Clandestinity

Vol. II, Bk. III, Tr. VIII, Diss. II, Pt. II, Insofar as It Is a Sacrament, Particularly, Sect. II, Chapter I. On the Juridic Form · Vol. II, Bk. III, Tr. VIII, Diss. II, Pt. II, Insofar as It Is a Sacrament, Particularly, Sect. II, Ch. I, Art. I, § I. Summary Exposition

A clandestine marriage is one that is contracted without the solemnities which are prescribed by the Church, so that a civil marriage before the registrar, a marriage in private, and a marriage before a priest not duly authorized to assist at it, are all clandestine marriages. Such a marriage always was and is gravely sinful, because it is forbidden by the Church on account of the great evils which frequently are the consequence, and because marriage is a sacrament and it should be received with fitting solemnity in the Church. Moreover, the Council of ‘Trent by the decree Tametsi¹ made clandestine marriages invalid in all places where the decree has been published according to the directions therein laid down. These will be best set forth in the words of the Council itself. The Council says: “And that these so wholesome injunctions may not be unknown to any, it enjoins on all ordinaries that they as soon as possible make it their care that this decree be published and explained to the people in every parish church of their respective dioceses; and that this be done as often as may be during the first year, and afterwards as often as they shall judge it expedient. It ordains, moreover, that this decree shall begin to be in force in each parish at the expiration of thirty days, to be counted from the day of its first publication made in the said parish.”

This decree was duly published in the parishes of Catholic countries like Italy, France, and Spain, and consequently in a those countries it bound all baptized persons, Protestant as well as Catholic. In Protestant countries like England, Scotland, and Norway it was not published at all, and bound neither Catholics nor Protestants. In countries like Ireland and Holland it bound Catholics but not Protestants. In these latter countries mixed marriages were declared to be exempt from the decree. This varying discipline led to inextricable confusion, and more marriages were invalid on account of clandestinity than from any other cause. To remedy these evils the Sacred Congregation of the Council issued its decree Ne temere on August 2, 1907, and it began to have the force of law for Catholics in the Western Church on Easter Sunday, April 19, 1908. With a few changes the Code has adopted the provisions of the Ne temere decree, and so now the impediment of clandestinity may be described as follows: Only those marriages are valid which are contracted before the parish priest of the place or the local Ordinary or a priest delegated by either of them and at least two witnesses.

The parish priest and the Ordinary of the place validly assist at a marriage:

(a) Only from the day of taking canonical possession of their benefice or entering upon their office, unless by sentence they have been excommunicated, interdicted, or suspended from office, or declared to be such.

(b) Only within the limits of their territory; and within the limits of their territory they assist validly not only at the marriages of their subjects, but also of such as are not their subjects.

(c) Provided that not being compelled by violence or grave fear they demand and receive the consent of the contracting parties.

The parish priest and the local Ordinary who can validly assist at a marriage can also grant leave to another priest so that within the limits of their own territory he may validly assist at the marriage (Can. 1094, 1095).

This leave to assist at a marriage ought to be given expressly to a particular priest for a particular marriage, otherwise it is invalid; so that all general delegations are excluded, unless there is question of curates (vicarii cooperatores) for the parish which they serve.

The parish priest or the local Ordinary should not grant this leave unless everything has been done which the law requires for the proof of the freedom of the parties to marry (Can. 1096).

Moreover, the parish priest or the local Ordinary assist lawfully at a marriage:

(a) When they are satisfied according to law as to the freedom of the parties to marry.

(b) When, moreover, they are satisfied as to the domicile or quasi-domicile or of a month’s stay, or, if there is question of a homeless person, of the actual staying of one of the contracting parties in the place of marriage.

(c) If the conditions just mentioned be wanting, the priest must have the leave of the parish priest or of the local Ordinary of the domicile or quasi-domicile or month’s stay of one of the contracting parties, unless there is question of homeless persons who are moving about and staying nowhere, or there is a grave necessity which excuses from asking leave.

In all cases let it be the rule that marriage be celebrated before the parish priest of the bride unless there be some good reason to the contrary.

A parish priest who assists at a marriage without the required leave has no right to the stole fee, and he should send it to the proper parish priest of the contracting parties (Can. 1097).

If a parish priest or a local Ordinary or a priest delegated by one of them cannot be had or approached without serious inconvenience to assist at marriage:

(a) In danger of death marriage contracted before witnesses alone is valid and lawful; and also at other times provided that a prudent judgement be formed that the same state of things will last for a month.

(b) In both cases if there is another priest who can assist he ought to be called and assist at the marriage, but if this is not done the marriage before witnesses alone is valid (Can. 1098).

All who have been baptized in the Catholic Church are bound to observe this form of marriage, as well as all converts to it from heresy or schism; even though they afterwards fall away from it. All these are bound to observe the form laid down even when they contract marriage with non-Catholics, or with Catholics of the Oriental rites. But non-Catholics, whether baptized or not, are nowhere bound to observe it when they marry among themselves, nor are those born of non-Catholic parents but baptized in the Catholic Church, who from the age of infancy have grown up in heresy, schism, or infidelity, or without any religion at all, when they contract marriage with a non-Catholic (Can. 1099).

‘Canon 1103 prescribes that when marriage has been celebrated the parish priest or one who takes his place should enter the marriage in the Marriage book as soon as possible. He should also make the proper entry in the Baptism book if either or both of the parties were baptized in his parish, otherwise he must send notice of the marriage to the parish priest of Baptism in order that he may make the entry in the Baptism book.

When marriage has been contracted in case of necessity without the presence of the parish priest or his delegate, if another priest was present, he and the witnesses are jointly and severally bound with the contracting parties to see that the entries of the marriage are made in the proper books as soon as possible.

¹ Sess, xxiv, c. 1, de ref. Matr.

Wouters, Manual of Moral Theology

Ludovicus Wouters, C.SS.R. — 2 passages

Vol. II, Bk. III, Tr. VIII, Diss. II, Pt. II, Insofar as It Is a Sacrament, Particularly, Sect. II, Chapter I. On the Juridic Form

Vol. IV, On Marriage, III. On the Impediments of Marriage · Vol. IV, On Marriage, IV. On Dispensation from Impediments and Revalidation 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, Pt. II, Insofar as It Is a Sacrament, Particularly, Sect. II, Ch. I, Art. I, § I. Summary Exposition

n. 734.

The ordinary juridic form, required for the validity of marriage, is that it be contracted before the pastor or local Ordinary or a priest delegated by either of them, and at least two witnesses (canon 1094). But the presence of those assisting must be simultaneous, physical, and moral. It is said:

I. That it be contracted before the pastor or local Ordinary or a priest delegated by either of them. Now:

Under the name of pastor here come:

a) The priest to whom a parish has been conferred as a title, with the care of souls to be exercised under the authority of the local Ordinary (canon 451, § 1).

b) The actual parochial vicar, who supplies the place of the moral person to whom habitual care belongs (cf. canon 471).

c) Quasi-pastors, who govern quasi-parishes.¹

d) Chaplains of soldiers, whether major or minor, insofar as they are equated with pastors; this is gathered from the particular prescriptions of the Holy See (canon 451, § 3).

e) Chaplains or rectors of pious places of any kind exempt from parochial care, provided that full parochial power has been committed to them, are counted as pastors, but only for the persons entrusted to them and in the place over which they preside.² The power belongs exclusively to the rector if the place is entirely exempt; otherwise it is cumulative with the pastor of the place (cf. canon 464, § 2).

f) Parochial vicars who are furnished with full parochial power, namely:

alpha) A substituted vicar holding the place in all things of a pastor absent for more than a week, approved by the Ordinary (canon 465, §§ 4 and 5; canon 474). The substitute, if he is the vicar of a religious pastor, must also be approved by the religious Superior, but this is not required for the validity of assistance.³

beta) A supplying priest who takes the place in all things of a pastor departing for a sudden and grave cause for more than a week (canon 465, § 5; canon 474),⁴ but not a supplying priest of a pastor departing for a shorter time.

gamma) A supplying priest designated by the Ordinary and exercising in all things the place of a pastor who, by sentence, is to be deprived of the benefice, but who has recourse to the Holy See (canon 474; canon 1923, § 2).

delta) A vicar administrator, namely one constituted when a parish is vacant, formerly called deservitor (canon 472, 1°).

epsilon) A vicar cooperator, the first or the older in office, or the nearer pastor; likewise the superior of the house who, before the appointment of an administrator, meanwhile assumes the governance of the parish, unless provision has been made otherwise (canon 472, § 2).

eta) An assistant vicar constituted by the local Ordinary who supplies in all things the place of a pastor unequal to duly carrying out his duties (canon 475).

Note 1. A vicar cooperator, of whom canon 476 speaks, of himself does not come under the name of pastor, although he enjoys general delegation. For, as is clear from the terms themselves, he is without the power proper to a pastor, that is, ordinary power, and has only delegated power.

Note 2. In mission regions where there are not quasi-parishes, all missionaries are cooperators of the Vicar or Prefect, and therefore with his delegation, whether general or particular, they can validly and licitly assist at marriage.⁵

Note 3. In mission regions where several missionaries divide some part of the territory among themselves into distinct stations, which they administer under one Superior of the central station, that superior is not held as quasi-pastor of the whole territory unless the care of souls of the whole district is truly and immediately committed to him.

Under the name of local Ordinary in law come, unless someone is expressly excepted, besides the Roman Pontiff, each for his own territory: the residential Bishop, Abbot or Prelate nullius and their Vicar General, Administrator, Vicar and Prefect Apostolic, and likewise those who, when the aforesaid are lacking, succeed meanwhile in governance by prescription of law or by approved constitutions (canon 198).
A priest delegated by either of them; concerning these, particular mention is made in n. 737 sq.
And at least two witnesses. Now:

a) As regards validity, persons of any kind can be taken as witnesses, provided they actually enjoy the use of reason and are capable of testifying. Nor does canon 1757, § 1 stand in the way, since it indeed excludes the impubescent, but speaks only of witnesses in judgment. Heretics, excommunicated persons, and infamous persons are not licitly employed. Particularly with regard to heretics, the Holy Office⁶ declared "that they are not to be employed; nevertheless they can be tolerated by the Ordinary for a grave cause, provided scandal is absent."

b) Neither for validity nor of itself for liceity is it required that the witnesses designated have been warned beforehand or asked about the marriage to be contracted. Practically, however, they should be determined and asked before the marriage, because after the nuptials have been entered their names must be recorded by the pastor. The fact that the witnesses are forced does not impair validity.

c) It does not seem to be required that witnesses be formally assumed, in other words, that the contracting parties employ them as such, or at least contract conscious of their presence; rather it suffices that the witnesses can testify to the marriage contracted. For this opinion is favored both by the text of the law, which requires only that the marriage be contracted before witnesses, and by its end, which is that witnesses can testify to the contract of marriage. This end is indeed obtained even through witnesses who have not been formally employed. There is added the response of the Sacred Congregation of Propaganda Fide.⁷

II. The presence of those assisting must be simultaneous, physical, and moral. It is said:

Simultaneous. For it is required that all be able to testify to one and the same act of marrying. Moreover, that a presence of this kind is required is sufficiently signified by the words: "Before the pastor... and at least two witnesses."
Physical or bodily. For it is established that the marriage must be contracted "before the pastor and at least two witnesses." But physical presence is not constituted by communication set up by means of telephone or telescope.
Moral, or such that at least from the circumstances they perceive that marriage is being contracted between these persons. This can be done even if someone lacks hearing or sight, but not if he is deprived of both sight and hearing.

¹ Parts of an apostolic vicariate and apostolic prefecture, if a particular rector has been assigned to them, are called quasi-parishes (canon 216, § 3). But the erection of a quasi-parish is made by decree of the Ordinary, in which the limits of the territory are clearly described; and once it has been constituted, the rights and obligations of the quasi-pastor immediately arise.

² Sacred Congregation of the Council, February 1, 1908, ad X.

³ Cf. Pontifical Commission, July 14, 1922, V, ad 1-3 (A.A.S. 1922, p. 527).

⁴ Cf. Pontifical Commission, July 14, 1922, V, ad 4 (A.A.S. 1922, p. 527).

⁵ Sacred Congregation of Propaganda Fide, July 25, 1920.

⁶ August 19, 1891.

⁷ July 2, 1827, ad II (Collectanea, n. 794).

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. — 6 passages

Vol. IV, On Marriage, III. On the Impediments of Marriage

n. 991.

Who can dispense in impedient impediments? - No one can dispense, except the Supreme Pontiff and from a just cause, from an impediment arising from valid betrothals, since in this matter there is question of a strict debt of justice, which no one besides the supreme Prince can take away. The same must be said concerning the necessity of the consent of parents, which is to be referred back to natural law; nevertheless this naturally ceases if the parents dissent unjustly. - Bishops, or Ordinaries, Pastors of souls, enjoying full jurisdiction in the external forum, can dispense 1. in the obligation of banns; 2. as regards the contract during forbidden time, where custom also interdicts this; 3. in a vow of temporary chastity, and of virginity or of not marrying. - But they cannot dispense 1. as regards a vow of perpetual chastity; 2. as regards a vow of entering Religion; 3. as regards the impediment of disparity of worship between Catholics and heretics; 4. as regards clandestinity, or marriage to be contracted in the face of the Church; 5. as regards the solemnities of nuptials, S. R. C., August 14, 1858, Mont. Alb., ad 2; 6. as regards proof of free state. For these impediments are reserved to the Pope. - Regulars by their privileges are able to dispense merely for the internal forum in a vow of virginity, or of not marrying; for they have the same power of dispensing from vows in the internal forum which belongs to Bishops by ordinary right, according to the common opinion of the doctors. L. 987, 1119, 1128; Benedict XIV, Instr. 80, n. 15; Sanchez, l. 1, d. 61.

n. 1026.

