* it 'A SUPPLEMENT TO THE NOTES ON THE RUBRICS. •oOo- PENANCE AND MATRIMONY. SUPPLEMENT. — ooo — ON THE SACRAMENT OF PENANCE : “ DE SACRAMENTO PCENITENTIiE.” Cum igitur poenitentem absolvere voluerit, injuncta ei prius, et ab eo acceptata salutari poeniteutia, primo dicit: Misereatur tui omnipotens Deus, et dimissis peccatis iuis, perducat te ad vitarti cBternam. Amen, 981. The rubnc prescribes that the confessor impose the sacramental penance before he gives absolution. It can rarely happen, unless the penitent be ‘‘ in articulo mortis/^ that there is sufficient reason for acting otherwise. Theo- logians, however, commonly teach that the penance may be imposed after absolution. (Vid. Lig., lib. vi, nn. 514-8 iti parenth.) There is no doubt that it will have the same sacramental effect whether it is imposed before or after abso- lution ,* and, therefore, the confessor, if he forgets to impose it before absolving, should take care to impose it immediately after. (Gury, vol. ii, n. 523.) It is in accordance with the judicial order, which should here be followed, that the pen- ance be imposed and accepted before the penitent is absolved and as the rubric prescribes this order, it cannot, we think, be looked on as merely directive. The confessor is clearly bound to follow it, unless there be some reasonable cause for acting otherwise. He. may be easily excused, however, by inadvertence, especially when, after hearing the confession, he spends some time in giving advice and direction. It is certain that the mere inversion of the order is not in any case a grievous sin ; and some even hold that the confes- sor may, without any fault, defer the imposition of the penance until after the absolution, when he fairly presumes that the penitent is willing to accept it. (Gury, n. 523.) 982. “ Misereatur tui,” etc. This prayer is to be said always in the singular. 476 ON THE SACRAMENT OF PENANCE. Deinde dextera versus poenitentem elevata, dicit : Indulgentiam, absolutionem, et remissionem peccatorum tuorum tribuat tihi omnipotem et miscricors Dominus. Amen. Dominus noster Jesus Christus te dbsolvat; et ego auctoritate ipsius tt ahsolvo ah omni vinculo excommunicationis, suspetisionis, et interdicti, in quantum possum, et tu indiges. The priest is directed to raise his right hand towards the penitent while pronouncing the words, Indulgentiam ^ etc. It was the practice in many places to raise the hand over, and even to place it on, the head of the penitent. This was in fact the usage of the Church for many ages (De Herdt, 204 — CataL), and it is permitted by the ritual of Mechlin, where the confession is heard extra sedem confessionalem.’^ (De Herdt.) Considerable latitude is admitted in interpreting the ex- pression, even when the ceremony which it .implies is neces- sary to the validity of a sacrament. Still greater latitude may easily be admitted when, as in the present case, the ceremony does not in any way affect the validity of the sacrament. It is not improbable, therefore, that the ini- ^•positio” prescribed by the ancient rituals was often little in practice more than the raising of the hand, as prescribed by the present rubric. 983. Bat in the confessional as now constructed, the priest can do no more than raise his hand towards the penitent. It is recommended, however, that the priest do so, by directing the palm rather than the little finger towards the penitent, so that the ceremony may approximate more to the literal ^^impositio manus” which was formerly in use. (De Herdt, ^id}) He keeps the hand in this position until he has pronounced the words. Ego te ahsolvo a peccatis tuis. He then makes the sign of the cross, as if blessing the penitent, while he says, “ In nomine Patris et Filii,’^ etc. ; and for tliis purpose he turns his hand so as to direct the little finger towards the penitent. 984. It is the common opinion of theologians that the essential form of the sacrament is found in the words, ‘‘ absolve te.” (St. Lig., 430, Dub. 1.) This may be inferred from the Council of Trent (Sess. 14, cap. 3), and from the Catechism of the Council (p. ii, n. 14 : Est autem forma. Ego te ahsolvo). Some, however, maintain that the words, a peccatis tuis,” are also essential, while all are agreed that it would be a mortal sin to omit thorn. ON THE SACRAMENT OF PENANCE. 477 985. The forms given by the most ancient rituals are in- variably found to contain the foregoing words, although not always in juxtaposition as we have them here. The words, ‘^In nomine Patris,” etc., are certainly not essential, but it is commonly held that the omission of them would be a venial sin. (St. Lig., 1. c.. Dub. 3.) We find them sometimes mixed up with the words of a long prayer, in which several words intervened between a peccatis tuis and in nomine Patris,” etc. (Oatal., page 229.) Deinde, Ego te absolvo a peccatis tuis, in nomine Patris, et Filii, et Spiritus Sancti. Amen. 986. The word deinde is, in some editions of the Pitual, printed in rubric type, and in others in the same type as the words immediately before and after it. A question, there- fore, has been raised whether the priest should regard it as part of the text, and say . . . et tu indiges. Deinde ego te,^^ etc., or look on it simply as a rubric, and say . . . ‘^ et tu indiges. Ego te,” etc. The question was proposed by the Bishop of Verona to the Congregation of Rites in the following form: Utrum in forma absolutionis verbum Deinde, in nonnullis ^‘editionibus rubro charactere impressum, omittendum sit?” and the Sacred Congregation answered simply, Nihil in- ^^novandum.” (Veronen., ll Martii, 1837.) The same answer was sent some years afterwards to a priest of Vigevano, who proposed the same question. (Vigevanen., 27 Febr., 1847.) The meaning of this answer, however, is not very clear, for it may still be doubted which is the innovation — the use or the omission of the word. The vote of the consultor might clear up the point j but, this not being published, the ques- tion to a great extent resolves itself into one of accuracy and authority as between different editions of the Ritual. 987. PTere is no doubt that recent editions of the Ritual printed in Rome have the word in rubric type. PTe latest Propaganda edition has it so printed. Now, there is a strong presumption that in this edition the word is correctly printed, not only on account of the careful supervision to which books — especially, liturgical books — printed at the Propaganda are subjected, but also because particular attention would most probably be directed to the printing of this very word on account of the controversy raised about it. Hence, we find that those who touched on the question within the past few 478 ON THE SACRAMENT OF PENANCE. years, as Balles^ini (Annot. ad Gary De Poenitcnliaj n. 42C), and A^avasseur (Du Sacreinent de Penitence, n. 101, note), are inclined to regard the word as a rubric. Barutfaldi is often cited, amongst others, by Vavasseur (loc. cit.), as hold- ing this view, but he seems to us to hold the opposite. He says, indeed, that ‘‘ deinde ” does not belong to the substance of the form in such a way that without it the absolution would be null j but he is far from saying or implying that it is not to be pronounced by the priest, since he concludes by- recommending in practice the opinion of Nicole: ^^Hiquutn “esse pronunciari tale verbum.” “ Quaerunt nonnulli,” he says, “inter quos Nicolius, Flosc., (Verb. Ahsolutio), et Sar- “ nell {Epist., Eccl. tom. 4, ep, 42), an adverbium illud deinde “ sit necessario pronunciandum in forma absolutionis adeo “ ut, eo verbo praetermisso, absolutio sit invalida. Nicolius “ respondet aequum esse pronunciari tale verbum ; Sarnellus, “ vero, posse stare absolutionem licite et vaiide opinatur abs- “ que tali verbo. In tali dubio quid resolvendum f Quicquid •“ sibi libuerit aget confessarius, adverbium enim illud non est “ de substantia formae absolutionis : tutiorem opinionem “ crederem illam Nicolii.” 988. Oatalani expressly rejects the opinion that the word belongs to the rubric, and insists. .. “adverbium illud “ deinde, quod eodem charactere exaratum absolution! pecca- “ torum immediate praemittitur, ut in nostro § II videre est, “ recitandum esse cum ipsa absolutione velut ejusdem con- “ textum.” The edition, of the Ritual which Catalan! had before him, and to which he here appeals, was that published by order of Benedict XIV, as appears from what he states in the dedication of his work to that Pontiff. He cites also, in favor of the same view, the “ Instructiones ” of St. Charles (Act. p. iv, De Sacramento Poenitentise, p. 434), which are very minute both as to the ceremonies to be observed and the words to be used by the priest in giving absolution ; and in them “ deinde is printed in type indicating that it is to be pronounced by the confessor. Now, there is reason to believe that the Roman Ritual was compiled in great part from these “ Instructiones.” In fact its rubrics are taken from them verbatim. It is not unreasonable, then, to conclude that, when two editions of the Ritual differ as to a word, the more exact is that which agrees with the text of the “ In- “ structiones,” and that the innovation, if any, should be put down to that which differs from it. ON THE SACRAMENT OF PENANCE. 479 989. Fornici, who was a consultor of the Sacred Congrega- tion of Indulgences and professor of Sacred Liturgy in the Roman Seminary, adopts the view, and almost the very words, of Catalani. As a reason why the priest should use the word, he says : Prsemittitur illud (deinde) peccatorum ab- “ solutioni, quia prime confitens absolvendus est a censuris ; deinde a peccatis. Et cum absolutio a peccatis sequatur illam ^‘a censuris, sacerdos qui utramque impertitur, in formula absolutionis recitare debet etiara adverbium conjunctivum, ut evidenter dignoscatur. diversas esse absolutiones, quae in uno actu jurisdictionali conjunguntur.” 