Notes on the Second plenary council of Baltimore

Notes on the Second plenary council of Baltimore, by Smith, S. B. (Sebastian Bach), Publication date 1874, Publisher New York, P. O'Shea

On Matrimony.

§ 60. INDISSOLUBILITY OF MARRIAGE.

273. The Fathers of Baltimore declare it to be the doctrine of the Church that the sacrament of matrimony is wholly indissoluble ; that the principles of “ free love ” are .condemned alike by natural as well as supernatural law ; that the opinion entertained by no small number even of Catholics, to wit, that the bond of marriage can be dissolved quoad vinculum, that is, absolutely, by the authority of the civil tribunal, in granting a divorce, by which parties would be entitled to contract a new alliance, is a wicked error..."

"§ 6l. HISTORY OF ECCLESIASTICAL LEGISLATION ON MARRIAGE.

274. We ask, has the Church any right to make laws regarding marriage ? Protestants generally deny that it is a sacrament, and reduce it to a mere contract. (Apolog. Aug. Conf. art. vii. De Numero et Usu Sacramentor.) Hence they subject it to the civil power. The Catholic Church, on the contrary, holds marriage to be a sacrament, and consequently claims the right of regulating its matter and form. (Cone. Trid. sess. xxiv. can. xii.)

The canon reads as follows :

“If any one saith, that matrimonial causes do not belong to ecclesiastical judges ; let him be anathema.”

The history of ecclesiastical laws on marriage exhibits variations of considerable moment. Until the fifth century, but little change was made in secular legislation on matrimony, which was still pervaded by pagan ideas. The Church was obliged gradually to unfold her doctrine, and she succeeded but slowly in practically imbuing with her spirit the minds both of the Romans and barbarians whom she had converted."

275. St. Augustine was the first who fully expounded the nature and indissoluble character of this sacrament. When the Germans became converted, the Church

asserted her full rights on this point, and

her laws were enforced by the civil author¬

ities. This state of things continued to

remain in existence in Catholic countries,

with some slight variations, up to the pres¬

ent century.

But, to use the words of the illustrious

Archbishop of Westminster :

“ At this time there is no civil power, as such,

either Catholic or Christian : there is no nation, in its

organized and public life and laws, professing Chris¬

tianity. The tendency of all political and social move¬

ments is to the exclusion of Christianity from the pub¬

lic life of nations.” (Sermons on Eccl. Subjects, by

H. E. Manning, etc., vol. iii. Introd. p. xcvi.)

Hence, Governments have arrogated to

themselves the power of exclusively mak¬

ing laws and prescribing the conditions

of the matrimonial contract. In Italy and

France, civil marriage is necessary to ob¬

tain a legal recognition of wedlock. In

Prussia the same is now being attempted

244

SECOND PLENARY COUNCIL

by the Liberal majority of the “ Reichstag.”

We need hardly add that this bad example

is now followed by almost all the Govern¬

ments of the world.

In the Greek and Russian Churches,

canon law was incorporated into the civil

law, the emperors becoming the final

judges of disputed points. (Walt. p. 568.)

Outside the Catholic Church, marriage

is more and more coming to be considered

a mere civil and social contract, that can

be rescinded like any other ; hence the

great number of absolute divorces may

easily be explained.

276. It may be asked, what laws has the

Church enacted at various times concern¬

ing this sacramental contract ? Where

her legislation was not recognized by civib

law, she endeavored as far as possible to

conform to the latter. This prudence and

moderation she employed in order to avoid

unnecessary conflicts with the secular

power.

In general, the faithful were obliged to

abide by the rules of the Church with re¬

gard to impediments. The mutual con¬

sent of the contracting parties was always

OF BAL TIM ORE.

245

considered essential, and the Church de¬

clared every marriage valid where this con¬

sent was not invalidated by any ecclesias¬

tical impediment, even though all external

solemnities or formalities had been disre¬

garded, and the laws established by secular

rulers neglected. (Walt. Jus Can. p. 573.)

