to marry. By this most salutary law, coerced and surreptitious assistance, which formerly sufficed for validity, is excluded. Even in mixed marriages, the assisting parish priest or priest must ask for and receive the consent of the contracting parties,⁴⁹ at least if the due guarantees are furnished by the contracting parties. But if the contracting parties refuse to furnish those guarantees and cannot be turned away from entering a mixed marriage of this kind, then not even the passive assistance of the parish priest can be validly and licitly conceded. Thus in illicit mixed marriages, assistance so called passive is henceforth no longer valid unless a new and altogether special privilege is present.⁵⁰

Every coerced assistance of the parish priest renders the matrimony entered invalid. Therefore it matters nothing whether grave fear is inflicted justly or unjustly. For the law simply requires for the validity of the assistance that the parish priest not be constrained by grave fear. Moreover, where the law does not distinguish, neither ought we to distinguish. Nevertheless, the assistance of the parish priest does not seem to be invalid if grave fear was induced by an intrinsic cause; for example, if the parish priest assists at the matrimony of a public sinner because otherwise he greatly fears the spiritual ruin both of the woman and of the offspring to be born from the concubinage. On the contrary, the assistance is invalid if the parish priest is compelled to assist at the illicit matrimony of a patron who otherwise threatens deprivation of the parochial office.

Those things thus far said concerning the valid assistance of the parish priest can be briefly comprehended thus: in order that a parish priest validly assist at matrimony, it is required:

that he actually possess the benefice or have assumed the office;
that he not have been excommunicated, interdicted, or suspended from office by a condemnatory or declaratory sentence;
that he assist within the boundaries of his territory (unless he is a personal parish priest);
that he be free and not constrained by grave fear to assist;
that he ask for and receive the consent of the contracting parties.

⁴⁸ Code of Canon Law, can. 1095, § 1, n. 3.

⁴⁹ Sacred Congregation of the Council, July 27, 1908, ad 3.

⁵⁰ Pontifical Commission, March 10, 1928 (Acta Ap. Sed. XX, 120).

n. 765.

765. The two witnesses, whose presence is required for the valid ordinary celebration of matrimony, must be carefully distinguished from the parish priest or delegated priest, who is wont to be called the authorized or qualified witness of the matrimony. Positive law prescribes nothing concerning the qualities of those two witnesses; hence nothing else is required of them except that they truly testify to the celebration of the matrimony which they themselves saw and heard. It is, however, very fitting that adult witnesses endowed with good morals be employed. Concerning heretics, the Holy Office decreed on August 19, 1891, that "they are not to be employed; nevertheless they can be tolerated by the Ordinary for a grave cause, provided that scandal is absent." It is evident of itself that the insane, the completely intoxicated, and those who are at once deaf and blind cannot be employed as witnesses, because they cannot render certain testimony concerning the manifested consent of those about to marry. In practice care must be taken that the witnesses summoned truly hear the manifestation of the consent of the contracting parties; nevertheless, it suffices for validity that, having seen all the circumstances, they be morally certain of the consent externally given.

II. Conditions required for licit assistance. There are five:

n. 766.

766. 1. Moral certainty concerning the free state of the contracting parties, as had already been established previously by law.⁵¹

The free state signifies immunity from all prohibitive and diriment impediments of matrimony, and especially from the impediment of bond. This moral certainty must be acquired: a) through the examination of the spouses,⁵² b) through the proclamations prescribed by the Council of Trent,⁵³ and sometimes c) through an oath concerning their free state taken by the contracting parties.⁵⁴ A parish priest who were to assist at a matrimony without a previous investigation concerning the free state of the contracting parties would sin gravely, since without urgent necessity he would expose the sacrament to danger of nullity. Since, according to the Code of Canon Law, can. 1103, § 2, the parish priest who assisted at the matrimony must note the names of the spouses in the book of baptisms, or send them to the parish priest of the place where the spouses were baptized, it is most excellently prescribed⁵⁵ that before the nuptial blessing the parish priest always require a testimonial of baptism received (unless the baptism was conferred in his own territory). For thus the free state of the spouses as regards the impediment of bond is easily recognized; for if either spouse were already joined in matrimony, this would be found noted in the book of baptisms.