990. De Herdt makes no reference to the controversy, nor does he even, give the words of the Ritual. Falise simply gives the formula of the Ritual with deinde as part of the text. (Du Sacrement de Penitence, § II, n. 7.) Bauldry un- derstands the Sacred Congregation, in the answer above cited, to condemn the omission of the word as an innovation. (Expositio Rubricarum, pars iv, De Sacramento Poenitentiae.) Schneider states the doubt almost in the words of Baruffaldi above cited, and resolves it by saying: Vocabulum ‘deinde,’ licet “ in nonnullis editionibus Ritualis Romani rubro sit charactere “impressum, ad formam tamen integram spectat.” (Manuale Sacerdotum, etc. ; De Sacramento Poenitentiae, § Forma Ab- solutionis, in nota. Editio sexta, Coloniae, 1871.) As he refers, in support of this opinion, to the answer of the Sacred Congregation, he evidently understands it in the sense in which it is understood by Bauldry. And in fact this interpretation derives some probability from the form in which the question is put. For it is simply asked whether the word should be omitted, because in some editions it is printed in red type. Now, this seems to imply that, up to the date of the question, 1, the word was in most editions printed as part of the text, and, 2, that usage was against the omission. The Sacred Congregation therefore, by answering, “ Nihil innovandum,” may be, not unreasonably, understood as deciding that the word should not be omitted. 991. The editions of the Ritual hitherto in common use in Ireland, England, and America, have “ deinde ” printed as part of the text, and confessors in these countries have uni- versally pronounced it as such. The same, we believe, holds also for France, Belgium, and German Some very recent editions, as, e. g., that of IMechlin, 1869, have the word in red, as it is in the Propaganda edition j but that this has not 480 ON THE SACRAMENT OF MATRIMONY. affected the practice of the clergy, may be inferred from the note of Father Schneider above cited. 992. In the present state of the controversy, and until the Sacred Congregation gives a clear decision on the point, we think the confessor is free to follow in practice whatever opinion he pleases ; for it is hardly necessary to observe that the use or the omission of the word does not in any way affect the validity of the sacramental form. We rather incline, however, to tbe use of the word, for, without doubt, in most countries, the use was, so to speak, in possession, when the answer of the Sacred Congregation was given ; and, therefore, to continue that use cannot well be regarded as the innova- tion forbidden by the answer. ON THE SACRAMENT OF MATRIMONY: DE SACRAMENTO MATRIMONII.’^ 993. Matrimony is so called, according to the common opinion, because the female who contracts it undertakes the office and duty of a mother — the words, Matris munia,” from which it is derived, signifying the duties of a mother. 994. This sacred contract was instituted by Cod himself in the terrestrial paradise, and was elevated by Christ to the dignity of a sacrament of the New Law. For a statement of the Catholic doctrine on this subject, and its vindication against the heretics, seeBellarmine, de Sacramento Matrimonii, tom. iii, p. 725. (Edit. Prag. 1721.) I. Parochus admoiiitus de aliquo matrimonio in siia parochia contra- hendo, primum cognosoat ex his ad quos spectat, qui et quales siut, qui matrimonium contrahere volunt : An inter eos sit aliquod cano- nicum impedimentum : Utrum sponte, libere, et secundum honestatem sacrament! velint contrahere: Utrum sint in aetate legitima, ut vir saltern quatuordecim, mulier vero duodecim annos expleverit: et uterque sciat rudimenta fidei, cum ea deinde filios sues docere debeant. 995. When the parish priest gets notice that a marriage is about to be contracted in his parish, he is directed by this rubric to ascertain, in the first place, whether the parties concerned are in a condition to contract validly and licitly; whether there is between them any canonical impediment, and especially whether they are acting freely j whether they have attained the proper age, which is fourteen years com- ON THE SACRAMENT OF MATRIMONY. 481 plete for males, and twelve for females j and whether they know the Christian doctrine, which it will be their duty afterwards to teach to their children. The inquiries regarding the liberty of the parties and their ages are particularly necessary in the case of young persons whose mam age is arranged by their parents. Great prudence and caution are necessary where there is question of a marriage without the knowledge or consent of parents. Pastors are .directed, in the Catechism of the Council of Trent, to instruct children m their duties towards parents and guardians on this head, and to exhort them not to contract marriage without their knowledge or against their wishes. (P. ii, cap. 8, No. 32.) As a general rule, such marriages are not contracted without sin. It is the common opinion of theologians that children are bound to consult their parents and follow their advice on this matter, at least so far as not to contract a marriage against their just and reasonable wishes. (Lig., 6, 849.) On the other hand, it is certain, from the declaration of the Council of Trent (Sess. 24, cap. i, de Reform. Mat.), that the consent of parents is not necessary for the validity of marriage j and theologians teach that their objections may be in some cases so very unreasonable, that the children are not bound to attend to them. (Lig., ibid., conveniunt autem.) Pdie priest, therefore, when asked to assist at such a marriage, must carefully weigh all the circumstances, and, if possible, arrange matters so that the parents may be induced to con- sent, or at least may have no reason to complain of him for assi feting at the marriage. 996. A sufficient knowledge of the rudiments of faith or of the Christian doctrine is a necessary disposition for worthily entering into the married state. The Ritual directs the pastor’s attention to this, and assigns one very urgent reason why this knowledge should be required : that parents are bo¥ind to teach their children the rudiments of faith. Pdie Synod of Thurles, adopting the w^ords of the Ritual, directs special attention to the same point. Benedict XIV expressly teaches that the pastor should refuse to marry those who are ignorant of the Christian doctrine, because they are bound sub gravi to acquire a knowledge of it ; and if they fail to do so when, as is supposed, they have the opportunity, they are in a state of mortal sin, and, consequently, would be guiltv of sacrilege by receiving the sacrament in this state. Now, though the priest be not the minister of the sacrament, his 482 ON THE SACRAMENT OF MATRIMONY. obligations in regard to it are in many respects the same as if be were Nor is it lawful for him to sanction, by his pre- sence and authority, a contract which, in the circumstances, would be an act of sacrilege. (De Syn. Dioec., lib. viii, cap. xiv, nn. 4 and 5.) Should the priest, then, find, on interro- gating the parties, that they have not this necessary knowledge, he should admonish them of their obligation of acquiring it before the celebration of the marriage, which he is not to permit until he is satisfied that they have acquired it. He must bear in mind, however, what the same great authority observes {ibid., n. 6), that a person may know and believe the principal mysteries of faith, and may have a sufficient knowledge, in his own rude way, of whatever else he is required to know, necessitate pnBcepti, and yet be so stupid and so deficient in memory as to be unable, even after dili- gent application, to remember and repeat them. Such persons are not to be refused marriage, but the pastor must take care that what they have learned be frequently repeated to them, so that they may not completely forget it. {Ibid.) 11 . Noverit ex probatis auctoribus quae sint canonica impedimenta matrimonii contrahendi, et quje coiitractum dirimant; et qui sintgradns consangninitatis et affinitatis, et item cognatioiiis spiiitualis ex Baptism! vel Contirmatioiiis Sacramento contractse. 997. The pastor must know, out of approved authors, what are the impediments of matrimony — those which render the contract illicit, as well as those which would render it null. We need not here enumerate the several impediments, as it would be beyond our scope to treat of them. Our object is simply to explain the rubrics of the Ritual, and develop the instructions which they contain ; and we touch on theological questions only so far as we deem it necessary for this object. Beyond some hints here and there, we cannot often allude even to many controverted points. Amongst those who have written on the impediments of marriage, there is, perhaps, no author that may be consulted with greater advantage than Carriere. We do not mean to recommend all his opinions and decisions, for he is generally inclined to the side of rigor, and his opinion on the power of the state to institute impediments is quite untenable; but, for lucid arrangement of the matter, and for clearness and •ON THE SACRAMENT OF MATRIMONY. 483 precision in tlie discussion of each question, we do not know any writer on the subject that can be compared with liim. Moreover, when theologians are divided on any point, he is careful to state the several opinions, with accurate references to the places in which they are given by the authors ; so that the student who desires fuller information on any point, is put in the way of finding it at once. 998. The rubric mentions those impediments that are of most frequent occurrence, and directs the special attention of the pastor to them. He must know how to reckon the degrees of consanguinity and affinity, and when a spiritual relationship is contracted by baptism or confirmation. In tracing degrees of kindred, it is recommended to form a kind of genealogical tree by writing down the name of the common ancestor, and under it the names of his descendants j those of each succeeding generation being placed under those of the preceding, until you reach the names of the parties of whom there is question. Otherwise, by writing down the names of the parties, and over them the names of the parents through whom they are likely to be related, until you reach the common ancestor. III. ITabeat in primis ipse bene cognita praecepta ilia omnia, quae in matiiinoniis rite conficiendis servare oportere, sacri Canones, el prae- cipue sancta Synodus Tridentina jnssit : dabitque operam ut ilia in parochia sua accurate exacteque serventur. 