Clandestinity (in Canon Law)

From the Catholic Encyclopedia

Strictly speaking, clandestinity signifies a matrimonial impediment introduced by the Council of Trent (Sess. XXIV, c. i) to invalidate marriages contracted at variance with the exigencies of the decree "Tametsi", commonly so called because the first word of the Latin text is tametsi. The decree reads:

Those who attempt to contract matrimony otherwise than in the presence of the parish priest or of another priest with leave of the parish priest or of the ordinary, and before two or three witnesses, the Holy Synod renders altogether incapable of such a contract, and declares such contracts null and void.

The Council of Trent did not transmit any historical record of this question. While upholding the validity of clandestine marriages "as long as the Church does not annul them", the council asserts that "for weighty reasons the holy Church of God always abhorred and prohibited them" (Sess. XXIV, De reformatione matrimonii). That this sentence strikes the keynote of unending antipathy on the part of the Church towards clandestine marriages can be gathered by a brief review of the historical attitude of the Church. In the fifth chapter of his Epistle to Polycarp, St. Ignatius intimates how men and women about to marry should enter wedlock with the bishop's consent, so that their marriage may be in the Lord (Ante-Nicene Fathers, I, 100). Tertullian writes that matrimonial unions contracted without the intervention of ecclesiastical authority are liable to be judged tantamount to fornication and adultery (De pudicitiâ, iv, in Migne, P. L., II, 987). In another passage he extols the happiness of that union which is cemented by the Church, confirmed by oblation, sealed with blessing, which angels proclaim, and which the Father in heaven ratifies (Ad uxorem, in Migne, P. L., II, 9). The thirteenth canon of the so-called Fourth Council of Carthage requires parties contracting marriage to be presented to a priest of the Church by their parents or bridal attendants in order to receive the blessing of the Church (Hefele, History of the Councils, II, 412). Whatever may be the age of this canon, the custom therein enjoined had previously won the approval of St. Ambrose, who earnestly sought to have all marriages sanctified by the priestly pall and benediction (Epistle xix to Vigilius, in Migne, P. L., XVI, 984). The Code of Justinian bears evidence to the influence which this imperial legislator wielded to secure the public celebration of marriage according to some legitimate form ("Novellæ", or New Constitutions, xxii, lxiv, cxvii).

In the ninth century the Emperor Basil gave the force of written law to a widely observed custom of having a priest assist at marriages to bless and crown the married parties. Not long after, Leo the Philosopher declared that marriages celebrated without a priest's blessing were worthless. The replies of Pope Nicholas I (863) to the Bulgarians, the Pseudo-Isidorian Decretals, as well as the "Decretum" of Burchard and that of Gratian embody ample evidence to prove that, during the ninth century and thereafter,the public celebration of nuptials was prescribed and clandestine marriage condemned. Though Gratian alleges forged decretals to show the prohibition of clandestine marriages, it must be granted that he faithfully records the usage of his age concerning the validity of such marriages. Though Alexander III (1159-1181) maintained the validity of clandestine marriage when no other impediment intervened, he obliged parties contracting such marriages to undergo penance, and suspended for three years any priest assisting thereat. (Wernz, Jus Decretalium, IV, title III, no. 516.) Another step in advance was made when Innocent III, in the Fourth Lateran Council (1215), inaugurated the proclamation of the banns.

