arriag? iCegtafatum ©ext of % Ham and (Eomntetttarg Atnmran Errtoaiasttral Urofott loMitn Vmbb 1305 Arrij g>tmt PfUaMpIjta r ~\ ©hr legislation on Sugaiu'uuntta ani» iiarnagp (Cunutmrtarij on tl^r Irrrcc ufentm John T, McNicholas, O.P., S.T.Lr. 'RepctnteD, witb abDittons anb IRew f Uustrattons, trotn ®f)f SScclestastical Hfbtrto BOSTON COLLEGE LIBRARY CHESTNUT HILL. MASS. Amrriran tErrlrsiastiral iRrutrut SDolpbin press 1305 Arrlf Btvett PjilaMpljia v. JJtijil (Dbatat FR. JOSEPHUS KENNEDY, O.P., S.T.M. FR. AUGUSTINUS WALDRON, O.P., S.T.Lr. 25 Februarii , igo8 Immac. Concept. College Washington , D. C. imprimi prrmittitur FR. LAURENTIUS FRANCISCUS KEARNEY, O. P., S.T.M. imprimatur * PATRITIUS JOANNES Archiep. Philadelphien. Die 25 Februarii iqo8 fi Q /o z if . C ufts © Copyright, 1908 Gbe Dolpbln press 45091 Gkmtent0 PAGE Introduction 5 The Text of the Decree “Ne Temere” (Latin and English) .... 7 Exposition of the Law : Betrothal 15 Forms of Engagement Contract 17 Breaking of Engagements 21 Valid Marriages 22 Those who come under the term “ Ordinary” 23 Those who come under the term “ Parish Priest ” 24 The Status of our Assistant Priests and the Decree 24 Valid Delegation 26 The Delegator 26 The Delegated Priest 27 Forms for General and for Particular Delegation 29 Delegation Revoked 30 Delegation in the United States 30 Two Witnesses Required 31 Exceptional Cases Under the Law 32 Licit Marriages 35 Table showing Parish in which Marriage should take place . 38 Special Questions of Licit Marriage in the United States . . 38 The New and Correct Registration 41 Notification Form for the Baptismal Register 43 Rulings of Bishops or Diocesan Synods and the Law .... 45 Matrimonial Stole-Fees 46 Those who are Affected by the Law 48 Mixed Marriages 50 Apostolic Bull “Provida” (Latin and English) 56 An Abstract of the Law for the People 62 (iii) Digitized by the Internet Archive in 2015 https://archive.org/details/newlegislationonOOcath SI}? Nfiw Patrimonial IGamo. T HE Sacred Congregation of the Council, in conjunction with the Pontifical Commission appointed about four years ago by Pius X for the codification of Canon Law, issued on 2 August, 1907, the decree Ne Temere. This Papal document furnishes new legislation on Betrothal and Marriage. It is perhaps the most important disci- plinary law published since the Council of Trent. The de- cree is not for one nation or people, but for the whole world. Cardinal Gennari sums up its advantages as fol- lows: 1 First, it will render easier for the Universal Church the substantial form of Matrimony; secondly, it will ob- viate many clandestine marriages which are so numerous in many places; thirdly, it makes provision so that the ecclesiastical courts can determine without any doubt whether there has been a real engagement or not. On one point only does the decree admit diversity of legislation, namely, -regarding clandestine mixed marriages and the matrimonial unions of heretics or schismatics among them- selves. Germany, which now alone 2 possesses a dispensation ’ Breve Commento sugli Sponsali e sul Matrimonio. ’ As we are about to go to press (27 February) we have received a cable- gram from Rome announcing that the S. Congregation has just issued a decision which determines that the Benedictine Declaration is not a dis- pensation, and that, therefore, the Provinces of New Orleans, San Fran, cisco, with the State of Utah, the Diocese of Vincennes, the city of St- Louis, and the places in the archdiocese known as St. Genevieve, St. Ferdinand and St. Charles, as well as Kaskasia, Cahokia, French Village, Prairie du Rocher, East St. Louis, Centreville Station, and the rest (which were hitherto under the terms of the Benedictine Declaration), are now on precisely the same footing, in respect of the new matrimonial legislation, as the entire Catholic world, Germany alone excepted. 6 THE NEW MATRIMONIAL LAWS. on this point, will continue to enjoy the dispensation after Easter, 1908. All nations or localities desiring a dispensa- tion must make application to the Holy See. The law goes into effect 19 April, 1908, (that is, at midnight on Saturday preceding Easter Sunday). The transmission of the decree from the Sacred Congre- gation to the Ordinaries throughout the world is to be taken as promulgation of the law for the Universal Church. If particular dioceses or bishops have not received official notice, this will in no way impede or retard the promulga- tion of the law for such dioceses. 1 All customs, no matter how long standing they may be, contrary to the present decree, are absolutely abolished. Careful note is to be made that the decree furnishes new legislation on the form only of betrothal or marriage ; hence the Church’s laws regarding impediments, except clandestinity, remain un- changed. The precautions taken by the decree may seem to be extraordinary ; but it is necessary that the Church guard against hasty and clandestine marriages, especially in these days when lax matrimonial views, and a prostitu- tion of the sacred duties of marriage, resulting in so many divorces, have become a moral pestilence. 1 Breve Commento sugli Sponsali e sul Matrimonio. 01tp of tiro Ham. S?rm of tip (Congr^gattott of tip CfoounL T HE Council of Trent (Cap. I, Sess. XXIV, de reform, mat- rim.) made prudent provision against the rash celebration of secret mar- riages — which the Church of God has always deprecated and forbidden — when it decreed that “those who at- tempt to contract marriage otherwise than in the presence of their parish priest or of another priest acting with the license of the parish priest or of the Ordinary, and in the presence of two or three witnesses, become there- by incapable of marrying validly, since the Council declares that all such con- tracts are null and void.” As the Sacred Council prescribed, however, that the above decree should be published in every parish, and was to have force only in those places in which it should be promulgated, it has happened that many places in which the publication has not been made have been deprived of the benefit of the Tridentine law, and, being still without it, they continue to be subject to the doubts and inconveniences of the old discipline. Nor did all difficulty cease in those places where the new law has been in Efcrrrlttm (Enngregatumis (EnnriUL N E temere inirentur clandestina coniugia, quae Dei Ecclesia i-ustissimis de causis semper detestata est atque prohibuit, provide cavit Tridentinum Concilium, cap. i, Sess. XXIV de reform, matrim. edicens: “Qui aliter quam praesente parocho vel alio sacerdote de ipsius parochi seu Ordinarii licentia et duobus vel tribus testibus matrimonium contrahere at- tentabunt, eos Sancta Synodus ad sic contrahendum omnino inhabiles red- dit, et huiusmodi contractus irritos et nullos esse decernit.” Sed cum idem Sacrum Concilium praecepisset, ut tale decretum publica- retur in singulis paroeciis, nec vim haberet nisi iis in locis ubi esset pro- mulgatum; accidit ut plura loca, in quibus publicatio ilia facta non fuit, beneficio tridentinae legis caruerint, hodieque careant, et haesitationibus atque incommodis veteris disciplinae adhuc obnoxia maneant. Verum nec ubi viguit nova lex, sub- lata est omnis difficultas. Saepe nam- 8 A COMMENTARY ON force. For often there have arisen grave doubts in deciding who is to be regarded as the parish priest before whom a marriage must be celebrated. The canonical discipline did indeed de- cide that he is the parish priest in whose parish one or other of the con- tracting parties has his or her domicile or quasi-domicile. But as it is some- times difficult to say whether a quasi - domicile really exists in a given case, many marriages are exposed to the danger of nullity ; whilst many others, through ignorance or fraud, were ren- dered quite illegitimate and void. These deplorable results have oc- curred more frequently in our own time on account of the greater facility and celerity of communication between different countries, no matter how widely separated they may be. Hence, in the judgment of wise and learned men it has been deemed expedient to introduce some change into the law, regulating the form of celebrating marriage, and many bishops in all parts of the world, but especially in the more populous centres where the need of such legislation urges with greater force, have petitioned the Holy See to this end. It has been requested, also, by many bishops in Europe, as well as by others in various regions, that provision be made to prevent the inconveniences arising from betrothals, that is, mutual promises of marriage, when privately made. For experience has sufficiently shown the many dangers of such es- pousals, in that they are an incitement to sin and the cause of misleading in- experienced girls, besides involving que gravis exstitit dubitatio in decer- nenda persona parochi, quo praesente matrimonium sit contrahendum. Sta- tuit quidem canonica disciplina, pro- prium parochum eum intelligi debere, cuius in paroecia domicilium sit, aut quasi domicilium alterutrius contra- hentis. Verum quia nonnunquam difficile est iudicare, certo ne constet de quasi-domicilio, haud pauca matri- monia fuerunt obiecta periculo ne nulla essent; multa quoque, sive in- scitia hominum sive fraude, illegitima prorsus atque irrita deprehensa sunt. Haec dudum deplorata, eo crebrius accidere nostra aetate videmus, quo facilius ac celerius commeatus cum gentibus, etiam disiunctissimis, per- ficiuntur. Quamobrem sapientibus vi- ris ac doctissimis visum est expedire ut mutatio aliqua induceretur in iure circa fonnam celebrandi connubii. Complures etiam sacrorum Antistites omni ex parte terrarum, praesertim e celebrioribus civitatibus, ubi gravior appareret necessitas, supplices ad id preces Apostolicae Sedi admoverunt. Flagitatum simul est ab Episcopis, turn Europae plerisque, turn aliarum regionum, ut incommodis occurrere- tur, quae ex sponsalibus, idest mutuis promissionibus futuri matrimonii pri- vatim initis, derivantur. Docuit enim experientia satis, quae secum pericula ferant eiusmodi sponsalia: primum quidem incitamenta peccandi causam- que cur inexpertae puellae decipian- THE NEW MARRIAGE LEGISLATION. subsequent dissensions and endless dis- putes. These circumstances have induced the Holy Father, Pope Pius X, in his solicitude for all the churches, to ad- vise some modifications with the ob- ject of removing the above-mentioned difficulties and dangers. Accordingly he committed to the S. Congregation of the Council the task of examining into the matter and of suggesting such measures as it might deem opportune. He was pleased, also, to ascertain the opinion of the Commission which has been appointed for the codification of Canon Law, as well as of the Car- dinals chosen on this special Commis- sion to prepare the new code. These and the S. Congregation of the Coun- cil have held for this purpose frequent consultations. Finally, having ob- tained the reports of these bodies, His Holiness ordered the Sacred Congre- gation of the Council to issue a decree embodying the new laws, approved by himself on sure knowledge and after mature deliberation, by which the dis- cipline in respect of engagements and marriage is to be regulated for the future, so that the celebration of them may be carried out in a secure and orderly manner. Pursuant, therefore, to the Apos- tolic mandate the S. Congregation of the Council hereby ordains and de- crees : Engagement nr Eetrntljal. I. Only those matrimonial en- gagements are considered to be valid and to beget canonical effects which have been made in writing, signed by 9 tur; postea dissidia ac lites inextrica- biles. His rerum adiunctis permotus SSmus D. N. Pius PP. X pro ea quam gerit omnium Ecclesiarum sollicitu- dine, cupiens ad memorata damna et pericula removenda temperatione ali- qua uti, commissit S. Congregationi Concilii ut de hac re videret, et quae opportuna aestimaret, Sibi proponeret. Voluit etiam votum audire Consilii ad ius canonicum in unum redigendum constituti, nec non Emorum Cardina- lium qui pro eodem codice parando speciali commissione delecti sunt; a quibus, quemadmodum et a S. Con- gregatione Concilii, conventus in eum finem saepius habiti sunt. Omnium autem sententiis obtentis, SSmus Dominus S. Congregationi Concilii mandavit, ut decretum ederet quo leges a Se, ex certa scientia et matura deliberatione probatae, continerentur, quibus sponsalium et matrimonii dis- ciplina in posterum regeretur, eorum- que celebratio expedita, certa atque ordinata fieret. In executionem itaque Apostolid mandati S. Concilii Congregatio prae- sentibus litteris constituit atque decer- nit ea quae sequuntur. I. — Ea tantum sponsalia habentur valida et canonicos sortiuntur effectus, quae contracta fuerint per scripturana subsignatam a partibus et vel a pa- 10 A COMMENTARY ON both the parties, and by either the parish priest or the Ordinary of the place, or at least by two witnesses. In case one or both of the parties be unable to write, this fact is to be noted in the document, and another witness is to be secured to sign the contract as above, together with the parish priest or the Ordinary of the place, or the two witnesses. II. By parish priest, as used in the present decree, is to be understood not only the priest who legitimately pre- sides over a parish that is canonically erected, but also, in localities where parishes are not canonically erected, the priest to whom the care of souls has been legitimately entrusted in any specified district, and who is equivalent to a parish priest ; and also, in missions where the territory has not yet been perfectly divided, every priest gen- erally deputed for the care of souls in any station by the superior of the mis- sion. fflarrtagr. III. Only those marriages are valid which are contracted before the parish priest, or the Ordinary of the place, or a priest delegated by either of these, and at least two witnesses, in accordance with the rules laid down in the following articles, and with the exceptions mentioned under VII and VIII. IV. The parish priest and the Or- dinary of the place validly assist at a marriage : (i) from the day on which they have taken possession of their benefice or entered upon their office, unless rocho, aut a loci Ordinario, vel saltern a duobus testibus. Quod si utraque vel alterutra pars scribere nesciat, id in ipsa scriptura adnotetur; et alius testis addatur, qui cum parocho, aut loci Ordinario, vel duobus testibus, de quibus supra, scripturam subsignet. II. — Nomine parochi hie et in se- quentibus articulis venit non solum qui legitime praeest paroeciae canonice erectae; sed in regionibus, ubi paroe- ciae canonice erectae non sunt, etiam sacerdos cui in aliquo definito terri- torio cura animarum legitime com- missa est, et parocho aequiparatur ; et in missionibus, ubi territoria necdum perfecte divisa sunt, omnis sacerdos a missionis Moderatore ad animarum curam in aliqua statione universaliter deputatus. Sf iHatrimmun. III. — Ea tantum matrimonia valida sunt, quae contrahuntur coram pa- rocho vel loci Ordinario vel sacerdote ab alterutro delegato, et duobus saltern testibus, iuxta tamen regulas in se- quentibus articulis expresssas, et salvis exceptionibus quae infra n. VII et VIII ponuntur. IV. — Parochus et loci Ordinarius valide matrimonio adsistunt, § i.