⁵¹ Moral certainty concerning the free state is no longer necessarily to be obtained according to the Clementine Instruction of August 21, 1670, in which it is prescribed that the episcopal curia institute a process concerning the free state. Hence the legitimate existing customs are to be observed. To the question: "Whether by the Decree Ne temere the law or custom prevailing in some dioceses has been abolished, by virtue of which acts establishing the free state of the contracting parties are to be performed by the episcopal curia, and permission is then given to parish priests to assist at marriages?" the Sacred Congregation of the Council responded on February 1, 1908, ad 11: "Let the accustomed practice be observed."

⁵² Cf. above, n. 723.

⁵³ Cf. above, n. 725.

⁵⁴ Cf. above, n. 728.

⁵⁵ Code of Canon Law, can. 1021, § 1.

n. 767.

767. 2. A domicile or quasi-domicile, or at least a month's residence, of either person about to marry in the place where the matrimony is celebrated.⁵⁶

a) A domicile, which is the place "where someone establishes his household and the sum of his affairs and fortunes; whence he would not again depart if nothing called him away; whence, when he has departed, he seems to be traveling; to which, if he has returned, he has now ceased traveling,"⁵⁷ is acquired as soon as someone begins to dwell in that place with the intention of remaining there perpetually, that is, for an indefinite time.⁵⁸ This intention must be proved in the external forum. It is proved in diverse ways, for example, by the transfer of a great part of one's goods, by the assumption of some office perpetual of itself or at least not limited to a fixed time, by ten years' residence, by taking an oath, and so forth. A quasi-domicile differs from a domicile in this alone: that it does not require the intention of remaining perpetually in some place. The intention of remaining there for the greater part of a year suffices, or at least a residence actually prolonged for the greater part of a year.⁵⁹ When domicile or quasi-domicile is lacking, a month's residence in the place where the matrimony is to be celebrated suffices. Since the proper parish priest of those also who have only a diocesan domicile or quasi-domicile is the parish priest of the place where they are actually residing,⁶⁰ such a parish priest can validly and licitly assist at their matrimony. Therefore a diocesan domicile or quasi-domicile suffices, and a parochial one is no longer required. Thus at least if those about to marry do not have a parochial domicile or quasi-domicile elsewhere.

b) A month's residence requires nothing other than presence for thirty continuous days; nevertheless, those days are not to be computed mathematically. Hence if the contracting parties had been absent from the parish on one or another day during the month before the celebration of the matrimony, nevertheless they could enter matrimony before the parish priest of the place not only validly but also licitly. For a little is reckoned as nothing.

Permission of the parish priest (or Ordinary) of the domicile or quasi-domicile or month's residence of either contracting party, unless a grave necessity intervenes which excuses from seeking permission.⁶¹

The parish priest indeed always assists validly at marriages in his territory, but acts illicitly unless a) either contracting party has a domicile or quasi-domicile or month's residence there; or b) unless there is question of travelers actually journeying; or c) grave necessity intervenes. But if he nevertheless assists at the matrimony, he does not make the stole fees his own and is bound in justice to remit them to the proper parish priest of the contracting parties,⁶² even before a declaratory sentence, and indeed to the proper parish priest of the bride, unless legitimate particular statutes decree otherwise. Stole fees are that tax which is owed according to diocesan law to the priest who assists at the matrimony; they do not, however, include the Mass stipend and other gifts perhaps offered.

⁵⁶ Thus the Code of Canon Law, can. 1097, § 1, n. 2.

⁵⁷ Thus from Roman law, L. 7, C. X, 40 (39); cf. Voetius, Ad Pandectas, l. 5, tit. 1, n. 92. Canonists, for example, Reiffenstuel, In tit. De foro competenti, n. 16 ff., receive and explain this definition. Therefore for a domicile it is required that someone establish his household there, that is, the center of private and domestic life; and consequently he does not acquire a domicile in a place or places where he has workshops alone. Cf. the Paris case in Act. Ap. Sed. III, 326 ff.

⁵⁸ Cf. Benedict XIV, Instruction 33.

⁵⁹ Code of Canon Law, can. 92.

⁶⁰ Ibid., can. 94, § 3.

⁶¹ Thus the Code of Canon Law, can. 1097, § 1, n. 3.

⁶² Ibid., § 3.

n. 768.