What was clandestinity of marriage formerly, according to the Council of Trent? Besides the thing, the cause, and consent, in marriage its solemnities are to be considered, namely that extrinsic form of marriage by which marriage as a contract is validly effected, and by which the sacrament is entered holily. Hence another impediment of marriage arises, namely clandestinity. We set forth here first those things which had to be observed from the preceding law, both because they can still serve practice and because they serve for an adequate knowledge of canon law. Afterwards we will set forth those things which are to be observed under the present law now in force.

A clandestine marriage is called that which is contracted without the solemnity required by the Church, i.e., without the assistance of the proper pastor and at least two witnesses. This impediment is of ecclesiastical law alone, since it was constituted by Trent, sess. 24, chap. 1, de R. M.

Here the proper pastor is the pastor of domicile or quasi-domicile, Benedict XIV, Const. Paucis abhinc; Collectanea S.C. de Propaganda Fide, n. 1409, not likewise of origin, unless perhaps someone has a domicile there; and as regards wanderers, the pastor of the place in which they are when they contract, although only one of the spouses is a wanderer. L. 1089. If someone has domicile in two places, or domicile in one and quasi-domicile in another, he can contract before any of these. But the proper pastor is that of either the bridegroom or the bride in his own parish. Indeed, "the pastor of the man suffices even in the parish of the woman, because marriages are matters of voluntary jurisdiction, and because the Council expressed nothing concerning place, and because the Council seems to have wished the presence of the pastor and witnesses for removing only clandestinity, for which one pastor, whether of the man or of the woman, suffices." Sacred Congregation apud Fagnan, in C. Quod nobis, de Clandest. despons., n. 33; Barbosa, de Offic. parochi, part 2, chap. 21, n. 45; Benedict XIV, Notification 33, n. 5 ff.; Quaest. Can., 182; L. 1087. Pastor; the marriage is equally valid if it is contracted before the Bishop or his Vicar General, Benedict XIV, Quaest. Can., 182, or, while the See is vacant, before the Capitular Vicar. Cardinals also have the faculty of assisting at marriages, each in his own Title, and pontifical Legates in the provinces entrusted to them. For Cardinals in their Titles are Ordinaries and have episcopal jurisdiction; and likewise pontifical Legates, whether ordinary or extraordinary, whether a latere, whether merely sent, or even born, have ordinary jurisdiction in the provinces entrusted to them. Ferraris, v. Matrimonium, a. 3, nn. 12, 20, 45; v. Cardinales, a. 3, nn. 12, 20; v. Legatus, nn. 12, 45. Pastor; a pro-pastor also validly assists, or vicar, who from the Ordinary or from the pastor himself has absolute, full, and unrestricted power in the parish. Benedict XIV, de Syn., book 13, chap. 23, n. 1.

Since the pastor is present as a qualified, authorized witness, no power of order or jurisdiction is needed. Therefore he is licitly present even if he is only a cleric; and validly even if he is suspended, irregular, excommunicated, vitandus, or non-Catholic, schismatic, even if the Bishop has prohibited this to him. The same must be said of the Vicar General if, against the prohibition of the Bishop, either he himself assists at the marriage, or gives to some priest the faculty of assisting. The same pastor is validly present, although he is falsely pastor, if he has a colored title and by common error is reputed pastor; and more probably even if only common error is present, without a colored title. The pastor is validly present even in another's territory, even against the will of the pastor or Ordinary of that place, although he cannot solemnly bless the marriage. He can likewise delegate another, provided that he delegates a priest, not a deacon, and validly any priest whatever, even a vitandus. Not a deacon, unless perhaps by common error he is held as a priest. Sanchez, book 3, disp. 22, n. 61. General delegation also suffices, even tacit or extorted by fear, but not presumed, e.g., for exercising parochial duties. But a vice-curate also can delegate another, since he himself is delegated for the universality of causes. Ferraris, v. Matrimonium, a. 2, nn. 179-181.

It makes no difference if the pastor and witnesses are present by chance, fraud, or induced by force. For it suffices that they know what is being done, whether from words, if they are blind and recognize the voices of the contracting parties, or from signs, if they are deaf, or through an interpreter, if they are ignorant of the language. Therefore the marriage is valid even if the pastor pretends that he does not hear, stopping his ears with his fingers, that he does not see, closing his eyes, or that he does not understand, provided that in reality from antecedent and consequent acts he has perceived the consent of the parties; if, for example, he did not at all hear the voice of the bride or bridegroom, but saw the bridegroom holding the bride by the hand, Sacred Congregation of the Council, January 12, 1715, or handing her a ring, Sacred Congregation of the Council, November 28, 1671. For it suffices that all be morally present as witnesses, who must give testimony concerning the matter performed. Benedict XIV, de Syn., book 13, chap. 23; L. 899. For the validity of marriage any witnesses whatever suffice, whether men or women, even parents, nuns, unbelievers, whether adults or minors, provided they have the use of reason and are able to testify concerning the contracted marriage.

If marriage is contracted by proxy or by letters, the marriage is valid when the declaration of marriage is made by the proxy before the pastor and witnesses, or when the letters of each contracting party are read before the pastor and witnesses.

Domicile and quasi-domicile here are to be reckoned by Canon Law, not Civil Law, namely by the intention of dwelling in a place, i.e., in a parish, and not only in a diocese, perpetually or for the greater part of a year. Nor indeed is the fact itself of habitation for the aforesaid time needed, but as soon as one has come into that place, he acquires domicile or quasi-domicile and validly contracts.

But it was declared for the United States of America that habitation for the space of at least one month suffices, and inquiry need not be made concerning the intention of remaining in the place for the greater part of the year. Holy Office, May 6, 1886. This Declaration for the United States of North America, May 6, 1886, concerning sufficient residence of one month for the validity of marriage, without inquiry needing to be made concerning the intention of remaining there for the greater part of the year, was extended to the Archdiocese of Paris. Holy Office, May 20, 1905, A.S.S., vol. 38, p. 210. As regards students, young men, girls in colleges and monasteries, foundlings, and the sick in hospitals, if they are to remain in that place for the greater part of the year, the proper pastor of quasi-domicile is not the rector, confessor, or chaplain of the college, monastery, or hospital, but the pastor in whose parish the college, monastery, or hospital is situated. Likewise as regards servants, the proper pastor is the pastor in whose parish the masters whom they serve have their domicile, although perhaps in the same city or town the servants themselves have a house and domicile. Persons detained in prisons, whose case has not yet been concluded and for whom the prison is only a place of custody, must be joined in marriage by the pastor of their proper domicile or quasi-domicile. But if their case has been concluded, and they have been condemned perpetually or for a determined time, and the prison is a place of punishment, then their proper pastor is the one in whose parish the prison is situated. Benedict XIV, Notification 33, 88; Pirhing, book 3, tit. 28, § 1, n. 12; Ferraris, v. Moniales, a. 1, n. 36; Lugo, Responsa Moralia, book 1, disp. 35, 37; D'Annibale, 457.

Clandestine marriages are altogether invalid in all places where the Decree of the Council has been promulgated, and, in doubt, where at some time it was observed in the parish as the Decree of the Council. Sacred Congregation of the Council, January 18, 1663. Indeed Trent renders those contracting clandestinely incapable of henceforth contracting thus, i.e., without pastor and witnesses. Therefore those also contract invalidly there who, both spouses or only one of them, have domicile or quasi-domicile in places where Trent is not in force.

But they are not invalid in places where this promulgation, whether culpably or inculpably, was omitted; or where the Decree went into desuetude, although only one of the spouses has domicile or quasi-domicile there, while the other has domicile or quasi-domicile in a place where Trent is in force, because of the indivisibility of the contract. Benedict XIV, de Syn., book 6, chap. 6, n. 12; Clement XIII, 1762, to the Archbishop of Mechlin; Collectanea, cited, n. 1400. Therefore in these places the marriage called civil is ratified. In the same places the marriage is valid of those who have domicile or quasi-domicile in a place where Trent is in force, unless they came to that place in fraud, i.e., with the sole intention of contracting marriage without pastor and witnesses; but by no means if they also had first acquired domicile or quasi-domicile there; for then their marriage is valid. Sacred Congregation of the Council, September 5, 1626; Urban VIII, Brief to the Archbishop of Cologne, August 14, 1626; Benedict XIV, Const. Paucis abhinc annis, Notification 33. Indeed the more common opinion held that the marriage is also valid of those who, having domicile or quasi-domicile in a place where Trent is in force, come to another place where Trent is not in force, without the intention indeed of acquiring domicile or quasi-domicile, but at the same time without the intention of contracting clandestinely, if afterwards they contract clandestinely there. Nevertheless the decisions of the Sacred Congregation of the Council and of the Holy Office are now contrary to this, by which it has been declared that the Tridentine law is at once local and personal; and also because in the external forum fraud is presumed from the very fact. Cf. Sacred Congregation de Propaganda Fide, June 7, 1867, n. 1407; A.S.S., vol. 36, p. 222 ff.

Finally, the marriages are invalid of those who, having and retaining domicile where the Tridentine decree has not been promulgated, come into a place where it has been promulgated and contract there without any pastor or witnesses, or even before witnesses and the pastor of this place. For in order that they contract validly there before witnesses and pastor, it is necessary either to acquire domicile or quasi-domicile in that place, or to contract before the pastor of the prior retained domicile, or a priest delegated by him. Sanchez, book 3, § 13, nn. 27, 28, 35; Lugo, Responsa Moralia, book 1, disp. 36; Pontius, book 5, chap. 9, nn. 2, 7; Engel, book 4, tit. 3, n. 20, "I say third"; Barbosa, de Offic. Episc., part 2, alleg. 32, n. 153; Reiffenstuel, book 4, tit. 3, n. 123; Verricelli, tract de Apost. miss., tit. 15, q. 251; A.S.S., vol. 32, p. 419.

A marriage contracted in the house of the legation of that nation in which the Decree of Trent is not in force is null if the legation is found in the place of a nation in which the Decree of Trent is in force, and the Tridentine form is not observed in that marriage. Holy Office, August 1, 1900.

Clandestine marriages are everywhere illicit and prohibited under grave obligation. For the Church has always detested them, as Trent declares and Benedict XIV clearly shows, de Syn., book 8, chap. 12, n. 4. St. Thomas, Suppl., q. 45, a. 5.

The Tridentine Decree is acknowledged as received in Italy, Spain, Portugal, France, Holland, present-day Belgium, the Grand Duchy of Luxembourg, Austria strictly taken, Ireland, Bavaria, etc. But it was not received in England, Scotland, Sweden, Saxony, Denmark, Prussia strictly so called, and several federated Provinces of Switzerland, etc. Cf. Perrone, de Matr., book 2, sec. 1, chap. 6; Zitelli, Apparatus Iur. eccles., book 2, chap. 2, a. 7, list of places, etc.; Ferraris, Supplement, v. Matrim. clandest.; Collectanea S.C. de Propaganda Fide, nn. 1387, 1392, 1399, 1402, 1408, 1412.

Lastly Benedict XIV issued a Declaration on November 4, 1741, in which he established that clandestine marriages, entered or to be entered in Holland and in the federated Provinces of Belgium which had previously been subject to Spain, between heretics, or between one heretical party and the other Catholic, are valid. But he established nothing concerning marriages of Catholics among themselves. Indeed Benedict XIV expressly declared that that disposition in no way regards Catholics. "Let them know," he says, "that unless they have celebrated nuptials before a Catholic minister and two witnesses, they will never be true and legitimate spouses either before God or before the Church." Letter of September 17, 1746, to Simon, Missionary in Holland, § 3, Bullarium, vol. 3, Supplement, n. III; see also de Syn., book 6, chap. 7. L. 1078 ff.; Pontius, book 5; A.S.S., vol. 23, p. 751; E.M.

n. 1027.

Note: The Benedictine Declaration cannot be extended to other provinces or dioceses without the judgment of the Holy See. Pius VII to the Vicar of the Diocese of Trier, April 23, 1817. For that Declaration was not made by reason of law, because those marriages were marriages of heretics and heretics are exempt from the Decree of Trent, but by a special reason of fact, from the condition of times and places, and because there was very great doubt in those provinces concerning the promulgation of the Tridentine Decree, and at the same time marriages of this kind were judged valid. And thus on the island of Malta it was declared that marriages of heretics among themselves are valid, but mixed marriages are not valid when the Tridentine form is not observed. Holy Office, June 3, 1892; otherwise than was declared for Holland and the federated Belgian provinces. Therefore by the aforesaid Declaration the question is in no way settled: whether marriages of heretics and mixed marriages entered without pastor and witnesses are valid or invalid in places in which Trent was promulgated, and in which, when heretics came together into a heretical society, heretical parishes came into the place of Catholic ones. For the question can only be about these; since where heretics live together with Catholics and do not form a separate society, whether they have a civil status, their own churches and ministers, or not, they are bound by the Tridentine form, and they must contract marriage before a Catholic pastor and witnesses where the Tridentine Decree is in force. But in those places in which heretics had already, at the time of the publication of the Tridentine decree, coalesced into a separate and self-subsisting community or quasi-parish, they were not comprehended by the Decree published in Catholic parishes. Holy Office, March 18, 1884; cf. Collectanea, cited, nn. 1388, 1399, 1404, 1424; E.M.

n. 1028.