277. The presence of witnesses and the

sacerdotal benediction were prescribed as

conditions of licitness only, not of validity

of this sacrament. As a result of this,

it was soon found difficult to distinguish

between a true marriage and mere con¬

cubinage. This is but too true of many

marriages in America. To obviate this

difficulty, the Council of Trent ordained as

follows :

1. That three proclamations should pre¬

cede the marriage : they are to be made

on three consecutive Sundays or festivals,

of obligation.

2. That the marriage be contracted be¬

fore the parish priest and at least two wit¬

nesses. (See Cone. Trid. sess. xxiv. cap.

i. De Ref.)

The transgression of the first of these

enactments makes marriage illicit ; a viola¬

tion of the second renders it invalid.

246

SECOND PLENARY COUNCIL

§ 62. DIVORCE IN GENERAL : CIVIL

DIVORCE.

278. We proceed to the next question,

that of divorce. The Fathers of Baltimore

say :

“ It is to be sincerely regretted that the opinion

has taken hold on the minds of many of our Catholic

people, to wit, that the bond of matrimony can be

totally severed by authority of the civil law, in such a

manner as to allow those who are thus separated to

enter upon a new alliance.” (Cone. Plen. Balt. II. n.

326. p. 171.)

This opinion, the fathers, in accordance

with Christ’s words, and the reiterated con¬

demnations of the Roman pontiffs, abso¬

lutely condemn, reminding the faithful in

the United States of a former decree, which

admonishes bishops to prohibit, under pain

of excommunication to be incurred ipso

facto, any one from marrying again, on ob¬

taining a civil divorce.

279. The law of the Church is exceed¬

ingly explicit on this point. No absolute

divorce or dissolution of marriaee is ever

allowed, when once it has been validly con¬

tracted and consummated.

OF BALTIMORE.

247

The same holds good of all baptized

persons, whether Catholic or sectarian.

This doctrine was clearly maintained al¬

ready by Tertullian (t 215), Origen (T 234),

St. Cyprian (t 258), and by all the early

councils. (See Walt. Jus. Can. p. 622.)

A divorce, however, from bed and board

(a mensa et thoro), is granted by the Church

for several reasons, such as adultery, con¬

tinued ill treatment, and for other grave

causes. (Walt. 1. c. p. 624.)

280. Civil law in this country, as else¬

where, differs materially on this head from,

canon law. It distinguishes two kinds of

divorces, viz. an absolute and a partial

divorce. Divorce itself is defined in gen¬

eral to b^:

“ A dissolution of the bond of matrimony, or the

separation of husband and wife, by the judgment of a

court having jurisdiction thereof, or by an act of the

legislature.” (Crosby, p. 225.)

Again, continues this author:

“ Divorces are of two kinds, a vinculo matrimonii —

from the bond of matrimony, which dissolves and to¬

tally severs the marriage tie ; and a mensa et thoro —

from bed and board — which merely separates the

parties.” (Ib.)

248 SECOND PLENARY COUNCIL.

Furthermore, he says:

“ If no constitutional provision prohibits, divorces

from the bond of matrimony are granted by the vari¬

ous State legislatures for causes by them deemed

sufficient ; and they are also granted, except in Mary¬

land, by the court to which such jurisdiction is given.’'

(Ib.)

Accordingly, the causes for which abso¬

lute divorces are granted, though differing

in the several States, may be said chiefly

to be adultery, imprisonment for some years

on account of crimes, neglect to provide a

decent support for the wife.

281. Blackstone holds the same views,

namely, that divorce is total, a vinculo ma¬

trimonii, or partial, a mensa et thoro. He

remarks “ that the canon law (which in this

case our common law follows), will not per¬

mit the nuptial tie to be unloosed for any

cause whatever.” (See Blackst. Comment,

bk. i. ch. 15.)

The same author says :

“The civil law allows many causes of absolute di¬

vorce, among which adultery is with reason named as

the first and principal.” (Ib.)

282. It is scarcely necessary to add that

in America the number of absolute divorces

OF BALTIMORE.