999. It is the manifest duty of the pastor to make himself acquainted wdth the laws of the Church, and especially those of the Council of Trent, relating to the celebration of mar- riage, and to endeavor, as far as he can, to have them fully observed in his parish. This duty is strongly inculcated in the decrees of the Provincial Councils that have been lately held in almost every country. The Synod of Thurles admonishes parish priests to observe accurately whatever is prescribed by the Homan Hitual with regard to the cele- bration of marriage. (De Mat., n. 51.) 484 ON THE SACRAMENT OF MATRIMONY. IV. Praesertim vero meminerit raatrimonia inter raptorem et’ raptam, dum ipsa in raptoris potestate manserit, inita, nec non clandestina, et (juselibet matrimonia, quae aliter quam praesente Parocho, vel alio Sacerdote de ipsius Parochi vel Ordinarii Ucentia, et duobus vel tiibus testibus contrahuntur, ex ipsius Concilii decretis irrita omnino ac nulla esse. 1000. The forcible abduction of a female, with intent to marry her, constitutes the impediment of ‘^raptus.’’ (Lig., 1107.) It is certain that a marriage between the raptor and his victim, while she remains in his power, would be null. This is expressed by the Ritual in the words used by the Council of Trent : ‘‘ Dum ipsa in potestate raptoris manserit.” For a full discussion of this impediment, and the cases in which it arises, see Carriere (905 et seq.). 1001. The word clandestine ” was formerly applied to marriages celebrated without a previous proclamation of the banns, or certain other prescribed solemnities, as well as to those celebrated without the presence of the parish priest and witnesses. It may be used, and is still sometimes used, in this wide sense ; but, since the Council of Trent, it is commonly applied only to those marriages that are cele- brated without the presence of the parish priest, or some other priest with permission from him or the ordinary, and two or three witnesses.” Understood in this restricted sense, a clandestine marriage is null and void, according to the decree of Trent. The Council, however, requires that the decree be published in every parish, and it is not binding until after thirty days from its first promulgation. (Sess. 24, De Bit. Mat., cap. 1.) If it be observed in any place, for a considerable time, as a decree of the Council, it is held to be sufficiently promulgated in that place. (Car., 1181.) The decree is at present in force everywhere in Ireland, but is not yet published in England and Scotland. 1002. Many questions of great practical importance re- garding the interpretation of this decree are discussed by theologians and canonists j and some of them have been decided by the Sacred Congregation of the Council, and even in Papal Constitutions. 1003. 1°. If the parties belong to a place where the decree is received, and there contract, the marriage must, of course, be celebrated in the form prescribed ; otherwise it is null. ON THE SACRAMENT OF MATRIMONY. 485 1004. 2°. If they go to a place where the decree is not received, and there contract a clandestine marriage, without having previously acquired a domicile or quasi-domicile in the place, the marriage is invalid. (Oar., 1187 j Lig., 1080, Si quis vero.) This is quite certain for the case in which they go for the purpose of evading the law, or, as is said, in fraudem legis,” as is clear from the responses of the Sacred Congregation, approved by a decree of Urban VIII, and republished and confirmed by Benedict XIV, in the constitution, ‘‘ Baucis abhinc hebdornadis,’^ of which we have much to say a little further on. But is the decision to be restricted to this case f Carriere maintains (loc. cit.) that no such restriction is to be admitted, and contends (1188) that che decisions are to be understood, and were understood by Benedict XIV, as against the validity of the marriage, even though the parties had no intention of evading the law, unless they had previously acquired a sufficient domicile. Many eminent authorities, however, maintain that the restriction IS to be admitted, and that the marriage would be valid unless the parties acted “ in fraudem legis.” (Schmalzgrueber lib. iv, tit. iii, 110.) De Lugo holds the same opinion. (Uesp. Mor. Dub. xxxvi, n. 5.) St. Liguori does not mention the restriction, but simply states that the marriage would be null (1. c.). 1005. Up to the time of Urban VIII it was the more common opinion of theologians that parties going from a place where the decree of the Council of Trent concerning clandestine marriages was in force, to a place where it was not, for the very purpose of evading the decree, could con- tract a clandestine marriage validly in the latter, even though they neither abandoned their domicile, nor acquired a domicile or quasi-domicile in the place where the marriage took place. Since the publication of the Responses confirmed by Urban VIII, this opinion is no longer tenable ; but before the publication of the Responses, the validity of such marriage was maintained by the most celebrated writers on matrimony. Amongst these, Sanchez, who indisputably holds the first place, maintains this opinion. (De Matrimonio, lib. iii, disp. 17, n. 29.) It is also supported by Basil Pontius (lib. V, De Mat., c. 9, n. 4), although this author is ever on the watch to controvert the opinions of Sanchez. Many other celebrated authors who maintained the same opinion are cited by Benedict XIV, in the constitution referred to. They 480 ON THE SACRAMENT OF MATRLMONY. relied on the axiom that locus regit conlraclum, which is especially true as to the forms to be observed in entering into a contract. To the objection that tlie parties who leave tlieir own parish for the purpose of contracting clandestinely, go there in fraudeni legis,” they answer that the parties only use their lawful right by passing fi-om one place to another, where they contract according* to the forms prescribed by the Church for that place; or that, if there be fraud, it is one which only renders the marriage illicit, but not invalid. Hence some theologians and canonists of great authority regard the Responses confirmed by Urban VIII and Benedict XIV, not as a mere interpretation of the law of the Council of Trent, but as a new enactment established by the Supreme Pontiffs for the purpose of preventing the law of Trent from being evaded. But, however this may be, it is certain that parties, retaining a domicile in a place where the decree of Trent is in force, and proceeding to a place where it is not in force, for the purpose of contracting marriage there clandestinely, cannot intermarry validly until they have acquired a domicile or quasi-domicile in the latter place. lOOG. But can they contract marriage validly before the parish priest of the place to which they have betaken them- selves and two witnesses'? Certainly not; because, as they have neither a domicile nor a quasi-domicile there, he is not their proprius parochus, wdiose presence is required by the Council of Trent. How, then, can they contract a valid marriage in the place where they now are? Their parish priest, or bishop, or the vicar-general of the diocese, provided he has jurisdiction over the parish where. their domicile is situated, can either personally assist at the marriage, as far as the validity is concerned, or delegate any other priest to do so. But if the parties named, on being applied to, refuse to do either one or other of the things mentioned, they must either wmit until they shall have acquired a domicile or quasi- domicile in the place to which they have gone, and then they can marry validly, but illicitly, without the presence of any priest ; or they must return to their place of residence, w'here they can contract immediately before their own parish priest or his deputy. 1007. The Responses confirmed by Urban VIII and Benedict XIV are of so much importance that we transcribe them from the constitution, Faucis, ahliinc Hchclomaclis. (Vol. xii, Bull. Bened. XIV, })p. 390, 391. Ed. Mechlin., 1827.) ON THE SACRAMENT OF MATRIMONY. 487 Quaeritur humiliter a Sacra Oongregatione : An incolac tarn masculi qnam foeininse, loci in quo Concilium Triden- tin um in puncto matrimonii est prornulgatum et acceptatum, transeuntes per locum in quo dictum Concilium non est prornulgatum, retinentes idem domicilium, valide possint in isto loco matrimoninm sine Parocho et testibus contrahere? . Secundo. Quid, si eo praedicti incolae tarn masculi quam foeminae, solo animo sine Parocho et testibus contrahendi, se transferant, habitationem non mutantes? Tertio. Quid, si iidem incolae tain masculi quam foeminae, eo transferant habitationem 'illo solo animo, ut absque Paro- cho et testibus contrahant? Die 5 Septembris: Sacra Congregatio Cardinalium Con- cilii Tridentini Interpretum, ad primum et secundum respon- dit, non esse legitimum matrimoninm inter sic se transferentes cum fraude. Ad tertium respondit, nisi domicilium vere transferatur, matrimoninm non esse validum. Urban VIII, in 1627, issued a brief confirming these Re- sponses. 1008. It is quite certain, therefore, that, if the parties go from a place in which the decree is in force, to a place in which it is not, /or the purpose of evading the laiv, and there contract clandestinely, the marriage is invalid. But is the decision to be restricted to this case? We have seen that Carriere (n. 1188) maintains that it is not, and that the de- cisions are to be understood, and were understood by Benedict XIV, as against the validity of the marriage, even though the parties had no intention of evading the laiv, unless they had previously acquired a domicile or quasi-domicile. And this would certainly appear to be implied by the response to the first and second questions proposed by the Archbishop of Cologne ; which were answered by the Sacred Congregation, and confirmed, as already stated, by Urban VIII. The sole difi’erence between the first and second (piestions is, that in the first there is no mention of the parties having gone to the place where the decree against clandestine marriages was not in force, for the purpose of contracting there ] and in the second it is supposed that they have gone with sueh intention. The same answer is given to both inter- rogatories: “Non esse legitimum inatiimonium inter sic se “ ti ansferentes cum fraude.” The only reason for doubting that the rnariiage would be invalid, whether the parties went to 488 ON THE SACRAMENT OF MATRIMONY. the place for the purpose of contracting marriage there, or for some other purpose^ must be derived from the words cum fraude. But to this it may be readied that, for instance, if two Catholics, having their domicile in Ireland, should go for a few days to England for recreation or on business, and contract marriage there, either privately or in presence of a priest and witnesses, without obtaining the authority of their own parish priest, they would act “ in fraudem legis.’