What is clandestinity according to present law? Clandestinity in marriage now is had when it is not celebrated in the face of the Church, that is, before the Ordinary of the place or the pastor and two witnesses, or before one delegated by either of them and two witnesses. It renders marriage illicit and invalid. The pastor and the local Ordinary validly assist at marriage only from the day when possession of his benefice has been obtained or office has begun, only within the limits of his territory, and if, invited and asked, without force and grave fear, he asks for and receives the consent of the contracting parties, whether his subjects or not subjects. But he assists licitly when the free state of the contracting parties is established, and when at least monthly residence is established; in the absence of this, the permission of the Ordinary or proper pastor of the contracting parties is needed, grave necessity being excluded. Otherwise, he does not make the stole fees his own and they are to be remitted to the proper pastor of the contracting parties. But the pastor and the local Ordinary can grant permission to another determined and certain priest that he assist at marriages within the limits of his territory. The pastor of the bride regularly assists at the marriage. But when the marriage has been celebrated, its celebration is to be noted in the book of marriages and of the baptized. If there is, in some region, common inability to have the local Ordinary, or pastor, or one delegated by either of them, and this condition of things has lasted for a month, marriage can be licitly and validly contracted before two witnesses.

When danger of death is imminent, where the pastor or local Ordinary or delegated priest cannot be had, marriage can be contracted validly and licitly before any priest and two witnesses. Clandestine marriages of heretics among themselves are valid. Mixed clandestine marriages, as also betrothals, are illicit and invalid. Decree Ne temere of the Sacred Congregation of the Council, August 2, 1907. From this the present law in force is constituted.

Monthly residence is to be attended to only for marriage, and not also quasi-domicile. But one validly contracts marriage who, in fraud of the law, betakes himself to a region from which the pastor or local Ordinary, or priest delegated by them, has been absent for a month.

As regards Catholics of the oriental rite, nothing was changed by the decree Ne temere as regards contracting marriage. Nevertheless the marriage contracted by a Catholic of the Latin rite with a Catholic of the oriental rite is not valid if the form established by the decree Ne temere has not been observed.

Non-Catholics, whether baptized or not baptized, even schismatics and heretics of the oriental rites, are nowhere bound to observe the Catholic form of betrothals and marriage.

Those who have passed over to a schismatic or heretical sect, or who, converted to the Catholic faith, afterwards defected from it, even in youthful or infant age, even in the German Empire, in order to contract marriage validly with a Catholic person, must employ the form established in the decree Ne temere, namely so that they must contract before the pastor and two witnesses.

As regards marriages of those who, born from non-Catholic or unbelieving parents, but baptized in the Catholic Church, afterwards from infant age grew up in heresy or unbelief, or without any religion, whenever they contract with a non-Catholic or unbelieving party, whether they are bound by the decree Ne temere, art. XI, § I, recourse must be had in individual cases. Holy Office, March 31, 1911.

Pastors who have territory cumulatively with another pastor or other pastors can assist at marriage in the cumulatively held territory. A pastor who, in territory assigned to other pastors, has some persons or families subject to him can validly assist at marriage, as regards his own subjects only, everywhere in the said territory. Chaplains or rectors of pious places of any kind exempt from parochial jurisdiction can validly assist at marriages, without delegation of the Ordinary or pastor, as regards the persons entrusted to them, yet in the place where they exercise jurisdiction, provided it is established that full parochial power was committed to them. As regards military chaplains or pastors who have absolutely no territory, nor cumulatively with another pastor, and who exercise jurisdiction directly over persons or families, so that they follow these persons wherever they betake themselves, nothing was changed by the decree Ne temere as regards assistance at marriages of their subjects.

Those dwelling in places of the East Indies in which a double jurisdiction is in force contract marriage validly and licitly before the personal pastor, but by no means before the pastor of the territory. As regards delegation, in relation to marriage, nothing was changed except the necessity of making it to a determined and certain priest, and restricted to the territory of the delegating party. Exempt regular churches, according to the tenor of the decree Ne temere, can and do have power to be considered as the territory of the pastor or Ordinary in whose territorial district they are situated, for the effect of assistance at marriage there. As regards the quality of witnesses, in relation to marriage, nothing was changed by the decree Ne temere.

n. 1029.

Note: From the decree Ne temere an exception is had, unless for some particular place or region the Holy See has established otherwise. Hence in the whole German empire, clandestine marriages of heretics among themselves are valid, as in all other places, but mixed clandestine marriages, although they are also illicit, are nevertheless valid, as is drawn from the following Apostolic letters. Supplement I, E.M., n. 1026.

The Supreme Pontiff Pius X, by the Letters of January 18, 1906, Provida sapientique, declared, decreed, and commanded: "I. In the whole present-day Empire of Germany, the chapter Tametsi of the Council of Trent, although in many places it has not yet certainly been promulgated and introduced either by express publication or by legitimate observance, nevertheless from the feast day of Easter, that is, from the fifteenth day of April, of this year 1906, is to bind all Catholics, even those until now immune from observing the Tridentine form, so that among themselves they can celebrate a valid marriage in no other way than before the pastor and two or three witnesses. "II. Mixed marriages which are contracted by Catholics with heretics or schismatics are and remain gravely prohibited, unless, with a just and grave canonical cause intervening, the legitimate cautions having been fully and formally given on both sides, a dispensation by the Catholic party from the impediment of mixed religion has been duly obtained. These marriages indeed, although dispensation has been obtained, must altogether be celebrated in the face of the Church before the pastor and two or three witnesses, so that those gravely offend who contract before a non-Catholic minister or before only the civil magistrate or in any other clandestine way. Indeed, if any Catholics in celebrating these mixed marriages seek or admit the service of a non-Catholic minister, they perpetrate another delict and are subject to canonical censures. "Nevertheless, mixed marriages in any provinces and places whatever of the German Empire, even in those which according to decisions of the Roman Congregations had until now been subject to the invalidating force of the chapter Tametsi, already contracted without the Tridentine form being observed, or, which God avert, to be contracted in the future, provided that no other canonical impediment stands in the way, and no sentence of nullity because of the impediment of clandestinity had been legitimately pronounced before the feast day of Easter of this year, and the mutual consent of the spouses persevered up to the said day, We will that they be held as altogether valid, and this We expressly declare, define, and decree. "III. But so that a safe norm may be ready for Ecclesiastical judges, We declare, establish, and decree this same thing under the same conditions and restrictions concerning marriages of non-Catholics, whether heretics or schismatics, among themselves in the same regions, contracted until now or to be contracted in the future without the Tridentine form being observed; so that if one or both of the non-Catholic spouses is converted to the Catholic faith, or if in the ecclesiastical forum a controversy arises concerning the validity of the marriage of two non-Catholics connected with a question of the validity of a marriage contracted or to be contracted by some Catholic, those same marriages, other things being equal, are likewise to be held as altogether valid. "IV. Finally, so that this Our Decree may come to public knowledge, We command the Ordinaries of the German Empire to communicate it through diocesan journals and other more opportune ways before Easter day of the current year to the clergy and faithful people."

The exception introduced in Germany by the Constitution Provida, as regards marriage, extended to the kingdom of Hungary, and which is still in force even after the decree Ne temere concerning betrothals and marriage, has force only when both spouses were born in Germany or both were born in the kingdom of Hungary. Therefore one born in Germany with one born in the kingdom of Hungary cannot validly contract a mixed marriage, whether in Germany or in the kingdom of Hungary, without observing the form of the decree Ne temere.

Concerning the marriages of the Christian faithful of the Ruthenian rite in the United States of North America. "Art. XXVII. Marriages between Ruthenian and Latin Catholics are not prohibited; but a Latin husband is not to follow the rite of his Ruthenian wife, nor a Latin wife the rite of her Ruthenian husband. "Art. XXVIII. But if a Latin man has married a Ruthenian woman, it will be open to the woman to pass to the Latin rite, either in the act of marriage or afterwards during the marriage, without being able to revoke the choice once made while the husband is living. "Art. XXIX. When the marriage has been dissolved, a Ruthenian woman who had embraced the rite of her husband will have free power of resuming her own rite. "Art. XXX. To a Ruthenian wife who has preferred to remain in her own rite, nevertheless it will be lawful in fasts and feasts to follow her husband. "Art. XXXI. A Ruthenian man can, if he wishes, follow the rite of his Latin wife, and it will likewise be lawful for him in fasts and feasts to conform himself to the rite of his Latin wife. When the marriage has been dissolved, he will be able to remain in the Latin rite or to resume the Ruthenian rite. "Art. XXXII. A marriage between a Latin man and a Ruthenian woman is to be contracted in Latin before the Latin pastor; but between a Ruthenian man and a Latin woman it can be contracted either in Ruthenian before the Ruthenian pastor, or in Latin before the pastor of the wife. "Art. XXXIII. If each contracting party remains in his or her rite, it belongs to the priests of the respective rite to exercise the office of pastor toward them in the matters which are listed here, namely: in the administration of Easter communion, viaticum, and extreme unction, in assistance at the article of death, in the performing of funeral rites and in burial; except in a case of necessity, "Art. XXXIV. Those born in the United States of America from a Latin father and a Ruthenian mother are to be baptized in the Latin rite; for the offspring must altogether follow the rite of the father, if he is Latin. "Art. XXXV. But if the father is Ruthenian and the mother Latin, it will be free to the same father that the offspring be baptized either in the Ruthenian rite, or even in the Latin rite, if he consents to this in favor of the Latin wife. "Art. XXXVI. Infants belong to the jurisdiction of that pastor in whose rite they were legitimately baptized, since by baptism the profession of the Latin or Ruthenian rite received is made, so that those who were baptized in the Latin rite belong to the Latin rite; but those who were baptized in the Ruthenian rite are to be held among the Ruthenians. "The case is excepted when baptism in a foreign rite was conferred on them because of grave necessity, namely when they were near death, or when in the place in which the parents were staying at the time of birth the pastor of the proper rite was not present; for then they will belong to the pastor of the rite which the parents profess, according to the statutes established above." Pius X, June 14, 1907, Const. Ea semper.

Concerning the marriages of the Christian faithful of the Ruthenian rite in the Canadian Region. "Art. 34. Marriages between Ruthenian and Latin Catholics are not prohibited; but to avoid the inconveniences which usually arise in families from diversity of rites, the wife, during the marriage, can follow the rite of the husband, without a change of her native rite being introduced by this. "Art. 35. When the marriage has been dissolved, the woman can resume her own rite of origin. "Art. 36. Marriages both between faithful of mixed rite and between Ruthenian faithful must be contracted with the form of the decree Ne temere observed. "Art. 37. Nevertheless marriages of mixed rite are to be blessed in the rite of the husband and by his pastor. "Art. 38. Matrimonial dispensations in marriages of mixed rite, if any are to be given or sought, are to be given and sought from the bishop of the bride. "Art. 39. Those born in the Canadian region from parents of different rites are to be baptized in the rite of the father; for the offspring must altogether follow the rite of the father. "Art. 40. Baptism received in a foreign rite because of grave necessity, namely when the infant was near death or was born in a place in which at the time of birth the proper pastor of the father was not present, does not introduce a change of rite. "Art. 41. Infants belong to the jurisdiction of that pastor whose rite is that of their father." Sacred Congregation de Propaganda Fide, August 18, 1913.

Concerning the marriages of the Christian faithful of the Greek-Ruthenian rite in the United States of North America. "Art. 28. Marriages between Greek-Ruthenian and Latin Catholics are not prohibited; but to avoid the inconveniences which usually arise in families from diversity of rites, the wife, during the marriage, can follow the rite of the husband without a change of her native rite being introduced by this. "Art. 29. When the marriage has been dissolved, the woman can resume her own rite of origin. "Art. 30. Marriages both between Greek-Ruthenian faithful and between faithful of mixed rite must be contracted with the form of the decree Ne temere observed, and therefore are to be blessed in the rite of the woman by the woman's pastor. "Art. 31. Matrimonial dispensations in marriages of mixed rite, if any are to be given or sought, are to be given and sought from the bishop of the bride. "Art. 32. Those born in the region of the United States of North America from parents of different rites are to be baptized in the rite of the father; for offspring of each sex must altogether follow the rite of the father. "Art. 33. Baptism received in a foreign rite because of grave necessity, namely when the infant was near death or was born in a place in which at the time of birth the proper pastor of the father was not present, does not introduce a change of rite; and the priest who baptized must send testimony of the baptism to the proper pastor. "Art. 34. Infants belong to the jurisdiction of that pastor whose rite is that of their father, except those born from an illegitimate bed, who follow the rite of the mother." Sacred Congregation de Propaganda Fide, August 17, 1914. "1. Whether, and under what cautions, assent is to be given that the petitioners may be able to contract marriage in the face of the Church, although they cannot fulfill the civil rite? "2. What dispensation concerning the form of celebrating marriage is to be granted, when, by reason of civil law, the pastor cannot assist at the marriage?"

R. "The Catholic pastor, having first established for himself that no canonical impediment intervenes between the contracting parties... may permit them to enter marriage even without his assistance, but nevertheless in the presence of three, or at least two, witnesses of unimpaired faith; and, when marriage has been celebrated in this way, the spouses are bound, as soon as possible, to signify it to the pastor, who is to note it in the marriage register at least secretly, with indication of the day and the names of the witnesses who were present." Sacred Congregation de Propaganda Fide, March 24, 1909, Collectanea, n. 571. "The Ordinary, having first established for himself, even, if there is need, through the sworn attestation of the contracting parties, that no canonical impediment intervenes between them, may permit marriage in the case to be validly and licitly entered without the presence of the pastor, formal consent being emitted by the spouses before two witnesses; with the burden imposed, according to n. IX of the decree Ne temere, on the witnesses jointly and severally with the contracting parties, of seeing to it that the marriage entered be signified as soon as possible to the pastor, who is to note it in the book of marriages at least secretly, with indication of the day and the names of the witnesses who were present. Moreover, the same Ordinary is not to omit exhorting the nupturients to approach the sacrament of Confession and the Most Holy Eucharist with the due dispositions before the celebration of marriage, and moreover he is to see that the same contracting parties bind themselves to fulfill the civil formalities as soon as this can be done; the document of this obligation is to be preserved in the Episcopal Curia." Sacred Congregation of the Sacraments, November 26, 1909.