° a die tantummodo adeptae possessionis beneficii vel initi officii, nisi publico decreto nominatim fuerint 1 HE NEW MARRIAGE LEGISLATION. I they have been by a public decree ex- communicated by name or suspended from the office ; (ii) but only within the limits of their territory. And in this territory they assist validly at marriages not only of their own subjects, but also of outsiders ; (iii) provided, when invited and re- quested, and not compelled by violence or grave fear, they ask and receive the consent of the contracting parties. V. They assist licitly: (i) after they have ascertained, ac- cording to the prescribed forms, that the contracting parties are free to marry, and that they have duly com- plied with the conditions laid down by the law; (ii) after they have ascertained, moreover, that one of the contracting parties has a domicile, or at least has lived for a month in the place where the marriage takes place ; (iii) if this condition be lacking, the parish priest and the Ordinary of the place, to assist licitly at a marriage, require the permission of the parish priest or the Ordinary of one of the contracting parties, unless it be a case of grave necessity, which excuses from this requirement. (iv) Except in cases of necessity, it is unlawful for a parish priest to assist at the marriage of persons without fixed abode ( vagos ) until the matter has been duly reported to the Ordi- nary or to a priest delegated by him, so as to obtain permission to assist at the marriage. (v) In every case let it be held as the rule that the marriage is to be cele- excommunicati vel ab officio suspensi ; § 2. 0 intra limites dumtaxat sui ter- ritorii : in quo matrimoniis nedum suorum subditorum, sed etiam non subditorum valide adsistunt ; §3.° dummodo invitati ac rogati, et neque vi neque metu gravi constricti requirant excipiantque contrahentium consensum. V. — Licite autem adsistunt, § i.° constito sibi legitime de libero statu contrahentium, servatis de iure servandis ; § 2. 0 constito insuper de domicilio, vel saltern de menstrua commoratione alterutrius contrahentis in loco matri- monii ; §3.° quod si deficiat, ut parochus et loci Ordinarius licite matrimonio ad- sint, indigent licentia parochi vel Or- dinarii proprii alterutrius contrahentis, nisi gravis intercedat necessitas, quae ab ea excuset. §4.° Quoad vagos, extra casum necessitatis parocho ne liceat eorum matrimoniis adsistere, nisi re ad Ordi- narium vel ad sacerdotem ab eo dele- gatum delata, licentiam adsistendi im- petraverit. § 5. 0 In quolibet autem casu pro regula habeatur, ut matrimonium 2 A COMMENTARY ON brated before the parish priest of the bride, unless some just cause dispenses from this rule. VI. The parish priest and the Or- dinary of the place may grant permis- sion to another priest, specified and certain, to assist at marriages within the limits of their district. The delegated priest, in order to assist validly and licitly, is bound to observe the limits of his mandate and the rules laid down above, in IV and V, for the parish priest and the Ordi- nary of the place. VII. When danger of death is im- minent, and where the parish priest, or the Ordinary of the place, or a priest delegated by either of these, cannot be had, in order to provide for the relief of conscience, and (should the case re- quire it) for the legitimation of the offspring, a marriage may be contract- ed validly and licitly before any priest and two witnesses. VIII. Should it happen that in any district the parish priest, or the Ordinary of the place, or a priest dele- gated by either of them, before whom marriage can be celebrated, is not to be had, and that this condition of affairs has lasted for a month, mar- riage may be validly and licitly en- tered upon by the formal declaration of consent made by the contracting parties in the presence of two wit- nesses. IX. (i) After the celebration of a marriage the parish priest, or he who takes his place, is to register at once in the book of marriages the names of the couple and of the witnesses, the place and day of the celebration of the coram sponsae parocho celebretur, nisi aliqua iusta causa excuset. VI. — Parochus et loci Ordinarius licentiam concedere possunt alio sacer- doti determinate ac certo, ut matri- moniis intra limites sui territorii ad- sistat. Delegatus autem, ut valide et licite adsistat, servare tenetur limites man- dati, et regulas pro parocho et loci Ordinario n. IV et V superius statutas. VII. — Imminente mortis periculo, ubi parochus, vel loci Ordinarius, vel sacerdos ab alterutro delegatus, haberi nequeat, ad consulendum conscientiae et (si casus ferat) legitimationi pro- lis, matrimonium contrahi valide ac licite potest coram quolibet sacerdote et duobus testibus. VIII. — Si contingat ut in aliqua regione parochus locive Ordinarius, aut sacerdos ab eis delegatus, coram quo matrimonium celebrari queat, haberi non possit, eaque rerum con- ditio a mense iam perseveret, matri- monium valide ac licite iniri potest emisso a sponsis formali consensu coram duobus testibus. IX. — § i.°Celebrato matrimonio, parochus, vel qui eius vices gerit. statim describat in libro matrimoni- orum nomina coniugum ac testium, locum et diem celebrati matrimonii, atque alia, iuxta modum in libris THE NEW MARRIAGE LEGISLATION. marriage, and the other details, ac- cording to the method prescribed in the ritual books or by the Ordinary. This obligation holds likewise when another priest, delegated either by the parish priest himself or by the Ordi- nary, has assisted at the marriage. (ii) Moreover, the parish priest is to note in the book of baptisms the fact that the married person contract- ed marriage on a certain day in his parish. If the married person was baptised elsewhere, the parish priest who has assisted at the marriage is to send notice of the marriage, either di- rectly or through the episcopal curia, to the parish priest of the place where the person was baptized, in order that the marriage may be inscribed in the book of baptisms. (iii) Whenever a marriage is con- tracted in the manner described under VII and VIII, the priest in the former case, the witnesses in the latter, are bound conjointly with the contracting parties themselves to provide that the marriage be entered as soon as pos- sible in the prescribed registers. X. Parish priests who violate the rules here laid down are to be punished by their Ordinaries according to the nature and gravity of their transgres- sion. Moreover, if they assist at the marriage of anybody in violation of the rules given under (ii) and (iii) of No. V, they are not to appropriate the stole-fees, but must remit them to the parish priest of the contracting par- ties. XI. (i) The above laws are binding on all persons baptized in the Catholic Church, and on those who have been 13 ritualibus vel a proprio Ordinary praescriptum ; idque licet alius sacer- dos vel a se vel ab Ordinario dele- gatus matrimonio adstiterit. § 2. 0 Praeterea parochus in libro quoque baptizatorum adnotet, con- iugem tali die in sua parochia matri- monium contraxisse. Quod si coniux alibi baptizatus fuerit, matrimonii parochus notitiam initi contractus ad parochum baptismi sive per se, sive per curiam episcopalem transmittat, ut matrimonium in baptismi librum ref- eratur. §3.° Quoties matrimonium ad nor- mam n. VII aut VIII contrahitur, sa- cerdos in priori casu, testes in altero. tenentur in solidum cum contrahenti- bus curare, ut initum coniugium in praescriptis libris quam primum ad- notetur. X. — Parochi qui heic hactenus praescripta violaverint, ab Ordinariis pro modo et gravitate culpae punian- tur. Et insuper si alicuius matrimonio adstiterint contra praescriptum § 2* et 3* num. V, emolumenta stolae sua ne faciant, sed proprio contrahentium parocho remittant. XI. — § i.° Statutis superius legi- bus tenentur omnes in catholica Ecclesia baptizati et ad earn ex haeresi A COMMENTARY ON converted to it from heresy or schism (even when either the latter or the former have fallen away afterwards from the Church), in all cases of be- trothal or marriage. (ii) The same laws are binding, al- so, on such Catholics, if they contract betrothal or marriage with non-Cath- olics, baptized or unbaptized, even after a dispensation has been obtained from the impediment mixtae religionis or dispar it atis cidtus ; unless the Holy See have decreed otherwise for some particular place or region. (iii) Non-Catholics, whether bap- tized or unbaptized, who contract among themselves are nowhere bound to observe the Catholic form of be- trothal or marriage. The present decree is to be held as legitimately published and promulgat- ed by its transmission to the Ordi- naries, and its provisions begin to have the force of law from the solemn feast of the Resurrection of our Lord Jesus Christ, next year, 1908. Meanwhile let all the Ordinaries see that this decree be made public as soon as possible, and explained in the parish churches of their diocese, so that it may be known by all. These presents are to have force by the special order of our Most Holy Father Pope Pius X, all things, even those worthy of special mention, to the contrary notwithstanding. Given at Rome on the second day of August, in the year 1907. ^Vincent, Card. Bishop of Palestrina, Prefect. C. De Lai, Secretary. aut schismate conversi (licet sive hi, sive illi ab eadem postea defecerint), quoties inter se sponsalia vel matri- monium ineant. § 2. 0 Vigent quoque pro iisdem de quibus supra catholicis, si cum acatho- licis sive baptizatis, sive non baptizatis, etiam post obtentam dispensationem ab impedimento mixtae religionis vel disparitatis cultus, sponsalia vel mat- rimonium contrahunt; nisi pro aliquo particulari loco aut regione aliter a S. Sede sit statutum. §3.° Acatholici sive baptizati sive non baptizati, si inter se contrahunt, nullibi ligantur ad catholicam spon- salium vel matrimonii formam servan- dam. Praesens decretum legitime publica- tum et promulgatum habeatur per eius transmissionem ad locorum Ordi- narios; et quae in eo disposita sunt ubique vim legis habere incipiant a die solemni Paschae Resurrectionis D. N. I. C. proximi anni 1908. Interim vero omnes locorum Ordi- narii curent hoc decretum quampri- mum in vulgus edi, et in singulis suarum dioecesium parochialibus ec- clesiis explicari ut ab omnibus rite cognoscatur. Praesentibus valituris de mandato speciali SSmi D. N. Pii PP. X, con- trariis quibuslibet etiam peculiari men- tione dignis minime obstantibus. Datum Romae die 2 a mensis Augusti anni 1907. +ViNCENTius Card. Ep. Praenest., Praefectus. C. De Lai, Secretarius. THE NEW MARRIAGE LEGISLATION 5 lExpflBtium of tip Haw.' T HERE are three points on which the decree of the S. Con- gregation of the Council, published 2 August, 1907, and to go into effect 19 April, 1908, furnishes new legisla- tion: First, betrothal; secondly, marriage , under the two-fold consideration of (a) its validity and (b) its licitness; thirdly, the proper registration of marriages. $Etrnrtfal. Before Easter Sunday we had to depend in most cases upon the word of the parties to be married as to whether or not they are really betrothed. The law formerly in force recognized the contract of engagement without prescribing formalities which, if necessary, could furnish evidence at a subsequent period to prove a real formal betrothal. By the new law the Church will not acknowledge as canonically binding any contract of betrothal unless a written engagement, mutually made and accepted, and witnessed by authorized per- sons, has been entered into. Conditional betrothal contracts are not forbidden by the present provision. The condition, however, should be ex- pressed in writing and duly signed and witnessed; but from this conditional betrothal and written contract the obligation will not arise until the condition be fulfilled. 1 Acta S. Sedis, Vol. 40, Nov., Dec., 1907; — M. Leitner, Die Verlobungs und Eheschliessungsform nach dem Deckrete “ Ne Temere.” Nebst einem Anhang uber die neue Ehe-Eingehungsform in Deutschland Konstitution “Provida” ; — A. Devine, The Law of Christian Marriage; — J. Besson, De la publicity des fiangailles et du marriage d’apres la nouvelle legistation canonique, in Nouvelle Revue Theologique, November, 1907; — Schmidt, Das neue Ehegesetz, in Pastor Bonus, II; — Bockenhoff, Das neue Kirch- engesetz betr. die Form der Eheschliessung, in Strassburger Diozenblatt, December, 1907; — Noldin, S. J., Decretum de Sponsalibus et Matrimoniis ejusque Declaratio ; — II Consulente Ecclesiastico, ed. Lat. Jan., 1908, (Continued) ; — Mgr. Cronin, in Rome (from 14 Sept. 1907) ; — Card. Gen- nari, Breve Commento. \6 A COMMENJ'ARY ON There is no restriction in the new law forbidding the parties to make the betrothal contract by letter. Even though the law requires that the contract be “ in writing signed by both the parties,” yet this will not exclude, I think, the parties from authorizing delegates ( procurators ) to sign the betrothal con- tract for them. Such a course, while it would not render the document illicit or invalid, should not be adopted except for serious reasons and unless precautions were taken which could prove juridically that a delegate was authorized to sign the be- trothal contract. Should the party or parties wishing to make this betrothal contract revoke the consent before the delegate had signed the document, the contract would thereby be null and void. If it were impossible to prove “ in foro externo ” this withdrawal, the contract would be valid “ in foro externo.” An important question for pastors and Ordinaries to con- sider is the advisability of insisting on the written betrothal contract. The eminent jurist, the Hon. Judge Robinson of the Catholic University, who has given the subject long years of the most careful study, is of the opinion that nine-tenths of the divorces in the United States are due to hasty marriages. It is his opinion that it would be advisable to encourage the parties to make the written betrothal contract for one year prior to their marriage. Confessors of course know that in many instances an engagement of such long standing would be inadvisable. While the Catholic Church has not to deal with the question of divorces, she has the serious problem of many unhappy marriages, which, in the opinion of the authority just quoted, are mostly due to hasty alliances. This is certainly the case in mixed marriages. Undoubtedly the written betrothal con- tract will facilitate the discovery of any matrimonial impedi- ments, — will make it easier for friends and parents to prevent undesirable unions ; and, if pastors and Ordinaries deem it ad- visable to recommend that a definite period, say three or six months, or a year, elapse between the engagement and the marriage, we shall certainly have fewer hasty matrimonial unions. THE NEW MARRIAGE LEGISLATION. 17 It is to be noted that there is no obligation on parties about to be married of entering into this formal engagement . 