and of course entitled, to absolve all penitents from every quarter; and he gives, in support, a graduated scale.

In reply to that, we should like to say :

1o. That the graduated scale has been already provided. It takes this form:

(a) When the danger is 'extreme,' all priests are bound to absolve. (b) When 'grave,' all confessors.

(c) When ordinary,' those bound by special obligations—parish priests, etc.

2o. That his definition of 'confessor' is peculiar. He holds that a man commissioned (say) in Derry is a 'confessor' in Cork or Dublin. That is not the ordinary teaching. And it is implicitly repudiated by the Code (883).

3o. That his revolutionary suggestion calls for some documentary support. There is none, he will admit, in pre-Code legislation. And none in the Code either. For :

(a) the Code, he will agree, makes no explicit reference to his case; (b) it provides for two definite cases-for the danger of death (882), and sea voyage' (883)-and leaves all others untouched. And 'quod legislator tacuit noluit.'

(c) His suggestion comes to this: a departure from all previous teaching, and an almost indefinite extension of all confessors' jurisdiction, is conveyed in an off-hand, casual fashion in a canon (892) that really only expresses a principle held in pre-Code days by every expert in Moral Theology and Canon Law. If that possibility be admitted, the Code becomes a dangerous minefield: any canon we touch may blow our forts to atoms.

So, to his arguments in order, our reply would be:

1o. The tendency has been to favour penitents. But not in the sense of granting almost unlimited liberty. The reply quoted in one of our last issues is the best illustration we can give.1

2o. The congruity is debatable. But the important point is that provision has been made for 'sea-voyages' and for no other cases.

3°. Where the law makes no distinction, neither should we.' good principle-supported by the Decretals and by all the force of antiquity. But always with the proviso if we have no satisfactory reason to the contrary.' And, unfortunately for our correspondent's well-laid scheme, the reason in this case is more than satisfactory.

4°. 'Apt,' yes-if the law and received teaching had nothing to say to the opposite.

5°. We question the statement. As we view the matter, 'confessors' are not always bound in charity when those specially commissioned are bound in justice.

6°. We agree.

7°. Yes, all confessors are bound-in the second case stated above,

1 1I. E. RECORD, October, 1919, pp. 313-4.

when necessity urges.' But the term 'confessor' must be taken in its accepted sense: it applies only to a man who holds habitual penitential jurisdiction in a definite locality. Within that area he is a 'confessor': all others no matter what faculties they hold at home-are ranged in the category of simple priests.'

8°. We are not to suppose it-without good reason. But the reason is at hand.

For:

(a) The suggestion, as we have said already, is opposed to all previous teaching and in doubtful matters, our final court of appeal is indicated in Canon 6, 4°.

:

(b) It was quite reasonable to omit sibi commissorum' in the first section of Canon 892, § 2. For priests with (say) diocesan delegation -'confessors' for the diocese-could not, outside their own parishes, talk of the people as being their own subjects' or 'committed to their care.'

6

9°. 'Congruity' is already provided for. And will our correspondent claim, under his own section (a), that a priest (say) of Westland Row is bound in charity to hear the confessions of the ordinary Saturday penitents in Dalkey?

10°. Leaving the qualification to be understood.' That, we think, is what happens. Though 'fidelium' stands alone, its limitations are revealed by the old legislation, by the teaching implied in the Code itself, and by the use of the term 'confessarius.'

So much for technical points. On wider grounds, we have no doubt that our correspondent's suggestion will evoke a good amount of sympathy. It would smooth over many a difficulty, and remove much misunderstanding-not only on the part of intelligent outsiders but of our Catholic laity as well.

ENGAGEMENTS

REV. DEAR SIR,-I would like your comments on the following paragraph taken from Instructions in Christian Doctrine, published by St. Anselm's Society, page 383 :

'In some countries it is usual solemnly to affiance the bride and bridegroom to one another, in what is called espousals. Espousals are a contract between a man and a woman to accept one another in marriage, not at the present moment, but hereafter. Where these are customary, the parties are absolutely bound to each other, and some other conse quences follow. But as they are not customary in this country it is sufficient to observe that even a promise of marriage is binding under mortal sin.'