768. 4. The parish priest of the bride (if she is Catholic), regularly speaking, should assist at the matrimony to be celebrated, unless some just cause excuses.⁶³

But any reasonable cause, even if not so grave, suffices for the parish priest of the bridegroom (by reason of domicile, quasi-domicile, or month's residence) licitly to assist at the celebration of the matrimony. The reason is that the new law, treating valid and licit assistance with such breadth, cannot fittingly be so severe concerning an accidental point. Hence if the parish priest of the bridegroom assists at the matrimony, he is not bound to return the stole fees received to the parish priest of the bride,⁶⁴ unless particular law establishes otherwise. - If the bride has several proper parish priests, for example, by reason of domicile or quasi-domicile, she can choose from among them the one whom she prefers.

⁶³ Ibid., § 2.

⁶⁴ Thus also Noldin-Schmitt, De sacr.¹⁷, n. 639, and authors commonly.

n. 769.

769. 5. The permission of the local Ordinary (or his delegate) where the matrimony is contracted must be sought if vagabonds desire matrimony.⁶⁵

By the name of vagabonds in this matter are understood all and only those who, at the time the matrimony is to be celebrated, nowhere have a proper parish priest or Ordinary by reason of domicile or quasi-domicile.⁶⁶ But those who have only a diocesan domicile or quasi-domicile are equivalent to vagabonds in relation to the parish priest.⁶⁷ Therefore travelers, or those who have lived for a month in some parish, are not vagabonds in this matter and must contract matrimony before the parish priest either of the domicile, of the quasi-domicile, or of the place of the month's residence.⁶⁸ - In a case of necessity, for example, if a merely civil matrimony is feared or if the vagabonds are actually journeying,⁶⁹ the parish priest can assist at the matrimony of vagabonds without the permission of the Ordinary. But authors do not agree whether this permission of the Ordinary is required if only one or the other party of the contracting parties is a vagabond. Vogt⁷⁰ and Noldin-Schmitt⁷¹ affirm it; Leitner⁷² denies it. The affirmative opinion seems more conformable to the mind of the law, because the same reason of law exists whether both or either one of the contracting parties is a vagabond.

You will resolve. From those things said thus far, the following case, which can frequently occur, is easily solved: Two persons about to marry, living in Fribourg, wish to contract matrimony in the church of the Friars Preachers in Düsseldorf before a Dominican religious who is the bride's natural brother. In order that this matrimony can be validly and licitly celebrated, it is required that the parish priest of Fribourg grant permission to assist to the parish priest in whose parish (or to the archbishop in whose diocese) the church of the Friars Preachers in Düsseldorf is situated. But that parish priest (or archbishop) can then delegate the Dominican religious. The parish priest of Fribourg cannot directly delegate the Dominican religious, because outside his territory not even he himself can assist at the matrimony of his own parishioner.

⁶⁵ Thus the Decree Ne temere, V, § 4; Code of Canon Law, can. 1032.

⁶⁶ Sacred Congregation of the Sacraments, March 12 (13), 1910, ad 5 (Acta Ap. Sed. II, 195). The doctrine concerning the matrimony of vagabonds does not seem to have been changed in the Code of Canon Law, although canons 91, 1032, and 1097, § 1, nn. 2 and 3, cause some difficulty.

⁶⁷ Code of Canon Law, can. 94, § 3.

⁶⁸ Noldin-Schmitt, De sacr.¹⁷, n. 641, teaches that a month's residence alone does not suffice for someone to cease being a vagabond (in this matter).

⁶⁹ Code of Canon Law, can. 1097, § 1, n. 3.

⁷⁰ Das kirchl. Eherecht, 65, note 3.

⁷¹ Noldin-Schmitt, loc. cit., n. 641.

⁷² Lehrb. des kirchl. Eherechtes, 296.

n. 770.

770. Scholion. On the sacred ceremonies to be observed in the celebration of matrimony. Although the priest is not the minister of the sacrament of matrimony, nevertheless it is always fitting that those about to marry seek the blessing of the priest. The Code of Canon Law, can. 1100, therefore establishes: "Outside a case of necessity, in the celebration of matrimony the rites prescribed in ritual books approved by the Church or received by praiseworthy customs are to be observed." Wherefore spouses who validly and licitly entered matrimony in places where a legitimately delegated priest could not be had for a month are also bound afterward, at an opportune time, to seek the nuptial blessing from a priest. This can fittingly be done when they cause their names to be inscribed in the parochial book of marriages.

n. 771.