2 Should prospective husband and wife wish to so bind them- selves before their marriage, they should subscribe to a for- mula similar to the one given. It would seem advisable for all pastors to have printed formulas of the prenuptial contract, rather than draw up one at each request, for it is more than probable that our people will not draw up and sign this con- tract without consulting the priests of the parish. The law requires that the Ordinary or the parish priest or two lay witnesses sign the prenuptial contract. When the parties are illiterate a third witness must be added. The law is made clear by the following suggested forms. SUGGESTED FORMS. I. WHEN THE BISHOP (ORDINARY) WITNESSES. We, the undersigned, being of sound mind and possessing suf- ficient knowledge of the obligations to be assumed, do hereby, freely and unsolicited, mutually promise to enter into Holy Matrimony before the 10 th day of December, 1908. In testimony whereof, we affix our signatures on this the 5 th day of Jwie, 1908. James M. Smith , of L * S Mary R. King, of - — — — Witness: ^ John R., Bp. of . 2 The writer wishes to make due acknowledgment to the eminent jurist Professor W. C. Robinson, dean of the Faculty of Law at the Catholic University, through whose courtesy and favor he states that “ this con- tract cannot be enforced in the Civil Courts, but would furnish good grounds for a breach of promise suit. The State cannot compel the per- formance of a contract by which an individual binds his future acts, but if A and B enter into a contract, and B fails in the execution of his part of the agreement, then A can bring suit against B for in- demnification. The State recognizes the power of parties to bind their future acts by a marriage contract, not because marriage is a mere con- tract, but because the State regards marriage as a status into which all are admitted who are legally married. Further, the State permits no such status to be created by any power other than itself, and recognizes no church organization, or society, or individuals as capable of making or unmaking said status. This prenuptial contract the State will recognize as it will recognize any other contract legally made by individuals, but will not enforce such contract by obliging individuals to enter the matrimonial status created by the State." i8 A COMMENTARY ON 2. WHEN THE PARISH PRIEST WITNESSES. frdN w fofr^frfr ft ft We, the undersigned, being of sound mind and possessing suf- ft ficien't knowledge of the obligations to be assumed, do hereby, J freely and unsolicited, mutually promise to enter into Holy ft Matrimony before the io th day of December, 1908. In testimony whereof, we affix our signatures on this the 5 th day of June, 1908. James M. Smith , of L * S Mary R. King, of Witness: Wm. J.Stanson, Parish Priest of St. Peter's Church, - 3. IN THE CASE OF LAY WITNESSES. ^ipipi^ty'to’SFipipipipip'ip’Sp’Sp’Si:' ft ft ft ft ft ft ft ft ft ft ft ft ft ft ft ft sj? ip # :£■ ip ip •£ ip + '£ ip ip ip * ip ip ip ^ :!? ip ip '£ £ ip 4? ip ft I ft ft ft ft ft We, the undersigned, being of sound mind and possessing suf- ficient knowledge of the obligations to be assumed, do hereby, freely and unsolicited, mutually promise to enter into Holy Matrimony before the 10 th day of December, 1908 . In testimony whereof, we affix our signatures on this the 5 th day of June, 1908 . James M. Smith, of Mary R. King, of / Richard M. Philipps , \ James M. Burns, ft ft ft ft t ft Witnesses: 4. BISHOP OR PARISH PRIEST AS WITNESS, WHEN ONE COR BOTH) OF THE PARTIES IS ILLITERATE. Extra witness is necessary. %i:ipipiprfcip&ipipipipip%ipipipipipipipipipipipipipipipipipipipipipipipipipipipipipipipipipip We, the undersigned, being of sound mind and possessing suf- ficient knowledge of the obligations to be assumed, do hereby, freely and unsolicited, mutually promise to enter into Holy Matrimony before the 10 th day of December, 1908 . In testimony whereof, we affix our signatures on this the 5 th day of June, 1908 . his+ mark James M. Brown , of L * S Mary R. King, of Witnesses : ►J* John R., Bp. of (or Wm.J. Stanson, Parish Priest) ft Richard M. Philipps (Extra Witness). ft ft 7 HE NEW MARRIAGE LEGISLATION l 9 THE PARTIES IS 5. EAY WITNESSES, WHEN ONE (OR BOTH) OP illiterate. Three witnesses are necessary. f We, the undersigned, being of sound mind and possessing suf- J? ficient knowledge of the obligations to be assumed, do hereby, 5 freely and unsolicited, mutually promise to enter into Holy f Matrimony before the 10 th day of December, 1908. $ In testimony whereof, we affix our signatures on this the 4 fr 5 th day of June, 1908. 4 * 4 * f; Witnesses : his-f- mark James M. Brown, of Mary R. King, of Rich . M. Philipps, of- James N. Jones, of Philip T. Maher, o£- * & f & Any one of the above formulas would make the engagement contract v alid and binding. If a priest is to sign the contract, ordinarily it should be the pastor of the prospective bride; but the signature of the pas- tor of either party will make the contract valid. It is interesting for us to inquire whether unwritten promises of marriage will be binding in conscience after Easter 1908? We have an explicit negative response from the S. Congrega- tion, and the eminent Cardinal Gennari assures us that these will carry with them no obligation. 3 As the marriage con- tract, among Christians, is identical with the sacrament, so now the Church decrees that every prenuptial contract, among those of her children whom she wishes to bind, is no contract at all unless it be made in writing and duly attested. Hence confessors need not trouble themselves about verbal promises. The new conditions for engagement are prescribed only when the contract is bilateral; hence if John Brown promises and binds himself orally to marry Catharine Breen, while the latter holds herself uncommitted and free to engage herself or not, we have what appears at first sight the anomaly that John is bound by the contract while Catharine is under no obligation. The reason is simple, namely, the Church, on the 3 S. C. Neg. Eccl. Extra., 1 January, 1900; Acta S. S ., Vol. 34, p. 398. “ Breve Commento della Nuova Legge sugli Sponsali e sul Matrimonio.” Rome, Mgr. Cronin, D. D. 20 A COMMENTARY ON point of the new legislation here under discussion, is legislating only on sponsalia and she has made no conditions or restric- tions consequently for unilateral contracts, which are not sponsalia. It is to be further noted that what would render an engage- ment invalid or illicit under the present law will likewise make it null and void or illicit after Easter. Thus a man becoming engaged under conditions that would render his subsequent marriage invalid or sinful would not be really engaged; for example, a man who had not approached the Sacraments at Eastertime, promising to marry with the distinct proviso of not putting himself in the state of grace for his marriage, could not be held to a promise the fulfilment of which would be a sacrilege. Again, a Catholic man, for instance, wishes to marry a Methodist woman. The latter is bigoted and under no con- sideration will she consent to be married by a priest. They become engaged, even subscribe to the above formula of en- gagement and have the same witnessed by two friends, under the condition, however, that the marriage take place before a Methodist minister. Unless some modification in the new decree be made, the aforesaid engagement would be invalid, for one cannot bind himself to commit a sacrilege or subject the Sacrament of Matrimony to nullity. It may be asked whether the Ordinary, for the diocese, and the pastor (or“parochus in ordine ad matrimonium ”) within the limits of his parish, can delegate any priest to sign the Engagement Contract. The question is a dis- puted one, and therefore, until the Sacred Congregation decides it, a doubtful course in such an important matter should not be adopted by delegating any priest to sign the contract. If two lay witnesses sign the betrothal certifi- cate the engagement will be as valid as if the Ordinary or parish priest witnessed it. Since then the law makes pro- vision for two lay witnesses, in the absence of the Ordi- nary or parish priest, there is no necessity to delegate another priest, until Rome decides the point . 4 4 Such is the opinion of Monsignor Cronin, Rome , 26 October, p. 199, in THE NEW MARRIAGE LEGISLATION 21 A delicate question, but one of importance to confessors, may arise from the fact that the solemnity attached to the engagement contract may in particular cases beget wrong notions in the mind of the contracting parties. When confessors entertain such a fear, they must use great pru- dence in making it clear to their penitents that this solemn betrothal contract grants them no matrimonial liberties. In the case of foreigners who have not heard the decree explained in their own country and language, there is danger of them mistaking the written betrothal contract for the marriage ceremony. breaking Engagr meats. From the fact that the written form of betrothal is the only one that will henceforth be recognized, it must not be con- cluded that such an engagement may not be validly and licitly dissolved. The reasons which moralists and canonists have enumerated as grounds for the dissolution of the unwritten matrimonial engagement hold likewise for the written be- trothal contract. These reasons grant freedom either to both of the parties or to one of them, as may be seen by consulting approved authors. Among others the following may be mentioned: Gasparri ( De Matrimonio^ I, n. 72, p. 45, ed. 1900) ; Wernz ( De Matrimonio, n. no, p. 164) ; De Becker ( De Sponsalibus et Matrimonio, p. 18, ed. 1896) ; Tanquerey ( Syn . Theol. Mor. et Past., n. 961, p. 581); Marc ( Institu- tions Morales, II, n. 1956, p. 438, ed. 1902) ; Noldin ( Summa Theol. Mor., De Sacramentis, n. 545, p. 615, ed. sexta, 1906). his learned commentary on the decree. He confirms his opinion by the authority of Monsignor Sebastianelli, a member of the Commission for the Codification of the Canon Law. 22 A COMMENTARY ON Halid fHarriagefi. We must keep in mind the prescriptions explicitly contained in the decree together with the Church’s laws which have not been changed or modified by the “ Ne Temere.” Both to- gether will be the actual legislation governing the validity of marriage. In order that a marriage be valid, the ceremony must be performed by the Ordinary or the parish priest, or by a priest delegated by either of these, in the presence of two witnesses. The Ordinary and the parish priest must observe the fol- lowing five essential conditions before they can validly per- form a marriage ceremony or validly delegate a priest to assist at a marriage : 1. The Ordinary or the parish priest must have actually taken possession of his see or office or parish, or have taken up the duties of one having the “ cura ani- marum.” 2. The Ordinary or parish priest must not be suspended or excommunicated by name. 3. The Ordinary and the parish priest in any part of the world can witness validly all marriages within the limits only of their own jurisdiction. Outside their own territory, they cannot assist validly even at the marriage of their own subjects, without due authoriza- tion. 4. The Ordinary or the parish priest must be asked and invited to perform the marriage ceremony; that is, they must be willing official witnesses for the Church. Violence, constraint, force, or grave fear would render marriage invalid. 5. The Ordinary or the parish priest must receive and ask consent of the contracting parties. The mere de- claration of marriage by the parties would be no marriage at all. 5 5 Gennari, Breve Commento. THE NEW MARRIAGE LEGISLATION. 23 £be ©rt>fnar£. By Ordinary is meant : first, the Supreme Pontiff. Need- less to say, his jurisdiction is universal, and he can of his own authority change or dispense with all legislation purely ec- clesiastical. He can delegate any priest or bishop to witness marriages in all parts of the world. Secondly, very probably the Most Reverend Apostolic Delegate , Archbishop Falconio, can validly marry everywhere in the United States any parties, no matter from what country they come. Thirdly, the Metro- politan within his own archdiocese can witness all marriages. Further, the Metropolitan (a) when actually making a canoni- cal visitation of a suffragan’s diocese in the cases specified “ de jure ” can validly and licitly witness all marriages within the suffragan’s jurisdiction, (b) When an appeal has been made from the judicial sentence of the bishop to that of the metropolitan court, and when the archbishop’s sentence revers- ing that of the bishop has been accepted as a final settlement of the case, the Metropolitan can, for "that particular case, witness the marriage or delegate any priest to perform the marriage ceremony within the territory of the suffragan’s jurisdiction. Should the suffragan bishop appeal to the Apos- tolic Delegate or to the Holy See, the Metropolitan acquires no jurisdiction in this case . 6 According to present discipline, these two cases will be of the rarest occurrence. Fourthly, the Bishop within the limits of his diocese, may witness all mar- riages. Fifthly, Vicars General can witness all marriages within the diocese, and this without the special delegation of the Bishop . 7 Sixthly, Apostolic Administrators, Vicars and Prefects Apostolic , as well as Abbots who within their juris- diction have lay subjects who are under no bishop, are in- cluded under the term of Ordinary. All who are mentioned within the above six categories can delegate any priest to witness all marriages everywhere within the limits of their jurisdiction. 8 Gasparri, II, n. 935, pp. 137-8, ed. 1900; Wernz, p. 271, n. 176, nota 178. 7 Gasparri, ibid., 936. A COMMENTARY ON ^4 Gbe iparlsb priest. The parish priest must observe the five conditions laid down above for the Ordinary before he can validly assist at a mar- riage or before he can validly delegate another priest to do so. By parish priest in the decree “ Ne Temere ” is meant, not only the “ parochus ” in the full canonical sense, or the terri- torial parish priest, but also, first, our irremovable rectors; secondly, regularly appointed pastors “ ad nutum Ordinarii ;” thirdly, pastors pro tem. in any parish ; fourthly, pastors of mis- sions ; 8 fifthly, missionaries assigned by bishops to care as best they can for the scattered flocks in districts of the United States where there are no parishes; sixthly, assistant priests to whom the pastor has entrusted the entire care of the parish during the latter’s absence, 9 even though the pastor made no mention of any delegation to witness marriages ; 10 seventhly, an assistant priest in a parish where the pastor is ill, or in- capacitated on account of old age. Such an assistant is there- by authorized, while these conditions last, to witness mar- riages. 11 The aforesaid priests who by the terms of the de- cree are parish priests “ in ordine ad matrimonium ” can dele- gate other priests for their (i. e. the delegating priests’) parishes and districts. 12 Ssslstant fl>riest5. An important question for us is the determination of the status of our assistant priests. A priori it would seem desir- able to have uniformity of legislation for the whole country. This, however, is a question for our bishops and pastors to settle. They can, if they wish, make all assistants “ parochi in 8 Pastors who have a mission or missions attached to their church, are considered “ parochi in ordine ad matrimonium ” for said mission or missions. 0 Gasparri, II, n. 910, p. 114, ed. 1900. 10 If no delegation be granted by the Ordinary or the pastor, and the latter should go away for two or three days, the assistant priest in such a case should not witness marriages without consulting the bishop. Ibid. 11 Ibid., p. 1 15. 