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 CLANDESTINITY

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CLANDESTINITY

a congregation assembled in church. The decree was sometimes published in a parish to bind parish- ioners speaking one language to the exclusion of those using a different tongue. Sometimes the law was intended to oblige none but Catholics residing within the parish line's. In a parish entirely Catholic, wherein heretics settled after the law was duly pro- mulgated, the obligation applied to all, Catholics and heretics. In such cases the "Tametsi" declared null heretical marriages or clandestine mixed marriages (Pius VIII. 25 March, 1830). In a non-Catholic district containing only a few Catholic parishes, the marriage of a Protestant with another Protestant, or the clandestine marriage of a Protestant with a Cath- olic, would be valid although the nvmiber of Catholics in the neighbourhood should so increase as to warrant the actual publication of the decree (Pius VII to Na- poleon I, 27 June, 1805; Cong, of Inquisition, 24 No- vember and 29 November, 1852). Finally, popula- tions once largely Catholic in whose parishes the decree was published might be supplanted by non-Catholics. Though canonists are not unanimous in their verdict regarding the application of the law in such conditions, Gasparri, among others, holds that in such cases the law would not bind non-Catholics. For this was, says he, the case when Benedict XIV i.ssued his Dec- laration for Holland (Gasparri, op. cit., II, v, 202). After these general considerations concerning the promulgation of this decree, it may not be amiss to note where the decree was actually published. In the United States this law was published in the province of New Orleans; in the province of San Francisco, together with Utah, except that part bordering the Colorado River; in the province of Santa Fe, except the northern part of Colorado; in the Diocese of In- dianapolis; in St. Louis, St. Genevieve, St. Charles (Missouri), St. Ferdinand, Kaskaskia, French Village, and Prairie du Rocher. In Europe, the decree was published in Italy and adjacent islands; in the eccle- siastical province of the Upper Rhine; in Ireland, France, Spain, Portugal, Austria, German Empire (Pius X, 18 January, 1906), Poland, Belgium, Rotter- dam, Geneva (Zitelli, Apparatus Juris Eccles., I, 428), and Malta (Cong. Imiuis., 18 March, 1884). It is no easy matter to give accurate specifications for regions outside Europe and the United States (Lehm- kuhl, Theologia Moralis, II, 563). The decree was not published in England, Scotland, Norway, Sweden, Denmark (Zitelli, op. cit., I, 430). In some localities circiunstanees paved the way towards a partial pro- mulgation of the decree (Zitelli, op. cit., I, 4.37). Furthermore, although the decree might have been promulgated, the action of legitimate authority could limit its binding force. Thus Benedict XIV termi- nated the controversy concerning the marriages of her- etics in Holland. The fact that many Dutch Catholics had abjured their faith paved the way for questioning the application of the decree already promulgated in that country. To solve this difficulty Benedict XIV ruled that henceforth heretical or mixed mar- riages, clandestinely contracted, would be valid, provided no other impediment intervened. This declaration was subsequently extended to other localities in which the Tridentine decree was not pro- mulgated until heretics had organized their own con- gregations in such places. In this way the declara- tion of Benedict XIV found application in Canada, Trinidad, the dioceses of the United States with the exception of the San Francisco province, the German Empire, Belgium, Russian Poland, the Malabar Coast, the Coromandel Coast, Constantinople and suburbs, Diocese of Warsaw, Archdiocese of Bombay, Diocese of Culm, Duchy of Cleves, Pondicherry, Maastricht, and the suburb of St. Peter near Maastricht. It may be well to note here the way in which the term hiriiic is to be understood in this declaration. It comprehended individuals baptized in the Catholic

Church, but who subsequently adopted the tenets of some sect : Catholics who had reached the years of dis- cretion and had been alienated from their Faith by the influence of Protestants whose religion they thereafter professed ; apostates who allied themselves with some sect; heretics professing no religion whatever (Gas- parri, op. cit., II, V, 208). Whenever the requirements of this decree were reduced to practice owing to legit- imate usage, no further promulgation was necessary to render the measure effective (Cong, of Holy Office, 1 May, 1887). The decree once publi-shed in any parish, could be set aside by revocation on the part of the Holy See. It could also be abrogated by con- trary usage or desuetude. Thus, Pius VII, in a letter to the Archbishop of Mainz, 8 October, 1803, decided that marriages contracted before a Protestant min- ister are valid where the Tridentine decree has lapsed into desuetude. In like manner, the Congregation of the Holy Office decided that the "Tametsi" had passed into desuetude in Japan (11 March. 1806). At the same time the Holy See repeatedly declared that the "Tametsi" did not lose its binding force in a given place because heretics residing there declined to observe it, no matter how long they refused to abide by its requirements (Cong, of Holy Office, 6 July, 1892).

Regarding the subjects of this law, it is necessary to note that the decree invalidating clandestine mar- riages was both local and personal (Cong, of Holy Office, 14 December, 1859). In its local application the law comprehended all who contracted marriage in any place where the decree had been duly promul- gated, whether they were residents, aliens, travellers, transients, or persons having no fLxed abode, because those who come from an exempt territory are obliged to recognize and observe universal laws. Moreover, since jurists claim that territory governs contracts, it follows that residents, aliens, travellers, transients, and those without fixed abode, must observe laws circumscribing contracts in the place where such con- tracts are made. A decision of the Holy Office, dated 25 January, 1900, gave new weight to this accepted axiom of canonists. On account of the personal ele- ment embodied in this decree, the obligation of ob- serving it applied to those thereunto subjected where- ever they might chance to be. For this reason parties having a domicile or quasi-domicile in a district where the law held remained liable to its obligation as often as they betook themselves to an exempt territorj' to evade the law. Those whose sole or whose chief object in svich case was to enter wedlock, were considered guilty of evading the law. However, where one of the contracting parties had acquired a domicile or quasi-domicile in an exempt territory, their marriage, if contracted there, would be valid because the privilege enjoyed by one was here com- municable to the other (Benedict XIV, De Synodo, VI, vi).

The better to complete this explanation, a word concerning the terms domicile and quasi-domicile is necessary. An ecclesiastical domicile involves two elements, namely, residence in a particular parish and an intention of abiding there for the greater part of a year. This intention is gauged by external acts whose manifestation marks the actual acquisition of a domicile which is retained thereafter notwithstand- ing protracted absence, provided the intention of re- turning perseveres. In like manner residence in a parish and an intention of dwelling there during a considerable portion of the year denote the elements giving consistency to a quasi-domicile. Hence, an individual may be domiciled in one parish and acquire a quasi-domicile in another. Six months' sojourn in the same parish entitled parties to invite the pastor of that parish to assist at their nuptials. Neverthe- less, in answer to a petition made by the Fathers of the Third Plenary Council of Baltimore, the Holy See