771. The nuptial blessing is distinguished as twofold: one simple, which is contained in the Roman Ritual, "The Rite of Celebrating the Sacrament of Matrimony";⁷³ the other solemn, which is contained in the Missal.⁷⁴

a) The solemn blessing consists in three prayers, of which two are said after the Pater noster, but the third after Ite, missa est or Benedicamus Domino. It is not lawful to give this solemn blessing outside Mass,⁷⁵ unless an altogether special privilege is possessed, such as was conceded to the Diocese of Eichstätt on September 1, 1838, and February 5, 1865. Concerning this blessing the Holy Office established on August 31, 1881:⁷⁶ "The nuptial blessing which the Roman Missal sets forth in the Mass for bridegroom and bride must always be imparted in the marriages of Catholics, but within the celebration of Mass according to the rubrics and outside the forbidden time, to all those spouses who did not obtain it when contracting matrimony for any cause whatsoever, even if they seek it after they have already lived long in matrimony, provided that the woman, if a widow, did not receive that blessing in other nuptials. Moreover, the same Catholic spouses who did not obtain the blessing of their matrimony are to be exhorted to seek it at the first opportunity." From these words (which agree with the statutes of the Code of Canon Law, cann. 1101, 1102, 1108, 1143), it follows that the solemn nuptial blessing cannot be given: a) if the woman already received it in another matrimony;⁷⁷ b) if the matrimony is celebrated during a closed time, unless permission of the Ordinary is present;⁷⁸ c) if the matrimony to be celebrated is mixed.⁷⁹ The celebration of a mixed matrimony will be treated specially below. - The spouses are also to be exhorted to communicate at the nuptial Mass.

b) The simple blessing, which is contained in either the Roman Ritual or a duly approved diocesan ritual, must be given in a church or in a public or semi-public oratory, but not in a private house, nor in churches or oratories of a seminary or of women religious, except with the permission of the bishop.⁸⁰ In many places, for reasonable causes, the simple blessing alone is imparted to those about to marry. It belongs to the bishop to judge whether the custom of omitting the solemn nuptial blessing is to be permitted. - The Roman Ritual⁸¹ adds: "Moreover, if in any place other praiseworthy customs and ceremonies are employed in celebrating the sacrament of matrimony, it is fitting that they be retained." It must be noted, however, that only praiseworthy customs can be retained; hence customs redolent of paganism, superstition, or indecency have several times been reproved by the Roman Curia.

⁷³ Tit. 7, c. 2.

⁷⁴ Mass for bridegroom and bride.

⁷⁵ Cf. Sacred Congregation of Rites, February 12, 1909 (Acta Ap. Sed. I, 255).

⁷⁶ Collect. de Prop. Fide, n. 1557.

⁷⁷ Code of Canon Law, can. 1143.

⁷⁸ Ibid., can. 1108, § 3.

⁷⁹ Ibid., can. 1102.

⁸⁰ Ibid., can. 1109.

⁸¹ Tit. VII, c. 2, n. 6.

n. 772.

772. c) Matrimony itself (with the simple blessing and the proclamations previously made) can be contracted at any time of the year; but the solemn nuptial blessing is forbidden from the first Sunday of Advent through the day of the Nativity of the Lord inclusive, and from Ash Wednesday through Easter Sunday inclusive. Nevertheless, local Ordinaries, with the liturgical laws preserved, can permit it even in the aforesaid closed times for a just cause, after admonishing the spouses to abstain from excessive external pomp, such as dances and great and sumptuous nuptial banquets.⁸²

⁸² Cf. Code of Canon Law, can. 1108, and, as regards the liturgical laws, Sacred Congregation of Rites, June 14, 1918 (Acta Ap. Sed. X, 332).

Vol. III, Pt. II, Tr. X, Ch. VIII, Art. II, § 2. The Valid and Licit Extraordinary Celebration of Matrimony

n. 773.

773. 1. In danger of death, if the parish priest or local Ordinary or a priest delegated by either cannot be had or approached without grave inconvenience, matrimony can be contracted validly and licitly before only two witnesses.⁸³