^ It certainly appears to us that such a marriage would be regarded as invalid. No doubt some eminent authorities, as Schmalz- grueber (lib. iv, tit. iii, n. 110), hold the contrary. But this great author treats the question very briefly, and Lugo (Besp. Moral., lib. 1, Dub. 36, n. 5), though often quoted for the same opinion, does not maintain that the marriage weuld be valid, even if the parties did not go to the place for the purpose of contracting a clandestine marriage, nor does he rely much on the words cum fraude. As he is often said to have shown that the decisions can he understood only of the case in which the parties act “ in fraudem,’^ it may be well to quote his words : In quo cardinalium responso illos doctrinam “ restrinxisse ad eos qui ex industria per breve tempus trans- ibant ad locum aliurn, ut sine parocho et testibus contraherent, et ideo addiderunt fortasse in responso verba ilia, cum fraude, quae in interrogatione non fuerunt formaliter expressa : quo casu negari non potest, communem doctorum sententiam negare matrimonium illud posse valide fieri, quidquid sit, an in aJiis casibus valeat, quando ad negotia, vel mercimonia, “ aut ob alios eventus ibi contrahentes inveniuntur, de quibus ^‘cardinales nihil voluerunt definire.^^ But we have already shown that the question as to the intention was formally put in the second question, and therefore designedly left out of the first ; and we therefore think that the mariiage would be invalid, even if the parties had not gone to the place without the intention of contracting clandestinely in it. 1009. Moreover, Benedict XIV proves that the Sacred Congregation always adhered to the response given to the interrogatories of the Archbishop of Cologne, by citing a decision giv^en by it on the 16th of December, 1640, which was as follows : “ Sacra Congregatio censuit non valere matri- “ moniurn contractum coram parocho loci, ubi contrahentes reperiuntur non animo ibi domicilium contrahendi.” Now, this decree, as well as all those which declare to be void all marriages contracted “ coram parocho rurali,” whether the ON THE SACRAMENT OF MATRIMONY. 489 parties have gone there to get married, or for recreation, or on business, clearly shows that all marriages contracted by parties in a place where they happen to be at the time, without the intention of acquiring a domicile or quasi-domicile in said place, are invalid. 1010. We have said above that the marriage would be invalid, unless the parties have previously acquired a domicile or quasi-domicile in the place ; for, if they have, the clan- destine marriage would be valid, according to all, because they would then be in the same condition as the inhabitants of the place, enjoying its privileges, as well as subject to its laws. And this holds, even though they may have lefi their former residence for the very purpose of evading the decree of Trent. This is clear from the answer to the third of the queries contained in the constitution, Faucis dbhinCj already quoted. (See also Car,, 1194; Lig., loc. cit.) But if they have not acquired at least a quasi-domicile in the place, it is necessary, for the validity of the marriage — ■ or, at least, to remove all doubt about its validity — that it be celebrated according to the form prescribed by the decree ; and, consequently, the parish priest of one of the parties must be present to assist at it, or some other priest with his permission. Hence, for instance, if two persons from Dublin go to London, and wish to get married there, before either of them has acquired a quasi- domicile, the marriage must be celebrated before the parish priest of either (who might happen to be in London at the time), or before another priest, with his permission or the permission of the Ordinary of Dublin. 1011. 3°. If the parties belong to a place where the decree is not received, but contract marriage in a place where it is receiv’^ed, the marriage would be invalid, unless celebrated according to the form prescribed. This is the common opinion according to Carriere, 1187, and St. Liguori, 1080, who quote several authors, Sanchez, Pontius, etc. Carriere, while admitting it to be the opinion of most theologians, thinks the opposite opinion more probable (1194). Gury, however, gives it as certain (p. 640), and in practice we must regard it as such. 1012. ' But who is the parish priest in this case? Is it the parish priest of one of the parties, or of the place in which the marriage is celebrated ? 1013. On the one hand, it might be maintained that since, 490 ON THE SACRAMENT OF MATRIMONY. if the marriage took place in tlieir own country, tlie presence of the parish priest of one of the parties would not be required for its validity, it is hard to suppose that it would become necessary, when they, in some manner, withdraw from his jurisdiction by going to a place where the decree of Trent is received. It might be said, moreover, with Carriere (1190), that, since the decree is not published in his parish, he is not that authorized witness deputed by the Church to assist at the marriage, however his presence might be desirable in other respects j and if this be true, when the marriage is cele- brated in his parish, it ought to hold a fortiori when it is celebrated elsewhere. Again, it is a general principle in the law of contracts, that the forms or the formalities to be ob- served in making them are those that are required in the place where they are entered into, according to the axiom, locus regit actum : and it is on this very principle that theologians and canonists maintain the necessity of complying with the decree of Trent in the case now under consideration ; but this principle founds a kind of presumption in favor of the parish priest of the place, unless when it is clearly shown that not he, but some other, is authorized to assist. 1014. On the other hand, it is certain, as we shall see, that the parish priest whose presence is required by the Coun- -cil is the parish priest of one of the parties, and not the parish priest of 'the place as such ; and therefore, since it is supposed they have a parish priest, and are not ^Wagi,” whose case is exceptional, it would seem that his presence is required ; and, in fact, Lacroix (lib. vi, pars 3, n. 713) infers that, be- cause, according to the common and true opinion, the marriage, even if contracted before the parish priest of a parish in which the parties now are, but where neither of them has a domicile or quasi-domicile, would be invalid, therefore their own parish priest, in whose parish the decree of Trent is not in force, or his deputy, should assist at the marriage to render it valid. Lacroix does not give the authority of a single theologian or canonist for this opinion ; and he quite overlooks the hypo- thesis, that neither the parish priest of the place where the parties have neither a domicile nor quasi-domicile, nor the parish priest of the place where they have a domicile, but in whose parish the decree of Trent has not been published, can assist validly at the marriage when contracted where the decree binds ; and that such parties cannot contract a valid marriage except by acquiring a domicile or quasi-domicile in the place ON THE SACRAMENT OF xMATRIMONY. 491 where they now are, or by returning to their own country, where, as far as the validity is concerned, the presence of a priest is not required.' We do not say that this case has been settled, as we have not seen an express decision on the point ; but we consider it so probable, that, until a decision shall have been given by the Holy See, no priest could act on the contrary opinion without grievoiis sin. Then, if two Catholics come from England or Scotland to Ireland, in order to marry validly, they must acquire a domicile or quasi- domicile in the latter country, or return to the former. 1015. It follows from what we have stated, that, if a Catholic domiciled in Ireland agrees to marry a Catholic domiciled in England, the marriage, if contracted in Ireland, will be invalid unless solemnized before the parish priest and witnesses 5 but, if contracted in England or Scotland without the presence of the pailsh priest or witnesses, it will be valid, but illicit. The decision in both cases rests on the principle, that locus regit coniracium. ITis case had been decided by the Sacred Congregation. (Lacroix, loc. cit., n. 714.)' 1016. It may be observed that a clandestine marriage is always valid when one of the parties is exempt from the law of Trent, even though the other may be subject to it, (Car., 1227.) Hence, e.g., a person from Ireland who contracts a clandestine marriage in Scotland with a native of the place, or one having a sufficient domicile there, is married validlv. 1017. Another priest, with the permission of the parish priest or of the ordinary, can validly assist at the marriage, according to the words of the decree, which are here given in the Ritual. The permission must be clear and express. It is not sufficient that it be presumed, or that it certainly would be given, if asked for. (Car., 1330 et seq.) It must be a permission that actually ha,s been given, and in virtue of which he assists. It is sometimes a question whether it be included in a general permission or appointment to administer sacraments in a parish. Whether it be or not, evidently depends on the intention of the bishop or parish priest j and this may often be determined by the circumstances, or by the recognized custom in the place. 