12 Ibid., n. 939, pp. 139-140. THE NEW MARRIAGE LEGISLATION. 25 ordine ad matrimonium.” 13 Indeed, if assistants be not so ap- pointed, doubts may arise about the validity of marriages, ow- ing to the absence of proper delegation. If marriages should be declared null and void because of the failure of assistant priests to secure proper delegation, it would be a source of great scandal here in America where our insistence on the in- dissolubility of marriage in the Catholic Church is so patent to our Protestant brethren. Whilst a non-Catholic public accepts the law of the State which will not recognize a con- tract in the absence of certain positive prescriptions, the same public (although unreasonably) will look askance at the Church for declaring a marriage invalid because the priest was not duly authorized. The faithful are not canonists, and it will be difficult to explain to them why any priest cannot perform the marriage ceremony. To the writer it would seem advisable that our assistant priests be “ parochi in ordine ad matri- monium ” in the parishes only to which they are assigned. It being determined also that when an assistant priest, say Father Brown, is removed from parish A to parish B, his authoriza- tion to witness marriages in parish A ceases by reason of his transfer, and is acquired in parish B by reason of his appoint- ment to the latter church. Hence assistant priests would be appointed in the parishes to which they are assigned “ ratione officii ” and not “ ratione personae.” If assistant priests should be appointed “ ratione personae ” for an indefinite period, it would mean that they could validly witness a marriage in any church to which they had been previously assigned. Such an arrangement would certainly cause great confusion. Thus if Ordinaries and Diocesan Synods should deem it advisable to appoint all assistant priests (“ratione officii”) “parochi in ordine ad matrimonium ” in the parishes only to which they are actually assigned, we should have a simple solution of the case. If our assistant priests be thus appointed, the five con- ditions given above must be observed in order that they may validly perform the marriage ceremony. 13 Ibid., n. 914, pp. 118-121. 26 A COMMENTARY ON IDaltD Belegatton. Delegation may be granted orally or in writing, or by tele- phone or telegram. The last two methods should ordinarily not be used. In a case of marriage “ in extremis ”, or when there is question of grave necessity, or necessity, it would seem advisable — for it is not clear that it is forbidden in such a case — to secure delegation by telephone or telegram. The Ordinary and the parish priest (that is, not merely the canon- ical and territorial “ parochus,” but also the parish priest “ in ordine ad matrimonium ” as determined by the decree “ Ne Temere ”) are authorized by Apostolic authority to delegate validly other priests to witness all marriages, only within the limits, however, of their jurisdiction. Delegation may be considered in reference to the one delegating and to the one delegated. There are conditions for the delegator in grant- ing delegation, as well as conditions for the delegate in exer- cising the authority received. Ebe delegator. All Ordinaries and parish priests (a) who can validly as- sist at marriages, can validly delegate priests to witness all marriages within the limits only of their jurisdiction. Any reason (b) for which the Ordinary or the parish priest can- not validly assist at a marriage, will likewise exclude him from validly delegating. As the parish priest’s authority is from the Holy See, he can, even contrary to the bishop or diocesan synod, validly (though sinfully) grant delegation, provided he himself can validly witness the marriage for which the delega- tion is granted. To grant delegation, the Ordinary or the parish priest must give the permission (c) knowingly and will- ingly. Delegation granted through (d) fear, or obtained through some fraudulent means, or through some mistake, is commonly accepted by canonists to be valid . 14 If, in securing the delegation, a false reason be alleged, the delegation will be valid, unless the Ordinary or the parish priest expressly made 14 Gasparri, II, 942. p. 141. THE NEW MARRIAGE LEGISLATION , 2 y the truth of the reason given a necessary condition “ ad vali- ditatem .” 15 Ordinaries and parish priests can (e) grant delegation so that the delegated priest may subdelegate . 18 The Ordinary or the parish priest (f) cannot grant indeterminate delegation. They cannot, for instance, say to the contracting parties : “ I delegate any priest you choose to perform the marriage ceremony.” 17 Zbc Delegated lprlcst. The priest delegated to witness marriages should secure delegation; that is, (a) real, and antecedent to the marriage. Presumed delegation (b) is one in which a priest persuades himself that he has the Ordinary or parish priest’s permission, or that either would grant him permission to witness the mar- riage in question. Presumed permission is not sufficient for the validity of marriage . 18 Tacit delegation (c) is that in which the Ordinary or the parish priest is not present, but knows that another priest is assisting at the marriage cere- mony, and, though he could easily forbid the priest to per- form it, he does not do so. This delegation is very uncertain ; if it resolves itself into the presumed, it will invalidate the marriage. The Council of Trent and the “ Ne Temere ” do not exclude tacit delegation. One should never act on tacit delegation, if it be a question of marriage to be contracted. When the marriage has already been contracted, the presump- tion is in favor of the validity of the Sacrament . 19 The dele- gated priest cannot validly witness (d) a marriage before he knows that delegation has been conferred and before he has expressly or tacitly accepted it . 20 When the delegated priest 15 Ibid., pp. 141, 142. 16 The presence of a parish priest in witnessing a marriage is not an act of jurisdiction, but merely the act of assisting as an authorized wit- ness of the marriage; hence to speak of delegating is inaccurate, for it is really the appointment of a substitute. Wernz, n. 180, p. 284. 17 Ne Temere, VI; Wernz, p. 286, nota 217. 18 Wernz, n. 180, p. 289, nota 221; Gasparri, II, n. 946, p. 145. 19 Wernz et Gasparri, Ibid. 2° Wernz, p. 287. 28 A COMMENTARY ON (e) is authorized to witness all marriages that come to him in his territory, he may subdelegate for particular cases, even though the Ordinary or the parish priest has not expressly stated this . 21 If the delegated priest be authorized (f) to wit- ness one particular marriage, or a certain number of mar- riages, he cannot subdelegate . 22 It will be most desirable that the delegated priest (g) have his delegation in writing, whether the delegation be given by the Ordinary or the parish priest, and this not for the sake of contesting cases with the bishop or parish priest, but as testimony in settling doubts about the validity of a marriage, if doubts should subse- quently arise. If in certain dioceses the Ordinaries should decide to leave the matter of delegation (h) entirely to pas- tors, lest confusion arise, or for fear of transgressing “ quoad liceitatem” the rights of parish priests, or disturbing the peace- ful government of parishes , 23 the writer would suggest that printed forms of delegation similar to those on the opposite page be given to every delegated priest. The forms given on the opposite page might be got up at little cost, in the shape of printed check books, with per- forated line in center. The pastor will have the clearest evi- dence on the stub check of every delegation that he has given. The priest delegated will also have like proof. The Ordinary or the parish priest may delegate assistant priests for all mar- riages, or for a definite period, or for particularly specified cases. 21 Ibid., n. 180, p. 285. 22 Ibid. 23 Gasparri, II, n. 940, p. 140. THE NEW MARRIAGE LEGISLA7 ION. 29 0 w u M W O 13 w H 0 >«-» t: « 1 £ S3 3 13 ta 30 A COMMENTARY ON S>elecjation IRevofceD. Delegation is revoked by any (a) fact or written order, which must be made known or read by the delegated priest before he performs the marriage ceremony. Thus if the dele- gated priest does not know, or has no intimation of the revo- cation of his authority, it is certain that the marriage is valid, even though the Ordinary or parish priest actually revoked the delegation before the marriage ceremony took place . 24 If the Ordinary or the parish priest (b) should die, or be removed from office before a marriage, for which either of them had delegated a priest, is celebrated, the marriage would certainly be valid, provided the delegated priest had no intimation of the death up to the time he performed the marriage ceremony, or no intimation of the revocation from the successor of the Ordinary or the parish priest ” 25 who granted the delegation. Beleoatlon in tbc 'Gtniteb States. It is to be hoped that no marriages here in the United States will be made invalid because of failure to secure proper dele- gation; and further, that no perplexing cases will arise owing to lack of evidence in proving juridically that duly authorized delegation was conferred. Two decisions of the Sacred Con- gregation regarding delegation are to be remembered. First, when a priest is delegated for only one particular marriage, his delegation is not for any one marriage, but only for the one marriage specified. If a priest with such a delegation should assist at any other marriage than the specified mar- riage in question, there would be no marriage at all . 26 Dele- gation to witness only the marriage of A and B would not permit a priest to perform validly the marriage ceremony for 24 Wernz, n. 180, IV, p. 290; Gasparri goes so far as to say that the marriage is valid even though the priest and groom (but not the bride) know of the revocation when the marriage ceremony is performed. He also thinks that the marriage is valid if the contracting parties know of the revocation, but not the officiating priest. (II, n. 951, p. 152.) 25 Wernz. Even though the death or removal from office were known, Father Wernz thinks that the marriage would be valid, if special delega- tion were granted. {Ibid., nota 228.) 26 Cronin, Rome, 26 Oct., 1907, pp. 197-8. THE NEW MARRIAGE LEGISLATION. 3 1 A and C. Secondly, faculties “ administrandi omnia sacra- menta quae ordinem episcopalem non requirunt,” given by the Ordinary to all who are not parish priests, do not necessarily include authority to witness marriages . 27 The faculties in some of our dioceses read “ administrandi omnia sacramenta, Confirmatione et Ordine exceptis.” While it does not seem absolutely certain that the decision cited covers this case, there is little doubt that the second wording does not neces- sarily include authorization to witness all marriages. There is, however, no need for this uncertainty, if the ordinaries and diocesan synods will state in unequivocal terms the power or delegation given, such as “ assistendi valide omnibus matri- moniis in paroecia cui actualiter assignatus es, absque speciali Ordinarii delegatione, non licite tamen inconsulto parocho.” It will be easier to settle the question of disobedience to dio- cesan authority than to solve the many difficulties arising in a community from invalid marriages. The reason of urging this delegation is, that we are a little easy-going in our methods and apt to forget canonical prescriptions. Canon Law is gradually becoming more appreciated among us, but until the appreciation be fuller and more general, it would seem advis- able to make sure of one thing; namely, that of granting dele- gation in such a way that we shall be certain that all our marriages are valid. Gwo Witnesses. According to the decision of the Congregation of the Coun- cil 28 a marriage will be invalid, if two witnesses are not pres- ent. One witness will not suffice. The new decree specifies no qualifications for the witnesses, hence, women, minors, se- cular or regular clerics, infidels, excommunicated persons, heretics, etc., can be called on to assist validly at the marriage ceremony. Many diocesan statutes rightly forbid several of the above classes. The violation, however, of the diocesan statute would not render a marriage invalid . 29 27 Such is the decision of the Holy Office given to Archbishop Chapelle, Cf. Eccl. Review, March, 1899, pp. 281-2, Vol. XX. 28 14 Jany., 1673. Gasparri, II, n. 953, pp. 153, 154. 29 Ibid. A COMMENTARY ON 32 Exceptional Cases. I. In case of proximate danger of death, when the Ordinary or the parish priest, or a priest delegated by either of them, can not be had, any priest with two witnesses can validly wit- ness a marriage entered into on a deathbed as a relief of conscience, and the legitimizing of the children (if there be any). The question of the first exception, if it may be so called, is not one where the party is “ in articulo mortis ” but in “ peri- culo mortis.” Cardinal Gennari 30 interprets in a sensible and broad spirit, as is usual with him, the words * cannot be had,” to mean, that there is not sufficient time to go for the Ordinary or parish priest, allowing them also time to come to the dying person. This calculation is not, he says, to be mathematical, but moral; hence, not certainty, but probability, is required. If a doubt exist, give the dying person the benefit of the doubt. The same authority holds that one may make use of the tele- phone or telegraph in obtaining, in such a case, the proper dele- gation. By the decrees of the Holy Office, 20 February, 1888, and 9 January, 1889, Ordinaries could delegate parish priests, or those in charge of a parish “ habitualiter,” to dispense from all diriment matrimonial impediments (with two ex- ceptions) in the case of death 31 (“ in periculo mortis ”). The two exceptions were: first, priestly ordination; and, secondly, affinity “ in linea recta ex copula licita.” How do we stand to-day in regard to this faculty? Can our priests, when a party is dying, dispense from the aforesaid impedi- ments, including the impediment of clandestinity, that is, can they dispense with the two witnesses? The solution may be clear from the following. Our pastors and priests in charge of parishes who may be delegated “ habitualiter ” by the Or- dinary, can, after Easter, when they assist at a marriage “ in 80 Breve Commento. 31 Acta S.S., Vol. XX, p. 543; Vol. XXI, p. 696; Com. in Fac. Apos., Putzer, ed. 1897; De Becker, pp. 286-287; Tanquerey, (ed. 1907) PP- 7I2-7I3- THE NEW MARRIAGE LEGISLATION. 