Explanation. It is said 1: in danger of death, that is, of at least either contracting party. Death is imminent when sufficient time probably is not present for entering matrimony in the ordinary manner before the parish priest or the one supplying his place. Therefore, even when death is at hand, the parish priest or his substitute is to be summoned if this can morally be done. - It matters nothing whether death is imminent from grave illness or from another cause, for example, because of the danger of shipwreck, war, and so forth.⁸⁴ - It is said 2: if the parish priest ... cannot be had without grave inconvenience. Any grave impossibility of summoning the parish priest or of seeking due delegation suffices. It is said 3: matrimony can be contracted validly and licitly. Therefore a celebration of matrimony of this kind is not only valid but also licit; nevertheless, both the witnesses and the contracting parties themselves are bound jointly and severally to take care that the matrimony contracted is duly noted in the book of marriages and of baptisms.⁸⁵ - It is said 4: before only two witnesses. Therefore, for the validity of matrimony in danger of death, when the parish priest or Ordinary or duly delegated priest cannot be had, it is not required that another priest be summoned; for two lay witnesses suffice for validity. Nevertheless, if another priest who can be present is available, he must be summoned so that together with the witnesses he assist at the matrimony.⁸⁶ Such a priest can also dispense both from the form to be observed in the celebration of matrimony (that is, from the presence of the witnesses) and from all impediments of ecclesiastical law, except two.⁸⁷ It is evident of itself that a priest can never licitly assist at the celebration of any matrimony unless it is first established for him that the contracting parties are free. Therefore, if other proofs cannot be had, he should exact from the contracting parties a sworn affirmation that they are baptized and are held by no impediment.⁸⁸

⁸³ Code of Canon Law, can. 1098.

⁸⁴ Therefore this indult extends more broadly than the Leonine indult of February 20, 1888, conceded for the sick alone.

⁸⁵ Decree Ne temere, IX, § 3.

⁸⁶ Code of Canon Law, can. 1098, n. 2.

⁸⁷ Ibid., can. 1044.

⁸⁸ Ibid., can. 1019, § 2.

n. 774.

774. 2. "If the parish priest or Ordinary or delegated priest who would assist at matrimony cannot be had or approached without grave inconvenience ... a matrimony contracted before witnesses alone is valid and licit ..., provided that it is prudently foreseen that this condition of affairs will endure for a month."⁸⁹

Explanation. As regards substance, this law is not new, but even previously matrimony could validly and licitly be entered before two witnesses if it was physically or even morally impossible to approach the parish priest or delegated priest.⁹⁰ The new law, however, establishes that matrimony can then be validly and licitly contracted before witnesses alone if it is morally certain that for a month a competent priest can neither be had nor approached without grave inconvenience.⁹¹ A necessity of celebrating matrimony in this manner can occur, for example, in mission regions where there is a great scarcity of priests; in time of persecution, when priests must conceal themselves; or if Catholic spouses must live in remote places of infidels or non-Catholics, for example, in Russia.

If the parish priest indeed is present but is gravely prohibited by civil law from assisting at matrimony unless a civil marriage has first taken place, which nevertheless cannot be placed first, recourse is to be had in individual cases to the Holy See, which will then decree how the matrimony is to be celebrated.⁹² In danger of death such recourse is not necessary, as was already said in the preceding number.

It is very fitting that matrimonial consent be expressed before some priest (although juridically not competent, but worthy), who can then impart the customary nuptial blessing. If, however, a priest cannot be had, nevertheless some religious ceremony is to be employed according to the Instruction of the Sacred Congregation for the Propagation of the Faith of June 23, 1830: "In such a case the parents should choose two witnesses who, going together with the bridegroom and bride and their relatives to the church of the place, should on bended knees recite in common the customary acts of faith, hope, charity, and contrition, and thus the bridegroom and bride should duly dispose themselves for contracting matrimony. After these things, rising, the bridegroom and bride should express mutual consent by words of the present before the aforesaid witnesses, and after giving thanks to God they should return home. But if they cannot go to the church, the aforesaid things are to be observed in private houses."⁹³ The contracting parties must take care that they are free both from every matrimonial impediment and from mortal sin.

⁸⁹ Code of Canon Law, can. 1098.

⁹⁰ Thus, for example, the Holy Office responded on November 14, 1883: "In places where a parish priest cannot be had, a matrimony celebrated before two witnesses is valid; nevertheless, the burden rests upon the contracting parties of receiving the nuptial blessing as soon as it can be done and of taking care that their matrimony be inscribed in the sacramental register of the mission or of the nearest church to which they are subject." Several similar Instructions are brought forward by Leitner, Lehrb. des kirchl. Eherechtes, 306.

⁹¹ Pontifical Commission, November 10, 1925 (Acta Ap. Sed. XVII, 583).

⁹² Thus the Sacred Congregation of the Sacraments, January 31, 1916. Although nothing is contained concerning this recourse in the new Code, nevertheless it seems to be necessary (for liceity) if it can be made without grave inconvenience.