1018. If the curate has this permission, without any ex- pressed or implied limitation, it is certabi, 1“, that he can himself assist at the mairiage of any parishioner when the marriage is celebrated in the })arish (Car., 1344) ; and 2°, that he can assist, just as we shall see the parish juiest can. / 492 ON THE SACRAMENT OF MATRIMONY. at the marriage of his parishioner, even in another parish, unless his delegated powers be specially restricted. 1019. The presence of the priest must be such that he can, morally speaking, be a witness of the marriage ; and, therefore, he must have some notice of the intention of the parties to contract before him. (Car., 1263, 1264.) The same may be said of the witnesses. {Ibid, 1265.) 1020. At least two witnesses must be present with the parish priest. It is the common opinion of theologians that any persons having sufficient intelligence to testify to the marriage may be admitted as witnesses. (Car., 1350.) Both must be present at the same time with the priest, and must be present also in such a way that they could afterwards bear testimony to the marriage, if called on. {Ibid, 1351.) V. . Est autem proprius Parochus, qui adesse debet, is, in cujus parochia matrimoniura celebratur, sive viri, sive mulieris. 1021. The ^^parochus” whose presence is required, is here stated to be the parish priest in whose parish the marriage is celebrated, whether he be the parish priest of the man or of the woman. When the parties are from different pari^es, it would seem from the rubric that the parish where the cere- mony is performed should determine the parish priest whose presence is required ; but the matter having been referred to the Sacred Congregation, it was decided that the presence of the parish priest of either is sufficient, no matter in which of the parishes the marriage is celebrated (Car., 1275) ; no matter, indeed, where, in what parish or what diocese it may be celebrated (Car., 12'66, Lig., 1081). In Ireland, however, as in most other countries, the ceremony usually takes place in the parish of the bride, and is performed by her parish priest, or at least with his permission ; and it is but right and proper in all cases to have the consent of the parish priest of the parish where the marriage takes place (Car., 1. c.) : and it would certainly be a grievous sin to give the solemn nuptial benediction without it (Lig., 1087). 1022. The chief point to be here determined is, the residence necessary in any place in order that a person may be able validly to contract marriage before the parish priest of that place. 1023. 1°. It is certain that the fact of being born in any ON THE SACRAMENT OF MATRI3IONY. 493 parish is not enough, if the person has ceased to reside there. (Bened. XIV, Inst, xxxiii, n. S.) 1024. 2°. It is certain also that it is sufficient to have a fixed residence or domicile in a parish. (Car., 1273.) A per- son is said to have a domicile ” in a place when he resides in it, and intends to reside in it permanently. He can acquire it at once on coming to a place, if his intention of residing permanently be sufficiently manifested, as it often is by the circumstances (ibid.), as, e g., if he has transferred his mov- able property to a house which he has purchased and fitted up as a residence, etc. 1025. 3^. If a person has two domiciles in two different par- ishes, which he may have, if he resides in them alternately, and for about an equal length of time in each, he is free to marry before the parish priest of either. (Car., 1274.) 1026. 4°. If a person, having a domicile in one parish, goes to another with the intention of residing there for a consider- able time (“ per tempus notabile ”), and sufficiently manifests this intention, he acquires a ‘‘quasi-domicile” in that place. This is not unfrequently the case with students, lawyers, and other professional men, persons holding situations in certain public offices, etc. Theologians seem to be agreed that a per- son acquires a quasi-domicile at once if he sufficiently manifests his intention of residing in a place for a tempus notabile, and really has such intention : but the question is, whether such a quasi-dornicile would suffice for marriage without the pre- vious residence. Carriere is of opinion that it does suffice (1277). Bouvier is inclined to the same opinion (De Mat., Art. V, § i). We consider this opinion to be true, from the number and authority of theologians and canonists who hold it, some of whom we shall quote further on. In the meantime we consider it practically certain: 1°, because Benedict XIV (Inst, xxxiii, n. 11, in fine) cites a decision of the Sacred Congregation to the following effect: “An valeat matri- “monium contractum coram parocho illius loci, ubi contra- “ hentes reperiuntur, non animo ihi clomicilium contrahendi, sed “ recreationis causa ? Et quid, si contrahens ibi moretur tmi- ^^quam prjetor, judex, seu medicus temporalis.” The Sacred Congregation answered that, in the first case, the marriage was invalid, in the second, valid. Secondly, because this opinion, as we have said, has been maintained by the greatest writers on matrimony. It will be sufficient to quote here Sanchez (De Mat., lib. iii, disp. xxiii, n. 14), who says : “Ilino 494 ON THE SACRAMENT OF MATRIMONY. infertur 1'^, non opus esse expectare iit majori anni parte lii ^‘in parocliia aut dioecesi habitarint, sed statim ac animum liabitandi majori anni parte iiai)entes, incipiunt babitare, effici parocliianos, et posse omnia dicta (amongst which, assisting at their marriage is included) erga illos exerceri. Sicut enim ^‘ad domiciliuni nullius temporis habitatio requiritur, sed statim ac quis incipit habitare ; cum animo perpetuo habitandi, illud ‘‘acquirit. . . sic statim ac quis -incipit habitare animum habens habitandi toto tempore requisite, efficitur parochianus.’^ The same doctrine is held by the Canonists. (Of. Barbosa De Officio Parochi, Part 11, c. xxi, n. 36, and many more, a few of whom we shall quote further on.) 1027. It is, therefore, commonly admitted by theologians and canonists that two things are necessary and sufficient to constitute a quasi-domicile: 1°. That the person shall have the intention of dwelling in a place for a notable time ; and 2^, that he shall have actually commenced to dwell in such place, and that he shall have sufficiently manifested his inten- tion of dwelling there for a notable time. When these two things concur, the quasi-domicile is acquired at once. The animus, being essentially an act of the mind, can only be known by external acts, such as taking a house, or apartments, or a shop in which a person is to dwell, for a teinpus notabile.” The decision of the Sacred Congregation, quoted by Benedict XIV, in the constitution, Baucis abhinc,’^ which we shall presently transcribe, proves at least this much — that the actual dwelling of a person in a place for a month, in the absence of any sufficient indication that he is going to leave it soon afterwards, may generally be regarded as a sufficient external manifestation of his intention to remain there for a notable time. But supposing that the intention must in this case extend beyond a month, the marriage would be invalid unless such intention actually existed j for the mere external indication would not supply the intention, any more than the former indications, such as taking a house for six months, would, supposing the person only intended to remain in the place until he should succeed in getting married. 1028. We say an intention of remaining for six months would certainly suffice, but we do not say that it should necessarily extend to so long a period. Schmalzgrueber, with many other canonists of great authority, thinks that a few {aliquot) months may be considered a tempus nofabile anni, and that therefore the intention of remaining for this ON THE SACRAMENT OF MATRIMONY. 495 period will suffice. Conforinius autera juri sentire videntur qui dicunt, sufficere propositum Labitandi per aliquot menses, praecipue si domus, conclave, taberna, etc., fuerunt conducta.’^ (ScLmalzgrueber, lib. ii, tit. ii, n.19.) Who adds : Nullum ‘Wero diibium, conditionibus hisce verificatis statim post hahitationem acceptam quasi domicilium acquiriP The opinion that the quasi- domicile, the requisite conditions being ol)served, is acquired at once, is taught by Barbosa de Parocho (p. 2, c. xxi, n. 35), by Giraldi, Sanchez, et aliis passim j so that, as already stated, we regard it as practically certain that a person actually dwelling in a place with the intention of continuing to dwell there for six months, who has sufficiently manifested that intention, may be married before the parish priest of that place, immediately after he has commenced to dwell in it. 1029. Nor is this opinion opposed to the teaching of Benedict XIV, in the constitution, Paucis abhinc,’’ in which he says : “Post hsec necessarium fore censemus nonnihil “ adjungere, ut in propatulo sit quidnam requiratur ad quasi “domicilium adipiscendum. Veruni hac in re non ^alio “pacto responderi potest, nisi quod antequam matrirnonium “ contrahatur, sqoatio saltern unius mensis ille, qui contrahit, “ habitaverit in loco ubi matrirnonium celebratur.’^ Because, the Pontiff adds : “ Definitiones Cong. Cone, hac de re ob- “servari poterunt apud Fagnanum in cap. Signijicavit de “ ParocliiSj ubi eorundem contextu perpenso, hsec habet sub. ^^num. 39. Vir et mulier Trajectenses timentes impedimentum “a parentibus, cum ad vicinam urbern Aquisgranum se “ contulissent, et ibi aliquamdiu morati matrirnonium con- “traxissent. Sacra Oongregatio, consulta super validitate, “ censuit, exprimendum tempus quo contrahentes Aquisgranae “ manserunt j quod si fuerit saltern unius mensis, dandam esse “ decisionem pro validitate ; alias de novo referendum in “ congregatione.^^ From these last words, which, though given by Fagnan, from whom Benedict XIV has taken the decision, are strangely omitted by the Pontiff, it is clear that the Sacred Congregation did not regard the previous residence of a month as absolutely necessary, provided it should be proved from other circumstances that the parties had manifested their intention of residing per temyus notahile in the place where the marriage took place. 