33 extremis,” provided they be delegated, dispense from all diri- ment matrimonial impediments, except 1. priestly orders; that is, they cannot validate any at- tempted marriage of a priest; 2. affinity “ in linea recta ex copula licita;” 3. clandestinity — (there must be two witnesses). Again, it may be necessary to remind pastors that, although they have received this faculty “ habitualiter,” they cannot validly exercise it when there is time to have recourse to the Ordinary. Whilst our assistant priests, as well as any priest, whether of the diocesan or the regular clergy, can validly assist at any marriage when one of the parties is in danger of death, yet they cannot : 1. dispense from the matrimonial diriment impediments mentioned in the decrees of the Holy Office, unless they have been delegated for a particular and specified case, by the Ordinary ; 32 2. dispense from the impediment of clandestinity (there must be two witnesses). Our assistant priests will ask what is their course when such an urgent case comes to them. There may be no time to refer it to the bishop, and the pastor who has been “ habi- tualiter ” delegated cannot always attend such a dying person. Three things are to be kept in mind : 1. that pastors cannot subdelegate; 2. that pastors who are “ habitualiter ” delegated, when there is no time to have recourse to the Ordinary, can grant the dispensation without actually going to the dying person; thus the assistant, if he know the case before leaving the parochial residence, can ask the parish priest to dispense from the diriment matrimonial impediments above stated. 3. Suppose the assistant priest knows nothing of the case 32 It may be that some of our Bishops have received extraordinary power to delegate our assistant priests “ habitualiter." 34 A COMMENTARY ON until he has heard the confession of the dying party, or suppose the pastor is absent for a day or two, and there is no time to consult either the Ordinary or the pastor , 33 in such a case the marriage cannot be validated. It is consoling, however, to know that the sins can be forgiven and that the party can save his or her soul, by sincere repentance and confession, even though he or she lived in concubinage, and even though illegitimate children remain, through no fault of the latter, to perpetuate the shame of their father’s and mother’s sins. II. If in any of our missionary districts parties cannot during one month or more secure the Ordinary or a missionary assigned to their territory or a priest delegated by either of these, they can in the presence of two witnesses (no priest being present) enter into the marriage contract and validly and licitly receive the Sacrament of Matrimony. According to the eminent canonist Cardinal Gennari 34 a month means thirty days. Parties so situated are not obliged to wait one day over the month; but during the month they should make every reasonable effort to find a duly authorized priest. They would not however be obliged to put themselves to an in- convenience which would constitute for them a “ grave in - commodum ” Such a marriage would not be recognized by the State except in those States where the common-law marriage holds; hence to have their union regarded as legal, the parties can give the formal declaration of their consent to marriage before a notary public. If parties so situated do not express their consent, either at the time of their marriage, or subsequently, before any duly authorized civil magistrate, they should on the first opportunity of meeting any priest recognized by the State as an official, go through a ceremony that would legalize their marriage and thus prevent a great many possible difficulties that could arise in our courts. 83 In such a cme, if the assistant has time to obtain the dispensation by telephone, we think he may do so. 34 Breve Commento. THE NEW MARRIAGE LEGISLATION. 35 It might be asked whether parties who have declared their mutual consent according to this exceptional provision (hence truly and licitly married before God), may, if no State official can be found, allow a schismatical or heretical minister to legalize their marriage. If they make the protestation to the minister that they seek his presence only as a State official and moreover if they absolutely exclude the ceremony or ritual of every sect, this in our opinion might be justified ; but such a course should not be encouraged . 36 Uldt /l&arrtaaes. The Ordinary or the duly authorized priest having ob- served all that is required for the validity of marriage, can licitly perform the ceremony of matrimony by observing the following prescriptions : I. Although local contrary custom has modified the general law 36 which requires that witnesses of marriage testify under oath as to the freedom of the contracting parties, still the parish priest or Ordinary is under a serious obligation to as- certain as best he can the freedom of the future husband and wife. This is especially true in the case of strangers and foreigners, from whom testimonial letters from their former parish priest or priests should be required. II. To acquire a domicile two conditions are necessary . first, actual habitation in the parish where the marriage is to be contracted; secondly, the intention of permanent residence there. A month's residence actually begot a quasi-domicile in the United States for such as came from a place where the 35 We think the excommunication of the third Baltimore Council (n 127, P- 65) was not intended for such a case. The parties in the case above given are married validly and licitly in the eyes of the Church and before God. They present themselves to the minister for the sole reason that he is a State official, so that their children may not be ille- gitimate before the State. Such a protection is due the wife especially; for unconscientious men could leave their wives and marry again; and for the innocent party there would be no redress, because the State recognized no marriage. 36 Clement X, 1670 et Inst, ad Episcopos Orientales, 1890 Coll, de Prop. Fid., 1376, ed. 1893. Tanquerey, Theol. Mor., ed. 1907, p. 588, n, 974 A COMMENTARY ON 36 Tamctsi obtained . 37 Now for the Universal Church the law is simplified, by requiring for licit marriage at least a month’s residence, if a domicile be not had. It must be one or the other. Actual habitation in a place for a few days, with the intention of remaining there the greater part of the year, (which constitutes a quasi-domicile) is not sufficient. Thus a domicile or a month’s residence in the diocese is required, if the Ordinary is to perform the ceremony; a domicile or a month's residence in the parish is required, when the parish priest is to witness the marriage. III. If neither of the parties to be married have a domicile, or a month’s residence, then the Ordinary or the parish priest in order to assist licitly at the marriage, should obtain per- mission from the Ordinary or the pastor of the bride. If there be a good reason for not asking the Ordinary or the bride’s pastor, permission may be obtained from the Ordinary or the parish priest of the groom. In case of grave necessity, no permission need be obtained. It must be noted that there is no question of obtaining dele- gation. It is merely the obligation of securing permission (“li- centia parochi vel ordinarii”). And Cardinal Gennari 88 thinks that presumed or interpreted permission will suffice. A parish priest may refuse permission, if he has a good reason for do- ing so. If he has not, application should be made to the Ordinary or to the pastor of the other contracting party. Bv grave necessity we think is here understood anything that would involve a serious inconvenience if this permission were obtained — such as avoiding scandal or defamation of charac- ter, notable financial loss or expenditure, etc. IV. Either the Ordinary or a priest whom the Ordinary has delegated, should grant permission before any parish priest can licitly witness the marriages of persons without a fixed abode. Necessity excuses the priest from obtaining the per- mission. In large dioceses, it would seem advisable for the Ordinary to appoint the deans or other suitable priests, with 5T Balt. Cone. Ill, Append. 255. 48 Breve Commento. THE NEW MARRIAGE LEGISLATION. 37 authority to decide in their localities, on the case of “ vagi." It is to be noted that the previous number (III) requires the existence of a grave necessity. Whilst in the present num- ber (IV) necessity excuses; by which we think is understood want of sufficient time to consult the Ordinary without causing a rather serious inconvenience or a considerable financial loss, or giving some scandal, or the moral certainty that upon his refusal the parties (vagi) will be married immediately by a minister or State official, or the fear that they will live in concubinage. V. The general rule is that the marriage ceremony should take place in the bride’s parish ; and the exception, in that of the groom. The bride, however, may have two parishes : one where she has a domicile, the other where she has a month’s residence. If this be the case, we think that she should be married where she has the domicile, unless she is to acquire immediately a domicile where she had the month’s residence, which would be sufficient reason to have the month’s residence take precedence over the domicile. If the groom have a domicile in one parish, and the bride a month’s residence in another, Cardinal Gennari thinks the marriage should take place in the groom’s parish. It is a most reasonable interpre- tation that such a case furnishes not merely a “ justa causa,” but was not intended to fall under the word of the law, — “ let it be held as a rule.” If the contracting parties are to acquire immediately after marriage a domicile where the bride had a month’s residence, it would seem but just that the ceremony be celebrated in the latter place. The pastor of the groom may witness the marriage whenever there is a good reason. Not every little reason can be called a just reason; but a matter of saving expenses, or any arrangements for marriage that would mean the inconvenience of either party, or the observ- ance of local social proprieties, would be considered good rea- sons, any one of which will be sufficient (“causa justa ”) to excuse the parties from being married by the bride’s pastor. Also, difference between the future bride and her pastor which would mean for the latter a severe correction, or a deep humi- A COMMENTARY ON 38 liation — or when the pastor of the groom is a very special friend either of the groom or the bride, or the parties intend residing in the groom’s parish where they wish to have the marriage ceremony, we think a “ causa justa.” The following tabulation will help to show where marriage should regularly take place; that is, in all cases where neither grave necessity nor necessity exists. Has Domicile. Has Month’s Resi- dence. Marriage SHOULD TAKE place Marriage may take place J Mary Smith in parish A. 1 John Breen in parish A. 1 Mary Smith in parish B. ( John Breen in parish B. | 1 In parish A. In parish B. J Mary Smith in parish A. 1 John Breen in parish B. John Breen in parish C. In parish A. In parish B or C. ( Mary Smith in parish A. i John Breen in parish B. ( Mary Smith in parish C. 1 John Breen in parish D. In parish A. In parish B, C or D. John Breen in parish B. Mary Smith in parish A. In parish B. In parish A. | Mary Smith in parish A. ( John Breen in parish B. > 1 In parish A. In parish B. Special tftuetmons ot Xicit dftarrtageg In tbe TllntteO States. [n some of our dioceses either the regulation exists or the custom obtains that persons are considered parishioners of that parish where they rent a pew. Thus parties who live in the territory of parish B, but rent a pew in parish A, where they regularly hear Mass and receive the Sacraments, could without any question be married in parish A. Moreover the pastor or clergy of parish A in such a case always receive the stole fees. May this custom continue after Easter, 1908? We think not. The law reads “ by parish priest is to be un- derstood not only a priest legitimately presiding over a parish canonically erected, but also in regions where parishes are not canonically erected, the priest to whom the care of souls has been legitimately entrusted in any specified district and THE NEW MARRIAGE LEGISLATION . 39 who is equivalent to a parish priest ; and in missions where the territory has not yet been perfectly divided, every priest gen- erally deputed by the superior of the mission for the care of souls in any station.” It is clearly manifest from the decree that persons (“ quoad matrimonium licitum ”) are subject to that parish priest in whose parish or specified district they are territorially located; by preference to the pastor in whose parish the bride has a domicile or a month’s residence, and then to the parish where the groom has a domicile or a month’s residence. The law further reads in its concluding paragraph : “ These presents are to have force by the special order of our most Holy Father Pope Pius X, all things, even those worthy of special mention, to the contrary notwithstanding.” As no diocesan authority can make any ruling contrary to the de- cree, neither can any contrary custom continue to obtain. A second difficulty, and one of greater importance, is the question of marriages in our national churches. Should all the Germans, or Italians, or Poles be married in the church especially erected and administered for the people of these respective nationalities, or should they be married in the parish where they are territorially located? It is a difficulty of a parish within a parish, but founded on such a distinction that there will be an easy solution. A church for the Italians may embrace a whole city. In such a case, the entire city, it would seem, is the specified limits of that parish for the Italians only. Thus in a small city the Italian church, St. Catherine’s, should be, we think, the parish church of all the Italians of the city, but for them only. American parishioners or those of other nationalities (not Italian) territorially situated in St. Catherine’s parish, should not be married, we venture to say, in St. Catherine’s church, but in the parish to which they belong. A further question here arises : What of those foreigners who have adapted themselves to the country, and who speak our language ; and again, what of the children of these Italians, Germans, and Poles, etc. who speak English and who are thorough Americans — should these two classes be 40 A COMMENTARY ON married in the churches erected for their parents and where a foreign language is spoken, or rather in the parish where they are territorially situated? These are questions that must be presented to the Sacred Congregation, and the decision, we think, will depend largely on the presentation of the case to the Holy See. If our Bishops should request, first, that for- eigners “ in ordine ad matrimonium licitum ” are to be con- sidered as belonging to the parish of their national tongue, even though they reside in one or other of the English- speaking parishes; and secondly, in conformity with the declaration given by the S. Congregation of the Propaganda (26 April, 1897) and published by Cardinal Martinelli, 80 that Catholics, though not natives of America, yet who know the English tongue, have the right to become members of the church in which the English tongue is in use; 40 thirdly, that the children of these foreigners are not obliged “ quoad matri- monium licitum ” to be married in the parish church erected for the people who worship in a foreign tongue, but prefer- ably in the parish church in which they are territorially located — it is very probable that the Holy See without much delay will, accede to these three requests, since they conform to a previous decision of the Propaganda. Our Bishops know best what is to be done to further the real interests of religion, and it is more than probable that by the time the Archbishops meet at the Catholic University (next May) every Metropoli- tan in the country will have convened the Bishops of his province. If this be done, then at the meeting of the Arch- bishops the sentiments and opinions of every Bishop in the country can be expressed through the Metropolitans, and a petition drawn up to the Holy See which will meet with the unanimous approval of the American Hierarchy. 