⁹³ Collect. de Prop. Fide, n. 816.

Sabetti-Barrett, Compendium of Moral Theology

Aloysius Sabetti, S.J., and Timothy Barrett, S.J. — 5 passages

Vol. II, Tr. XVIII, Chapter VII. On the Celebration of Marriage

n. 903.

Point II. On the Form of Celebration of Marriage

A clandestine marriage is called that which is contracted without the solemnity required by the Church.

n. 903, Q. 1.

Questions

Question 1. What are the dioceses and places, among us, where the Decree Tametsi was in force de facto, whatever finally may have been the origin and mode of its promulgation?

Resp. This question, which nevertheless regards some fact and not law, was previously wrapped in great obscurity, and diverse responses and opinions for thinking were being circulated. But now, by the work of the Third Plenary Council of Baltimore, it has a clear solution, for the Fathers of this Council, "after the matter had been studiously investigated, came to this opinion," from which it is certainly not licit to recede: "The Decree Tametsi is not in force in the following ecclesiastical Provinces, namely: 1. Baltimore; 2. Philadelphia; 3. New York; 4. Boston; 5. Oregon City; 6. Milwaukee; 7. Cincinnati, except the diocese of Vincennes; 8. St. Louis, except the city of St. Louis itself and certain other places of the same Archdiocese soon to be named; 9. Chicago, except certain places of the diocese of Alton to be cited presently."

"But in the other places of the same United States the decree Tametsi is judged to be in force, namely: 1°. in the whole province of New Orleans; 2°. in the province of San Francisco with the territory of Utah, except that part of the same territory which lies to the east of the Colorado River; 3°. in the province of Santa Fe, except the northern part of the territory of Colorado; 4°. in the diocese of Vincennes; 5°. in the city of St. Louis, and also in the places called St. Genevieve, St. Ferdinand, and St. Charles, of the Archdiocese of St. Louis; 6°. in the places called Kaskaskia, Cahokia, French Village, and Prairie du Rocher, of the diocese of Alton." - Cf. Responses of the Holy See to the Postulates of the Fathers, in the Third Plenary Council of Baltimore, p. cvii. Cf. S. C. d. P. F., 15 April 1901.

n. 903, Q. 2.

Question 2. Were clandestine Marriages of heretics among themselves, or mixed ones, valid where the Tridentine law concerning clandestinity was in force?

Resp. Affirmatively, if however the discussion is of those places to which the Declaration of Benedict XIV was extended, by which in the year 1741 the Supreme Pontiff established that clandestine Marriages entered or to be entered in Holland and in the federated Provinces of Belgium, between heretics or between one heretical party and another Catholic party, are valid. Moreover, this Benedictine Declaration was afterwards extended to several regions of Europe, and as regards us, it had also been extended to several dioceses and places by the work of diverse Bishops; but since, at the time when the last Plenary Council was celebrated, there were still some dioceses to which it certainly had not been extended, and concerning some others there was doubt, the Fathers of the Council requested that, for inducing uniformity, it be extended to all those places, or be declared certainly to have been extended, in which the Decree Tametsi is certainly known to be in force. Moreover, to this petition the response was that this extension was conceded "only" for the dioceses of San Antonio and Galveston and for the Apostolic Vicariate of Brownsville, in which the matter was doubtful. Whence it follows that the Benedictine Declaration had not been in force in the Province of Santa Fe, to which it certainly had not been extended before the aforesaid petition was made. - Cf. Responses of the Holy See, etc., in the Third Plenary Council of Baltimore, pp. cviii and cix. - Feije, de impedimentis Matrim., nn. 306 and following. - Ballerini, note (a), p. 811, and note (a), p. 820. - Kenrick, n. 186. - Nilles, Part 1, p. 224.

n. 903, Q. 3.

Question 3. Who were those who came under the name of heretics, when it was a question of places where the Benedictine Declaration was in force?

Resp. The solution is clear from the following rescript of the Holy Office, 6 Apr. 1859, which could and had to be applied also to other regions besides Holland. - When the doubt had been proposed: "Whether, for the understanding of the celebrated Declaration of Benedict XIV for Holland, the following five classes can be comprehended under the name of heretic: 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 with no or scarcely any instruction in heretical doctrine received, and worship not frequented, although sometimes participated in; 3°. those who, while still children, falling into the hands of heretics, are joined to a heretical sect; 4°. apostates passing over from the Catholic Church to a heretical sect; 5°. those who, born and baptized by heretics, have grown up without having emitted any solemn profession of heresy, and as it were of no religion, etc.? ..." The Sacred Congregation responded: "For the effect of Marriage, those enumerated above are comprehended in the praised Declaration of Benedict XIV." - Cf. Feije, n. 319.

n. 903, Q. 4.