1030. It is clear also from wdiat the Pontiff adds, immedi- ^ ately after quoting the decision of the Sacred Congiegation, 496 ON THE SACRAMENT OF MATRIMONY. that he did not regard a month’s previous residence as abso- lutely necessary to constitute a quasi-domicile in ordine ad mat. contraliendum : ‘‘Natalis Alexander/’ says the Pontift' (in Theol. Dog et Moral., lib. ii, De Sac. Mat., c. ii, a. ii, Regul. 6), “ animadvertit, ad acquirendum quasi domicilium, oportere “ ut contrahentes, antequam matrimonium celebrent, tanto tern- ^^pore eo in loco ubi copulantur, fuerint commorati, ut ibidem “ cogniti jam sint, atque perspectV^ In this passage there is no mention of a month’s previous residence being necessary, but only that the parties should have resided in the place where the marriage is to be contracted for a period long enough to make them well known in it. It is clear that a previous residence regarded in this light concerns the lawfulness rather than the validity of the marriage ; for it is equally applicable to all strangers, whether they come to a strange place to reside permanently or only temporarily in it. And, in fact^ although Natalis Alexander, in the Rule quoted by the Pontiff, treats the question of quasi-domicile, yet, in the little paragraph which he adds at the end, to which the Pontiff alludes, he clearly includes the domicile as well as quasi- domicile. His words are : “ Observari tamen oportent statuta “ moresque Dioecesium quoad tempos constituendo domicilio, “ seu domicilii juri acquirendo, ad effectum matrimonium con- “trahendi praefixum. Eo certe tempore contrahentes in “ Parochia mansisse necesse est, quod sufficiat ut ibi noti sint.” These words certainly apply to all strangers, whether they acquire a domicile or a quasi-domicile, and regard the licitness rather than the validity of their marriages. 1031. The next question is, whether a month’s residence in a place is sufficient to render valid all marriages contracted after the lapse of this period, although the parties intend to return to their former domicile immediately afterwards. Car- riere (n. 1285), and the author of the Prcelectiones Juris Canonici habitce in Seminario S. SuJpitii (pars i, a. 3, n. 244), Gury (n. 846, who, however, excludes the case of parties who reside in the country for the purpose of recreation, or ad negotia ruralia agenda)^ hold that the residence of a month in any place is sufficient per se to render valid a marriage contracted after the lapse of this period. But all these rely on the authority of Benedict XIV, in the constitution, “Paucis ab- “ hinc,” and on another decision confirmed by Gregory XVI, which is as follows : — “Joannes et Maria, Mechlinise domicilia habentes, Lon- ON THE SACRAMENT OF MATRIMONY. 4-97 dinura veniiint, et sine anctoritate vel licentia siiornm paro- ^^ch(3rura, nno solummodo mense elapse, Londiiii matrimoninm. “contrahunt. Quaeritiir utrura hoc matrimoninm invalidum sit propter decretum Cone. Trid. (Sess. 24, cap. i, de ref. Mat.) necne. ‘‘Feria4^ die 6* Decemhris, 1842, Sanctissimns D. N. Div. ‘^Provid. Gregorius Papa XVI, in solita audientia R. P. D. ^‘Assessori S. Officii impertita, audita relatione suprascriptse “ epistolse una cum EE. et RR. DD. Cardinalium Gen. Inq. ^‘suffragiis dixit: Stet Epistola Bened. XIV ad Archiep. “Goanum.” {Melanges Tlieologiques, vol. ii, p. 451.) 1032. As far, therefore, as this last decision concerns the matter of which we are speaking, it is clear that it adds nothing to the decision of Benedict XIV, which we have already considered, concerning the necessity of an actual pre- vious residence of a month being necessary in order to acquire a quasi-domicile. Xow, in reference to this whole matter, it is clear that Benedict XIV does not make any new law, but merely undertakes to exemplify the law of clandes- tinity, from the decree of Urban VIII, and the decision of the Sacred Congregation in the Utrecht case; because he expressly avoids entering into the question of the quasi-domi- cile, and refers the reader to the decisions contained in Fagnan, and especially to the Utrecht case. Then, in the end of the paragraph, he adds : Dubitari autem posset, num ad quasi “domicilium acquirendum matrimonii causa, uti diximus, non “solum requiratur praecedens habitatio, verura etiam subsequens “ ad aliquod temporis spatium : verum cum observaverimus, “subsequentem habitationem ab iis auctoribus, qui hanc “ tractarunt materfam, tanquam magni momenti adminiculiun “ reputari, ut novum domicilium queesitum dicatur, nihil vero de “ilia praescriptura fuisse a Cone. Congreg. in adducta paulo “ ante definitione penes Fagnanum, nolumus de liac re quid- “ quam novi decernereP 1C33. Let us, therefore, consider what has been decided in the Utrecht case. This being a particular case, we cannot arrive at a certain conclusion without knowing all the circum- stances. Xow, in order that this case should prove that a month’s residence in a place is sufficient to constitute a quasi- domicile, in which marriage may be validly contracted, we should know, 1st, that the parties had not abandoned their former domicile; and 2dly, that they intended to return to their former domicile immediately after the lapse of a month. 498 ON THE SACRAMENT OF MATRIMONY. Because, if they did not intend to return to their former domicile at all, or intended spending* a considerable time at Aix-la-Chapelle, where the marriage was contracted, which is extremely probable, from the circumstance that they had fled from their parental abode to avoid the opposition of their parents to the mari iage, the fact of the marriage contracted at Aix-la-Chapelle, after a month’s residence in that place, having been pronounced valid, would prove nothing as to a month’s residence being per se sufficient to constitute a quasi- domicile, or habitation in ordine ad matrimonium. It is also remarkable that Benedict XIV (Inst, xxxiii, n. 9), referring to this very case and some others, makes the following com- ment : Advertendum tamen est matrimonium hoc pacto ineuntes, antequam rem perficerent, domicil ium in eo loco vel quasi domicilium assecutos fuisse. Xam diu morati ibidem ^‘ante matrimonium fuerunt, neque inde postea decesserunt, lit primam sedem, ac domicilium repeierent^ quernadmodum Cle- “ ricatus recte perpendit.” 1034. Secondly, Fagnan, on whose authority the authen- ticity of this decision rests, does not himself draw the con- clusion from it that a month’s residence is sufficient to constitute a quasi-domicile. The question he discusses is this : A woman was banished by order of a secular prince from the city in which her domicile was, on account of her scandalous life, and she was commanded to reside in another place during the prince’s pleasure. After four months’ residence in her new abode (which she was clearly resolved to leave and return to her former domicile, wlid^iever the prince should permit her to do so), she contracted marriage before the parish priest of her present residence with a man who had his domicile in the city from which she had been banished. The question was, had this marriage been con- tracted so as to fulfil the forms prescribed by the Council of ‘Trent in the decree already cited f (Fagnan, loc. cit., n. 29.) Then, having adduced many opinions regarding the things required to render a stranger a parishioner, so that the parish priest of the place where he actually dwells can administer to him the sacraments and assist at his marriage, he approves of the opinion which holds that, when a person goes to a parish, not merely for recreation or some other temporary cause, but to reside there, he becomes immediately a parishioner of that parish. This, he says, is not only the more common and true opinion, "but also the most equitable in the case of the ON THE SACRAMENT OF MATRIMONY. 499 woman who was forced to live in a city at a distance from that in w^hich she had her domicile (nn. 31, 32.) 1035. “Non obstat,” ait, “quod bsec mulier non habuerit “ animum in dicto oppido perpetuo morandi. Quoniam satis “ est ut habuerit animum morandi quamdiu necessitas et jussus ^^principis durarent : nam et hi qui pestis aut belli causa alio “ divertunt, non habent animum illic manendi, nisi quoad “duraverit necessitas. . . . Ad hoc enim ut dictum est, jura “ non considerant domicilium, sed simpUceni habitationem, et “ satis est, ut causa submovendi scandalum, ob quam princeps “jussit mulierem alio transferri, non fuerit tabs, ut potuerit probabililer inconiinenter cessare. . . . Secus si per transi- “ turn alicujus exercitus transeuntis hostiliter per comitatum “ quis contulisset se ad civitatem. . . . Nam priino casu venit “ animo commorandi ; secundo non ” (n. 34). He then cites various d(!cisions of the S. 0. The first case concerned the marriage of a noble youth who resided at Sienna. He wished to marry a harlot, who also resided at Sienna; but fearing that, if he attempted to marry her at Sienna accord- ing to the form prescribed by the Council of Trent, his friends would interpose, he went to Rome, where, having remained for some time (aliquantisper), he contracted mar- riage with the harlot before the parish priest of St. Anastasia, in which parish they resided at the time ; and this marriage was declared to be valid by the S. 0., “because he is the ^^proprius parocJius in whose parish the contracting parties “ dwelt at the time when the marriage took place.’^ And the Congregation, being consulted generally : “ An proprius “parochus quis dicatur, in cujus parochia contrahentes habi- “ tant tempore quo matrimonium contrahitur. Respondit ita “dici ” (n. 36). 1036. Afterwards, the example^ he continues, of the decision given in the Sienna case, the S. C. declared to be valid the man’iage of a student, who, fearing opposition from his parents, remained five or six months in the city where his university was situated, and there contracted mar- riage with a girl of inferior condition before the par’sh priest of the parish in which he resided. The next case was that of two persons, who, fearing opposition from their parents, came to England, and contracted there before the parish priest of the parish in which they resided for some time (ali(piantisper). Finally, Fagnan adduces the Utrecht case, and from all these concludes as follows: “Ex quibus non 500 ON THE SACRAMENT OF MATRIMONY. videtur dubitandnm qnominus validurn sit prsesens matri- contractum corara parocbo habitationis post quartum habitationis mensem. Et in banc sententiam S. 0. respondit.’’ 