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and to wait for him; then he returns to A, where he intends residing for the first six months of the year. He has obviously a quasi-domicile in this latter parish. But what are we to say of the other? And if, by any chance, he wanted to be married there during the first half-year, would the marriage be valid ? 1
He commits himself to no decisive statement. No man could, then or now. The case is too complicated to be covered with certainty by any principle at our disposal.
The statement was written in the days of the Tametsi—hence the query about the 'validity' of the marriage. But, substituting 'liceity' for 'validity,' we may note that the case is practically that of our correspondent. Perhaps, in the latter, the claim in favour of a quasidomicile is rather stronger: there was certainly a quasi-domicile once, whereas (in the case quoted) even that was doubtful.
3o. The parish priest of C is qualified (cf. parish A in the quotation). The month's residence at the seaside is not long enough to cause much trouble.
4°. If 25 days out of about 34 constitute a 'month's residence,' the parish priest of D is also qualified. We do not think they do."
5°. The parish priest of E was qualified (1097, § 1, 2°). He violated Canon 1097, § 2, but the rule given there is not very strict, and possibly he could give reasons enough to justify himself. Anyhow, the violation of that regulation has no bearing on the destination of the fees, so far as the Code is concerned (1097, § 3). Canon 1097, § 1, 3°, is the only section protected by 1097, § 3.
Where, then, do the fees go? The parish priest of E has violated no law involving a pecuniary penalty; so far as the Code is concerned, he may keep whatever he gets.
But the Irish regulation of the 14th October, 1908', stands in the way. By that arrangement a 'reasonable fee' is payable to the parochus loci, the 'special marriage offering for the support of the clergy' to the parochus sponsae. The amount of the 'reasonable' fee was not decided it must be left to local law and custom. If the parish priest of E gets only the amount fixed as reasonable' in his locality, he may keep it all. If he is given anything over and above, the surplus must be divided between A and C at least. A mild, but we fear hopeless, claim may be put forward by B and D to have their names included in the list.
NOTE.-Queries by Confessarius,' 'Subscriber,' and 'Philip' on reservation, voting, and twilight sleep, respectively, must be held over till our next issue.
M. J. O'DONNELL.
1 Translated from Deshayes apud Bassibey, La Cland. dans le Mariage, p. 119. Cf. I. T. Quarterly, July, 1916, pp. 305-7.
2 See Commentaries on the Ne Temere.
See e.g., I. E. RECORD, April, 1912, p. 415.
On the rival claims of the various parochi proprii, see I. E. RECORD,
December, 1914, p. 629.
CONFESSIONS OF NUNS -THE CONDITION FOR THE 'PEACE OF HER CONSCIENCE'
REV. DEAR SIR,-Will you kindly pardon me for calling your attention to a decision which you have given in the October number of the I. E. RECORD, regarding the confessions of nuns. It is laid down that a nun or sister cannot lawfully or validly go to confession in a church to a priest possessed with faculties for hearing women, but having no special faculties for the nun or sister, unless the latter is motived by a desire to secure the peace of her conscience; and you rule out as invalid a confession made by such a person from another motive, v.g., to secure, the grace of the sacrament.
With much respect I venture to submit that this decision errs on the side of strictness. The question turns, of course, on what was the intention of the Church on laying down the condition for the peace of her conscience. Certainly this might be an invalidating clause."
But I think it is unlikely that the Church would attach a condition of invalidity to a matter that is necessarily subjective and frequently vague and indeterminate. How often would it not be impossible to say whether real peace of conscience was in question or only a mere chimera! How often, therefore, would not the validity of the sacrament remain in doubt? And would not the knowledge of this serious nature of the condition often engender scruples lest the condition in a particular case be not verified? Thus construed, the concession would really defeat itself by frequently bringing about the condition of mind it was intended to remove. The common sense interpretation, therefore, would seem to be that the condition is merely directive or prohibitive, but by no means invalidating.
Furthermore, it is laid down in Canon 11 that no law is to be regarded as invalidating, unless it is expressly or equivalently stated that the act is null. There is certainly no express statement of the invalidity of the confession; neither can I see how or where it is stated equivalently.