Finally, a turning-point in the history of this question was reached when the Council of Trent enacted the "Tametsi" as a measure destined to check abuses and to safeguard the sacredness of the marriage contract. The principal elements of this decree pertained to the sentence of nullification affecting marriages of Christians failing to enter wedlock in the presence of the parish priest or his legitimate representative and in that of two or more witnesses; to the ways and means of publishing the decree; and to the penalty awaiting transgressors thereof. A succinct comment concerning these points will elucidate the purport of the decree. In the first place, to attain the desired end more effectually, the Council of Trent decreed a singular method of promulgation. It ordered that the decree should be published in every parish, and that it should take effect only after thirty days from its publication. When a parish comprised many churches, publication in the parochial church was sufficient. The term "parochial church" comprehends missions attended by priests on whom the faithful depend for the ministrations of religion (Cong. of the Inquisition, 14 November, 1883). Publication of the decree in churches situated in such missions had the force of law. A new publication was not necessary when a newly-organized parish results from the dismemberment of a parish wherein the law already obtained. On the contrary, if a parish subject to the law should be united to one hitherto exempt, the former would remain bound by the law and the latter retain its immunity (Cong. of Inquis., 14 Dec., 1859).

For obvious reasons, the vernacular should be used in publishing the decree. The use of Latin would, according to the principles of canon law, render the act illicit but not invalid (Gasparri, Tractatus Canonicus de Matrimonio, II, v, 119). The publication would be worthless unless the decree were made known to the faithful as a Tridentine law or as an ordinance emanating from the Holy See. While one publication sufficed to induce obligation, the council suggested repeated publication during the first year of tenure. This publication might be made whenever a congregation assembled in church. The decree was sometimes published in a parish to bind parishioners speaking one language to the exclusion of those using a different tongue. Sometimes the law was intended to oblige none but Catholics residing within the parish lines. In a parish entirely Catholic, wherein heretics settled after the law was duly promulgated, the obligation applied to all, Catholics and heretics. In such cases the "Tametsi" declared null heretical marriages or clandestine mixed marriages (Pius VIII, 26 March, 1830). In a non-Catholic district containing only a few Catholic parishes, the marriage of a Protestant with another Protestant, or the clandestine marriage of a Protestant with a Catholic, would be valid although the number of Catholics in the neighbourhood should so increase as to warrant the actual publication of the decree (Pius VII to Napoleon I, 27 June, 1805; Cong. of Inquisition, 24 November and 29 November, 1852). Finally, populations once largely Catholic in whose parishes the decree was published might be supplanted by non-Catholics. Though canonists are not unanimous in their verdict regarding the application of the law in such conditions, Gasparri, among others, holds that in such cases the law would not bind non-Catholics. For this was, says he, the case when Benedict XIV issued his Declaration for Holland (Gasparri, op. cit., II, v, 202).

After these general considerations concerning the promulgation of this decree, it may not be amiss to note where the decree was actually published. In the United States this law was published in the province of New Orleans; in the province of San Francisco, together with Utah, except that part bordering the Colorado River; in the province of Santa Fé, except the northern part of Colorado; in the Diocese of Indianapolis; in St. Louis, St. Genevieve, St. Charles (Missouri), St. Ferdinand, Kaskaskia, French Village, and Prairie du Rocher. In Europe, the decree was published in Italy and adjacent islands; in the ecclesiastical province of the Upper Rhine; in Ireland, France, Spain, Portugal, Austria, German Empire (Pius X, 18 January, 1906), Poland, Belgium, Rotterdam, Geneva (Zitelli, Apparatus Juris Eccles., I, 428), and Malta (Cong. Inquis., 18 March, 1884). It is no easy matter to give accurate specifications for regions outside Europe and the United States (Lehmkuhl, Theologia Moralis, II, 563). The decree was not published in England, Scotland, Norway, Sweden, Denmark (Zitelli, op. cit., I, 430). In some localities circumstances paved the way towards a partial promulgation of the decree (Zitelli, op. cit., I, 437). Furthermore, although the decree might have been promulgated, the action of legitimate authority could limit its binding force. Thus Benedict XIV terminated the controversy concerning the marriages of heretics in Holland. The fact that many Dutch Catholics had abjured their faith paved the way for questioning the application of the decree already promulgated in that country. To solve this difficulty Benedict XIV ruled that henceforth heretical or mixed marriages, clandestinely contracted, would be valid, provided no other impediment intervened. This declaration was subsequently extended to other localities in which the Tridentine decree was not promulgated until heretics had organized their own congregations in such places. In this way the declaration of Benedict XIV found application in Canada, Trinidad, the dioceses of the United States with the exception of the San Francisco province, the German Empire, Belgium, Russian Poland, the Malabar Coast, the Coromandel Coast, Constantinople and suburbs, Diocese of Warsaw, Archdiocese of Bombay, Diocese of Culm, Duchy of Cleves, Pondicherry, Maastricht, and the suburb of St. Peter near Maastricht.