1037. Now, it will be observed, 1°, that the word quasi- domicile, with which w^e are now so familiar, does not occur either in the decisions of the S. C., or in the comments of Eagnan. According to these decisions, a person could become a parishioner, in orcUne ad matrimonium, not only by acquiring a domicile, but by a residence in the parish for some time, even though he bas the intention of returning afterwards to his former domicile. 1038. 2°. That in all these cases the parties either left their domicile, or did not return to it until they contracted marriage, because they feared that ilieir parents ivoidd oppose their marriage. 1039. 3°. That it is never stated in any of the decisions that a residence of a month per se sufficient, for this period is only mentioned in one decision, whilst in two others a period of four, of five, or six months is mentioned ; and in two others a residence for some time, no definite period being mentioned, is declared to have been sufficient. 1040. 4°. That in the decisions of Urban VIII, and in many decisions of the S. 0., the word domicile comprises not only a permanent residence, but also such temporary residence in a place as will enable parties to contract marriage validly before the parish priest of the parish in which they reside. We have already quoted the decisions of Urban VIII, and a decree of the S. C., which is given by Benedict XIV, in the constitution, Paucis abhinc hebdomadis,” in which both the Pope and the Congregation declare null a marriage contracted “ coram parocho loci, ubi contrahentes reperiuntur non animo ^Cbi domicilium contrahendi.’’ In the decisions cited by Fagnan, what we call quasi-domicile is called a habitation. ]'041. 5^. That Benedict XIV, and the other theologians who distinguish between a domicile and a quasi-domicile, never add any third mode by which a person may become a parishioner in ordine ad matrimonium contrahendiun. On the contrary, Benedict XIV distinctly calls the month’s residence mentioned in the Utrecht case a quasi-domicile: “Post hjec,” ait, “ necessarium fore censemus nonnihil adjungere, ut in “ propatulo sit quidnara requiratur ad (piasi domicilium adipis- “ cendum. Verum in hac re non alio pacto responder! potest, ON THE SACRAMENT OF MATRIMONY. 501 nisi quod antequam niatrimonium contraliatur, spatio saltern uni us mensis ille, qui contrahit/^ etc. He then quotes the Utrecht case, and adds: Dubitari autem potest, num ad ([uasi domiciliuni acquirendurn matrimonii causa, uti diximus, non solum requiratur prsecedens habitatio,’’ etc. 1042. 6^. Consequently that Carriere, and those who follow him, in making a simple habitation distinct from a quasi- domicile, are totally deceived, because, as far as the validity of marriage is concerned, they mean one and the same thing. For the same reasons it also follows that nothing can be deduced in favor of a month’s residence previous to the celebration of marriage in any place being se sufficient to render the subsequent marriage valid. Because Carriere, and those who agree with him, rely entirely on the Utrecht case, and the constitution, ‘‘ Paucis.’^ Now, we have already shown that tliej^ are entirel}^ wrong in distinguishing a simple residence in orcline ad niatrimonium from a quasi-domicile. Nor does Benedict XIV ever affirm that a month’s residence is per se suflffeient to constitute a residence or quasi-domicile for marriage. On the contrary, the Pontiff' expressly declares that, as the authors who have written on the subject lay great stress on the subsequent residence as magni moinenti admini- culum, he will make no new decree on this head. Nor does the decree of the S. C. settle anything on the question that a month’s residence is per se sufficient to render a marriage subsequently contracted valid, but simply that in the Utrecht case this was sufficient. It only follows: — 1043. 7°. That a month’s habitation is sufficient to render the subsequent marriage valid positis ponendis, that is, when it is such as to constitute a quasi-domicile j and, consequently, as the words, quasi-domicile^ and habitation^ and simple habitation^ are used by canonists and theologians to express the same thing, the IIol}^ See was perfectly justified in leaving the words, quasi-domicile and simple habitation, sufficient to constitute a quasi-domicile in ordine ad mairimonium, as it has done, in the Acts of two French Provincial Synods ; because, as we have shown, where there is question of a residence sufficient to make a person a parishioner, in ordine ^‘ad niatrimonium contrahendum,’’ these words mean exactly the same thing, and it is perfectly true that either a quasi- domicile or a simplex habitation positis qmiendis, is sufficient to enable a person to marry in presence of the parish priest of the place. 502 ON THE SACRAMENT OF MATRIMONY. 1044. 8°. That, to acquire a quasi-domicile or habitation m online ad matrimonium, both the intention and the fact, or actual residence, are necessary. It is not enough that a person intends to reside for a tempus notabile” in a place, or that he has taken a house for six months or a year, and furnished it. He must have actually commenced to reside there as in his dwelling-place ; and he must also have the intention of making it his dwelling -place for a notable period. Hence it* lias frequently been decided that a person who goes to the country for recreation, or to transact business, or for any other temporary cause, or for the purpose of contracting marriage, and not of acquiring a domicile or quasi-domicile, cannot marry validly there. Hence, if Bertha, even though she be already engaged to be married to Cains, goes on a visit to a friend to a lodging in the country to recruit her health, or takes apartments in a neighboring town by the week or fort- night, in order to prepare dresses, etc., but without the inten- tion of ac<|uiring a residence in these places, although her stay may be unexpectedly protracted from time to time until a period of one, two, three, or even six months has elapsed, she cannot contract marriage in the place where she is stay- ing, because she never intended to acquire a habitation (quasi- domicile) in that place. 1045. 9°. But the question is, if she takes a house or lodgings in town or country, still retaining her proper domi- cile, how long must she intend to dwell in the place in order to acquire a residence sufficient for marriage? 1°. Is a montlfs residence previous to the marriage necessary? 2°. Is it sufficient, if she intends to marry at the expiration of the month, and leave the place immediately afterwards? To the first question we answer: that, if she has taken a house or lodgings for five or six months, and bound herself to pay rent for that time, she can be married in that place at once, if she took the house or lodgings before she was engaged to be married; because she acquired a quasi-domicile the moment she commenced to reside in that parish, for her intention of remaining there for a tempus notabile was sufficiently mani- fested by the circumstances we have mentioned. And in this ease the marriage would be both licit and valid, even though she changed her mind before the marriage took place, and intended after her marriage to reside in a difiereut parish with her husband ; because, when a domicile or quasi-domicile is once validly acquired, it is only lost by the intention and the ON THE SACRAMENT OF MATRIMONY. 503 fact. Neither the fact of a absence, whilst the intention of returning to the place tanquam in locum domicilii aut quasi domicilii remains, nor the intention of leaving the place, so long as the person continues to actually reside In it, deprives him of either. 1046. lO'^- But if she were engaged to be married before she took the house or lodgings for five or six months, other circumstances should be taken into consideration. If she took the place as a residence both for herself and her husband, or if the marriage were not to take place for five or six months, we think her intention of residing in the place for a tempos ^^notabile’^ would be sufficiently manifested ; and therefore that, not only in the first, but even in the second case, she could contract validly coram paroclio loci, if for some unfore- seen cause it should be considered expedient to solemnize the marriage at an earlier period. For instance, if, on account of urgent business, the sponsus should be unexpectedly obliged to go to America or Australia, we think the marriage could be validly contracted at once before the parish priest of the place where the girl resided, whether she intended to remain on in it or to accompany her husband, because, having already acquired a sufficient residence, she w^ould not lose it until she actually ceased to dwell in it. 1047. 