249

granted for comparatively insignificant and

frivolous reasons is almost appalling. The

sanctity of the matrimonial alliance is fast

disappearing, and in its stead a mere hu¬

man contract is being placed, the stabil¬

ity of which depends on the will or caprice

of the parties.

Whence comes this state of affairs ?

The first and chief cause lies with gov¬

ernments. They have overstepped the

boundaries of their legitimate jurisdiction,

and have encroached on the power of the

Church. They have eliminated from mar¬

riage the supernatural and divine element,

and substituted in its stead a mere human

contract, subject to secular jurisdiction.

Hence, they have arrogated to themselves

the power of determining the conditions

of the matrimonial consent.

But no less a share of blame attaches to

nations themselves. In a great measure

have they thrown off the mild and sweet

yoke of the Church ; they have excluded

from their social life the author of its ex¬

istence and permanency. Why wonder,

then, at hearing the cry of social demo¬

cracy and radical communism : “ Down

250

SECOND PLENARY COUNCIL

with marriage : let us have wives in

common.”

283. The civil power not only trespasses

upon the authority of the Church, but is,

moreover, opposed to the revealed as well

as the natural law. One of the condemned

propositions of the Syllabus of 1864 was:

“ The bond of marriage is not indissoluble by the

law of nature ; and in various cases absolute divorces

may be sanctioned by the civil authority.” (Prop. 67.)

Natural law demands this indissolubility

in order to insure the preservation and

education of the offspring. The revealed

law has been laid down in Holy Writ, and

admits of no exception whatever to this

sacred character of the matrimonial alli¬

ance. (See Matth. ix. ; also Kenr. Theol.

Dogmat. vol. iii. tract, xviii. c. vi. p. 390;

Kenr. Theol. Mor. vol. ii. tract, xxi. c. iv.)

§ 63. MAY CATHOLICS IN AMERICA APPLY TO

THE CIVIL AUTHORITY FOR DIVORCES ?

284. Kenrick here alludes to a question

of no ordinary practical importance. It is

this : May Catholics ever have recourse to

OF BAL TIMORE.

251

the civil authority to obtain an absolute or

partial divorce ?

No Catholic can recognize the power

of granting divorce to be inherent in the

secular magistrate ; nor can he on that ac¬

count pursue any course of action that

might lead to such a recognition. Hence

it would seem that he cannot in any in¬

stance sue for divorce.

Yet it must be admitted that exceptions

to this rule will occur. Let us, for example,

suppose a case where the marriage is null

by reason of an impediment. We may,

moreover, imagine the parties to refuse to

renew their consent or to cohabit. Sep¬

aration then becomes necessary. Yet if

they separate without due legal form, by

obtaining a civil divorce, and yet marry

again, they may be punished as bigamists

or adulterers, though their second mar¬

riage is contracted in accordance with the

laws of the Church, and is considered valid

by her.

285. A similar case was decided by the

Sacred Congregation of the Inquisition,

Sept. 9th, 1824. It related to the marriage

of two non-baptized persons : one became

2 5 2 SECOND PLENARY COUNCIL

converted, while the other remained an

infidel and was unwilling to allow the con¬

verted party the free exercise of religion.

This marriage became null by virtue

of custom and positive ecclesiastical law,

as Innocent III. declares. (See Kenr.

Theol. Dogmat. vol. iii. p. 389.)

But as civil law does not recognize this

hindrance, a second union by either party

could be punished according to the civil

code. Hence a conflict must thus arise

between Church and State.

In answer to this difficulty, the Sacred

Congregation said, that the baptized party

should obtain a civil divorce before proceed¬

ing to another alliance, not by that means

recognizing the doctrine of civil divorce,

but simply using the law as a protection

against unjust vexations and legal penalties.

286. When a marriage, however, is

valid, and yet a separation from bed and

board becomes necessary, in order to pre¬

vent the husband, for instance, from pay¬

ing debts of his wife, would it be lawful in

that case to apply to the civil courts for an

absolute divorce, if this result could not be

achieved by a partial divorce ?