From the preceding particular decisions it is clear that the faculty was made, in the cases set forth, by the Sacred Congregation itself; and consequently when a similar case of impossibility of civil marriage occurs, recourse must be had to the Sacred Congregation of the Sacraments. Cf. Second Supplement to the Enchiridion Morale, n. 1049, p. 103.

Vol. IV, On Marriage, IV. On Dispensation from Impediments and Revalidation of Marriage

n. 1049.

What about revalidation because of defect of form? It is certain that a marriage invalid by reason of clandestinity must be entered before the pastor and witnesses, formerly according to the law of Trent, now according to the decree Ne temere, from which dispensation is rarely given. If both spouses do not refuse to present themselves before the pastor and witnesses, marriage must be contracted publicly or occultly according as its nullity is public or occult. The reason is that in the first case scandal must be removed, in the other it must be guarded against, and the whole reputation of the spouses must be preserved.

If one party or each refuses to go to the Church, they are to be joined in their own house or another place chosen by them, provided that grave witnesses are present, by whose aid convalidation of this marriage can be made public, if this is necessary for removing scandal, namely if the invalidity of the prior union is notorious. If one refuses to contract before the pastor, and the refusal arises from ignorance or some error against the laws or doctrine of the Church concerning impediments invalidating marriage, the one refusing should be instructed with due prudence and in charity. And insofar as he still refuses to convalidate his marriage in the face of the Church, then one must strive that he constitute a special procurator, who in his name will contract marriage in the customary way; or at least, with express consent de praesenti by letter directed to the proper pastor or to another priest having the license of the Ordinary or pastor, the marriage should be renewed. Cf. 963. If the indisposed party does not wish to contract even through a procurator, one can come to dispensation in the root of the marriage, or to sanation of the marriage in the root, so that at least provision is altogether made for the salvation of the soul of the innocent party, the legitimacy of the offspring, and the tranquility of the families, and so that provision can as soon as possible also be made for the salvation of the soul of the one refusing. Instruction of Cardinal Caprara, Legate a latere in France.

If a marriage was invalidly contracted by reason of clandestinity, and the spouses then go into a place in which clandestine marriage is valid, and there continue conjugal life, the marriage is convalidated if, being conscious of the nullity, they renew consent at least through conjugal copulation. But if they are ignorant of the nullity, or do not attend to it, and conjugal life is continued, the marriage remains invalid, Holy Office, August 31, 1887, because the prior invalid consent always remains, and no new consent independent from the prior one, and altogether necessary, has been added. But this reason for the resolution is not without difficulty, since the consent of the parties is naturally consent, and consent remains in whatever place, and therefore, when the extrinsic impediment of observing the extrinsic form has been removed, the consent which was naturally valid and could not produce its effect while the impediment of the law stood, once this has been removed, produces its effect. And thus, when baptism has been received by unbelievers, their marriage remains and becomes a sacrament, although consent into marriage is not renewed. And so also, by the same consent altogether, and in no way renewed after the nullity of the marriage has become known, a marriage invalid from an occult impediment is sanated in the root. Therefore the reason for the Resolution does not seem to be able to be the invalidity of consent, but rather because from the Council of Trent, sess. 24, chap. 1, de R. M., those who attempt to contract clandestinely are rendered incapable of contracting thus, and therefore even in another place they persevere incapable of contracting clandestinely. C. Propositum 1, de eo qui duxit, etc.; E.M. 859.

Bucceroni, Cases of Conscience

Gennaro Bucceroni, S.J. — 18 passages

154. Clandestinity

Gertrudis, a widow, has until now had domicile under the parish of St. Mary, with the brother of her deceased husband. Wishing to pass to second vows, leaving there her own furnishings, she betakes herself to the paternal home under the parish of St. Nicholas; where, in order that she may make the matter pleasing to her father, she intends to remain; so that after fifteen days, the banns having meanwhile been made, she can be joined in marriage.

It is asked: To which parish priest belongs, in the case, the right of celebrating the marriage?

R. Gertrudis the widow, when she betakes herself to the paternal home, either sincerely has the mind of remaining there and of contracting a new domicile, or she does not have it. - If the first: the celebration of her marriage belongs to the parish priest of the Church of St. Nicholas, under which the paternal house is situated. This is proved by the resolution of the S. C. C., Feb. 20, 1723, which judged valid a marriage contracted by two inhabitants of Cesena, who, in order to avoid the troubles from parents, had secretly fled to Forli, and there had celebrated marriage before the parish priest of St. Blaise, unexpectedly caught up in the matter. Indeed by that principle the Sacred Congregation judged that a marriage of this sort, although clandestine by law, was valid, because the woman had already confirmed by oath that she had come to Forli so that she might remain there with a sincere mind and choose her domicile with her maternal grandmother, who was living under the same parish of St. Blaise and whom she asserted to be her guardian or curator. From this species of fact it is openly evinced that, for the validity of marriage, that parish priest is to be judged proper in whose parish at the time of the contract the contracting parties dwell and to which they have gone so that they might remain there with a sincere mind. - If the second: if namely Gertrudis sought the paternal home not indeed with the mind of contracting domicile there, but with the sole mind of celebrating marriage there, so that namely she might make the matter pleasing to her father, then the celebration of the marriage of the same Gertrudis belongs to the parish priest of St. Mary in such a way that, if it were celebrated otherwise, the marriage would not be valid, just as is expressly had from the S. C. C., Feb. 22, 1631; Cas. Consc. Bonon. Dioec., year 1768, month of July, case 2; I. M. 1026.

n. 2.

Two persons originating from the place Spezzano, but dwelling in the place called Maranello, in the dispensation from the banns obtained from the bishop, erased the word Maranello and substituted Spezzano. The parish priest of Maranello, for that reason, having inspected the document, sent them to Spezzano. But the man, after two children had been received, left the woman and elsewhere married another.

n. 2.

It is asked: Was the first marriage valid?

n. 2.

R. Negatively, because namely it had indeed been celebrated before the parish priest of origin, but not before the parish priest of domicile. S. C. C., Nov. 18, 1702; I. M. 1026.

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.

Paschalis, a priest, by permission of the parish priest, was present at the marriage of Lucius and Lucia. But on the preceding night, the parish priest, seized by a grave illness, had died. Hence, the matter having become known after the marriage had already been contracted, doubt began concerning the validity of such a marriage.

It is asked: What is to be said to the case?

R. If the death of the parish priest was commonly unknown when the marriage was contracted, the marriage was valid. But if it was not commonly unknown, then the marriage was invalid. The reason is that it is a general rule that, the one delegating being dead and the matter still intact, the power of the one delegated for one special and determined act in favor of some determined person perishes. But the case is excepted in which the death of the one delegating is commonly unknown; for on account of common utility, then, according to the commonly handed down rule, common error sustains the value of those things which are done by the delegated person. Lugo, Resp. Mor., l. 1, d. 20 and 35; Sanchez, de Matrim., l. 3, d. 22, n. 55-55; l. 8, d. 28, n. 72, 73, 89; Baller., de Matr., Op. Mor., n. 1231.

Hence the marriage is also valid if the parish priest had secretly revoked the permission of assisting at the marriage, legitimately conceded, while common ignorance of the revocation stands, because the permission is still retained by reason of the title initially had and the common error. Thus Sanchez, l. c.; Lugo, l. c. But in reality here the application of the doctrine of common error is altogether difficult, for the error in the case is only private and particular. Perhaps it would be better said that the marriage is valid because that occult revocation, as also a merely internal revocation, can produce no effect until it is sufficiently manifested and made known to the party. - A deacon who is publicly considered a priest, delegated by the parish priest, is validly present at marriage. Sanchez, l. 3, d. 22, n. 61; De Iust., l. 2, c. 19, n. 72. Indeed even a layman who by common error was held as a priest, and obtained from the parish priest the faculty of assisting, would also validly assist. De Iust., l. c.; Bonacina, de Matr., q. 2, p. 8, n. 30. Likewise the parish priest himself whose jurisdiction has occultly ceased, for example after resigning the parish, would validly assist.

n. 5.

Eligius and Vibiana, having set out from France into Spain so that they might remain there for a month, and thus acquire a quasi-domicile, and then be able to celebrate marriage, after a whole month had passed, celebrated marriage before the parish priest of the place and witnesses, and returned to France the following day.

n. 5.

It is asked: Was the marriage valid in the case?

n. 5.

R. The resolution of the question depends in the case on the time required for acquiring a quasi-domicile. Schmalz., l. 2, tit. 2, n. 19, raises the question: "To how much time ought this purpose of remaining extend itself, so that someone acquires a quasi-domicile and is judged not a guest but an inhabitant and resident?" And he responds: "Sylvester, Sanchez, and others think that it is necessary that he wish to dwell there for the greater part of a year. Those seem to think more conformably to the Law who say that the purpose of dwelling for some months suffices, especially if a house, room, shop, etc., has been rented. Thus Navarrus, Suarez, Laymann, and most recently Fr. Friderich." Fr. Ballerini also holds thus, Comp. Fr. Gury, n. 839; and Fr. Gury, n. 846, is content even with one month. But from the Sacred Congregation of the Council, June 7, 1867, habitation is required for the greater part of the year. Only one month would suffice if there were question of the United States of America, from a special Decree of the same S. I. C., May 6, 1886, approved and confirmed by Leo XIII. Hence it is clear that the marriage of Eligius and Vibiana cannot be held as valid. Cf. Lugo, Resp. Mor., l. 1, d. 37; Enchir. Moral. 1026; I. M. 1026.

n. 6.

Bertha, a Catholic woman, having domicile at Rome, enters marriage with a certain English Protestant man in the house of the English Legation. Now, desiring to enter a Catholic union with a Catholic, she asks whether the aforesaid union was valid.

n. 6.

R. Negatively. S. O., Aug. 1, 1900; M. E., v. 12, p. 241; A. S. S., v. 33, p. 211.

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

Jean-Pierre Gury, S.J.; notes by Antonio Ballerini, S.J. — 3 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.

Tanquerey

Adolphe Tanquerey, S.S. — 18 passages (filed under the subtopics)

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 (filed under the subtopics)

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.

Prümmer, Manuale Theologiae Moralis

Dominic M. Prümmer, O.P. — 3 passages

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.

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.

Ch. VII, Article I: The Law Before the Code · Ch. VII, Article III: The Form Permitted by the Code in Extraordinary Cases

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.

Merkelbach, Pastoral Questions

Benedict H. Merkelbach, O.P. — 69 passages (filed under the subtopics)

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.

Ch. VII, Article III: The Form Permitted by the Code in Extraordinary Cases

n. 222.

- I. The Code posits two cases in which one can validly and licitly depart from the customary celebration of matrimony.

n. ¶6657.

"If the parish priest or Ordinary or delegated priest who are to assist at matrimony according to the norm of cc. 1095, 1096 cannot be had or approached without grave inconvenience:

n. ¶6658.

1° In danger of death matrimony before witnesses alone is valid and licit; and also outside danger of death, provided it is prudently foreseen that that condition of things will endure for a month;

n. ¶6659.

2° In either case, if another priest is at hand who can be present, he must be called and, with the witnesses, assist at the matrimony, the validity of the union before witnesses alone remaining intact." (Can. 1098.)

n. 223.

- II. The former case: in danger of death.

n. ¶6661.

a) Three conditions are required:

n. ¶6662.

Danger of death.

n. ¶6663.

The danger suffices, as we have already said above at n. 185, 1, 1°, from whatever cause, threatening either of the contracting parties, grave, certain, or seriously probable. Error in estimating the danger does not harm the validity of the matrimony.

n. ¶6664.

It matters little what the motive cause of the matrimony is.

n. ¶6665.

A grave inconvenience preventing the parish priest or Ordinary or delegated priest from being had or approached.

n. ¶6666.

Any grave inconvenience suffices, spiritual or temporal, affecting either the parties, or the priest, or a third person, so that the parish priest is considered unable to be had or approached.

n. ¶6667.

Presence of two witnesses.

n. ¶6668.

There must be at least two witnesses, as in the ordinary celebration of matrimony, and they must conduct themselves in the same way.

n. ¶6669.

b) 1. If another priest who can be present is at hand, he must be called and must assist with the witnesses, even if bound by censure, provided he is not, however, a vitandus.

n. ¶6670.

Nevertheless this is not prescribed under penalty of invalidity of the matrimony.

n. ¶6671.

Such a priest has the very ample faculty regarding dispensation from impediments, as was said above at n. 188 b).

n. ¶6672.

If such a priest is lacking and there is a diriment impediment of ecclesiastical law, concerning which the Church is accustomed to dispense, probably the union can be validly celebrated, the ecclesiastical law ceasing in conflict with the natural law.¹

¹ Capello, cited work, n. 692, 4.

n. 224.

- III. The other case: outside danger of death.

n. ¶6674.

a) Three conditions are required:

n. ¶6675.

A grave inconvenience preventing the parish priest or Ordinary or delegated priest from being had or approached.

n. ¶6676.

As above, n. 223, a) 2.

n. ¶6677.

A prudent estimate that that condition of things will endure for a month.

n. ¶6678.

It makes no difference whether the qualified witness has been absent for a long or a short time. It suffices that it is prudently to be presumed that he will not be present within a month, although in fact that foresight may be erroneous.

n. ¶6679.

