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instead of the regular,' including, if necessary, the supplementary oath.' 1
The main difficulties centre round the proper parish priest.' As regards banns, who is he? On the principles of the Code we should say:
1°. The parish priest of any parish in which either of the parties has, at the time of the marriage, a domicile or quasi-domicile (94, § 1).
In an exceptional case, that might mean that the publication would have to take place in nearly a dozen different places. But the case would be exceptional ; in the general run of things, the number will be one or two. It may be well to remember, moreover, though the Code says nothing about it—that the teaching of the old-time authorities may still be availed of, viz., that there is no obligation, or that at least a dispensation may be very easily granted, when the domicile or quasidomicile has been secured very recently, and when, in consequence, the parties are little known in the district and their chance of having contracted an impediment there negligible. But, on the other hand, it
2 has to be kept in mind that the domicile or quasi-domicile may be more easily secured now than under the old legislation. The conditions are fulfilled :
(a) As before, when one or other of the parties has taken up residence in the parish with the requisite intention (92).
(b) When one or other has taken up residence in the diocese with the requisite intention, and has been staying (for some considerable time) in the parish (92, 94, § 3).
(c) When one or other has, even without any special intention, remained in the diocese for six months, and has been staying (for some considerable time) in the parish (92, 94, § 3).
(d) A fortiori, and perhaps on a multiple title, when one or other has remained for six months in the parish (92, 1097).
2°. Most likely, the parish priest of the place in which either party has resided for a month. Canon 94, we admit, says nothing about them; but Canon 1097—the canon in the matrimonial sphere-puts him side by side with the parish priests of domicile and quasi-domicile ($ 1,2°, 8°), and suggests that he stands on a higher plane than the parish priest of the vagusto be mentioned presently. At the same time we think that, when the period is only a month or thereabouts, the consideration already mentioned should have its weight-the obligation will not be very strict: at the very least a dispensation may be readily granted.
3°. The parish priest of the place where a vagus has been staying for some considerable time-more than a few days, less than a mont (94, § 2). We add the phrase "for some considerable time,' as we did already in connexion with domicile and quasi-domicile, though the canon says simply, 'actu commoratur.' For this reason: the 'actu commora(n)tur' of Canon 94, § 2, § 3, must be taken to imply the same as
1 See I. E. RECORD, September, 1918, Fifth Series, vol. xii. p. 253. 2 See e.g., Gasparri, De Matr., n. 209.
the 'actualis commoratio’ of Canon 1097, § 1, 2°. In the second case it must involve a 'considerable' stay ; else we should have the legislator solemnly assuring us that 'a man should be married in the place where he has spent (at least) a short time.' The assurance would be quite unnecessary, for, outside the case of marriage by proxy, he could not possibly manage to be married anywhere else.
But, in the case of vagi, the remark already made may be repeated more confidently. Their stay is short at best—if they remained a month, they would cease to be vagi for matrimonial purposes. The obligation of publishing their banns in the place of marriage is, therefore, not one that need cause the priest concerned much acute anxiety.
If there be reasonable grounds for a dispensation, who is empowered to grant it? Canon 1028 gives the answer. The 'proper’ local Ordinary. The adjective ‘local' (in Latin the genitive loci') is inserted to mark out the Bishop, Vicars-General and Capitular, etc., as distinct from the higher superiors in exempt clerical Orders (198, § 2). For determining the 'proper' Ordinary the rules are exactly the same as those for determining the “proper' parish priest : domicile or quasidomicile (diocesan or parochial), a month's residence, etc.—all suffice to establish a claim.
The canon goes on to define matters that might otherwise be debated. It decides :
1°. That the 'proper’ local Ordinary may dispense from the obligation of having the banns published in an extern diocese ($ 1). The meaning is not very clear. When A (belonging to diocese B) is to marry C (belonging to diocese D), may the Bishop of B remit the obligation of banns in diocese D-thereby directly dispensing A and C? Or must his powers be exercised only in regard to his own subject, A? The canon does not specify: and anyhow it is no easy matter to resolve into its component elements an obligation that is almost essentially composite, that affects A only in relation to C, and vice versa. But, theoretically, the view suggested in the second query seems correct : the Bishop of B is not the proper' Ordinary of C, and it is only the proper Ordinary that can give a direct dispensation ($ 1). If that be so, the rule covers only the case in which a Bishop's subject has a domicile or quasi-domicile in another diocese. For, as we have seen, when he has merely lived for a time in the other diocese, there is no need for a dispensation : the obligation does not arise unless the Bishop so decides (1023, § 2, § 3).
But all that only in theory. In actual fact, the Bishop can dispense -at least indirectly. That is the practical conclusion derived from teaching entirely independent of Canon 1028-based, in fact, on what we have called the composite nature of the obligation. The bannsrestriction is one that affects the mutual relations of the partners, not the partners individually; and a restriction of that kind, so some
authorities claim, ceases when one of the parties is liberated. A contract is void if one party fails to give consent; a bridge cannot stand, if one of its two pillars is undermined : somewhat in the same way the bannsobligation comes to an end when one of the partners is exempt or dispensed-if A is free to marry B, then B is free to marry A. The principle is not very well established. It was admitted, for instance, under the Tametsi decree in reference to mixed marriages, but is rejected by the Code in the same connexion (1099, § 1, 2o). But it is championed by such leading authorities1 that, whatever its defects in theory, it may be adopted as a safe rule in practice until formally condemned by competent authority in some particular department.
A Bishop may refuse to grant a dispensation unless the banns are proclaimed, or a dispensation given, in the diocese of the extern partner. In that sense, at least, he may insist on a double dispensation. But, apart from action of that kind, a dispensation given to one partner will, in practice, free the other.