OF BALTIMORE .

253

We think with Kenrick that it could be

done. Not that there could be any real

intention of absolutely severing the bond

of marriage, which is supposed to be firm

and valid ; since the parties only make use

of the law in order to obtain exemption

from unjust burdens. Kenrick says :

“ In these cases, it seems justifiable to seek di¬

vorce in the civil court, not thereby recognizing any

such power in these tribunals, or intending actually to

dissolve the bond, but merely to escape unjust annoy¬

ances and demands.” (Mor. vol. ii. tract, xxi. cap. iv.)

For the same reasons, it is evidently al¬

lowed to procure a civil divorce from bed

and board.

Again, our American theologian tells us :

“ The law requires that persons legally divorced

should renew their consent before cohabiting again.

Catholics whose marriage was valid before the di¬

vorce, cannot of course renew their consent. But

they may use the words necessary to satisfy the

requirements of the law, without, however, intending

actually to renew their consent, as it is the sacra¬

mental form.” (Kenr. 1. c.)

287. A Catholic, then, may apply for a

civil divorce, under the conditions above

mentioned, in these cases :

254

SECOND PLENARY COUNCIL

i st. He may sue for an absolute divorce

when the marriage is invalid by reason of

an ecclesiastical impediment.

2d. When the marriage is not invalid,

but when grave reasons nevertheless de¬

mand a separation, a partial divorce may

be sought for. If the latter should prove

insufficient to shield parties from unjust

annoyances, it is justifiable to procure an

absolute divorce.

§ 64. IS A SECOND MARRIAGE ALLOWABLE,

WHEN THERE IS DOUBT OF THE DEATH

OF THE FIRST PARTY ?

288. Passing to the next question, we

ask, what is to be done, when a husband,

having enlisted in the army during the late

war of the Union, does not return with his

regiment, and there is consequently reason

to believe that he was killed.

Or again, strangers, especially among

the poorer classes with whom the parish

priest is not acquainted, frequently wish to

be united in holy matrimony by him.

289. Now, it may be asked, must the

pastor always possess absolute certainty

OF BALTIMORE.

255

of the death of the former husband or wife,

before allowing the above applicants to

marry again ?

We think not. In fact, this would sim¬

ply be impossible in many cases. But

neither is long absence, nor a vague rumor

of the death of the former spouse, sufficient

to contract a second marriage. Theolo¬

gians require at least a moral certainty of

the demise. This is attained in the follow¬

ing manner :

1st. By an authentic instrument of the

death of the husband, signed by the rector

of the hospital in which he died, or also

by the general in whose regiment deceased

had served.

2d. If this cannot be procured, the testi¬

mony of trustworthy witnesses may be ad¬

mitted.

3d. A universal report or hearsay of the

demise may also be taken into considera¬

tion.

4th. The bishop shall decide, in each

case, whether the proofs are sufficient or

not. (See Instruct. Congr. S. Officii, June

12, 1822, apud Cone. Plen. Balt. II. p. 172.)

Thus the Council of Baltimore says :

256 SECOND PLENARY COUNCIL

“It is evident, therefore, that before a second mar¬

riage can be licitly contracted, an incontrovertible

certainty of the death of the first party is requisite.”

(P- I73-)

290. We subjoin a case, which not un-

frequently happens.

Placidia comes to confession to Helvi-

dius, and tells him that about twenty years

ago, she came to this country from old Ire¬

land, with Patrick, her husband, who, how¬

ever, soon left her, and cohabited with an¬

other woman ; that she then, out of mere

spite, married another man, a member of

some Protestant persuasion : that this at¬

tempted alliance was blessed by a Catholic

priest, from whom Placidia carefully con¬

cealed the fact that she was already the

wife of another man. Nor was her new

Protestant husband at all troubled about

the matter, though she told him this fact

before the marriage.

He laughed at the idea of marriage

being indissoluble, and informed Placidia

that this was but a notion of the Romish

creed, and that it was perfectly natural

and right to follow one’s instincts in these

matters.