In view of the above I would like to know

(a) Does a mere (informal) promise of marriage bind sub gravi? (b) Do espousals' bind absolutely?

6

C.C.

About the extract quoted there is something strongly suggestive of dead and buried legislation-echoes of a time that knew nothing of the Code. However interesting and impressive those solemn espousal' VOL. XIV-34

ceremonies may be, they are, in the light of Canon 1017, of no value in Canon Law unless they crystallize in the form of a document signed by the partners, and either by the parish priest or by the local Ordinary, or by at least two witnesses.' If a man of excitable temperament stumbled on the canon, he would probably refer to it as the one little item of fact that represents in a prosaic age the imposing ceremonial of poetry and chivalry-the one little jagged stone saved from the débris of an artistic civilization. He would even find something historically pathetic about the promise of marriage binding under mortal sin.' There was such a thing once. But, he would add, it was in the days when honour ranked high, and when men foolishly thought that a sworn promise was a binding pledge.

But to come to the prosaic facts:

(a) Bind sub gravi'! Why, it does not bind at all. Not even when a man swears to keep it. So the majority of theologians assure us. The following queries and answers represent their view:

An valida sint sponsalia privatim inita absque forma praescripta, saltem in foro interno? Resp. Negative.

An saltem sponsalia privata adjecto juramento ita confirmentur ut valeant nec rescindi possint sine injuria? Resp. Negative. . . .

An, posito quod sponsalia privata invalida sint, teneatur juramentum praestans illud implere? Resp. Negative. . . .1

We think the teaching is wrong-that there is an obligation in fidelity, trust, decency, and honour. So long as these remain virtues, their violation can be nothing but a sin. Generally perhaps not a mortal sin, but certainly so occasionally.2 That, however, is only an individual view the great body of opinion is represented in the extracts quoted. (b) By espousals' we presume C.C.' means the valid contract recognized by Canon 1017. Even with that restriction, the query may

mean:

To

1°. Does the contract bind for ever and in all circumstances? which the answer must be in the negative. Very few contracts bind in that cast-iron fashion; and 'C.C.' is, of course, aware of many sets of circumstances that as the manuals testify and all authorities admitwill justify a recission of this particular agreement.

2o. Does the contract bind the parties to contract marriage? Some authors we have read say 'No: it imposes, not an absolute, but an alternative, obligation-either to marry or to repair the injury.' For our own part, we see no reason for the view. If a man promises to do a thing, he promises to do that thing-not something else of which no mention is made in the document he signs. If he fails, he will probably be penalized and forced to do something else unpleasant; but that is no solution of the problem. Even when he has done the something else,

1 Sabetti-Barrett, Comp. Th. Mor., n. 838 (Code edition).

2 On the nature of an obligation in fidelity, see, e.g., Lugo, De Jus. et Jure, d. 23, n. 12; Lehmkuhl, i, 1285 ('obligatio gravis evadere potest'), etc.

his broken promise is still a broken promise. The corrupter of the innocent may pay a fine or go to prison, but the violated innocence is not repaired: the murderer may hang, but his victim is still among the dead. For a fuller discussion of the points involved, 'C.C.' will perhaps consult an earlier article.1

M. J. O'DONNELL.

CANON LAW

SOME ASPECTS OF THE LAW REGARDING ATTENDANCE AT THEATRES

REV. DEAR SIR,-In my clerical circle there has been much discussion of Canon 140' de Spectaculis' of the New Code, and as usual, 'abeunt in diversas sententias theologi.' I should be grateful for an expression of your views on the following dubia which have been raised.

Whether a secular priest holding diocesan faculties in this province of Liverpool is free to go to theatres in London the law prohibiting having been enacted before the separation of the provinces;

and,

Whether clerical peregrini from, e.g., Ireland are in a like position;

Whether members of religious Orders holding diocesan faculties are free to go to theatres in the diocese where they work; the exemption from episcopal laws which they enjoy as religious removing them apparently from the incidence of the law that regulates under the formidable penalty of ipso facto suspension the conduct in hac re of their secular brethren?