Do not these considerations warrant us at least in saying that there is a positive and probable doubt in the matter, and that, therefore, as we are told in Canon 209, the Church supplies the jurisdiction in the case, if jurisdiction is needed. Yours sincerely,
To determine the precise force of this condition it is necessary to have before our minds the canon in which it occurs: 'If. . . any religious, for the peace of her conscience, have recourse to a confessor approved by the local Ordinary to hear the confessions of women, this confession, whether made in church or oratory, even a semi-public oratory, is valid and lawful, every contrary privilege beng revoked' (c. 522).
This canon, therefore, clearly imposes three conditions, in order that the privilege which it confers may be utilized. The religious must make her confession, 1°, for the peace of her conscience; 2°, to a confessor,
approved by the local Ordinary to hear the confessions of women; 3°, in a church or oratory, even a semi-public oratory. The statement that, when these conditions are fulfilled, the resulting confession is valid and lawful, clearly implies that, if any one of them is omitted, the confession is both unlawful and invalid. The declaration of invalidity is not, indeed, express, but it is certainly equivalent.
That the omission of any one of these conditions involves the invalidity of the confession becomes more apparent, when we remember that, as a general rule, special jurisdiction is necessary to lawfully and validly hear the confessions of nuns and sisters (c. 876). When, then, this canon, departing from the general rule, states that under certain conditions, the confession may be made to a confessor with ordinary approval, it is evident that the defect of any of the conditions imposed involves the invalidity of the confession.
The law on the point at issue is so clearly stated, that there is no need to have recourse to extrinsic considerations to determine its meaning. We may, however, remind our correspondent that it is nothing unusual to have the validity of acts made dependent on subjective considerations. Even confession, by the divine law itself, is invalid without certain subjective dispositions on the part of the penitent. Many other examples of the same kind might be enumerated; we shall, however, confine ourselves to one which bears a very close analogy with the point under consideration. The seventh canon of the decree Ne Temere states that, under certain conditions, marriage may be contracted without the presence of the parish priest; and one of the conditions is contained in the phrase ad consulendum conscientiae; commentators are agreed that this condition is imposed under penalty of invalidity.1
We cannot, therefore, agree with our correspondent's conclusion that there is a positive and probable doubt as to whether the condition, for the peace of her conscience, affects the validity of confession or not. We quite see, however, that in particular cases doubts may arise regarding the fulfilment of the condition. When such is the case, then, legitimate appeal may be made to the principle that in positive and probable doubt, whether of law or fact, the Church supplies jurisdiction.
CLERICS AND FOXHUNTING
REV. DEAR SIR,-I have been reading your admirable papers on Foxhunting and Clerics with the greatest interest; and, even at the risk of being dubbed as one of a class who rush in where angels might fear to tread, I am tempted to add a few observations. Needless to say I have no desire to provoke a controversy, my purpose in writing being the humbler one of offering some suggestions and bearing witness, as far as may be, to certain occurrences, the consideration of which might perhaps afford a different outlook on the question at issue. I take it,
1 The Code retains this condition, not indeed for the celebration of marriage, but for certain powers of dispensing which it confers on Ordinaries and Parish Priests (c. 1043).
that it is not contended, that the venatio clamorosa of the new canon is wider in its objective comprehensiveness than the same or similar words found in the old general canons, and, therefore, whatever immunities could be reasonably claimed in the days that were, the same may still be enjoyed by later day lovers of the saddle. May I say, too, that desultory students like myself, who have been looking to the law itself rather than to the making of it, owe it to your latest contribution and to the letter of 'Dubius' that their attention has been directed to the preliminary acts of the Synod of Maynooth where the statute may be seen in its formation. To my way of thinking these acts have more than a passing importance. It now appears that at least some of the members of the august assembly boldly proclaimed the view that the venatio prohibited by the statutes had nothing in common with the venatione clamorosa in Canonibus prohibita. How many of the assembled Fathers were of this mind does not appear, but would it be too much to suppose that it must have been fairly unanimous, considering the amended form the statute subsequently assumed, and considering, too, as the Acts alluded to testify, how in its amended form it was received unanimi ferme plausu. Whatever may be said on this point it is quite clear at all events that the statute as it stands, with its accessory power of dispensing, emanating, as it did, from the Council, had the unanimous approval of the Bishops, who must have been satisfied that there was no general law of the Church debarring them from claiming the dispensing powers which the statute purports to confer.