The month must be continuous and complete.

n. ¶6680.

The nuptials are valid, even if the nupturients have acted in fraud of the law.

n. ¶6681.

Presence of two witnesses.

n. 225.

- IV. What sort of absence of the qualified witness suffices so that there is place for the celebration of matrimony with witnesses alone?

n. ¶6683.

This question of very great moment was disputed among authors: namely, whether matrimony is valid without the intervention of the parish priest or delegated priest, when the parish priest indeed can be approached or summoned, but refuses to celebrate the matrimony, e.g., because the civil law forbids him to celebrate it, in a case in which the nupturients have not been joined by civil matrimony and cannot be joined.

n. ¶6684.

And indeed the greater part of authors judged that such a matrimony was altogether valid, since here at least the law obliging matrimony to be celebrated before the parish priest was doubtful.

n. ¶6685.

But on the 10th day of the month of March 1928, the Pontifical Commission for the authentic interpretation of the Code of Canon Law promulgated a response which altogether settles the cause. "Q. Whether canon 1098 is to be understood so that it refers only to the physical absence of the parish priest or local Ordinary.

…and 29 more passages — all of them are listed on the topic page.

Palmieri, On Christian Marriage

Dominic Palmieri, S.J. — 6 passages

Palmieri, On Christian Marriage, Appendix: Conspectus of th…, From the Council of Laodic…, 343-381 · Palmieri, On Christian Marriage, Appendix: Conspectus of th…, From the Canons of St. Bas…, A.D. 374-75 · Palmieri, On Christian Marriage, Appendix: Conspectus of th…, From the Council of London…, A.D. 1200 · Palmieri, On Christian Marriage, Appendix: Conspectus of th…, From the Constitutions of …, Bishop of Paris, A.D. 1208 · Palmieri, On Christian Marriage, Appendix: Conspectus of th…, From the Fourth Lateran Co…, A.D. 1215

Palmieri, On Christian Marriage, Appendix: Conspectus of th…, From the Council of Laodic…, 343-381

n. ¶897.

The Fathers signify that secret nuptials are not approved by them. A light penance is prescribed because of second nuptials, even legitimate but manifest; if they had been less legitimate or even secret, a graver penance would have been imposed.

Palmieri, On Christian Marriage, Appendix: Conspectus of th…, From the Canons of St. Bas…, A.D. 374-75

n. ¶922.

Canon XVIII. Concerning fallen virgins, who have professed to the Lord a chaste life, and afterwards, overcome by the lusts of the flesh, make their covenants void, our fathers, since they accommodated themselves simply and gently to the weakness of those who fall, judged that these could be admitted after a year, judging about them according to the likeness of digamists. But indeed it seems to me, since by the gift of God the Church, progressing, becomes stronger, and now the order of virgins is multiplied, that the matter itself must be carefully considered, as it is manifest to one considering it, and the sentence of Scripture, which can be found from consequence. For widowhood is inferior to virginity; therefore also the offense of widows is far less than that of virgins. Let us therefore see what was written to Timothy by Paul, 1 Tim. V. 11-12. And so if a widow is subjected to a most grave judgment as one who has made void her faith in Christ, what must we think about a virgin, who is the spouse of Christ and a sacred vessel dedicated to the Lord? It is indeed a great sin even for a maidservant, giving herself to clandestine marriages, to fill the house with debaucheries and by a worse life to do injury to her owner; but it is far more grave for a spouse to become an adulteress and, bringing disgrace to her union with the spouse, to give herself to immodest pleasures. Therefore the widow indeed is condemned as a corrupted maidservant, but the virgin is subjected to the judgment of an adulteress. Therefore, just as we call him who is with another's wife an adulterer, not admitting him to communion before he has ceased from the sin, so certainly we shall also establish concerning him who has a virgin. But we must establish this in advance: that she is called a virgin who has offered herself of her own accord to the Lord, and has renounced nuptials, and has embraced the institute of sanctity. But we admit professions from that time at which age has had the completion of reason ... she who, being more than sixteen or seventeen years old, mistress of her own reasonings, after being examined for a long time and proved, has thereafter persevered and has constantly asked to be admitted, then at last is to be numbered among virgins, and her profession must be held ratified and the violation of it inexorably punished.

Palmieri, On Christian Marriage, Appendix: Conspectus of th…, From the Council of London…, A.D. 1200

n. ¶1676.

You see that the presence alone of the priest is required; nothing is said of his special action; but clandestine marriages indeed are prohibited, yet they are not invalidated.

Palmieri, On Christian Marriage, Appendix: Conspectus of th…, From the Constitutions of …, Bishop of Paris, A.D. 1208

n. ¶1677.

Decree XIII. Let priests frequently denounce in the churches that those who contract clandestine marriages, and those who assist in making them, are excommunicated.

Palmieri, On Christian Marriage, Appendix: Conspectus of th…, From the Fourth Lateran Co…, A.D. 1215

n. ¶1685.

Decree LI. We utterly inhibit clandestine marriages, also forbidding that any priest presume to be present at such; wherefore, extending generally to other places the special custom of certain places (cf. Constitutions of Odo, cited above), we establish that, when marriages are to be contracted, they be publicly proposed in the churches by the priests, a suitable term having been fixed beforehand so that within it whoever wishes and is able may oppose a legitimate impediment. And let the priests themselves nonetheless investigate whether any impediment stands in the way. But when a probable conjecture shall have appeared against the copula to be contracted, the contract is expressly interdicted, until, by manifest documents, it shall be established what ought to be done concerning it.

n. ¶1687.

But if anyone shall have presumed to enter upon clandestine or interdicted marriages of this sort in a prohibited degree, even ignorantly, offspring received from such a conjunction shall be judged altogether illegitimate, to have no help from the ignorance of the parents ... In like manner the offspring shall be judged illegitimate if both parents, knowing a legitimate impediment, shall have presumed to contract in the sight of the Church, notwithstanding every interdiction.

Sabetti-Barrett, Compendium of Moral Theology

Aloysius Sabetti, S.J., and Timothy Barrett, S.J. — 93 passages (filed under the subtopics)

Vol. II, Tr. XVIII, Ch. II, Article V. On Certain Other Things to be Premised to the Celebration of Wedlock · Vol. II, Tr. XVIII, Ch. III, Article I. On the Nature of Marriage · Vol. II, Tr. XVIII, Chapter VII. On the Celebration of Marriage

Vol. II, Tr. XVIII, Ch. II, Article V. On Certain Other Things to be Premised to the Celebration of Wedlock

n. 852, Q. 8.

Question 8. When does the pastor licitly assist at the marriage of wanderers, namely of those who nowhere have a domicile or quasi-domicile?

Resp. Except in a case of necessity, he never assists licitly, unless, after the matter has been referred to the Ordinary of the place or to a priest delegated by him, he has obtained permission to assist.

Vol. II, Tr. XVIII, Ch. III, Article I. On the Nature of Marriage

n. 855, Q. 8.

Question 8. Is it licit for a pastor to assist at a marriage to be contracted through a procurator or interpreter without the permission of the Ordinary?

Resp. The pastor is not to assist at a marriage to be contracted through a procurator or through an interpreter, unless there is a just cause and it is in no way licit to doubt the authenticity of the mandate or the trustworthiness of the interpreter, and, if time allows, the permission of the Ordinary has been had (Can. 1091).

The reason for this canon is clear from the necessity of driving away every error in so grave a matter. Therefore the pastor, before he assists, must be certain concerning the just cause of this manner of contracting, concerning the authenticity of the mandate, and concerning the trustworthiness of the interpreter; nor ought he to assist without the permission of the Ordinary.

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

n. 900.

Point I. On Vices of Consent — I. - Error and Condition

I say 1°. A twofold error about Marriage is distinguished, namely: 1°. substantial error, which is concerned with the person; 2°. accidental error, which affects the qualities of the person. But condition is understood as servile condition unknown by the other free party, and consequently the impediment which is called condition is nothing other than an error by which the co-party is thought free when she is a slave.

When error is in the apprehension of a thing not necessary for the essence of the contract, but in a certain accident, it brings it about that the contract is voluntary as regards its essence and consequently such simply, but involuntary in a qualified sense and as regards that accident in which the error is concerned. And this error does not exclude consent, nor is anything had in law vitiating such consent. For in reality, in this error, he wills to marry this woman, to be married to this one; and there is the consent of two into the same thing and a contract substantially whole, nor invalid by law. S. C. C., Wallachien., 2 June 1860.

§ 1. Error concerning the person renders marriage invalid.

§ 2. Error concerning a quality of the person, even if it gives cause to the contract, invalidates marriage only:

1°. If error of quality redounds into error of person;

2°. If a free person contracts marriage with a person whom he thinks free, when on the contrary she is a slave, by slavery properly so called (Can. 1083).

Error of person renders marriage invalid. Error is also either of fortune, or condition, or quality.

Error of person is when this man is thought to be Virgilius but he is Plato; error of fortune when this man is thought to be rich who is poor; error of condition when he is thought to be free who is a slave; error of quality when he is thought to be good and is evil. Cause XXIV, q. 1.

Titius wishes to enter marriage with Anna, and Anna with Titius; therefore each, Titius and Anna, wish mutually to hand over and accept the perpetual and exclusive right over the body in order to determinate acts. Titius wishes to hand over the right over his body to Anna, and Anna wishes to accept that right; Anna wishes to hand over the right over her body to Titius, and Titius wishes to accept that right. In the celebration Martha has been substituted for Anna, and Titius, thinking Martha to be Anna, hands over the right over his body not to Martha, but truly to Anna. But Martha cannot accept from Titius a right which Titius does not hand over to her. This error of person on the part of Titius brings it about that the consent furnished to Martha is null in relation to Martha. In other words, the right which Titius wished to hand over over his body, he wished to hand over to Anna; this was the object of the contract, just as the right which he wished to accept was the right over the body of Anna. Error of person removed this object; in the celebration itself he wished to accept as wife not Martha but Anna, and to hand himself over as husband to a woman, not to Martha, with whom he externally expressed the words, but to Anna. Therefore his error made it such that externally he said that he consented to the woman Martha, to whom he consented in no way. This error removed matrimonial consent. For he does not consent to this Martha, but to Anna, whom he thought Martha to be. Consent to Anna remained; consent to Martha was null; therefore there is no marriage with Martha.

If, however, error of quality redounds into error of person, the contract is invalid: that is, if someone judges that he is contracting with another person, not the one whom he accepts externally, and therefore neither does he consent to contract with this one. When therefore does error of quality redound into error of person? When the quality in which there is error designates an individual person, then error of quality falls back into error of person; as if someone wished to marry the firstborn daughter of the king of Spain. For since the apprehension of the mind draws the consent of the will, the will tends toward that which apprehension proposes to it. Wherefore, since the individual person apprehended, by means of that quality of primogeniture by which she is indicated, is proposed to the will, the consent directly and formally tends toward that person, and hence error concerning that quality is error concerning the person. S. C. C., Wallachien., 2 June 1860.

As regards the second paragraph, n. 2: If a free person has contracted with a slave properly so called, judging her to be free, the marriage is null. The conditions are that the free party be ignorant of the servile condition of the other and contract with that ignorance, and that the slavery be strictly so called.

A threefold error renders marriage null: error of person; error of quality redounding into error of person; error of servile condition of one party.

I say 2°. Simple error concerning the unity or indissolubility of marriage, or its sacramental dignity, even if it gives cause to the contract, does not vitiate matrimonial consent (Can. 1084).

For such error does not take away true and sufficient consent, as has been answered many times by the Sacred Congregation of the Holy Office.

A valid marriage can be contracted with a merely concomitant error concerning its indissolubility, because then the general will of contracting according to the institution of Christ prevails, and that general will as it were absorbs the private error. Instruction of the Holy Office, 6 April 1843. - The depraved opinion of the contracting parties, even though confirmed by the laws or customs of the fatherland, namely that the bond of marriage can be dissolved, in no way of itself harms the validity of marriage, unless this opinion is brought into a pact as a condition in the act of entering marriage; for then the marriage becomes null and invalid, as always happens when a condition repugnant to the substance itself has been attached to marriage. Holy Office, 20 June 1866, n. 25. - Marriages entered with only the error of the contracting parties that the bond of consummated marriage can be dissolved in the case of adultery or for other causes are valid. But if they have been entered under this express condition, they must be held as invalid. 11 March 1868, to 2. Error adhering to the mind, which nevertheless has not been brought into a pact or condition, does not harm the validity of marriage. Holy Office, 18 Dec. 1872. Concerning heretics imbued with false doctrine, Benedict XIV, de syn. dioec., 1. 13, c. 22, says thus: It must be believed that they (heretics) wished by a general will to contract a valid marriage according to the law of Christ, and therefore one not to be dissolved even for cause of adultery. For private error can neither be put before nor bring prejudice to the general will of which we have spoken, on which the validity and perpetuity of the contracted marriage depend.

I say 3°. Knowledge or opinion of the nullity of marriage does not necessarily exclude matrimonial consent (Can. 1085). For it does not exclude the general intention of entering marriage according to the law of Christ, and indeed here and now. For they wish to furnish consent truly matrimonial, and thus insofar as they can, as in the example of those who thought that they could not enter before a Turkish judge, although they wished to enter nuptials. Thus such marriages are to be held as valid, as was answered by the Sacred Congregation de Prop. Fide, 1 Oct. 1785. Again the same is established from the sanation of marriage so called civil, which sanation has been conceded not only once. But it could not have been conceded unless matrimonial consent could exist together with such a celebration.

n. 901.