Question 4. What was our special privilege in relation to acquiring quasi-domicile for the effect of contracting valid Marriage?

Resp. "The Eminent General Inquisitors on the day 6 May 1886, the matter maturely considered, issued the following decree: 'At the petition of the Council of Baltimore, supplication is to be made to His Holiness that he deign to decree, in the Confederate States of America, that those transferring themselves from a place where the chapter Tametsi is in force to another place, provided they have stayed there continuously for the space of at least one whole month and have proved the liberty of their state, as is of law, are to be judged to have quasi-domicile there in order to Marriage, without inquiry having to be made concerning the intention of remaining there for the greater part of a year.' - But in the audience of the day 12 May 1886, at the report of R. P. D. Joseph D'Annibale, assessor of the Holy Office, the Most Holy Lord Leo XIII deigned by his authority to hold ratified and to confirm the aforesaid Decree of the Eminent Fathers, anything whatsoever to the contrary notwithstanding." - Cf. Third Plenary Council of Baltimore, p. cix. Revue des Sciences Ecclesiastiques, February 1881, p. 187. - O'Kane, nn. 1021 and following. - Irish Ecclesiastical Record, Nov. and Dec. 1883; and Feb. 1884. - Ballerini, note (a), p. 824, and (b), p. 811. - Nilles, part 1, p. 266.

Concina, Compendium

Daniele Concina, O.P. — 1 passage

Diss. I, Chapter VII — On clandestine matrimony, on the banns, and on the other things which ought to precede matrimony

n. XII.

XII. QUESTION V. Whether for the validity of matrimony two witnesses be required? ANSWER. All affirm it, and that matrimony contracted before the parish priest and one witness is null: because Trent besides the parish priest prescribes two witnesses, who ought to be present with physical and moral presence, and to perceive the consent of each spouse; they ought to be witnesses, and co-witnesses together with the parish priest.

Slater, Cases II

Thomas Slater, S.J. — 57 passages

Slater, Cases II, Matrimony, Case 24. Marriage Before the Registrar · Slater, Cases II, Matrimony, Case 25. A Notable Case · Slater, Cases II, Matrimony, Case 26. General Leave of Parish Priest · Slater, Cases II, Matrimony, Case 28. Subjects of the Law of Clandestinity

Slater, Cases II, Matrimony, Case 24. Marriage Before the Registrar

Patrick, an inhabitant of Dublin, after entering betrothal with Bridget, a non-Catholic, asked the parish priest to obtain a dispensation and celebrate the marriage. He, however, denied that he would do anything in the case. When Patrick heard that priests in England conducted themselves more leniently with regard to mixed marriages, he went with his betrothed to a celebrated place of pilgrimage in England and asked the missionary exercising the care of souls there to celebrate the marriage. The missionary, however, doubts whether he can do anything for Patrick, and while he delays, Patrick contracts marriage before a civil official. Hence it is asked:

What is it to contract marriage “in fraud of the law”?

What is the impediment of clandestinity, and does it bind in England, Ireland, Belgium, and France?

What ought the missionary to have done in the case if he judged that the marriage was to be celebrated?

What is to be said of the validity of the marriage in the case?

Solution

What is the meaning of contracting marriage “ in fraud of the law?”

Theologians are not agreed on the precise meaning of the phrase which occurs in the celebrated decree of Urban

VIII issued Aug. 14, 1627. Some hold that only those who depart from their parish with the principal intention of contracting marriage otherwise than before their parish priest, act in fraud of the law. Others maintain that the mere fact of contracting marriage otherwise than before the parish priest defrauds him of his rights, and so is in fraud of the law which wishes to safeguard them.¹

1 Gasparri, De Matrim., vol. ii, 985.

n. ¶9.

What is the impediment of clandestinity, and does it bind in England, Ireland, Belgium, and France?

n. ¶10.

