The Ordinary Juridic Form

I. What Kind of Pastor Ought to Assist

- I. Only that Pastor can validly assist at a matrimony who is the proper Pastor of either contracting party, and therefore one who has jurisdiction over them or at least over either one. For it is established from the Council of Trent that only the Pastor can validly assist at matrimony. From several Declarations of the Sacred Congregation of the Council of Trent, we have it established that Pastor is to be understood in this manner.

II. The jurisdiction of the Pastor is constituted through the habitual domicile or quasi-domicile of the contracting parties, or of either of them, in his parish, but not through domicile of origin or through mere habitation for a brief time. This is gathered from Declarations of the Sacred Congregation and from Benedict XIV, etc. - Thus by the unanimous consent of the theologians.

- QUESTION 4. Does a Priest who is falsely considered the Pastor assist validly?

Reply. Yes, if he has a colorable title and is regarded as the Pastor from common error. The reason is that the Church then supplies jurisdiction for the common good. - Thus all. It also appears more probable that the same must be said if common error alone is present without a colorable title, for the same reason, as was said concerning jurisdiction in the internal forum in the Treatise On Penance, no. 548.

QUESTION 5. Does any Priest validly assist at matrimony with the presumed permission of the Pastor?

Reply. No, because it is not true permission; tacit permission, however, or even permission extorted by fear or deceit, suffices. - St. Ligorius, no. 1088, and others commonly.

- QUESTION 6. Can a Vicar validly assist at matrimony apart from the delegation of the Pastor?

Reply 1. Yes, if the Vicar supplies the place of a deceased or absent Pastor; for then he is certainly delegated for the universality of causes. Indeed, then he can also subdelegate another, for by law one delegated for the universality of causes can subdelegate another for a particular case. - Recall what was said in the Treatise On Laws, no. 116, and On Penance, no. 545.

Reply 2. But if the Vicar is the cooperator of a present Pastor, there is greater difficulty, nor can the matter be defined by a general and absolute rule. Therefore attend to the statutes or custom of the dioceses. For a Bishop constituting Vicars as assistants of the Pastor can either confer upon them immediately the right of assisting at marriages or leave that right to be committed to them by delegation of the Pastor. But according to the custom more commonly received in France and in other places, it appears that the following can be established:

The Vicar can assist at the matrimony of parishioners celebrated in the parish itself, because he exercises the office of the Pastor himself.

The Vicar can also appoint another Priest to assist at matrimony in a particular case. The reason is that, while the aforesaid custom is in force, he is delegated for the universality of causes and consequently can subdelegate another. - Bouvier, chapter 7, article 6. - Carriere, no. 1344.

II. How the Pastor Ought to Assist

Principles. - I. It is required and sufficient for the validity of matrimony that the Pastor be morally present, like a witness who must give testimony concerning a completed matter. The reason is that the Pastor is employed here as the principal witness deputed by the Church, as is established from Benedict XIV, On the Diocesan Synod, book 13, chapter 23.

II. It is required that the Pastor be addressed and advised concerning what the contracting parties wish to do, or that he be employed by them. The reason is that otherwise the Pastor is not considered to attend to what is being done, nor can he judge that those who act wish to act seriously ¹⁵. It is not required, however, that he was expressly called for this purpose. For it would suffice if he were present there by chance, or had been summoned under another pretext. This is evident from a Declaration of the Sacred Congregation. - Carriere, Compendium, no. 309. - Bouvier.

¹⁵ It suffices that while the contracting parties express consent they give some sign, for example, with the eyes, modulation of the voice, a nod, etc., by which they indicate to the Pastor that they wish to have him as a witness, even though he was not previously informed or called, and by chance, thinking nothing of it, hears them after he has been called to it, etc. These are the words of a Declaration of the Sacred Congregation reported by Benedict XIV, On the Diocesan Synod, book 13, chapter 23, no. 1.

Hence:

The merely physical presence of the Pastor does not suffice, since he must attend to what is being done. Hence one who is drunk, sleeping, or insane cannot assist at matrimony.

It is not necessary that he see the contracting parties, provided that he hears them clearly expressing their consent. Therefore a blind man can assist at matrimony, but not one both blind and deaf.

Tanquerey

Adolphe Tanquerey, S.S. — 13 passages

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

n. 1017.

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

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

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

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

¹ Constit. Matrimonia, November 4, 1741.

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

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

n. 1018.

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

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

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

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

n. 1019.

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

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

n. 1020.

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

n. 1021.

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

n. 1022.

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

n. 1023.

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

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

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

n. 1024.

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

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

n. 1025.

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

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

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

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

n. 1026.

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

II. On the Form of the New Law.

n. 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).

Prümmer, Manuale Theologiae Moralis

Dominic M. Prümmer, O.P. — 17 passages

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

n. 756.

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

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

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

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

n. 757.

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

The following are equivalent to parish priests in this matter:

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

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

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

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

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

n. 758.

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

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

¹⁷ Acta Ap. Sed. II, 449.

¹⁸ System d. kath. Kirchenr. II, 340.

¹⁹ De sacram., n. 643.

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

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

²² Das kirchl. Eherecht, § 25.

²³ Ius can. V, n. 535.

²⁴ De spons. et matr., n. 64.

²⁵ Kirchenrecht II, 199.

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

n. 759.

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

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

²⁷ For example, an abbot and prelate nullius.

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

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

n. 760.

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

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

Concerning this delegation, the following things must be noted:

n. 761.

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

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

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

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

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

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

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

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

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

³² Code of Canon Law, can. 1096, § 1.

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

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

³⁵ Code of Canon Law, can. 207.

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

n. 762.