II. - Force and Fear

I say 1°. § 1. A marriage entered on account of force or grave fear inflicted from outside and unjustly, from which, in order that someone may free himself, he is compelled to choose marriage, is also invalid (Can. 1087).

This is certainly established from many places of law. Marriage must enjoy full security.

I say 2°. § 2. No other fear, even if it gives cause to the contract, carries with it the nullity of marriage (Can. 1087).

The reason is: 1°. because light fear is not judged to influence consent gravely and efficaciously; 2°. because from positive law only grave fear makes Marriage invalid; 3°. because otherwise innumerable Marriages would become invalid with the greatest detriment to society.

n. 902.

Questions

Question 1. Does any grave fear whatsoever dirimently invalidate Marriage?

Resp. Negatively, but the following conditions are required, namely, that it be inflicted 1°. by an external and free cause; 2°. unjustly; 3°. that from it, in order to free himself, someone be compelled to choose marriage.

n. 902, Q. 2.

Question 2. By what law does grave fear dirimently invalidate Marriage?

Resp. Certainly by ecclesiastical law; but whether also by the law of nature is disputed among theologians, and S. Alphonsus, n. 1054, relates reasons on either side. Besides, no practical utility can be derived from the solution of this controversy. For either the discussion is of Marriage to be contracted or of one contracted. If the first, the Church will never dispense unless the cause of fear is first removed; if the other, that Marriage will never be declared invalid unless it has first been proved, in the external forum, that all the conditions which the Church requires for grave fear were verified. - Cf. Ballerini, note (c), p. 806.

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.

n. 904.

Only those marriages are valid which are contracted before the pastor, or the local Ordinary, or a priest delegated by either one, and at least two witnesses, yet according to the rules expressed in the canons which follow, and with the exceptions saved concerning which in can. 1098, 1099 (Can. 1094).

§ 1. The pastor and the local Ordinary validly assist at marriage:

1°. Only from the day of acquired canonical possession of the benefice according to the norm of can. 334, § 3, 1444, § 1, or of begun office, unless by sentence they have been excommunicated or interdicted or suspended from office, or declared such;

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

3°. Provided that, constrained neither by force nor by grave fear, they ask for and receive the consent of the contracting parties.

§ 2. The pastor and the local Ordinary who can validly assist at marriage can also give license to another priest that he validly assist at marriage within the limits of their territory (Can. 1095).

Who are pastors, and those equated with them, is clear from Canon 451:

§ 1. A pastor is a priest or moral person to whom a parish has been conferred as title, with care of souls to be exercised under the authority of the local Ordinary.

§ 2. With pastors are equated, with all parochial rights and obligations, and they come in law under the name of pastors:

1°. Quasi-pastors, who rule quasi-parishes, concerning which in can. 216, § 3;

2°. Parochial vicars, if they are endowed with full parochial power.

§ 3. Concerning military chaplains, whether major or minor, one must stand by the peculiar prescriptions of the Holy See (Can. 451).

The distinct parts of a diocese into which the diocese itself is divided, to each of which its own particular church with a determined people is assigned and its own particular and proper pastor is set over it for the care of souls, are parishes; parts of an apostolic vicariate and prefecture, if a particular rector is assigned, are called quasi-parishes. Cf. Can. 216, § 3.

§ 4. Without a special apostolic indult, parishes cannot be constituted according to the diversity of language or nation of the faithful living in the same city or territory, nor merely familial or personal parishes; but as regards those already constituted, nothing is to be innovated without consulting the Apostolic See (Can. 216).¹

For the validity of marriage there is required the presence of the pastor or local Ordinary or a priest delegated by either one, and of at least two witnesses; two exceptions are given which we shall explain below.

Nevertheless, in relation to the pastor and local Ordinary, this one and that one validly assist only from the day of acquired possession of the benefice or of begun office.

But if by sentence they have been excommunicated, or interdicted, or suspended from office, or declared such, their assistance is invalid.

The pastor and Ordinary can validly assist only in their own territory.

But in their own territory they validly assist at marriages not only of subjects but also of non-subjects.

Moreover, that this assistance be valid, it is further required that they have been constrained neither by force nor by grave fear.

Finally, it is necessary that they ask for and receive the consent of the contracting parties.

In these points a great distinction is now introduced between the law in force before the Decree Ne Temere and the present law of the Code.

Formerly the announced pastor validly assisted; but now his competence is annexed to the possessed benefice or the office already begun. Formerly he could validly assist as long as he was pastor, although excommunicated or interdicted or suspended from office by public decree through sentence, or declared such; but now he who is bound by such a censure is declared incompetent. Formerly he validly assisted at marriages of his own subjects everywhere on earth; but now he can validly assist only in his own territory. Formerly he validly assisted only at marriages of subjects even in his own territory; but now there he validly assists both subjects and non-subjects. Namely, his competence is territorial, restricted within the limits of his own parish but extended also to marriages of non-subjects. Hence the ancient discipline of the proper pastor is abolished, by which formerly the assistance of that pastor in whose parish at least one of the contracting parties had domicile or quasi-domicile was required for validity; but now the contract must be entered before the pastor of the territory in which the contract is entered, although neither party is his subject. Formerly the pastor validly assisted, although constrained by force or grave fear; hence surprise marriages were valid. But now he assists validly only when free from force and grave fear. Formerly the pastor validly assisted when present under compulsion, yet perceiving words signifying the mutual matrimonial consent of determinate betrothed persons; but now for validity it is required that he ask for and receive the consent of the contracting parties.

Therefore the assistance of the pastor must be physical, formal, free, and active.

¹ Cf. Addenda, p. 1109, n. 52.

n. 905.

As regards Marriages to be Celebrated, these things are established for our army and navy.

I. Priest Chaplains of the Army and Navy of the United States of North America, during war, enjoy the full faculty of assisting at the marriages of all those who pertain to the Army and Navy of the United States, whether in regions which are subject to the dominion of the United States, or elsewhere. But in marriages which are celebrated outside the territory of the United States of North America, the local Diocesan Chancery must be approached, lest they be contracted against the laws of the region, and especially in those cases in which one of the contracting parties is not an American citizen.

II. Those pertaining to the Army or Navy of the United States of North America are also able to celebrate marriage either under the jurisdiction of the Bishop of origin, or of the Bishop of the place in which they are staying temporarily in camps, or of the Bishop of the Diocese through which they are journeying.

III. The faculty conceded to the Military Ordinary in relation to the celebration of marriage is not privative but cumulative, namely, it does not exclude the jurisdiction of those who by other titles are able to furnish this according to the norm of law.

IV. Chaplains of the Army or Navy are not to assist at marriages unless after previous investigation, especially with the pastor of the woman.

V. Petitions for obtaining dispensations are to be sent to the Military Ordinary or to the Military Vicar General.

VI. The document of the contracted marriage, according to the decree Ne Temere, is to be carefully prepared and sent to the Military Ordinary; but a copy of the document is to be kept by the Chaplain until the Military Ordinariate renders him certain concerning receipt of the original.

n. 906.

Questions

Question 1. When does the Ordinary or pastor begin to be competent as the authorized witness of marriage?

Resp. From the day of acquired possession of the benefice or of begun office.

§ 3. Residential Bishops take canonical possession of a diocese as soon as, in the diocese itself, either personally or through a proxy, they have shown the apostolic letters to the Chapter of the cathedral church, in the presence of the secretary of the Chapter or the chancellor of the Curia, who is to refer the matter into the acts (Can. 334).

§ 1. Induction into possession of a benefice is to be made according to the mode prescribed by particular law or received by legitimate custom, unless from a just cause the Ordinary has expressly dispensed in writing from that mode or rite; in which case this dispensation takes the place of possession taken (Can. 1444).

n. 906, Q. 2.

Question 2. Can a putative pastor validly assist?

Resp. Affirmatively, if from common error he is judged such.

n. 906, Q. 3.

Question 3. Does any priest of the diocese, exercising the sacred ministry without special delegation of the local Ordinary or pastor, validly assist at marriage by force of a general faculty conceded to him of administering all sacraments which do not require the episcopal order?

Resp. Negatively.

n. 906, Q. 4.

Question 4. Which excommunicated, suspended, or interdicted pastor is not competent?

Resp. A pastor is not competent who by sentence has been excommunicated, suspended from office, or interdicted, or declared such. This disposition of the Code corresponds to other canons by which it is required, for external penal effects, that the penalty have been inflicted or declared by condemnatory sentence, especially when it is a question of privation or restriction of the use of priestly power or of other sacred ministers. Cf. Can. 2261, 2264, 2275, 2284.

n. 906, Q. 5.

Question 5. Whether by a prohibition made by the Ordinary, lest the pastor espouse certain persons, the jurisdiction of that pastor is so taken away that, for contracting marriage contrary to such a prohibition, he is not the legitimate pastor?

Resp. "That the marriage contracted before a pastor to whom it has been interdicted by the Bishop lest he intervene is valid." Thus the Sacred Congregation of the Council in the Gienn. case, year 1581. "On which matter," says Benedict XIV, "there seems to be able to be stirred up no difficulty of graver moment. For since there is not that authority in the Bishop that he could induce a diriment impediment which does not exist, or establish as null and invalid some marriage which by the prescription of the canons is not null and invalid, the marriage will indeed be illicit if it is celebrated before him whom the Bishop has forbidden to be present at a celebration of this kind; he also will sin gravely who, with the superior's prohibition despised, furnishes assistance to it; but by no reason will it be able to be said that the marriage itself lies under the defect of nullity." - De Syn. Dioec., 1. 13, c. 23.

n. 906, Q. 6.

Question 6. What things are required that the assistance of the pastor be valid?

Resp. From what has been said it is clear that two things are required: 1°. he must be a voluntary witness, coerced by no force or grave fear; 2°. he must assist actively by asking for and receiving the matrimonial consent of the spouses. That this mode of assistance, formal, voluntary, and active, is necessary for validity is gathered first from the fact that it is prescribed as a condition sine qua non, through the particle provided that, and second from the end of the legislator, who intends to found those statutes by which all marriages made by surprise are rendered null and invalid. - Cf. Acta S. Sedis, v. 40, p. 531.¹

¹ Cf. Addenda, p. 1111, n. 54.

n. 906, Q. 7.

Question 7. "Whether Ordinaries and pastors, not only explicitly but also implicitly invited and asked, provided nevertheless that constrained neither by force nor by grave fear they ask for and receive the consent of the contracting parties, can validly assist at marriages?"

Resp. "Affirmatively." Thus the Sacred Congregation of the Council, 28 Mar. 1908. It is no longer required that the pastor assist as one invited and asked. - Cf. Can. 1095, § 1.

n. 906, Q. 8.

Question 8. What is the competence of the Ordinary and pastor in relation to marriage?

Resp. It is territorial. But the territory is diverse: that of the Ordinary is the diocese, vicariate, etc.; but that of the pastor is a parish canonically erected, a quasi-parish, or a district defined and perfectly divided from others, or an entire station in places where the territories are not yet perfectly divided. - Leitner, Die Verlobungs- und Eheschliessungsform, p. 33. Cf. Can. 451, §§ 1, 2.

n. 906, Q. 9.

Question 9. What fear invalidates the assistance of the pastor?

Resp. Grave fear, or fear falling upon a constant man. A constant man is one who in some class is of ordinary fortitude, namely, who above others of the same class is distinguished neither by timidity nor by strength of soul. The fear will be grave when the evil inflicting it is such that no one fearing it loses the name of a constant man. Whenever such fear is inflicted by an extrinsic free cause in order to compel the assistance of the pastor, and for that reason he assists, the marriage is null and invalid. But if the pastor unjustly refuses to assist, and on account of this cause is compelled by grave fear to be present, even then the contract must be called null. For where the law does not distinguish, neither ought we to distinguish; but the law simply excludes assistance furnished from grave fear. This vexation can easily be removed, because any pastor or Ordinary is suitable and competent for the validity of marriage, indeed in a case of necessity even for liceity. Nevertheless the wedlock entered before a pastor who, finally yielding to importunate prayers, assists will be valid.

n. 906, Q. 10.

Question 10. What is established by the new law in relation to witnesses?

Resp. Besides the presence of an authorized witness, at least two witnesses are required; therefore more can be present. As regards them the ancient discipline is in force. It suffices that they enjoy the use of reason. Therefore non-Catholics can also validly be assumed, or those deceived by fraud or coerced by fear; adults or minors; men or women; wholly unwilling and not knowing how to write. Nevertheless heretics are illicitly assumed. S. C. Inq., 19 Aug. 1891.

Their assistance must be such that they can testify concerning the marriage celebrated of this bridegroom and bride. Therefore material presence is not sufficient, but it is necessary that the witnesses know what is being done. Therefore they must see the spouses and perceive and understand the signs expressing consent; but if they do not see the contracting parties themselves, yet hear known voices while they pronounce consent, the assistance is valid.

Nevertheless it is not required that determinate witnesses be invited, or that certain persons be so employed that these and not others are witnesses; but it suffices that those who are present at the celebration can make faith concerning the marriage entered, since it is certainly established to them concerning the furnishing of consent. And hence a marriage entered before the pastor and several persons, all of whom can duly testify concerning the consent given, is valid, although the two invited witnesses were not present.

n. 906, Q. 11.

Question 11. Whether "exempt regular churches, according to the tenor of the decree, can be considered as the territory of the pastor or Ordinary in whose territorial district they are situated, for the effect of assistance at marriage?"

Resp. "Affirmatively." (S. C. de Sacr., 13 Mar. 1910.)¹

¹ Cf. Addenda, p. 1151, n. 126.

n. 907.

