Page:Catholic Encyclopedia, volume 4.djvu/25

 CLANDESTINITY

CLANDESTINITY

(22 May, 1886) granted for the United States to parties moving from a parish where the "Tametsi" obtained to another parish and residing there for a full month, the privilege of a quasi-domicile so far as the matrimonial contract was concerned. Nor would the privilege be forfeited in case the contract- ing parties should pass thirty days in such a place in order to enter wedlock there (Putzer, Commentarium in Facultates Apostolicas, no. 49). Although the decree involved a personal element, clandestine mar- riages were valid as often as the observance of the law was physically or morally impossible, provided such impossibility was general and continued for a month (Cong, of InquLs., 1 July, 186.3; 14 November, 1883). Parties whose circumstances led them to profit by this interpretation of the law were obliged to seek the nuptial blessing at their earliest conven- ience, and to see that their marriage was entered in the proper register (Cong, of Inquis., 14 November, 1883).

To the pastor of either contracting party belonged the right of officiating at their nuptials. Vicars ap- pointed to exercise the functions of pastor with the fullness of the pastoral ministrj' enjoyed the same right so long as they held office (Cong, of Inquis., 7 Sept., 1898). The Roman pontiff alone could counter- act the exercise of tliis pastoral prerogative. The presence of the pastor in the capacity of witness satis- fied the requirements of the Tridentine decree even though he was not formally invited for that purpose (Cong, of Inquis., 17 Nov., 1835). The consent of those about to marr>' had to be signified in the pres- ence of the pastor and other witnesses required by the decree. .Since the sovereign pontiff enjoys imiversal jurisdiction in the Church, he could validly assist at any marriage whatever. Cardinals had no longer the right of a,ssisting at marriages in their titular churches. Legates of the Holy See were quahfied to assist at marriages contracted within the confines of their lega- tion. Bisliops might minister at marriages in any portion of their respective dioceses. According to Gasparri (op. cit., II, v, 1.54), an archbishop might ex- ercise this right for the subjects of his suffragans pro- \'ided he visited their dioceses according to the require- ments of canon law. To a vicar-general was accorded the right of officiating at any marriage in the diocese. Those in whom this right was vested were at Hberty to delegate another priest to act in their stead. Such delegation might be special or general. As often as the delegation was special, little danger of invalidity was feared. On the contrarj-, when general jurisdiction is transmitted to delegates, the Holy See questions, not so much vahdity, as legitimacy of action. Hence, the Congregation of the Council (20 July, 1889) re- proved the conduct of those parish priests who habit- ually interchanged the faculty of assisting at the marriages of tlieir respective subjects, because such methods tended to render the "'Tametsi" ineffectual so far as the presence of the parish priest is concerned. At the same time this Congregation (IS March, 1893) and the Congregation of the Inquisition (9 November, 1898) approved general delegation within judicious limits. Notification of his commission to assist at nuptials had to be given directly to the delegate, either by the individual authorizing him to act or by a mes- senger specially chosen for this purpose (Sanchez, De Matrimonio, disp. xxvi, no. 8). The commission might be granted orally or in writing. No priest would be justified in presuming permission to assist at marriages. So strict was t his rule that a pastor had no power to ratify marriages whose invahdity was super- induced in this way. In like manner, the Congrega- tion of the Inquisition (7 September, 1898) decided that the ordinary faculties granted by bishops to priests, empowering them to adminster the sacra- ments, did not qualify them to assist at marriages. Sanchez (op. cit., disp. xxxv, no. 20) claims that tacit

notification would be sufficient to justify a priest to assist at nuptials.

Besides the parish priest, at least two witnesses were required for the validity of a marriage contract. The use of reason and the possibihty of actually testi- fj-ing render any individual capable of exercising this particular fmiction (Benedict XIV, De Synodo, xxiii, no. 6). The simultaneous presence of the pastor and witnesses was necessary to comply with the require- ments of the "Tametsi" (Sanchez, op. cit., disp. xli, no. 3). Parish priests or others officiating at mar- riages without the necessarj- number of witnesses, or witnesses assisting without the pastor, rendered them- selves, together with the contracting parties, Uable to severe punishment at the hands of the bishop. Moreover, a parish priest, or any other priest, whether regular or secular, assisting without the pastor's con- sent at nuptials of parties belonging to his parish was suspended from priestly functions until absolved by the bishop of the pastor whose rights had been disre- garded.

New Legislation on Clandestine Marriage. — Through the decree "Ne Temere," issued 2 August, 1907, by the Congregation of the Council, in conjunc- tion with the pontifical commission for the new canoni- cal code, important modifications have been made re- garding the form of betrothal and of marriage. This decree was issued to render easier for the universal Church the substantial form of matrimony, to pre- vent more efficiently the too numerous, hasty, and clandestine marriages, and to make it easier for ecclesiastical courts to decide as to the existence or non-existence of a pre\-ious engagement to marry (see Espousals). With the exception in regard to Germany noted below, this legislation went into effect at Easter (19 April), 1908, and is thenceforth binding on all Catholics throughout the world, any contrarj' law or custom being totally aboUshea According to this decree, marriages of Catholics are henceforth null unless celebrated before a duly quali- fied priest (or the bishop of the diocese) and at least two witnesses. The same is true of marriages in which either of the parties is or has been a Cathohc. The law, however, does not bind those who are not and never have lieen Catholics. Priests charged with the care of souls in the territory where a marriage is contracted, or any approved priest whom one charged with the care of souLs or whom the bishop of the diocese dele- gates, are qualified to assist at nuptials. Marriages contracted in a parish, district, or diocese, other than the one to which the contracting parties belong, are vahd so long as the pastor of the place or his delegate assists at such marriages. However, priests are for- bidden to assist at such marriages unless one of two conditions is verified. Either, one of the parties must have resided a month in the territory where the marriage occurs, or else, one of the parties must have obtained the permission of the priest or bishop under whose jurisdiction such a party resides. In cases of serious necessity such permission is not re- quired.

The following conditions are enjoined by the decree " Ne Temere", not for the vahdity of the marriages of Catholics, but to bring them into complete conformity with the demands of right order. JIarriages ought to be celebrated in the parish of the bride. If the con- tracting parties wish to marry elsewhere, they must ask the pastor of the place, or some priest authorized by him or by the bishop, to a.ssist at the marriage, and one of tlie parties must have resided there for a month. When parties find this procedure incon- venient, one of them must obtain pennission from his or her pari.sh priest or bishop to contract marriage elsewhere. In such cases the parties will be obUged to give the necessary assurance regarding their free- dom to many', and to comply -nnth the usual condi- tions for receiving the Sacrament of Matrimony.