Clandestinity is the celebration of marriage otherwise than in the form prescribed by the Church. Clandestine marriages were always held to be unlawful by the Church. The Council of Trent made marriage contracted otherwise than before the proper parish priest of one of the parties or his delegate, invalid in places where the decree was published. It was published for all baptized persons in Belgium and France, for Catholics in Ireland, but it was never published in England. The decree Ne temere, Aug. 2, 1907, binds Catholics throughout the Western Church, and annuls marriage contracted otherwise than before the parish priest of the place.

n. ¶11.

What should the missioner in the case have done if he judged that the parties were to be married?

n. ¶12.

He could validly and lawfully have assisted at the marriage if he had procured delegation for himself from the ordinary or parish priest of one of the parties. Otherwise one of them would have had to make himself his subject by acquiring a domicile or at least a quasi-domicile in his parish.

n. ¶13.

What about the validity of the marriage in the case?

n. ¶14.

If the marriage was celebrated before April 19, 1908, it was unlawful but valid if we presume that Bridget was baptized. For Bridget was not subject to the decree Tametsi in Ireland, and might have contracted a valid though clandestine marriage with Patrick there. She kept her freedom when she came to England where the decree was never published.

n. ¶15.

If the marriage was celebrated after April 19, 1908, it was invalid by the terms of the decree Ne temere.

Slater, Cases II, Matrimony, Case 25. A Notable Case

Henrietta, the daughter of Caia, who was French by nationality and retained her domicile in London throughout the entire time to which the case extends, lived for the sake of education in a certain convent of nuns in Paris. A German foreigner who fell in love with her there sought her in marriage. Henrietta promised him marriage and, immediately after her education was finished, left the convent; until the marriage could be celebrated after some weeks, she lived in rooms in a certain inn with her mother, who had come from London for this purpose; finally, the marriage was celebrated before the parish priest of that place. The outcome, however, was unhappy, for because of her husband’s adulteries and cruelty she sought and obtained in a civil court a divorce from the bond. Now, however, Henrietta would like to marry Julius if this is permitted to her by ecclesiastical laws. Hence it is asked:

What is the impediment of clandestinity, and whom does it bind in England and in France?

Who is one’s proper parish priest?

What is required for domicile and quasi-domicile, and where do daughters under parental authority have domicile or quasi-domicile?

What is to be said of the case?

Solution

The first question is answered above, p. 304.

Who is the “ proper parish priest ” of the Tridentine law of clandestinity?

He is the priest in whose parish at least one of the parties who wish to be married has a domicile or quasi-domicile.¹

1 Manual of Moral Theology, vol. ii, 326.

n. ¶9.

What is required for a domicile or quasi-domicile and where have minors a domicile or quasi-domicile?

n. ¶10.

A domicile is acquired by living in a place with the intention of always living there; a quasi-domicile is acquired by living in a place with the intention of living there for the greater part of a year. Minors retain the domicile of their parents or guardians as long as they do not renounce it. They can also acquire a quasi-domicile of their own.²

n. ¶11.

The case. The parents of Henrietta lived in London, while she was educated in a convent in Paris. There she promised to marry a German stranger. After her education was finished Henrietta moved with her mother into a hotel situated in another of the parishes of Paris, and after some weeks she married in presence of the parish priest of this parish. The marriage was invalid if celebrated before April 19, 1908. Henrietta had neither a domicile nor a quasi-domicile in the parish where she married. She retained her London domicile. She was not a vaga, nor was her husband; therefore as the decree Tametsi bound her in Paris, she required the presence of her own parish priest in London or of his delegate in order to contract a valid marriage in Paris. This was not done,

n. ¶12.

‘Ibid., 326 ft.

n. ¶13.

and so the marriage was invalid. In substance the case is that In causa Parisien (Jan. 28, 1899, Analecta Eccles., 1899, p. 15).

n. ¶14.

The marriage would be valid if it were contracted after April 19, 1908, by virtue of the decree Ne temere.

Slater, Cases II, Matrimony, 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:

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

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

What is to be said of the case?

Solution

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

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.

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.

Slater, Cases II, Matrimony, Case 28. Subjects of the Law of Clandestinity

Caius and Caia, Anglicans and joined in marriage for a year, ask Paul, the local parish priest, to receive them into the bosom of the true Church. Paul finds them excellently instructed in the Catholic faith; Caia indeed had been baptized as a Catholic but, because of the death of her Catholic mother, had from infancy been brought up by her father in the Anglican religion; and although they are cousins, they doubt nothing concerning the validity of their marriage. He further asks what he must do so that they may remain in the Church as Catholic spouses. Hence it is asked:

How must one proceed in receiving adults into the Church?