39 Eccl. Review. Vol. XVII, July 1897, p. 87, and Vol. XXXVIII. Jan 1908, pp. 65-69. 40 Ibid. THE NEW MARRIAGE LEGISLATION. 4 » XLbc mew an*> Correct TReafetratfon. The Italians say, “ Gli Americani sono molto pratici.” The American priest without much reflection will conclude that he could have excogitated a more practical system of registra- tion than the one prescribed, but on fourth or fifth consider- ation he will see the great advantage of having more than one record of a marriage. Any American priest is not merely at liberty to try to devise a good method, but he will surely elicit the heartiest approbation of his confreres, who succeeds in ar- ranging a convenient and satisfactory registry of baptisms and marriages. In such a registry he can introduce all the ad- vantages and accurate methods employed in our civil courts for the proper registration of marriages, bearing in mind the following facts to be recorded in the Marriage Registry I. i. Names of parties married. 2. Names of the witnesses. 3. Names of church and place where wedding took place. 4. The year, month, and day of celebration. 5. Any other facts or names which the Ritual, Ordinaries, or diocesan synods may prescribe to be recorded. 6. Name of the priest who performed the marriage ceremony. It must be carefully noted that the purpose of this law is a serious one; hence under grave sin 41 must the Ordinary and parish priest see that substantially correct registrations be made. The writer would suggest that in the marriage registry two other columns be introduced, one marked Registrum Baptismorum, where he should note that he has recorded the marriage in the Baptismal Registry if the parties were baptized in his parish. The other column could be Notitia ad Paroch*™ mittenda. In this section might be written the fact that due notice was sent to the parish priest or priests where the parties were baptized. These two columns would remind the priest every time he made an entry in the marriage registry of these newly imposed duties of registration. At first thought 41 Breve Commento. 42 A COMMENTARY ON it may seem very strange to record the marriages in the Bap- tismal record; but let us suppose that John M. Smith and Mary B. Green were married in church A. John was bap- tized in the church B y and Mary in church C. If at any sub- sequent period a doubt should arise as to whether these parties were married, we should in looking up the case have three re- cords of the marriage instead of one. Hereafter if one registry be destroyed, we may have one or two other records to consult. Rome, in legislating on such a point, must cer- tainly prefer to have two or three records of a marriage, even at the cost of the little inconvenience of double registration. The question of proper registration may mean*a great deal to Rome when she is deciding a matrimonial case, while the extra registration or the sending of due notice for registration, is only a question of a minute or two for the priest. Fewer mistakes might be made in our registries if our parochial re- cords were kept in English ; or, at least, if the names of the parties were recorded in both English and Latin. We have to deal frequently with unusual names which would require experts to Latinize. II. We fear our priests will fail in their duty of writing a letter or two letters, as the case may be, to the parish priests of the places where the parties were baptized, unless some convenient and practical system be adopted. There will be more likelihood of such a failure if the letters must go to. say, Poland or Russia. For the proper and convenient ob- servance of the law we suggest that the pastor of every church have a printed formula something like the following made out in a concise form. A book of formulas could be gotten up in the manner shown on the opposite page: Notification 3fonn for tbe J3aptlomal Register. ttbe Same, with tUnfUleO^tn jBianha. THE NEW MARRIAGE LEGISLATION. 43 44 A COMMENTARY ON III. Some one will do well to give considerable thought to the convenient arrangement of a Baptismal Record. After Easter we shall have to be looking up the old baptismal records twenty or thirty years back, and in many instances of a much longer period, entering after the names of the parties the fact that they have embraced the matrimonial state. In the Bap- tismal Registry the following facts should be recorded : 1. Year, month and day of marriage. 2. Name of church where marriage took place. 3. Any other facts ordered by the Ritual and diocesan synods. t 4. Name of priest who performed the ceremony. Provision should be made in the Baptismal Registry to permit the entry of two or three marriages after the names. After Easter widows and widowers will continue to marry. Various forms of Baptismal Registers are in use in the dif- ferent parishes to-day, and it is only reasonable to suppose that many of them will be retained, provided they can be adapted to the requirements of the new legislation. Such adaptation may easily be made in those books — for instance, that recommended by the Tenth Provincial Council of Balti- more and now in common use in the United States — which, after all the regular entries have been made, still afford ample space for additional notes and observations : but in those books which have blanks for the necessary details only, and which make no provision for later supplementary addenda, it may be found necessary to add — with the pertinent cross-references — a few pages from time to time, as required, at the back of the volume, by way of appendix ; or a distinct supplementary book- let to the Register itself may even be made. The practical sense of our readers will suggest other means of complying with the substantial requirements of the law. until new books in due time are needed. IV. 1. It is to be noted that the responsibility of making entries in the Matrimonial Register falls not on the priest who actually performed the marriage but on the parish priest or on the one in charge of the church or mission. This is true even I HE NEW MARRIAGE LEGISLATION. 45 though the bishop or parish priest has delegated a priest to witness the marriage. 2. When the parties married have been baptized in some other parish of the diocese, or in some other diocese, the notice of the marriage in either case may be sent directly to the parish priest where the parties were baptized, or to the Ordinary of the home diocese , 42 or to the Ordinary in whose diocese the baptism took place. Thus the notice of a marriage in Philadelphia when the parties were baptized in San Fran- cisco, can be sent directly to the parish priest in California or it may be sent to the curia in Philadelphia, or directly to the curia of San Francisco. V. i. Any priest who marries a party in danger of death is responsible for the proper and accurate registration of the marriage. 2. When parties who could not secure the Ordinary or par- ish priest, or a priest delegated by either, have entered the married state, the responsibility of transmitting all the facts of the case for due registration falls on the newly married couple together with the witnesses. JESisbops anb Diocesan S^nobs. I. Our Ordinaries and diocesan synods may not supple- ment the present marriage law by rulings contrary to the pro- visions of the decree. They may, however, add regulations that are “ praeter legem,” as well as specifications on points which the law leaves indeterminate. Ordinaries and diocesan synods should punish severely priests who through carelessness or ignorance have either drawn up invalid written betrothal con- tracts, or who have omitted the observance of any positive prescription of the present law so as to render the marriage invalid. If the same priests have offended in these essential points frequently, it would seem advisable to forbid them absolutely to sign any betrothal contract or to assist at any marriage. Lesser punishments should be given for the trans- gression of any prescription that would render the marriage 42 Gerinari, lb. 46 A COMMENTARY ON illicit. The Ordinaries and diocesan synods can oblige the pastor of the groom to restore the stole-fee to the parish priest of the bride, whenever the former, without a good reason (“justa causa”) performs the marriage ceremony. This is not prescribed in the pontifical law, but it is not contrary to it, hence could be given as a punishment for violating num- ber V, v, of the present decree. II. If the Holy See does not wish to determine what would constitute a grave necessity (V, iii), a necessity (V, iv), and causa justa (V, v), it might be advisable for our diocesan synods to give an interpretation together with examples, which would serve as a norm for priests, dealing with practical cases. Such interpretation should be followed until a declaration be given by the Holy See. III. Undoubtedly difficulties will arise about stole-fees in cases not included in the decree Ne temere. Differences between priests, unkindly friction, perhaps scandal, can be prevented if the Ordinaries and diocesan synods, according to the peculiar circumstances of each diocese, shall supplement the pontifical legislation by minutely specifying the distribu- tion of stole-fees. In such diocesan laws care must be taken not to determine anything even implicitly contrary to the decree Ne temere. /ftatrfmontal Stole^tfees. I. As the marriage is ordinarily to be celebrated by the parish priest of the bride, it can be said as a general rule that he is entitled to receive the stole-fees of all marriages that he witnesses or should witness. II. If a parish priest, either without duly authorized per- mission, or in a case where grave necessity does not exist, per- forms the marriage ceremony for parties who have not a domicile, or a month’s residence in his parish, he is to return the stole-fee to the bride’s pastor. He may send it to the groom’s pastor, if a good reason (“ causa justa ”) existed which would have allowed the parish priest of the groom to witness the marriage. THE NEW MARRIAGE LEGISLATION. 47 III. If in case of grave necessity any parish priest shall have witnessed in his own church or territory a marriage of parties who have not a domicile, or a month’s residence in his parish, we still think the stole-fees should be sent to the bride’s pastor, or to the groom’s parish priest, if the latter would have had a good reason to perform the marriage ceremony. When the grave necessity exists, any pastor who witnesses a marriage in his own church or territory is not violating prescription V, ii and iii. Consequently, in virtue merely of the present decree, he is not obliged to send stole-fees to either the pastor of the bride or groom. Our opinion, however, is based on the general principle that the stole-fee for marriage belongs to the parish priest . 43 While it does not seem just that the priest who performs the marriage ceremony in case of grave neces- sity, should receive nothing of the stole-fee (if there be any fee in such a case), yet he cannot be considered the “ paro- chus contrahentium.” We should say that the parish priest for such a case is ordinarily the pastor of the bride. If a just cause existed allowing the pastor of the groom to per- form the marriage ceremony, he may be considered the parish priest “ in ordine ad emolumenta stolae.’' The new decree does not specify that a priest invited and delegated to witness a marriage should give the stole-fee to the pastor, yet very probably he must offer it to him. for the same reason as men- tioned above. IV. If the parish priest of the groom witness the marriage, even without a just cause, he may appropriate for himself the stole-fees. The reason of this is that, although the pastor violates the law which requires that marriage be regularly cele- brated by the pastor of the bride (V, v) (to which, however, the penalty of returning the stole-fee is not attached), he does not however violate the law (VII) which requires for the licit assisting at the marriage a domicile, or a month’s residence of one or other of the contracting parties. It seems at first 43 Romanos Pontifices, Concil. Ill BaltL p 227 48 A COMMENTARY ON sight beneath the dignity of pontifical or diocesan law to treat in detail of the question of fees, especially where there is question of the administration of a sacrament, or rather of a priest assisting at the administration thereof ; but the framers of the laws know too well from experience that ecclesiastical legislation must put up safeguards against the danger of human weakness in its officials. To leave the question of stole-fees unsettled would be to open a thoroughfare where the travel of clerics would be uncomfortable, undignified, and unpriestly. Cbose BttecteD b£ tbe H>ecree. The following persons are affected by the decree in making a formal engagement and in entering the married state : 1. All Catholics of good standing, baptized as infants in the Faith. 2. All adults (never previously baptized) baptized in the Catholic Church. 3. All converts to the Catholic Church from any sect or denomination. 4. All Catholics baptized as infants but who have fallen away from the Church. 44 44 The decree clearly distinguishes between those baptized in, or re- ceived into, the Catholic Faith, and those baptized in any sect. The former, irrespective of age at the time of baptism, or subsequent relapse into heresy, schism, or infidelity, continue to be bound by the decree as long as they live. The latter are regarded as the only class of heretics ex- empted by the decree. This differs from a former interpretation (S. C. Apr. 1859) of the Benedictine declaration by which heretics included: 1. Catholic baptized infants educated in and professing Protestantism before their seventh year. 2. Children brought up and educated by indifferent Protestants, who gave them little or no instruction in heresy. The children in consequence became indifferent, seldom attending any religious worship. 3. Those who as children fell into the hands of heretics and joined some sect. (Gasparri, II, n. 977, p. 173 ed. 1900.) If anything like a proximate calculation from all our dioceses could be made of the great number of children falling into the hands of here- tics as defined by the interpretation of the Benedictine declaration, a provision to except the aforesaid classes might be made for us. It is not THE NEW MAR El AGE LEGISLATION. 49 5. All adults (never previously baptized) who were bap- tized in the Faith but who have fallen away from the Church. 