I have been asking myself the question, if the decree had any further authority than that of the assembled Bishops. I am inclined to think it had, and if not a legislative one, at least a protective one. I think I am right in assuming that the decrees of the Maynooth Synod were submitted for approval to the Holy See before publication, and such approval as they received would be at least a guarantee of orthodoxy in matters of doctrine and discipline. In this connexion I note that the now notorious phrase ad multam noctem was substituted at Rome for the undecima hora which appeared in the original draft; and if, in a matter comparatively petty, the Mother of all the Churches thought it well to use the pruning knife, may we not reasonably infer that she would have been much less sparing in her excisions had she considered that a claim was set up by the Bishops at Maynooth to derogate from a general law of the Church. 1 feel that, perhaps, I am en somewhat dangerous ground, and I should like to pass on to another peint on which, as being a question of fact, I think I can speak with much more confidence.
May I respectfully say, with all deference, that I question the existence of a custom against the law of hunting, as the law, at all events, was understood by those who might be regarded as responsible for the alleged custom. I am living in a notoriously hunting district. I have spent most of my time amongst priests who frequently, as the opportunity arose, took part in a milder sort of harrier hunting. They looked to private ownership; they looked to the princely Catholic squire who kept his pack at his own expense, who hunted over his own broad acres, who arranged his meetings for the convenience of the clerics, but always with a minimum amount of publicity, and, with these precautions, they considered that in taking a legitimate part in the pastime-some no doubt leading the chase, and others bringing up the rere with an eye for the gates and the easy places-they were infringing no law. I am not VOL, XIII-17
defending or finding fault with their reasoning. I am simply stating a fact, and I can assert, furthermore, with the fullest confidence, as one fully conversant with their thoughts, that even the least thoughtful amongst them would never think of taking part in foxhunting, properly so called, and that one and all would consider themselves quite as unsafe in crossing the boundary line, as they would in taking their place on a public standhouse with a pair of binoculars to view a race-meeting.
Of necessity, my knowledge on this point, in so far as it is immediate, is purely local, but I cannot forget how in those days, when the martial spirit was rampant, every avenue that led to an expansion of liberty— except the authoritative one-was carefully scrutinised; how every vagrant canonist from far and near was skilfully tapped, and how, as the result of all inquiries, the question of taking part in foxhunting was never entertained in the absence of a dispensation. Our own local performances appeared to represent the maximum of liberty that might be enjoyed, here or elsewhere, without infringing the statute. I am, therefore, satisfied that during the decade immediately preceding 1900, when I found myself in the surroundings described, a custom in favour of [oxhunting could not be alleged, and could not, therefore, be assumed as the basis of the dispensing power vested in the Bishops. Had any such existed in the preceding years, it would have been effectively recalled by the action or shall I say it by the legalised inaction of later days.
My personal recollections do not extend as far back as the years of the statute of Thurles, but I have been speaking with priests-men of the highest probity and the keenest intellectual acquirements—who in those days gladly responded to the sound of the horn, and they tell me, without hesitancy, that, as far as the enactment of the Synod of Thurles was concerned, they experience no difficulty in taking part in the chase. There was, they say, a traditional view, for which they are ready to quote authorities then living, which had it that the national law, as being merely a recasting of the general law, had for its objective boarhunting and similarly intensified forms of the sport. They say exactly, although in different words, what some of the Fathers are reported to have said at the 1900 Synod, talem venationem cum venatione clamorosa in Canonibus prohibita nihil commune habere.'. That such a view could claim extrinsic authority in its support, apart from the Fathers just quoted, seems to me perfectly tenable. The words of Benedict XIV quoted by you in an early issue, in which he describes venatio clamarosa, as 'Illa magno armorum canum accipitrum apparatu et tumultu exercetur,' read like a headline. The concluding words, no doubt, of the same distinguished authority, in which he winds up his description of the venatio quieta with the significant words 'Paucis adhibitus canibus sine ullo strepitu,' suggest a gifficulty. But, then, one has to remember that there is question of a law restricting liberty, or perhaps to speak more accurately, of an authoritative exposition of a law, and this, too, in actions against which the most that can be said is, that they are indifferent; and if, as is only too evident, foxhunting is much in excess of the limits of the paucis canibus sine ullo strepitu, it falls equally far below the typical description of venatio clamarosa, as given by the distinguished Pope and canonist, if we take his words-and why should we not so take them, in accordance with a well-known canon cf interpretation-at their face value.
At this stage, I feel that I am face to face with a difficulty, but one