PRESBYTER LIVERPOLITANUS.

I. The legislation of the Code on attendance at theatres, contained in Canon 140, is little more than a confirmation of the natural law. It forbids clerics to be present at plays and similar performances which are immoral or unbecoming in their tendencies, and even at those which are quite proper if their presence would be a source of scandal to the faithful. The Westminster Synodal Law in this matter, to which our correspondent refers, is much more strict. Furthermore,' said the Fathers of the Fourth Provincial Council, we strictly prohibit clerics in Sacred Orders to be present at scenic displays in public theatres, or in places used for the time being as public theatres; imposing on transgressors the punishment of suspension, to be incurred ipso facto, hitherto binding everywhere throughout England, and reserved to their respective Ordinaries.' As our correspondent, however, insinuates, this law was made

1 I. E. RECORD, June, 1918, Fifth Series, vol. xi. pp. 456-63. 2 Decret. xi. n. 9. Prohibemus, insuper, districte ne ecclesiastici sacris ordinibus initiati scenicis spectaculis in publicis theatris, vel in locis theatri publici usui ad tempus inservientibus, intersint, imponentes transgressoribus poenam suspensionis ipso facto incurrendam, hactenus ubique in Anglia vigentem cum reservatione respectivo Ordinario.'

when there was only one province in England, and consequently its position, as well as that of the other Synodal Laws, was a subject of much discussion, when, during the last few years, Westminster was divided up, and several new provinces erected. The Consistorial Congregation was consulted on the matter, and, in August, 1918, it declared that the laws and decrees of the four Councils of Westminster still bound in the new provinces, unless in so far as they had been modified by the New Code of Canon Law.1

The answer of the Consistorial Congregation does not settle all the difficulties which may be raised. The important question still remains to be decided as to whether the Westminster decrees are to be regarded as merely provincial laws for each of the new provinces and for Westminster itself, or whether they are to be considered as national laws for the whole country. If they are merely provincial, then those who are in some English province other than their own are bound by them only as peregrini; on the other hand, if they are national, those outside their province are still bound by them as subjects. Well, it seems to us that the Westminster decrees must be regarded as national laws for the whole country. In the Councils in which they were made, the Bishops of the whole country, not merely those of the present province of Westminster, participated, consequently subjects to their laws, as long as they remain in England, cannot invoke the privileges of peregrini; they are not outside the territory of the legislators. Moreover, the Westminster decrees originally bound the country as one territory. They should, therefore, continue to do so, unless it is made clear that the erection of the new provinces changed their significance. There is no indication of this in the reply of the Consistorial Congregation already referred to; in fact, the very contrary is the case. By stating, without distinction, that these laws still bound in the new provinces, the Congregation seemed to imply that they bound in the same way as previously. If they did not, it would seem incumbent on the Congregation in the circumstances to have drawn the distinction.

If what has been said is correct, it is quite clear that a Liverpool priest is bound by this theatre-going law, as well as by all the other laws of the Westminster Councils, when he is in London, just in the same way as when he is in his own province. In passing, we may remark that the Westminster decree on attendance at theatres has not been modified in

1 Acta Ap. Sedis, vol. x. n. 9, p. 365. Quaesitum fuit utrum dismembrata proximis praeteritis annis ecclesiastica provincia Westmonasteriensi et creatis ex ea novis quattuor provinciis, leges et decreta Conciliorum provincialium Westmonasteriensium, quae praecesserunt, quaeque annis 1852, 1855, 1859 et 1873 celebrata sunt, adhuc vim obligandi habeant et debeant ab omnibus ad unguem servari; en potius in no vis provinciis valere cessaverint, nec amplius ea rata ac firma haberi debeant.

'Re maturo examini subjecta, Ssmus D. N. Benedictus PP. XV. jussit responderi:

‘Affirmative ad primam partem, salvis tamen novi Codicis praescriptionibus si et in quantum legibus et decretis dictorum Conciliorum derogaverint ; negative ad secundam partem.'