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

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

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

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

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

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

³⁷ Code of Canon Law, can. 1095, § 1.

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

³⁹ Code of Canon Law, can. 334, § 3.

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

⁴¹ Code of Canon Law, can. 209.

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

n. 763.

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

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

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

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

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

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

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

n. 764.

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

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

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

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

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

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

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

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

n. 765.

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

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

n. 766.

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

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

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

⁵² Cf. above, n. 723.

⁵³ Cf. above, n. 725.

⁵⁴ Cf. above, n. 728.

⁵⁵ Code of Canon Law, can. 1021, § 1.

n. 767.

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

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

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

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

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

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

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

⁵⁸ Cf. Benedict XIV, Instruction 33.

⁵⁹ Code of Canon Law, can. 92.

⁶⁰ Ibid., can. 94, § 3.

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

⁶² Ibid., § 3.

n. 768.

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

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

⁶³ Ibid., § 2.

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

n. 769.

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

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

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

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

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

⁶⁷ Code of Canon Law, can. 94, § 3.

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

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

⁷⁰ Das kirchl. Eherecht, 65, note 3.

⁷¹ Noldin-Schmitt, loc. cit., n. 641.

⁷² Lehrb. des kirchl. Eherechtes, 296.

n. 770.

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

n. 771.

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

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

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

⁷³ Tit. 7, c. 2.

⁷⁴ Mass for bridegroom and bride.

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

⁷⁶ Collect. de Prop. Fide, n. 1557.

⁷⁷ Code of Canon Law, can. 1143.

⁷⁸ Ibid., can. 1108, § 3.

⁷⁹ Ibid., can. 1102.

⁸⁰ Ibid., can. 1109.

⁸¹ Tit. VII, c. 2, n. 6.

n. 772.

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

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

Merkelbach, Summa Theologiae Moralis

Benedict Henry Merkelbach, O.P. — 15 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

845. Principle I. The ordinary juridic form, required for the validity of matrimony, is the presence, together with two witnesses, of the Ordinary or pastor of that place in which the matrimony is celebrated. - This is established from can. 1094: "Only those marriages are valid which are contracted before the pastor, or the local Ordinary, or a priest delegated by either of them, and at least two witnesses, according to the rules expressed in the canons which follow, and with the exceptions preserved of which in can. 1098-1099."

1° The Ordinary of the place or the pastor is required. By the name of pastor are understood both the pastor properly so called, or the priest to whom a parish has been conferred in title or stably, with the care of souls to be exercised under the authority of the local Ordinary (can. 451, § 1), and all who in law are equated with the pastor.

Equated with the pastor are:

1° Quasi-pastors, who administer quasi-parishes, or parts of an apostolic vicariate or apostolic prefecture to which a particular rector has been assigned (can. 451, § 2).

2° Parochial vicars, if they have been furnished with full parochial power (ibid.). These are:

a) The vicar curate, who rules a parish whose habitual care belongs to a moral person (can. 471).

b) The substituted vicar, who in all things holds the place of the pastor, whether he is to be deprived of the benefice and has recourse to the Holy See, or is absent for more than a week, and for this has been designated and approved by the Ordinary; or even before the approval of the Ordinary if the pastor departs for a sudden and grave cause for more than a week (can. 465, § 4 and 5, and 1923, § 2, together with 474; com. int., July 14, 1922).

c) The vicar oeconomus or administrator, who, when the parish is vacant, is constituted for its governance; and also the first cooperator vicar or the one older in office, or the neighboring pastor, or the superior of the religious house, according to the cases, who before the constitution of the oeconomus, unless it has been otherwise provided, meanwhile assumes the governance of the vacant parish (can. 472).

d) The vicar adjutor constituted by the Ordinary of the place, who in all things supplies the place of the pastor unequal to duly fulfilling his duties (can. 475).

But not simple cooperator vicars, who nevertheless can be generally delegated by the Ordinary for assisting; but this is not usually done ordinarily or everywhere.

3° Personal pastors who do not exercise jurisdiction over a determinate territory, but over determinate persons. Such are also considered those who together with another pastor in the same place exercise the care of souls with respect to determinate persons of some nationality, language, or rite; likewise chaplains or rectors of pious places exempt from parochial jurisdiction, if they are endowed with full parochial power, but only with respect to the persons entrusted to them and in the place where they exercise jurisdiction (S. C. C., Feb. 1, 1908); - whether also chaplains of soldiers, depends on peculiar prescriptions and is diverse in diverse regions.

2° At least two witnesses are required. In them no special quality is required by law; hence all are validly assumed, provided here and now they enjoy the use of reason and are capable of testifying. Non-Catholics, excommunicated persons, interdicted persons, and infamous persons are not licitly assumed, as the Holy Office declared concerning heretics, Aug. 19, 1891, unless a grave cause is present and scandal has been removed.

It is not required 1) that the witnesses be designated, forewarned, or asked concerning the matrimony to be contracted; nor 2) that they have an express intention of performing the office of witness; nor 3) that they assist freely, i.e., not coerced or fraudulently induced; nor 4) that the contracting parties formally assume them as witnesses, or even be conscious of their presence. It suffices that the witnesses be able to testify concerning the matrimony contracted; hence, if the witnesses are ignorant of the language, if an interpreter explains the words expressing consent, the matrimony is valid.

3° The presence of the pastor and of the witnesses is required: a) simultaneous, so that all can testify to the same act of marrying; b) physical or corporal, so that the witnesses are present by sight and hearing, and, holding themselves in the immediate surroundings or at a small distance, can connaturally perceive by sight or hearing what is being done; hence communication by telephone or telescope does not suffice; c) moral, so that at least from the circumstances they perceive that matrimony is being contracted between such determinate persons.