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

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

The better to complete this explanation, a word concerning the terms domicile and quasi-domicile is necessary. An ecclesiastical domicile involves two elements, namely, residence in a particular parish and an intention of abiding there for the greater part of a year. This intention is gauged by external acts whose manifestation marks the actual acquisition of a domicile which is retained thereafter notwithstanding protracted absence, provided the intention of returning perseveres. In like manner residence in a parish and an intention of dwelling there during a considerable portion of the year denote the elements giving consistency to a quasi-domicile. Hence, an individual may be domiciled in one parish and acquire a quasi-domicile in another. Six months' sojourn in the same parish entitled parties to invite the pastor of that parish to assist at their nuptials. Nevertheless, in answer to a petition made by the Fathers of the Third Plenary Council of Baltimore, the Holy See (22 May, 1886) granted for the United States to parties moving from a parish where the "Tametsi" obtained to another parish and residing there for a full month, the privilege of a quasi-domicile so far as the matrimonial contract was concerned. Nor would the privilege be forfeited in case the contracting parties should pass thirty days in such a place in order to enter wedlock there (Putzer, Commentarium in Facultates Apostolicas, no. 49). Although the decree involved a personal element, clandestine marriages were valid as often as the observance of the law was physically or morally impossible, provided such impossibility was general and continued for a month (Cong. of Inquis., 1 July, 1863; 14 November, 1883). Parties whose circumstances led them to profit by this interpretation of the law were obliged to seek the nuptial blessing at their earliest convenience, and to see that their marriage was entered in the proper register (Cong. of Inquis., 14 November, 1883).

To the pastor of either contracting party belonged the right of officiating at their nuptials. Vicars appointed to exercise the functions of pastor with the fullness of the pastoral ministry enjoyed the same right so long as they held office (Cong. of Inquis., 7 Sept., 1898). The Roman pontiff alone could counteract the exercise of this pastoral prerogative. The presence of the pastor in the capacity of witness satisfied the requirements of the Tridentine decree even though he was not formally invited for that purpose (Cong. of Inquis., 17 Nov., 1835). The consent of those about to marry had to be signified in the presence of the pastor and other witnesses required by the decree. Since the sovereign pontiff enjoys universal jurisdiction in the Church, he could validly assist at any marriage whatever. Cardinals had no longer the right of assisting at marriages in their titular churches. Legates of the Holy See were qualified to assist at marriages contracted within the confines of their legation. Bishops might minister at marriages in any portion of their respective dioceses. According to Gasparri (op. cit., II, v, 154), an archbishop might exercise this right for the subjects of his suffragans provided he visited their dioceses according to the requirements of canon law. To a vicar-general was accorded the right of officiating at any marriage in the diocese. Those in whom this right was vested were at liberty to delegate another priest to act in their stead. Such delegation might be special or general. As often as the delegation was special, little danger of invalidity was feared. On the contrary, when general jurisdiction is transmitted to delegates, the Holy See questions, not so much validity, as legitimacy of action. Hence, the Congregation of the Council (20 July, 1889) reproved the conduct of those parish priests who habitually interchanged the faculty of assisting at the marriages of their respective subjects, because such methods tended to render the "Tametsi" ineffectual so far as the presence of the parish priest is concerned. At the same time this Congregation (18 March, 1893) and the Congregation of the Inquisition (9 November, 1898) approved general delegation within judicious limits. Notification of his commission to assist at nuptials had to be given directly to the delegate, either by the individual authorizing him to act or by a messenger specially chosen for this purpose (Sanchez, De Matrimonio, disp. xxvi, no. 8). The commission might be granted orally or in writing. No priest would be justified in presuming permission to assist at marriages. So strict was this rule that a pastor had no power to ratify marriages whose invalidity was superinduced in this way. In like manner, the Congregation of the Inquisition (7 September, 1898) decided that the ordinary faculties granted by bishops to priests, empowering them to administer the sacraments, did not qualify them to assist at marriages. Sanchez (op. cit., disp. xxxv, no. 20) claims that tacit notification would be sufficient to justify a priest to assist at nuptials.