6. All converts to the Catholic Church from any Protestant sect who have relapsed or have lost all faith. There will be many of the fourth class amongst us. Bap- tized children falling into the hands of Protestants, growing up as Protestants, knowing nothing of the law of the Catholic Church which declares their marriage invalid unless celebrated before a duly authorized priest, will be living (though not culpably so) in concubinage, and not in lawful wedlock. Those of class 5 and 6 are refractory subjects. No one will de- clare that the State has lost jurisdiction over her law-breaking citizens; yet many will not see that the Church can bind her sinning and relapsed children. Baptism is not like naturali- zation. It does not allow the one baptized to transfer his or her allegiance from one religion to another, or rather from the true religion to so-called religions. Many Protestants may think the Church presumptuous in decreeing their marriages valid or invalid accordingly as they have or have not complied with certain conditions. As the Church cannot err, neither can she be presumptuous. She alone is judge of the extent of her power. Any one validly baptized either in the Church or among heretics, becomes there- by a subject of the Roman Catholic Church. The present marriage law does not bind any one baptized in heresy or schism, provided they have never entered the Catholic Church. A question, however, can arise as to whether in large Pro- testant communities it may be prudent to publish merely the law, as many of our Catholic papers will do ; the reason, power, and authority of the Church should be published with it. We do not fear the truth ; we do not wish to conceal the truth ; but we should present the whole truth, and in such a way that our Protestant brethren cannot refute it the intention certainly of the Church, nor of the saintly Pius X, to have uniformity of law for its own sake, but rather willingly to make exceptions when it can be shown that exceptions in certain localities will work for the greater good and salvation of souls. 50 A COMMENTARY ON Careful note is to be made that the decree is dealing with the impediment of clandestinity, hence those of Nos. 4, 5 and 6 are considered subjects of the Church for this impediment. For all other impediments, those of 4, 5 and 6 are to be treated as apostates and heretics are now dealt with. Hence if a Catholic of good standing should marry a Protestant classified under Nos. 4, 5, 6, certainly a dis- pensation from the impediment “ mixtae religionis ” is to be obtained. Another difficulty that will confront us is the following: Many Protestants of the classes 4, 5, 6, will marry non- baptized parties. It is certain that the marriage of such apos- tates and non-baptized parties will be invalid. In case of a Protestant baptized in some sect (but who has never entered the Catholic Church) marrying a non-baptized person, the marriage is invalid, but not because of the impediment of clandestinity, for the non-baptized party is not a subject of the decree and the “ Ne Temere ” clearly defines that the other party is not included among those whom the new legislation affects. The marriage is invalid on account of the “ impedimentum disparitatis cultus.” A case for moralists to settle is : what course is the priest to follow when such Protestants or such Catholics, as you may wish to call them, mentioned in Nos. 4, 5, 6, present themselves to be married ? They may have no intention of returning to the Church, yet may wish to be married by a priest because they know that in the eyes of the Church and before God any at- tempt at marriage before state officials is no marriage at all. /DMEefc /J&arda^es. Our bishops will have a serious difficulty in the question of mixed marriages, which are on the increase from year to year. In some localities where Catholic belief is sound and vigorous, and the influence of Catholic society dominant, mixed mar- riages have led to many sincere conversions, but in the greater number of cities, especially large cities, mixed marriages have proved to be a curse for the community and for individuals. THE NEW MARRIAGE LEGISLATION. 5 The Holy See in legislating for the Universal Church cannot make the general law applicable to the particular needs of one nation or people. The Church in her general disciplinary regulations must seek the “ bonum commune ” of the Uni- versal Church. The “ bonum commune,” however, need not be a “ bonum ” for every individual nor even for every people or nation. Thus, in the present instance, the general law exacts under pain of nullity that the marriage of a Catholic to a Protestant party (schismatic or heretic) must take place before the Ordinary, or a duly authorized priest, and wit- nesses. But the general law makes wise provision for the validity of mixed marriages and marriages of schismatics and heretics among themselves in particular countries or localities, even when celebrated before ministers or state officials : first, in all places that now possess a dispensation from the im- pediment of clandestinity, and, secondly, whenever conditions, in the judgment of the Holy See, will warrant such an ex- ception for the future (“ nisi pro aliquo particulari loco aut regione aliter a S. Sede sit statutum”). Cardinal Gennari again assures us that “ nisi pro aliquo ” etc., does not change or abrogate any existing dispensations from the impediment of clandestinity : hence, owing to the decree “ Provida ” granted to Germany, 18 January, 1906, all marriages of Pro- testants among themselves, and of Catholics to Protestants (schismatics or heretics) before ministers or State officials in the whole of the German Empire, will be valid after Easter, 1908. At present the writer cannot ascertain whether we have pro- portionately a greater number of mixed marriages than Ger- many, but, considering the loyal and living faith of American Catholics, it is certain that we have a number out of all due proportion. It is certain too that at least an experiment of other measures must be adopted in the hope of reducing the yearly increase of mixed marriages. The part of the decree “ Ne Temere ” that deals with mixed marriages brings into bold relief the doctrine of the Catholic Church and of Christ, that the origin and fountain-source of religious and civil 5 2 A COMMENTARY ON Christian society is a sacramental one — the great sacrament of Matrimony — and not a mere contract between individuals, de- pendent on the whims and fancies of those who make it; not a contract that the State can ratify or annul, but a contract that the hand of God Himself has sealed and signed — a con- tract on which He has written, “ What therefore God hath joined together let not man put asunder.” 45 The Church in terms that cannot be mistaken announces to the world: “I, and I alone know the power and authority that Christ com- municated to me, and I now reiterate the declaration to the world that among Christians there is no distinction between the marriage contract and the Sacrament of Matrimony, and I declare that I alone can impose the conditions under which Christians can or can not receive this Sacrament. I declare that the State can no more administer the Sacrament of Matrimony, or impose conditions for its administration, than it can administer any of the other Sacraments entrusted to my keeping. 4 ® I now decree for the Universal Church a certain form absolutely essential which will give every marriage pub- licity. I decree that this form is necessary for Catholics among themselves, and for Catholics who marry non-Catho- lics, whether the latter are baptized or non-baptized. I de- cree every other form, whether approved by the State or by any schismatical or heretical sect, to be invalid. I further declare that every such form is as worthless as a form in- vented by the parties themselves, and as useless as if no form whatever were observed. By Catholics I mean every one who has ever been received into the Catholic Church. I declare that I have the God-given power to bind refractory subjects, and all who have ever been validly baptized in any form or ex- pression of Christianity. I now decree that all fallen-away Catholics, irrespective of time, condition, or place, cannot re- ceive the Sacrament of Matrimony, and, consequently, cannot Matt. 19: 6; Mark 10: 9. *• The State may impose conditions for civil recognition of matrimony 4nd may legislate on whatever concerns the purely civil effects of marriage THE NEW MARRIAGE LEGISLATION. 53 enter into any marriage contract, unless the form and ritual that I have prescribed be observed. And further, I declare and decree that I do not require that this form and ritual be observed by those who have never been baptized in, or received into the Catholic Church. I declare further, that while this law extends to the entire world, I am willing to make excep- tions, if, owing to frail human nature and the peculiar circum- stances in Protestant countries, it can be shown that such ex ceptions will work for the greater good of souls, for a 1 more expeditious reconciliation of penitents/ and for * public peace and tranquillity/ ” 47 It is certain that the Church’s position is unassailable, and in this momentous question, the very foundation stone of so- ciety, she shows the greatest prudence and love for her erring children. All children cannot be treated alike. Some will be won by kindness, others must be treated with severity. The purpose and commission of the Church is to win all If leniency and dispensations will enable bishops and priests to reclaim those living in valid, but sinfully contracted marriage then leniency and dispensations will be the Church’s means. The Church knows that as long as Catholic young men and women associate with Protestant young men and women, we shall have mixed marriages, and unfortunately many of these will be celebrated before ministers and State officials. Considering the great number that take place, and will take place, likewise weighing every consideration bearing on the case, would it be better for Catholicism in the United States to have marriages before State officials recognized as valid? If an affirmative reply be made by our Bishops, it will rest with them to ask for the extension to the United States either of the decree “ Provida,” or a modification of the “ Provida,” best suited to our conditions, and it will rest with the Holy See to decide whether or not the same will be granted. Unless this extension be made, after Easter of 1008, the 47 Provida. 54 A COMMENTARY ON marriage of Catholics with schismatics, heretics, or non-bap- tized persons, before ministers and State officials, will certainly be invalid in all parts of the United States, without any exception whatever, even though the dispensation “ mixtae religionis ” or “ disparitatis cultus ” had been obtained. We have said “ without any exception whatever ” advisedly, and we wish to emphasize this point, because the only doubt that existed for us, was whether the Benedictine Declaration ap- plicable to certain districts of the United States, was really a dispensation. This doubt has been removed by a cabled an- existed for us, was whether the Benedictine Declaration, ap- is now without force. Accordingly the provinces of New Orleans, San Francisco, with the State of Utah, the diocese of Vincennes, the city of St. Louis, the places of the arch- diocese known as St. Genevieve, St. Ferdinand and St. Charles, also Kaskasia, Cahokia, French Village, Prairie du Rocher, East St. Louis. Centreville Station, and other places and countries where the Benedictine Declaration was promulgated, are bound by the new law precisely in the same manner as the whole Catholic world, Germany alone excepted. Should our Bishops decide to petition the Holy See for the extension of the “ Provida ” to the Lmited States, there are two doubts which, we think, should be settled. In order to remove all uncertainty in their regard, an interpretation might be asked from the Holy See, unless the German Bishops have already presented these dubia, I. As clandestine mixed marriages between Catholics and Protestants (or among heretics, schismatics, or Catholics with non-baptized parties, if the dispensation “ disparitatis cultus ” has been obtained) or of Protestants among themselves, will be valid in Germany after Easter, 1908, it may be asked if the same will be true of clandestine betrothals? It would seem that the “ Ne Temere ” makes provision that clandestine be- trothal will be valid for the aforesaid parties. The decree reads : “ The same laws are binding also on the same Catho- lics as above, if they contract betrothal or marriage with non- Catholics, baptized or non-baptized, even after a dispensation THE NEW MARRIAGE LEGISLATION. 55 has been obtained from the impediment ‘ mixtae religionis * or ‘ dispar itatis cultus/ nisi pro aliquo particulari loco aut regione aliter a S. Sede sit statutum .” The words “ nisi aliter ” cer- tainly mean that it has been decreed otherwise by the Holy See for the above-mentioned clandestine marriages in Ger- many. But the doubt here raised is : Do the words also mean that clandestine and unwritten betrothal is valid in case of the above-mentioned classes only, in Germany? II. What is the meaning of a non-Catholic (heretic or schis- matic) ? When the “ Provida ” was granted to Germany (18 January, 1906), the definition of non-Catholic (heretic or schismatic) was not the one given by the decree “ Ne Temere.” Does the term non-Catholic as defined by the “ Ne Temere ” apply to the “ Provida?” We have thought it advisable to give the “ Provida ” by way of Appendix. 