Page:Catholic Encyclopedia, volume 4.djvu/23

 THE CATHOLIC ENCYCLOPEDIA

Clandestinity (In Canon Law). — Strictly speak- ing, tlaiiiie.stinity signifies a matrimonial impediment introduced by the Council of Trent (.Se.ss. XXIV, c. i) to invalidate marriages contracted at variance with the exigencies of the decree "Tametsi", commonly so called because the first word of the Latin text is tametsi. The decree reads: "Those who attempt to contract matrimony otherwise than in the presence of the parish priest or of another priest with leave of the parish priest or of the ordinary, and before two or three witnesses, the Holy Synod renders altogether incapable of such a contract, and declares such con- tracts null and void." The Council of Trent did not transmit any lii.storical record of this question. While upholding the validity of clandestine marriages "as long as the Church does not annul them", the council asserts that "for weighty reasons the holy Church of fiod ahvaj's abhorred and prohibited them" (Sess. XXIV, De reformatione matrimonii). That this sen- tence strikes the keynote of unending antipathy on the part of the Church towards clandestine marriages can be gathered by a brief review of the historical attitude of the Churcli. In the fifth chapter of his Epistle to Polycarp, St. Ignatius intimates how men and women about to marry should enter wedlock with the bishop's consent, so that their marriage may be in the Lord (Ante-Nicene Fathers, I, 100). TertuUian writes that matrimonial imions contracted without the intervention of ecclesiastical authority are liable to be jiuiged tantamount to fornication and adultery (Depudicitia, iv, in Migne, P. L., II, 987). Inanotlier passage lie extols the happiness of that union which is cemented by the Church, confirmed by oblation, sealed with blessing, which angels proclaim, and which the Father in heaven ratifies (Ad uxorem, in Migne, P. L., II, 9). The tliirteenth canon of the .so-called Fourth Council of Carthage requires parties contract- ing marriage to be presented to a priest of the Church by their parents or liridal attendants in order to re- ceive the ble.s.sing of the Church (Hefele, Historj' of the Councils, II, 412). Whatever may be the age of this canon, the castom tlierein enjoined had pre- viously won the approval of St. Ambrose, who earn- estly sought to have all marriages sanctified by the priestlv pall and benediction (Epistle xLx toVigilius, in Migne, P. L., XVI, 984). The Code of Justinian bears evidence to the influence which this imperial legislator wielded to secure the public celebration of marriage according to some legitimate form (" Novel- ke", or New Constitutions, xxii. Ixiv, c.x\'ii).

In the ninth century the Emperor Basil gave the force of written law to a widely observed custom of having a priest assist at marriages to bless and crown the married parties. Not long after. Leo the Pliiloso- pher declared that marriages celelirated without a priest's lile.ssing were worthless. The replies of Pope Nicholas I (8G.'J) to the Bulgarians, the P.<eudo-Isi<lor- ian Decretals, as well a.s the " Decretum" of Burcliard IV.— 1

and that of Gratian embody ample e\'idence to prove that, during the ninth century and thereafter, the public celebration of nuptials was prescribed and clandestine marriage condemned. Though Gratian alleges forged decretals to show the prohibition of clandestine mar- riages, it must be granted that he faithfully records the usage of his age concerning the validity of such marriages. Though Alexander III (1159-1181) maintained the validity of clandestine marriage when no other impediment intervened, he obliged parties contracting such marriages to undergo penance, and suspended for three years any priest assisting thereat. (Wernz, Jus Decretalium, IV, title III, no. 516.) Another step in advance was made when Innocent III, in the Fourth Lateran Council (1215), inaugu- rated the proclamation of the banns.

Finally, a turning-point in the history of this ques- tion was reached when the Council of Trent enacted the "Tametsi " as a measure destined to check abuses and to safeguard the sacredness of the marriage con- tract. The principal elements of this decree pertained to the sentence of nullification affecting marriages of Christians failing to enter wedlock in the presence of the parish priest or his legitimate representative and in that of two or more witnesses; to the ways and means of publisliing the decree; and to the penalty awaiting transgressors thereof. A succinct comment concerning these points will elucidate the purport of the decree. In the first place, to attain the desired end more effectually, the Council of Trent decreed a singular method of promulgation. It ordered that the decree should be published in every parish, and that it should lake effect only after thirty days from its pubhcation. When a parish comprised many churches, publication in the parochial church was sufficient. The term "parochial church" comprehends missions attended by priests on whom the faithful de- pend for the ministrations of religion (Cong, of the Inquisition, 14 November, 188.3). Publication of the decree in churches situated in such missions had the force of law. A new publication was not necessary when a newly-organized parish results from the dis- memberment of a parish wlierein the law already ob- tained. On the contrary, if a parish subject to the law should be united to one hitherto exempt, the former would remain bound by the law and the latter retain its immunity (Cong, of Inquis., 14 Dec, 1859).

For obvious reasons, the vernacular should be used in pulilishing the decree. The use of Latin would, according to the principles of canon law, render the act illicit but not invalid (Gasparri, Tractatus Canon- icus de Matrimonio, II, v, 119). The publication would be worthless unless the decree were made known to the faithful as a Tridentine law or as an ordinance emanating from the Holy See. While one publication sufficed to induce obligation, the council suggested repeated publication during the first year of tenure. This publication might be made whenever

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