Besides the parish priest, at least two witnesses were required for the validity of a marriage contract. The use of reason and the possibility of actually testifying render any individual capable of exercising this particular function (Benedict XIV, De Synodo, xxiii, no. 6). The simultaneous presence of the pastor and witnesses was necessary to comply with the requirements of the "Tametsi" (Sanchez, op. cit., disp. xli, no. 3). Parish priests or others officiating at marriages without the necessary number of witnesses, or witnesses assisting without the pastor, rendered themselves, together with the contracting parties, liable to severe punishment at the hands of the bishop. Moreover, a parish priest, or any other priest, whether regular or secular, assisting without the pastor's consent at nuptials of parties belonging to his parish was suspended from priestly functions until absolved by the bishop of the pastor whose rights had been disregarded.

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

The following conditions are enjoined by the decree "Ne Temere", not for the validity of the marriages of Catholics, but to bring them into complete conformity with the demands of right order. Marriages ought to be celebrated in the parish of the bride. If the contracting parties wish to marry elsewhere, they must ask the pastor of the place, or some priest authorized by him or by the bishop, to assist at the marriage, and one of the parties must have resided there for a month. When parties find this procedure inconvenient, one of them must obtain permission from his or her parish priest or bishop to contract marriage elsewhere. In such cases the parties will be obliged to give the necessary assurance regarding their freedom to marry, and to comply with the usual conditions for receiving the Sacrament of Matrimony. When parties have no fixed abode and are travelling throughout the country, they can enter wedlock only before a priest authorized by the bishop to assist at their marriage.

The Sacred Congregation of the Council declared (11 February, 1908) that the dispensations granted in the Bull "Provida" of 18 January, 1906, for Germany will still remain in force. According to this Bull, while Catholic marriages in Germany were made subject to the decree "Tametsi", mixed marriages and those of Protestants among themselves were exempted. (See MARRIAGE; PARISH PRIEST; DOMICILE.)

Canones et Decreta Sacrosancti Œcumenici Concilii Tridentini (Rome, 1893); Decretum, "Ne Temere" (2 August, 1907); GASPARRI, Tractatus Canonicus de Matrimonio (Paris, 1904); WERNZ, Jus Decretalium (Rome, 1904), IV; OJETTI, Synopsis Rerum Moralium et Juris Pontificii (Prato, 1904); ZITELLI, Apparatus Juris Ecclesiastici (Rome, 1903); SMITH, Elements of Ecclesiastical Law (New York, 1887), I; DUCHESNE, Christian Worship (London, 1904); FEIJE, De imped. et disp. matrim. (4th ed., Louvain, 1893); JODER, Formulaire matrimonial (4th ed., Paris, 1897); BASSIBEY, De la clandestinité dans le mariage (Paris, 1903); LAURENTIUS, Institutiones juris eccl. (Freiburg, 1903) 443-51; TAUNTON, The Law of the Church (London, 1906). For a commentary on the decree "Ne Temere," see McNICHOLAS in Amer. Ecclesiastical Review (Philadelphia, February, 1908); O'NEILL, ibid. (April, 1908), and CRONIN, The New Matrimonial Legislation (Rome, 1908).

J. D. O'NEILL.