1 But if she onl}^ took the lodgings by the week, with accommodation for both herself and her intended hus- band, even though she declared that she would reside there for six months, after which she would leave it, we think the intention of remaining there for a tempus notabile ” would not be in many cases sufficiently maniiested, at all events until she should have dwelt for some time in the place. It is supposed tliat she retains her former domicile, and that her intended husband does not reside in the parish where she lodges, but in some other parish : for, in either of these cases, the marriage would be valid for other reasons. But, we say, supposing the validity to depend on the sufficiency of her own residence, the intention of remaining for a “ tempus notabile would not generally be sufficiently manifested from the beginning. But after the lapse of a fortnight or a month this might be clear : as, if she had made permanent improvements at her own expense, had got paper put on the walls, got the doors and windows painted, purchased furniture specially suited to the place, or furnished it in a manner suitable to carry on her own trade or calling. All this might be made 504 ON THE SACRAMENT OF MATRIMONY. manifest in a fortnight or in a month^ or it might require the lapse of two or three months to make it so. 1048. ]2°- The same is to be said of servants, clerks, and others, who are engaged by the week, month, or quarter j for, if they are engaged by the half-year or year, they can be married as soon as they commence to reside in the place where they are employed. If the engagement be in the former case for a period of a week, montli, or quarter, at the expiration of which they are definitely to leave the place, they cannot (supposing the month’s residence to be insufficient) contract marriage in that place at all during the periods mentioned. But if the engagement, although entered into by the week, month, or quarter, is not understood to terminate definitely after the lapse of the above periods, but only that the servant may leave if he does not like the place, or that the master may dismiss him, we think that if the servant shall continue to reside in the place without interruption, then, as soon as circumstances render it morally certain that he will continue to reside for a tempiis notabile, he will have contracted a quasi-domicile in ordine ad matrimonmm. Thus, if after the lapse of a month or two the master appoints a servant engaged by the quarter to a permanent office, which he accepts, with the intention of remaining for an indefinitely long period, or even for a second quarter, we think he has a quasi-domicile. The same we hold to be true, if at the expi- ration of the quarter the engagement be renewed without the servant having given up his residence, because he never in- tended to leave at the end of the quarter, and the continuance of the engagement comprises a tempns notabile, and, conse- quently, immediately after the new engagement, he acquires a quasi-domicile. So, also, when the servant who has been engaged by the month continues in the service for two or three months, and all the circumstances indicate that he will lemain in the place for a considerable time, as soon as this becomes morally certain, he acquires a quasi-domicile. The same is to be said of the servant engaged by the week. In all these cases a certain period must elapse before the person acquires a quasi-domicile ; not because this is necessary se for this purpose, but because in the circumstances the inten- tion of remaining in the place for a tempns notabile is not at once manifest. But if the engagement, either by the pro- visions of the law, or by express contract, be entered into for half a year, or for any longer period, the person acquires a ON THE SACTlA^klENT OP MATRIMONY. 505 quasi- domicile from the moment he commences to dwell in the place. 1040. Now, from these observations we think we can explain the decisions of the S. C. In all those cases cited by Fagnan, in which the persons left their home, or stayed away from it, to avoid the opposition which they knew or feared their parents would make to their marriage, for the purpose of getting married in a different place, and of returning afterwards to their native parish, — no doubt these persons asserted that they intended to reside in the place in which they wished to get married, for a tempos notabile,” because in the Utrecht case the parties did actually reside a considerable time in Aix-la-Chapelle after their marriage, which, with the month they had lived there before it, showed their intention of remaining there for a tempos notabile, and because, as Benedict XIV says, the authors who had written on the matter of quasi-domicile considered a subsequent resi- dence a great adminiculum in favor of its validity. Now, this adminiculum could not directly affect the marriage, which, if it were invalid at the time it was contracted, would not be made valid by a subsequent residence. It was, therefore, a great adminiculum in support of the assertion of the parties that they came there, not for the mere purpose of getting married, but to acquire a quasi-domicile by residing in it for a notable time. 1050. 14'^. But it may be said truly that the S. C. did not inquire in the Utrecht case as to the subsequent residence of the parties in Aix-la-Chapelle. AVe therefore infer that the S. C. must have known this circumstance, otherwise the answer should have been (in the opinion of those very theo- logians who maintain the sufficiency of the month's residence, and who hold the marriage had been declared valid on this ground) that, if the parties had resided at Aix-la-Chapelle for an entire month before the marriage, it was invalid, for no one ever held that an actual residence for a shorter y)eriod, without the intention of remaining longer, would be sufficient. But the S. C. does not answer in this way, but that, in case the parties had not resided in Aix-la-Chapelle for a month previous to the marriage, case should he referred to it again r The month’s previous residence, therefore, did not directly affect the validity or invalidity of the marriage, but the sufficiency of the manifestation of the intention of the parties to remain for a tempus notabile. The S. 0. 506 ON THE SACRAMENT OF MATRIMONY. considered a month's previous residence sufficient for this pur- pose; but in case they bad not resided at Aix-la-Chapelle for a month previous to the marriage, it desired the case to be referred to it again, because the sufficiency of the intention might be inferred from other circumstances, if this one were wanting. 1051. 15°* And certainly, in all cases where the parties left home to avoid the opposition of their parents, a grave suspicion would exist that they merely came to another place in order to get married there, and not to acquire a quasi- domicile. Hence we see that the S. C. laid great stress on the parties having resided some time in the place previous to the marriage ; but no fixed period was necessary, not only because in some of the cases no fixed time is mentioned, as we have shown from the words, aliquantisper morati, but also because, from the answer in the Utrecht case, it is clear that no fixed period was required. 1052. 10°. As to the cases concerning persons who go into the country for recreation, or on business, or for some other temporary cause, the authors who hold the sufficiency of the month's residence are greatly puzzled. Some of them aie driven to the necessity of saying that persons who go to the country for recreation, commonly remain onlv fur a few days. (See Prcelectiones Juris Canonici in Sem. S. Sulpitii, vol. i, n. 244.) But we respectfully submit that this is not the fact, and that a great many families go to the country in summer time for one, two, or three months. 1053. 17°. If the S. 0. acknowledged the validity of a marriage contracted anywhere after a month's residence, it certainly could not have made these general assertions concern- ing the parochus ruralis, for a great many persons go to the country for one, two, or three months, taking their whole family with them; and, consequently, they have both the intention and fact of residing there during this period. The true solution is this: that to acquire a quasi-domicile or habitation in ordine ad matrimonium, it is necessary that the parties should intend to reside in the place “per ternpus nota- “ bile anni." An intention of residing for about six months is certainly sufficient. But we think about live months con- Btitute a ternpus notabile anni, and it is very probable that four are sufficient. “ Conformius autem juri videntur sentire, qui dicunt, sufficere propositum habitandi per aliquot menses, [)raecipLie si domus, conclave, taberna, etc,, fuerint conducta." ON THE SACRAMENT OF MATRIMONY. 507 (Schmalz., lib. tit. ii, n. 19.) He adduces in this place 8aarez, Laymann, and others^ in support of this opinion. On tliis account we think an intention of dwelling in a place for four months successively sufficient to constitute a quasi-domi- cile. Schmalzgruebei adds (loc. cit.), there is no doubt when a person takes up his residence in a place where he intends to remain per tempus notahile anni^ that he at once {statim) acquires a quasi-domicile there. So also Barbosa de Parocho (p. ii, c. xxi, n. 35), Giraldi, Sanchez, etc., cum communi. We repeat these passages, as we consider them most important. 1054. 18*^. From what we have said in discussing the necessity of a previous residence, as far as the validity of marriage is concerned, we have been led to express our opinion that a month’s residence per se is never sufficient to constitute a habitation in which a person can validly contract marriage, provided he retains a domicile of his own, or a paternal, fraternal, or other real domicile elsewhere, if he intended from the hrst to leave the place immediately after the expiration of the month. We have shown that there is no decision in which it is stated that a month’s residence is per se sufficient. In addition to this, we may mention that the Bishop of Southwark begged that his Holiness, Pius IX, would declare that the mere fact of residing in a place for the space of thirty days would suffice to prove and constitute a sufficient domicile ad effectum contrahendi matrimoniunij without the animus, either before, or at the beginning of, or during, the thirty days, contrahendi domicilium vel quasi domkilium. 'Phis proposition having been submitted to the Holy Office, their Eminences, after having carefully examined it, replied, l^on expedire. (See Synods of the Diocese of Southwark, p. 51.) This decision, however, only refuses to make a new law by which the mere fact of staying in a place for a months without even the intention of residing for the tvhole or for any portion of that time, would constitute a quasi-domicile in ordine ad matrimonium. 1055. 19°. WTiat, then, is to be said of the parochus ruralis? Simply that, as suchy he can never validly assist at the marriage of strangers unless, they acquire a domicile or quasi-domicile in his paiish, supposing them to have a domicile elsewdiere. But if they come into his parish with the intention of lesidingin it ‘^per tempus notabile,” or make