You Will Resolve. - Marriages are invalid:

1°. When the pastor or Ordinary or one delegated by either is lacking;

2°. When at least two witnesses do not assist;

3°. When it is contracted before the proper pastor of the spouses outside his own territory without the necessary delegation of the Ordinary or pastor of the place in which it is contracted;

4°. When it is contracted before a non-delegated priest, or before a delegated deacon;

5°. When it is contracted before the pastor announced for the place, but not yet possessing the benefice;

6°. When it is contracted before a pastor excommunicated or interdicted or suspended from office by sentence;

7°. When it is contracted before a pastor compelled by grave fear to assist;

8°. When it is contracted before an invited pastor, indeed hearing but not asking for consent;

9°. When it is contracted before a pastor present by chance, but not actively assisting.

n. 908.

On the Liceity of the Assistance of the Pastor and Local Ordinary

§ 1. But the pastor or local Ordinary assist licitly at marriage:

1°. When it has been legitimately established to them concerning the free state of the contracting parties according to the norm of law;

2°. When it has further been established concerning the domicile or quasi-domicile or monthly stay, or, if it is a question of a wanderer, the actual stay, of one or the other contracting party in the place of marriage;

3°. If the conditions concerning which in n. 2 are lacking, when license has been had from the pastor or Ordinary of the domicile or quasi-domicile or monthly stay of one or the other contracting party, unless either it is a question of wanderers actually journeying, who nowhere have a seat of stay, or a grave necessity intervenes which excuses from license to be sought.

§ 2. In any case let it be held as a rule that marriage be celebrated before the pastor of the bride, unless a just cause excuses; but marriages of Catholics of mixed rite, unless something else has been provided by particular law, are to be celebrated in the rite of the man and before his pastor.

§ 3. A pastor who assists at marriage without the license required by law does not make the stole-fees his own, and he is to remit them to the proper pastor of the contracting parties (Can. 1097).

Before marriage is celebrated it is necessary to observe the dispositions of law concerning free state, concerning banns, and all other things pertaining to it. Thus the Roman Ritual, tit. de sacr. matrim.: "The pastor, admonished concerning some Marriage to be contracted in his Parish, should first know from those to whom it pertains who and of what sort they are who wish to contract Marriage: Whether there is some impediment between them; Whether they wish to contract spontaneously, freely, and according to the honesty of the Sacrament; Whether they are of legitimate age, so that the man has completed at least fourteen¹ years, the woman twelve² years; and that each knows the rudiments of the Faith, since they ought afterward to teach these to their children." "Moreover, let the Pastor beware lest he easily admit to contracting Marriage wanderers and travelers and those who have uncertain seats; nor likewise those who have been married before, as are the wives of soldiers or captives or of others who are journeying, unless, after diligent inquiry has been made concerning all these things, and the matter referred to the Ordinary, license for celebrating Marriage of this kind has been had from him, which is to be conceded gratis." Finally, proclamations are to be made according to the statutes of law. By natural and positive law under grave obligation, the pastor is bound before he joins the spouses to institute an investigation concerning free state, that is, concerning their immunity especially from the impediment of bond and from all other impediments, both diriment and impeding. In no way can the pastor licitly proceed to the celebration unless it is established to him concerning this immunity. In this matter let there be compared the Third Plenary Council of Baltimore, Appendix, pp. 258 and following, pp. 274 and following, and diocesan statutes. Wernz, v. 4, n. 130 and following. Besson, Nouvelle Revue Theologique, tom. 40, p. 76. - Boudinhon, Le Mariage et Les Fiancailles, n. 71 and following. - McNicholas, The New Marriage Legislation, p. 35: This last little book, most excellently adapted to our conditions, is altogether to be consulted. - Cf. Can. 1067, § 1.

¹ Now, sixteen.

² Now, fourteen.

n. 909.

Questions

Question 1. What else must be established to the pastor before he can licitly assist at marriage?

Resp. It must be established to him concerning domicile or quasi-domicile or monthly stay, or, if it is a question of a wanderer, concerning actual stay in the place of marriage. By the Code quasi-domicile has been reintroduced into matrimonial law in relation to its celebration. - Cf. Can. 92, under n. 80.¹

¹ Cf. Addenda, p. 1112, n. 55.

n. 909, Q. 2.

Question 2. How is the place of marriage mentioned in n. 2 to be understood?

Resp. The place of marriage is the parish or diocese; parochial and diocesan domicile is given. - Cf. Can. 92 under n. 80.

n. 909, Q. 3.

Question 3. How is monthly stay to be understood?

Resp. Generally a month signifies thirty days. - Cf. Can. 32. But we ought not to interpret the matter too rigorously. Wherefore if someone, after habitation in the place has already been begun, were absent by chance for one or another day, this would not prevent him from being said, at the end of thirty days from entrance into the place, to have stayed there for a month.

Moreover, stay in a place here designates residence; thus it can be that someone works during the day in one parish, but has the seat of residence in another. His pastor for marriage is the rector of this latter, not of the former. Stay in no way requires continuous presence. Cf. Besson, l. c., pp. 78 and following. Gennari, Il Mon. Eccles., Sec. Ser., v. 10, p. 90. - Ojetti, l. c., n. 97. - Vermeersch, De Religiosis, v. 4, p. 176.

n. 909, Q. 4.

Question 4. What is required if neither of the spouses has domicile or monthly stay in the place of marriage?

Resp. The pastor and local Ordinary assist licitly: "when, if the conditions concerning which in n. 2 are lacking, license has been had from the pastor or Ordinary of the domicile or quasi-domicile or monthly stay of one or the other contracting party, unless it is a question of wanderers actually journeying, who nowhere have a seat of stay, or a grave necessity intervenes which excuses from license to be sought."

n. 909, Q. 5.

Question 5. Is monthly stay in a parish to be computed from the day of conversion, say of Titius, to the Catholic faith, or rather from his entrance into the parish?

Resp. The merely external fact of stay suffices for liceity, abstracting from the fact of the conversion of Titius to the faith. Moreover, the will of the legislator must be sought from the words of the law according to that saying: "The legislator expressed what he willed." But now only monthly stay of one or the other contracting party is required, without any discussion being had concerning their religion. Therefore only the material fact of stay is exacted for liceity, with the other things to be observed by law being observed. But this monthly stay must be morally continuous. S. C. de Sacr., 28 Jan. 1916.

Therefore license is to be sought from the pastor either of domicile or quasi-domicile or monthly stay of the spouses. - Cf. Vermeersch, l. c., n. 60. - Gennari, l. c., p. 30. - Bucceroni, Supplementum, n. 13.

This license, since it is not delegation nor necessary for validity, seems to suffice if it is presumed or interpretative. Thus Gennari, l. c. - Pezzani, l. c., n. 94. Grave necessity excuses from obtaining or even seeking this license, some urgent cause for the celebration of marriage, which cannot be deferred except with a notable inconvenience altogether, until license is obtained. In this case the pastor also assists licitly. Authors counsel that the reason for license not sought be preserved by some document, for avoiding inconveniences perhaps to arise afterward.

But if the pastor refuses to give license sought from a just cause, recourse can be had to the Ordinary or to the pastor of the other spouse.

n. 909, Q. 6.

Question 6. When does the pastor licitly assist at marriages of wanderers?

Resp. At the marriage of wanderers concerning whom in can. 91, the pastor, except in a case of necessity, should never assist unless, after the matter has been brought to the local Ordinary or to a priest delegated by him, he has obtained license to assist (Can. 1032).

n. 909, Q. 7.

Question 7. Who are wanderers according to the new Code?

Resp. Wanderers are those who nowhere have domicile or quasi-domicile. Thus the new Code, can. 91. And therefore the sense of wanderer is now fixed. The prohibition of assisting without permission of the Ordinary or delegated person, outside a case of necessity, extends itself to all wanderers who are held such according to Can. 91.

This license is to be sought either from the Ordinary or from a priest delegated by him for this. As is clear, in large dioceses it would be a very grave burden for the Ordinary to attend to this by himself. Canon 1032 meets this difficulty, by force of which he can designate priests in various parts of the diocese who may discharge this function. Therefore the pastor must have recourse to the delegate or to the Ordinary, but only after a diligent examination concerning free state has been instituted; and if there are any diocesan laws on this point, they must be observed exactly. Although it is established to him concerning the liberty of the parties, nevertheless he cannot take a step toward the celebration before license has first been obtained. Necessity would certainly excuse, for example, a marriage to be legitimated in a case of death, where there would be danger in delay; but even in this case the pastor is bound according to his powers to guard beforehand against the danger of nullity of the sacrament. - Cf. Vermeersch, l. c., n. 62. - Besson, l. c., n. 86; Pezzani, l. c., n. 98, 99. - Gennari, l. c., p. 31. - Creagh, l. c., p. 48.

n. 909, Q. 8.

Question 8. What if one of the spouses is a wanderer?

Resp. The disposition of this canon, which renews the Tridentine decree, must be observed. Therefore the pastor must bring the matter to the Ordinary or delegate, and, after permission has been received, he can licitly assist at the marriage without license of the pastor of the other spouse being sought; for he himself is then the proper pastor at least as regards the effect of this canon. - Cf. Vermeersch, l. c., n. 63. - Besson, l. c., p. 90, 1° (d). - Gennari, Il Monitore Ecclesias., Sec. Ser., v. 10, p. 90.

n. 909, Q. 9.

Question 9. Who ought to assist when the bridegroom and bride are from diverse parishes?

Resp. 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. - Cf. Can. 1097, § 2.

The same must be said here concerning pastor as also before: namely, he is the one in whose parish the bride either is domiciled or quasi-domiciled or has already stayed for a month. Hence if the bride is subject to one pastor only by reason of that stay, but the man to another by reason of domicile, regularly the marriage is to be celebrated before the former, because he, in the sense of this law, is the woman's pastor.

By this paragraph a norm is established by which matters may proceed better. But from following this norm any just cause of convenience or utility excuses, indeed the very desire of the spouses, if they refuse to present themselves before another pastor. A grave reason is not required here, but simply a just one. Wherefore we also judge with Vermeersch, l. c., n. 64, that the obligation of this paragraph is not grave. Therefore pastors of brides ought not to be excessive in urging their right.

"Marriages of Catholics of mixed rite, unless something else has been provided by particular law, are to be celebrated in the rite of the man and before his pastor" (Can. 1097, § 2). Marriages both among the Greek-Ruthenian faithful and among the faithful of mixed rite are to be blessed in the rite of the woman by the pastor of the woman. Thus S. C. de Prop. F., 17 Aug. 1914, De Spirituali Administratione Ecclesiae Graeco-Ruthenae in Foederatis Civitatibus Americae Septentrionalis.

n. 909, Q. 10.

Question 10. What if the bride has domicile in one parish, but monthly stay in another?

Resp. The celebration can licitly take place before the pastor either of the domicile or of the monthly stay.

n. 909, Q. 11.

Question 11. Can this rule be observed when the bride is a wanderer?

Resp. Affirmatively of itself. "In any case," the canon says. And although very often there is a just cause of celebrating before the pastor of the bridegroom, nevertheless to the bride is attributed a right before the bridegroom, nor can any indication be found of a contrary will of the legislator. - Cf. Besson, l. c., p. 88. - Vermeersch, l. c., n. 64. Nevertheless see above, Question 8.

n. 909.

Notes

1°. For the valid celebration of Marriage the Code designates any pastor in his own territory; but for licit celebration, the pastor either of domicile or quasi-domicile or monthly stay. Therefore his competence for validity is restricted to the limits of his own parish; for liceity, to persons domiciled or quasi-domiciled or already staying for a month in the parish. Within his own territory he validly assists at all marriages; outside it, without delegation, at none. Within his own territory he licitly assists at marriages of his own people, whether by reason of domicile or quasi-domicile or by reason of that stay, but not of strangers without license.

2°. Since domicile is immediately acquired by the fact of habitation in some parish with the intention of remaining there perpetually, of itself it would be licit to celebrate marriage immediately.

3°. Simple monthly stay in a parish suffices for licit celebration; therefore whether someone happens to be there by chance, or went there purposely for the sake of wedlock, he contracts licitly in that place before the pastor. For stay in fraud of the law is no longer to be considered.

As regards the liceity of assistance within one's own territory, the following should be kept before the eyes:

Both parties have domicile or monthly stay in the parish of the contract; or only one party, while the other has it elsewhere or does not have it; or neither party.

As regards the first hypothesis: the pastor or local Ordinary, or one delegated by either, can assist from the first day of acquired domicile according to the things just said, or, if they are not domiciled, only after a month.

As regards the second hypothesis: that one party is either the bride or the bridegroom, and the other party, as we first suppose, is not a wanderer. If it is the bride, the pastor can always licitly assist; if it is the bridegroom, regularly the pastor cannot licitly assist unless there is a just cause excusing from the norm prescribed in § 2; if the other party is a wanderer, the matter is to be brought to the Ordinary or to the delegate, and license is to be obtained from him.

As regards the third hypothesis: when neither party has domicile or monthly stay in the parish of the contract, either each has it elsewhere, or both or one or the other is a wanderer. When each has it elsewhere, the pastor of the place of the contract ought not to assist before he has received license from the pastor of the bride; but if a just cause is present, let him have recourse to the pastor of the bridegroom; if, however, grave necessity urges, he assists by law without license. When both or one or the other is a wanderer, the matter must be arranged with the Ordinary.

The pastor, for example of St. Aloysius, licitly assists at nuptials between Titius and Bertha in the following cases, supposing that their free state is legitimately established:

1°. Titius and Bertha have domicile in the parish of St. Aloysius.

2°. Titius and Bertha have monthly stay in the same parish.

3°. Bertha has domicile or monthly stay in the parish of St. Aloysius; Titius has domicile or monthly stay in the parish of St. Joseph.