2°. The canon adds that, when there are several 'proper' Ordinaries, the right of dispensing is reserved to the Ordinary in whose territory the marriage is contracted (§ 2). This marks an advance on previous law. The final regulation, though, is much the same as its predecessors. When the marriage takes place outside the territories of all the proper' Ordinaries, none of them has any right of preference (82): the authority first appealed to has, we presume, the right to see matters through.
That leaves us free to answer the queries. For convenience sake we have numbered the paragraphs in the letters.
I. 1°. We have had some trouble in discovering the sentence quoted. We find it was published in October, 1915. That was under the old régime : we were trying to give the law as it stood, not to prophesy what it would be two years later. But indeed as regards the point at issue, the law has made little or no change. It does state that the dispensing power is vested in the Ordinary of place of marriage (1028), but it also prescribes that as a rule the marriage is to take place before the parish priest of the bride' (1097, § 2).
2°. The Bishop may not insist on the publication; if so, there will not be much energy wasted after all. And we are far from satisfied that ‘B. R.' is bound to submit the matter to the Bishop. He will note that the canon (1023, $ 2) does not speak of a six months' stay in another parish ': it says ' in another locality.' Without straining terms unduly, we may say that the uncle's and nephew's residences are both situated in the same locality.'. And there is no need to be over-scrupulous in
2 regard to the law. It affects only liceity ; its purpose can often be secured very effectively by other methods; the conclusions to which it leads
1 Lehmkuhl, ii. 864 ; Gasparri, n. 183 ; etc. 2 Cf. Lehmkuhl on Clandestinity, ii. 889.
in abnormal cases must be squared with the principle of fitness and with the dictates of common sense.
3°. Neither John nor Mary, we take it, becomes a subject of the Bishop of C. If so, we think the Bishop cannot grant a dispensation. When 'B. R.' states that the canon 'gives power to the local Ordinary,' he is right so far. But he should have added another adjective: the power is given to the 'proper ' local Ordinary (1028, § 1).
4°. The Bishops of A and B are both competent (1028, § 2).
II. 1o. The first query has been answered above. 2o. Also the second.
III. From 'D. L's' statement it would seem that neither of the parties will be subject to the Irish Bishop at the date of the marriage. But other suppositions are possible. So
1°. If the hypothesis just stated be correct, the banns must be proclaimed in Scotland (1023, § 1), or a dispensation secured from the Scotch Bishop (1028, § 1).
2o. If one partner has become subject to the Irish Bishop on any of the titles mentioned above the latter gives the dispensation (1028, $ 2). He may insist on banns, or inquiry, in Scotland, in view of the period spent there by his subject (1023, § 2, § 3). As for the Scotch partner, the dispensation given by the Irish Bishop will, at least indirectly, avail him also.
3°. If both become subject to the Irish Bishop :
say, when the marriage takes place in Ireland, but outside the Irish diocese to which one or other has become attached. But ‘D. L.' will be able to deal with them when they occur. And we need not add that what we have said is true only on the supposition that there are no extraordinary circumstances that will justify the Irish parish priest in falling back on the principles of 'epik eia,' and dispensing with minor formalities.
RECENT ROMAN REPLIES The majority are dealt with very fully in our Canon Law section. 1 Of the others, four or five were discussed by anticipation in the October (1919) number of the I. E. RECORD,' and a few remarks were made on all of them in the January (1920) issue of the I. T. Quarterly.: On a few technical points we may be pardoned for making a remark or two in a subsequent issue.
M. J. O'DONNELL
i See below, p.
3 Pp. 91-96.
SOME DECISIONS OF THE PONTIFICAL COMMISSION FOR THE
INTERPRETATION OF THE CODE OF CANON LAW SEVENTEEN decisions of the Pontifical Commission for the interpretation of the Code of Canon Law have been published in the December issue of the Acta Apostolicae Sedis. A few of them have very little interest for Ireland and similarly situated countries; no comment upon them, therefore, is needed. The Theological Correspondent will deal, or has dealt, with those that fall within his own department; we shall make a few remarks upon the remainder.
DELEGATION TO HEAR CONFESSION
In the list of decisions published, the third has reference to delegation to hear confessions. The question submitted to the Commission was the following:
Whether, in accordance with Canons 199, § 1, and 874, § 1, parish priests, vicars of parish priests, and other priests delegated ad universitatem causarum, can delegate jurisdiction for the hearing of confessions to priests, either secular or religious, or can they, at least, extend for these same, if they are already approved, their jurisdiction beyond the limitations, of place or persons, within which, in 'accordance with Canon 878, § 1, it has been circumscribed; or do they require for this purpose a special faculty or mandate of the local Ordinary ?
The answer given to this query was: 'In the negative to the first part, in the affirmative to the second.'
This reply is clearly contained in the provisions of the Code itself. According to Canon 199, SS 1 and 3, indeed, those who have ordinary jurisdiction and those who have been delegated ad universitatem causarum can subdelegate their jurisdiction, at least in individual cases, unless the contrary is expressly provided in law. There is, however, such a provision regarding jurisdiction to hear confession in Canon 874, § 1, where it is clearly implied that the granting of delegated jurisdiction is reserved to the Ordinary of the place where the confessions are heard.
It may not be out of place to reproduce here the remarks which we made on this particular point in our article on Jurisdiction,' in the issue of the I. E. RECORD for March, 1919 :
A person who has ordinary jurisdiction can delegate it either partially or totally, unless in any particular case there is an express prohibition of law (c. 199, § 1). The best known of these prohibitions is that in regard to jurisdiction to hear confessions. For those who maintained, under the old discipline, the distinction between jurisdiction and approbation, theoretically, this prohibition did not exist. Theoretically, all who had ordinary jurisdiction to hear confessions could delegate it. But,
1 See below, pp. 72.75,