56 A COMMENTAR V ON Appendix. ~ Jlrntriha.” apostolic JSull ®H wtrtrh all tn tljr Srtrpr " {IS am* iHarrta^rn anb thntjr of {Irntratants ExemjJtrh. PIUS Bishop and Servant of the Servants of God. For a perpetual memory. t By wise and provident care Holy Church, in promulgating her laws, has in every age regulated those things which per- tain to the stability and sanctity of Christian marriage. Among these laws that one by which the holy Tridentine Synod strove to abolish and extirpate from Christian people the evil of clandestine marriage, holds an eminent place. It is acknowledged by all that great utility has resulted, and still results, from this decree in favor of the whole Christian world. Nevertheless, as happens in all human affairs, it has occurred in places, especially in the German Empire, that certain grave and inconvenient results were connected with the aforesaid law, due to the lamentable and widespread division in religion, and the daily increasing intercourse of Catholics with heretics. Namely, since it was the intention of the Fathers of the Coun- cil that the decree Tametsi would not have binding force until it had been officially promulgated in each parish ; since, con- cerning many places, it is doubtful whether this promulgation has been made; since it is frequently uncertain whether the law of the Council is likewise obligatory upon non-Catholics dwelling in this or that place: the greatest diversity and dissimi- larity of law as a result has arisen in many localities of the German Empire, — wherefore very many and difficult ques- tions have sprung up which have frequently caused perplex- ity in the minds of judges, a certain irreverence for law among the faithful, and perpetual quarrels and incriminations among non-Catholics. The Holy See has not omitted to pub THE NEW MARRIAGE LEGISLATION. .37 lish for some dioceses of Germany timely declarations and or- dinances, which, however, have not abolished discrepancies of law. These have moved very many German Bishops to approach the Holy See again and again, unanimously seeking a remedy for this condition. Leo XIII, listening kindly to these peti tions, ordered that the wishes of the other prelates of Ger- many be consulted. These having been ascertained and the whole matter having been discussed in the Supreme Congregation of the Holy Roman and Universal Inquisition, we have under- stood it to be our duty to apply an efficacious and universal remedy to the present condition. Therefore, from certain knowledge and plentitude of our power, in order that we may preserve the sanctity and stability of matrimony, the unity and constancy of discipline, the certitude of law, a more expeditious reconciliation of penitents and finally the public peace and tranquillity, >We declare: I. Although in very many places in the whole German Em- pire of to-day the decree Tametsi of the Council of Trent has certainly not yet been promulgated and introduced either by express publication or by proper observance, nevertheless, from Easter Day, the 15th day of April of this year 1906. it binds all Catholics, even those not hitherto bound by the Tridentine law, so that they may not contract valid matrimony among themselves, save in the presence of the parish priest and two or three witnesses. II. Mixed marriages which are contracted by Catholics with heretics or schismatics have been gravely prohibited, and re main so unless a grave canonical cause be present, in which case proper assurances are to be given formally and fully by both parties and a dispensation of the impediment “ mixtae religionis ” should be obtained for the Catholic party. The dispensation having been obtained, these marriages should by all means be celebrated according to the prescriptions of the Church, before the parish priest and two or three witnesses : otherwise that they sin gravely who contract matrimony be- fore a non-Catholic minister, or even before a civil magistrate. A COMMENTARY ON 58 or in any other secret manner; nay more, if any Catholic seek or allow the service of a non-Catholic minister in the celebra- tion of such a mixed marriage, he commits another sin and is subject to canonical censure. We will, nevertheless, and expressly declare, define, and de- cree as valid the mixed marriages already contracted without the Tridentine form, or which (God forbid!) may be con- tracted without aforesaid form in any province or place whatsoever of the German Empire, even in those localities where up to the present (according to the decisions of the Roman Congregations) the Tridentine law was certainly pro- mulgated, provided there be no other canonical impediment, and further, that the sentence of nullity has not been legiti- mately pronounced before the Feast of Easter of this year, and further, provided the mutual consent of the man and wife has persevered to the aforesaid day. III. That a safe rule may be at hand for all ecclesiastical judges, We declare, determine, and decree the same thing under the same conditions and restrictions concerning the marriages of non-Catholics, whether heretics or schismatics, contracted or to be contracted in the future among themselves in the above-mentioned provinces and places, even when they have not observed the Tridentine form, so that if one or both of the married parties (non-Catholics) should be converted to the Catholic Faith, or a controversy should arise in the ecclesiastical courts concerning the validity of the marriage of the two non-Catholics in connexion with a question con- cerning the validity of the marriage contracted, or to be con- tracted by some Catholic, these same marriages, all else being equal, are likewise to be considered valid. IV. Lastly, that this our decree may come to the knowledge of the public, we command the Ordinaries of the German Empire to communicate it before Easter of this current year to the clergy and to the faithful through diocesan periodicals and other more convenient mediums. Given at Rome in St. Peter’s, 18 January, 1906, in the third year of our pontificate. Pius PP. X. THE NEW MARRIAGE LEGISLATION. 59 B«Ua Ajuiutulira ^ua Gmnla /toatrtmoma CCatbolica, in Germania, JDecreto “Gamete! ” Subiiciuntur ; JEjcipiuntur Dero /Ibatrimonia /BMjta et fl>rotestantium Pius Episcopus Servus Servorum Dei. AD PERPETUAM REI MEMORIAM. Provida sapientique cura quavis aetate Sancta Ecclesia legibus latis ea disposuit quae ad christianorum connubiorum firmitatem et sanctitatem pertinerent. In quibus legibus ilia eminentem locum habet, qua Sancta Synodus Tridentina 1 clandestinorum matrimoniorum pestem abolere et ex populo christiano extirpare contendit. Magnam ex hoc Tridentino decreto utilitatem in universam rempublicam christianam pro- manasse et hodie quoque promanare apud omnes in confesso est. Nihilominus, ut sunt res humanae, contigit alicubi, et praesertim in Imperio Germanico, propter lamentabilem maxi- mamque in religione divisionem et catholicorum cum haereticis permixtionem in dies augescentem, ut cum praedictae legis ob- servantia incommoda etiam quaedam nec levia coniungerentur. Nimirum cum ex voluntate Concilii caput Tametsi non antea in singulis paroeciis vim obligandi habere coepit quam in illis rite esset promulgatum, et cum haec ipsa promulgatio an facta sit multis in locis dubitetur, incertum quoque non raro sit an lex Concilii obliget etiam acatholicos uno above in loco mo- rantes, maxima inde ac molestissima in plurimis Imperii Ger- manici locis nata est iuris diversitas et dissimilitudo plu- rimaeque et spinosae exortae sunt quaestiones quae in iudicibus quidem persaepe perplexitatem, in populo fideli quamdam legis irreverentiam, in acatholicis perpetuas cierent querelas et cri- minationes. Non omisit quidem Sedes Apostolica pro nonnullis Germaniae dioecesibus opportunas edere dispositiones et de- clarationes, quae tamen iuris discrepantias minime sustulerunt. Atque haec moverunt complures Germaniae episcopos ut ite- 1 Sess. xxiv, cap. I, De reform, matr. 6o A COMMENTARY ON rum iterumque Sedem Apostolicam ad i rent communibus pre- cibus huic rerum conditioni remedium petentes. Quorum preces Decessor Noster f. r. Leo XIII benigne excipiens prae- cepit ut ceterorum quoque Germaniae Praesulum vota exquire- rentur. Quibus acceptis et toto negotio in Suprema Con- gregatione Sacrae Romanae et Universalis Inquisitionis mature discusso, Nostrum esse officium intelleximus praesenti reruni statui efficax et universale levamen afferre. Itaque ex certa scientia et plenitudine Nostrae potestatis, ut consulamus sanc- titati firmitatique matrimonii, disciplinae unitati et constantiae. certitudini iuris, faciliori reconciliationi poepitentium, ipsi quoque paci et tranquillitati publicae, declaramus, decernimus ac mandamus: I. In universo hodierno Imperio Germaniae caput Tametsi Concilii Tridentini quamvis in pluribus locis, sive per expres- sam publicationem, sive per legitimam observantiam, nondum fuerit certo promulgatum et inductum, tamen inde a die festo Paschae (id est a die decima quinta Aprilis) huius anni mil- lesimi nongentesimi sexti, omnes catholicos, etiam hucusque immunes a forma Tridentina servanda ita adstringat ut inter se non aliter quam coram parocho et duobus vel tribus testibus validum matrimonium celebrare possint. II. Matrimonia mixta quae a catholicis cum haereticis vel schismaticis contrahuntur, graviter sunt manentque prohibita, nisi accedente iusta gravique causa canonica, datis integre, for- miter, utrimque legitimis cautionibus. per partem catholicam dispensatio super impedimento mixtae religionis rite fuerit ob- tenta. Quae quidem matrimonia, dispensatione licet impe- trata, omnino in facie Ecclesiae coram parocho ac duobus vel tribus testibus celebranda sunt, adeo ut graviter delinquant qui coram ministro acatholico vel coram solo civili magistratu vel alio quolibet modo clandestino contrahunt. Imo si qui catholici in matrimoniis istis mixtis celebrandis ministri aca- tholici operam exquirunt vel admittunt. aliud patrant delictum et canonicis censuris subiacent. Nihilominus matrimonia mixta in quibusvis Imperii Ger- manici provinciis et locis, etiam in iis quae iuxta Romanarum THE NEW MARRIAGE LEGISLATION. 5 j Congregationum decisiones vi irritanti capitis Tametsi certo hucusque subjecta fuerunt, non servata forma Tridentina iam contracta vel (quod Deus avertat) in posterum contrahenda, dummodo nec aliud obstet canonicum impedimentum, nec sen- tentia nullitatis propter impedimentum clandestinitatis ante diem festum Paschae huius anni legitime lata fuerit, et mutuus coniugum consensus usque ad dictam diem perseveraverit, pro validis omnino haberi volumus, idque expresse declaramus, de- finimus atque decemimus. III. Ut autem iudicibus ecclesiasticis tuta norma praesto sit, hoc idem iisdemque sub conditionibus et restrictionibus decla- ramus, statuimus ac decernimus de matrimoniis acatholicorum, give haereticorum sive schismaticorum, inter se in iisdem regio- nibus non servata forma Tridentina hucusque contractis vel in posterum contrahendis ; ita ut si alter vel uterque acatholicorum coniugum ad fidem catholicam convertatur, vel in foro ecclesia- stico controversia incidat de validitate matrimonii duorum aca- tholicorum cum quaestione validitatis matrimonii ab aliquo ca- tholico contracti vel contrahendi connexa, eadem matrimonia, ceteris paribus, pro omnino validis pariter habenda sint. IV. Ut demum Decretum hoc Nostrum ad publicam noti- tiam perveniat, praecipimus Imperii Germanici Ordinariis ut illud per ephemerides dioecesanas aliosque opportuniores modos ante diem Paschae anni currentis cum clero populoque fideli communicent. Datum Romae apud S. Petrum die xviii Januarii mdccccvi , Pontificatus Nostri anno tertio. Pius PP. X. 62 A COMMENTARY ON 3Ujr Nrm fQarriar^ Saw for ©ur Jfeoplr. TIQbat Gbeg Sboulb Itnow Bbout Ht. Engagements and Marriages after Easter, 1908. An Abstract of the New Law for the People. engagements. 1. Every matrimonial engagement after Easter must be in writing, although there is no necessity nor obligation to enter into formal engagement before marriage. 2. In the eyes of the Church and before God, private be- trothal after Easter between Catholic parties, or between fallen-away Catholics, begets no matrimonial obligation what- ever, because the Church decrees that every prenuptial contract is void unless it is written and duly attested. 3. Parties wishing to become engaged must sign the pre- nuptial contract, and have the bishop or their pastor witness it. In the absence of the bishop or duly authorized priest, two witnesses must sign the engagement. If one or both of those to be engaged cannot write, this should be noted, and three lay- witnesses must sign the engagement in the absence of the bishop or the parish priest. 4. These engagements should be encouraged. If made some months before marriage, they will help to stop hasty alli- ances which are the cause of so many divorces outside the Church and of so many unhappy marriages among Catholics. 5. This written contract would furnish good grounds in our civil courts for breach of promise suit. 6. Protestants and all who have never been baptized in the Catholic faith are not subjects of this law, hence their private contracts bind, for the simple reason that the Church has not made these the conditions under which they must enter into an engagement. 7. All fallen-away Catholics, whether they have become Pro- testants or infidels, are bound by the law. The Church, like the State, can bind her refractory subjects. THE NEW MARRIAGE LEGISLATION. 63 MARRIAGE. 1. Every Bishop (or Vicar General or administrator of a diocese) can validly marry in his own diocese any parties, ir- respective of the country or place whence they come The bishop can delegate any priest to do the same. 2. Bishops or priests may not assist at marriages until they have assumed office. 3. There is no marriage at all, if the priest be compelled to witness it. There is no marriage if the priest does not ask and receive the consent of the parties. 4. The authority which the bishop has in his diocese, the parish priest has in his parish. 5. The bishop outside his diocese, and the pastor outside the limits of his parish, cannot validly marry their own or other subjects without due authorization. 6. Marriage before a priest who is suspended or excom- municated by name, will be no marriage at all. 7. Marriage of all Catholics (both parties Catholics) be fore a minister or civil magistrate will be no marriage at all. 8. Marriage of all fallen-away Catholics (who have become Protestants or infidels) before a minister or civil magistrate will be no marriage at all. 9. Marriage of a Catholic to a non-baptized person is never a real marriage unless the Church grants a dispensa- tion. Such a marriage before a minister or a Justice of the Peace is no marriage at all for two reasons. 10. Marriage of a Catholic to a Protestant (one never bap- tized in the Catholic Church) before a minister or civil magis- trate will be no marriage at all, unless the Holy See makes a special law for the United States. 11. Marriage of a Protestant to a Protestant (provided they were never baptized in the Catholic Church) is valid. 12. Marriage of a Protestant (baptized) to a non-baptized party is no marriage at all. 13. Marriage of a non-baptized man to a non-baptized wo- man is valid as a life-long contract. These parties do not receive, however, the Sacrament of Matrimony. 64 THE new marriage legislation. 14. There will be no marriage at all unless there be two witnesses — one witness with the priest will not suffice. 15. Bishops or priests should not witness marriages until they are morally certain that the parties to be married are free to enter the matrimonial state, hence as far as possible dispensation from the publication of banns should not be sought. 16. For the lawful celebration of a marriage, one or other of the contracting parties should have a domicile or live for a month in the parish where they are to be married. This condition is not, however, essential for* the validity of a marriage. 17. Marriages of persons without fixed abode should be referred to the bishop before the ceremony takes place. 18. Marriage should take place in the parish church of • the bride, unless there be good reason to go to the pastor of the groom. 19. There are new rules to be observed by the priest for the the registration of marriages. When contracting parties are to be married in a church where they were not baptized, they should before marriage secure their baptismal certificates. 20. Marriage entered into when there is danger of death, can be witnessed by any priest with two witnesses, provided there is not time to reach the bishop, parish priest, or priest appointed by either of these. 21. If for an entire month, parties cannot secure bishop, parish priest, or any priest appointed by either of these, they may in the presence of two witnesses (there is no marriage if there be not two witnesses) declare their consent to marry. They are then in the eyes of the Church and before God married. As soon after the marriage as possible they should send their names to the parish priest for registration and do whatever is required to have their marriage legally recog- nized by the State. *aamm at mm DATE DUE MAR 26 [9 \ “5 ?nm UNIVERSITY PRODUCTS, INC. #859-5503 /t^o f^itkola s HQ/o^ Cl V /S' Boston College Library Chestnut Hill 67, Mass. Books may be kept for two weeks unless a shorter period is specified. If you cannot find what you want, inquire at the circulation desk for assistance. MM