4°. Titius has domicile or monthly stay in the parish of St. Aloysius, Bertha in the parish of St. Patrick; nevertheless a just cause is present excusing them from contracting before the pastor of the bride.

5°. Titius has domicile in the parish of St. Aloysius, Bertha is a wanderer; the pastor of St. Aloysius has received license to assist from the Ordinary or from a priest delegated for that.

6°. Titius is a wanderer, Bertha has monthly stay in the parish of St. Aloysius. Necessity of celebrating immediately urges.

7°. Titius and Bertha have domicile or monthly stay in the parish of St. Joseph; the pastor of St. Aloysius has received license to assist from the Ordinary or from the pastor of the spouses.

8°. Titius and Bertha have domicile in the parish of St. Joseph; grave necessity intervenes excusing from obtaining the aforesaid license.

9°. Titius has domicile or monthly stay in the parish of St. Joseph, Bertha in the parish of St. Mark; the pastor of St. Aloysius has obtained license from the pastor of the bride, or from the Ordinary.

10°. Titius has domicile in the parish of St. Peter, Bertha in the parish of St. Mark. There is present a just cause excusing them from entering marriage before the pastor of the bride, who refuses to give license justly sought to the pastor of St. Aloysius. This latter has received it either from the Ordinary or from the pastor of the bridegroom.

11°. Titius and Bertha are wanderers; or, Titius has domicile in the parish of St. Patrick and Bertha is a wanderer. The pastor of St. Aloysius, after the matter has been brought to the Ordinary or delegate, has obtained license to assist.

12°. Titius and Bertha are wanderers; or, Titius has domicile in the parish of St. Patrick, Bertha is a wanderer. They present themselves before the pastor of St. Aloysius. The necessity of celebrating urges.

n. 910.

On the Delegated Priest

§ 1. License of assisting at marriage, conceded according to the norm of can. 1095, § 2, must be given expressly to a determinate priest for a determinate marriage, with any general delegations excluded, unless it is a question of cooperating vicars for the parish to which they are attached; otherwise it is invalid.¹

§ 2. The pastor or local Ordinary is not to concede license unless all things which the law constitutes for proving the liberty of state have been fulfilled (Can. 1096).

Therefore a priest who is not pastor or Ordinary needs license from either one so that he may validly and licitly assist. This license is not delegation properly so called, and therefore perhaps in the article that word is employed, not this one. Concerning it, what Wernz already skillfully observed in his excellent work, v. 4, n. 180, 1, must be noted: "The concession of license to assist is not an act of jurisdiction by which ecclesiastical jurisdiction is truly delegated to another, but by better right is called the substitution of another authorized witness, by force of the faculty received from the Council of Trent, which has great likeness with delegation."

¹ Cf. Addenda, p. 1109, n. 52; p. 1150, n. 125.

n. 911.

Questions

Question 1. Who is the delegating pastor or Ordinary?

Resp. The Ordinary or pastor is understood not of the contracting parties, but of the place in which the matrimonial contract is celebrated: the Ordinary, namely, for his diocese, and the pastor for the parish. For validity requires the assistance of the pastor or Ordinary of the place of contract, or of one delegated by either. Hence if a priest assisted in some territory without delegation from the Ordinary or pastor of this place, although with license of the pastor of the contracting parties, the marriage would be invalid.

…and 53 more passages — all of them are listed on the topic page.

Concina, Compendium

Daniele Concina, O.P. — 20 passages

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

n. I.

I. QUESTION I. What is clandestine matrimony? ANSWER. It is that which is celebrated without the presence of the parish priest and of witnesses, as is gathered from Trent, session 24, chapter 1. Before Trent clandestine marriages were valid. Trent declared them invalid for most grave causes. For marriages of this kind fight with the fidelity to be preserved between spouses. For those who contract secretly and without witnesses can easily recede from the consent given; one party can with impunity desert the other, since no testimony can be adduced. The offspring also is subject to uncertainty. Lastly the dignity of the sacrament is violated, and its knot and bond.

n. II.

II. The Church, in declaring clandestine marriages invalid, did not change the essence of the sacrament, but, that the sacrament might be worthily celebrated, appended conditions, which being lacking, she declared the contracting parties unfit for celebrating the sacrament. Clandestine matrimony has not even the force of betrothals, as the common opinion teaches.

n. III.

III. QUESTION II. Whether in any case after Trent clandestine matrimony be valid? ANSWER. Unbelievers, even subject to the civil power of Catholic Princes, can enter upon matrimony without the solemnity prescribed by Trent. Similarly the clandestine marriages of the faithful, where Trent is not received, are valid. For a law not accepted does not annul a contract. But where Trent is received, there is given no case in which matrimony without the presence of the parish priest and of witnesses is valid. If the parish priest be lacking, although a hundred witnesses were present, the matrimony is null.

n. IV.

IV. Travellers passing through places where Trent has been promulgated are bound to contract before the parish priest and witnesses. Travellers departing from places where Trent has been promulgated, and passing through places where Trent has not been received, very many teach contract validly, yet affirm that these sin mortally. I should not dare to assert such matrimony valid, since it can be contracted before the parish priest and witnesses.

n. V.

V. Does he opine truly who teaches that Catholics who in fraud go to those places where Trent has not been promulgated can validly celebrate matrimony?

n. VI.

VI. This opinion is to me utterly false and adverse to the Council of Trent. Catholics therefore will be able to pass over to the places of heretics or unbelievers, and there contract secretly, and, returning to their own country, publicly enter upon another matrimony. For this, among other things, is the absurdity which Trent warns follows upon clandestine marriages. He does not commit fraud, says Sánchez, who uses his own right. True. But whence has he it, that Catholics possess a right of circumventing the most grave law of Trent, which declares Catholics unfit for contracting occult marriages of this kind? It is denied that they possess this right.

n. VII.

VII. The faithful dwelling under the tyranny of unbelievers, if they can in no way have the presence of a parish priest, let them at least employ witnesses, that in the way they can they may observe the law. For in this way later adulterous marriages are hindered, which absurdity, among others, Trent intends to avoid.

n. VIII.

VIII. Catholics subject to a heretical Prince, after matrimony celebrated according to the laws of Trent, cannot present themselves to a heretical minister assisting as a minister at an ecclesiastical sacred rite; but they can present themselves to him, if he assist as a political and civil minister, as the Sacred Congregation of the Holy Office declared on the 18th of November 1671, reported by Benedict XIV, Book 6 On the Synod, chapter 5, no. 4. Which declaration he confirms in constitution 49, § 1, at the end, Vol. I, where he forbids the faithful dwelling in the kingdom of Serbia and the neighbouring regions, after matrimony celebrated with the Catholic rite, to renew it before the Cadi, unless the ceremony of the nuptials to be performed before the Cadi were a merely civil act and contained no Mahometan superstition.

n. IX.

IX. QUESTION III. Who is the parish priest prescribed by Trent? ANSWER. He ought to be the proper parish priest at least of one of the contracting parties, or a priest with his licence. Usage obtains in several places that matrimony be celebrated in the parish of the woman, when the man is of another parish; this man nevertheless ought to have testimonial letters from his own parish priest concerning the accustomed banns. But the proper parish priest is not of origin, but of domicile. Who is the parish priest of domicile has been said elsewhere. Outside his own parish or diocese a parish priest can assist at the matrimony of his own parishioners; but he ought to seek licence from the parish priest of the place, as seems to me the more probable. Who is the parish priest of vagrants has been said elsewhere.

n. X.

X. QUESTION IV. Who besides the parish priest, or a priest designated by him, can assist at matrimony? ANSWER. There can assist: bishops in their own dioceses; archbishops in the dioceses of suffragans when they are actually visiting; Cardinals in the Church of their own title; papal Legates in the province of their legation; the Chapter, the See being vacant, or its Vicar; Abbots of a Church subject to no bishop; the Vicar general of a bishop.

n. XI.

XI. Licences extorted by force, by grave fear falling upon a constant man, or by fraud, that a priest may assist at a matrimony, are null and make the matrimony null, whatever others say to the contrary. For this licence must needs be free and express.

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.

n. XIII.

XIII. A parish priest is called by force, guile, or fear to assist at a matrimony: is this matrimony to be called valid? The more recent authors commonly affirm it, and adduce several declarations of the Congregation of Cardinals. To which, if they be authentic, I subscribe. But these being set aside, this matrimony would seem to me invalid, at which a parish priest compelled by guile, fraud, or fear falling upon a constant man should assist. For the wishes of the Council are that this sacrament be freely celebrated. Grave fear struck into the betrothed makes the matrimony null, as has been said above. Why not fear struck into the parish priest? That those sin mortally who contract matrimony before a parish priest held by force, or by guile, or assisting by chance in passing, all teach. What if the parish priest should close his eyes and stop his ears, and protest that he neither sees nor hears what is done? That even then the matrimony is valid the Salmanticenses and Leander affirm, and assert it out of Farinacius from the Declarations of the Cardinals. These declarations being set aside, which I with difficulty believe to be authentic, I should call such a matrimony null. One must nevertheless stand by the decisions, if they be authentic.

n. XIV.

XIV. QUESTION VI. What ought a parish priest to perform in the celebration of matrimony? ANSWER. He ought first to question the contracting parties whether they wish mutually to join themselves. Their reciprocal consent being heard, he ought to join them, pronouncing the words prescribed by the Council: I join you together in matrimony, and so forth.

n. XV.

XV. Would a parish priest sin mortally who omitted these words I join you together, and so forth? Sánchez denies it. But the nuptial blessing, and the reported words, or like ones, by which parish priests join the contracting parties, are one of the chief moments of sacred tradition, by which Catholics evince against the heretics that matrimony is a sacrament. On what ground therefore does anyone call the aforesaid formula of words a light matter? Do they not bear a mystery of great signification, since they portend the conjunction of Christ with the Church? Besides, is not that opinion exceedingly probable which defends that those words are the form of the sacrament? Is not the safer opinion to be chosen in the performing of the sacraments?

n. XVI.

XVI. QUESTION VII. Whether the banns of a future matrimony be necessary by the necessity of the sacrament, or of precept? ANSWER. That they are not necessary by the necessity of the sacrament all affirm; but that they are necessary by the necessity of precept is certain, as is established from Trent, session 24, chapter 1. If the spouses be of diverse parishes, the banns ought to be made in each parish on three feast days amid the solemnities of the Masses. That this precept obliges under mortal sin the common and true opinion teaches. From this precept supreme Princes are exempt. From this precept the bishop alone can dispense, as Trent decrees. For a just dispensation some cause is required. Bishops nevertheless ought to beware lest they be too easy in granting dispensations of this kind.

n. XVII.

XVII. Whosoever knows any impediment which can be proved by witnesses is bound under grave fault to manifest it, as all teach. If it be occult, which cannot be proved by witnesses, some deny that anyone is bound to lay it open; but the affirmative opinion is common. For everyone is bound to obey a superior commanding. But a parish priest promulgating the banns lawfully commands that impediments between the future spouses be manifested. There is added that upon one revealing impediments the proof does not lie.

n. XVIII.

XVIII. QUESTION VIII. Do spouses sin if they consummate matrimony before the nuptial blessing? ANSWER. Some deny it. But the Council of Trent exhorts, session 24, chapter 1, that they dwell not in the same house before the sacred blessing to be received in the Church. Concerning this blessing Pope Siricius in his epistle to Himerius, chapter 4, writes thus: That blessing which a priest imposes upon those about to marry is among the faithful as it were the seal of a certain sacrilege, if it be violated by any transgression. Like things Pope Hormisdas writes; and the Fourth Council of Carthage, reported part 1, distinction 30, question 5, chapter 1, says: The bridegroom and bride, when they are to be blessed by the priest, are offered by their parents or by the paranymphs; and when they have received the blessing, on that same night, out of reverence for the blessing itself, let them remain in virginity. So speak all the Fathers: and from the tradition of the Fathers we evince against the heretics that matrimony is a sacrament, as has been indicated above.

n. XIX.

XIX. That readers may on the occasion given understand how far the manner of opining of very many casuists differs from the doctrine of the holy Fathers, let them hear what after Fr. Sánchez Fr. Viva writes, question 4, article 4, no. 6, where he says: “The blessing of the nuptials does not seem to be a grave matter, nor greatly congruous to the progress of matrimony. For the nuptial blessing is not a sacrament, but a certain sacramental, nor of so great moment as the sacramentals which are sent before Baptism. But although it is not free from venial fault simply to omit it without any cause, against the use and custom of the Church, nevertheless it is probable that there is no fault, from a just cause — namely by reason of a forbidden season, in Advent or Lent — to consummate matrimony before the blessing of the Church; since it seems to be a counsel, not a precept, to send it before.”

n. XX.

XX. These things cannot be read and compared with the doctrine of the holy Fathers and of the Councils without the mind being kindled with zeal for Christian discipline. The sacred blessing of pastors does not seem to be a grave matter, nor greatly congruous to the progress of matrimony? The matrimony of Catholics is a sacrament, and the blessing of priests is not greatly congruous? Whether anything of offence to pious ears is contained in these words, let the wise judge. Those therefore sin, and indeed mortally, who consummate matrimony before the blessing.

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?

n. ¶4.

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

n. ¶5.

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

n. ¶6.

Solution

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

n. ¶7.

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

n. ¶8.

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?

n. ¶4.

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

n. ¶5.

What is to be said of the case?

n. ¶6.

Solution

The first question is answered above, p. 304.

n. ¶7.

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

n. ¶8.

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?

n. ¶4.

What is to be said of the case?

n. ¶5.

Solution

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

n. ¶6.

What power over Christian marriage has the civil authority?

n. ¶7.

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.

n. ¶8.

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?