OF BA L T/MORE.

257

For a little while she allowed her con¬

science to be lulled asleep by these ideas

of an over-enlightened age. A period of

eighteen years meanwhile elapsed. Sev¬

eral children were the offspring of the un¬

lawful union.

The former husband of Placidia had

returned during this time, and was will¬

ing to live with her again ; but finding

her cohabiting with her paramour, he

went away, giving her no further trouble.

Since then, nothing has been heard of

him.

At length, Placidia’s conscience is roused

from its lethargy, and she determines to

change her life. For this purpose she

now wishes to confess her sins. What is

Pfelvidius, the confessor, to do in this

case ?

291. Before answering, we premise :

1st. A moral certainty of the death of

the husband is required in order to allow

Placidia to marry her paramour. Now,

in what does this moral certainty consist ?

Kenrick thus explains it :

“ A certainty of the death of the first husband or

wife, is necessary to marry a second time. A moral

258

SECOND PLENARY COUNCIL

certainty, however, but not a mere probability, is suffi¬

cient. Now, trustworthy attestations, or also other

circumstances in the case, may constitute a moral cer¬

tainty. Thus, if a husband, having enlisted in the army,

does not return from the war with the remainder of his

regiment, it may be considered as morally certain that

he was killed, though his body was not particularly

recognized among those that were slain. Such evi¬

dences, however, as are taken from a long-continued

absence and silence ; from bad habits and morals, cal¬

culated to hasten death ; from poor health, or from a

disease prevailing in a place where the person was

known to have resided at the time ; or from similar

occurrences, can afford but probable conjectures, in¬

sufficient for a second marriage, though the civil law

should favor it ; for as the Sacred Congregation re¬

plied in 1822, death is not to be presumed from the

lapse of some years, but must be proven.” (Kenr.

Mor. vol. ii. p. 324.)

We premise secondly, quoting again

from the same author :

“ An attempted marriage, when consummated dur¬

ing the lifetime of the legitimate husband or wife,

constitutes the impediment of crime, if both parties

are aware of the first marriage.” (Kenr. Theol.

Dogmat. vol. iii. p. 400 ; also Theol. Mor. vol. ii.

p. 320.)

292. Applying these two tests to our

case, we find that Placidia has no moral

certainty of the death of her former hus-

OF BALTIMORE.

259

band, as his long absence constitutes but a

probable conjecture.

We find, moreover, that she has con¬

tracted the impediment of crime, by at¬

tempting marriage before the priest, both

parties full well knowing the existence of

the former wedlock. Hence it follows:

ist. That she cannot cohabit with her

paramour.

2dly. That, even though it were certainly

known that her first husband had died, she

could not marry the guilty lover, without

previously obtaining a dispensation from

the impediment of crime.

293. But, it may be asked, must they

separate at once, and thus expose their

children to infamy ?

If their illicit cohabitation be known in

the neighborhood, their children will hardly

be disgraced by the public repentance and

conversion of the parents.

Should, however, the affair be a secret,

we think that they may be permitted to live

in the same house, due precaution being

used, provided they can do so continently,

until some reliable information is obtained

of the first husband.

SECOND PLENARY COUNCIL

2 0

Placidia would, meanwhile, be obliged to

seek for all possible information. If by

these means she should acquire a moral

certainty of the death of her first husband,

she might then apply for a dispensation

from the impediment of “ crime,” which

though usually granted only with difficulty,

would no doubt be given on account of the

children.

294. It may be observed, however, that

it is a very rare occurrence that such

parties should live under the same roof in

a chaste manner. Nor do such circum¬

stances remain secret for any length of

time. Hence separation will sometimes

have to be insisted upon.

§ 65. CIVIL LEGISLATION IN THE UNITED

STATES ON MARRIAGE.

295. The power of constituting impedi¬

ments belongs exclusively to the Church.

(Cone. Trid. sess. xxiv.) Kenrick very

yiptly says :

“ It seems to us that such is the nature of matri¬

mony, that in no respect is it subject to the civil

power, as far as the essence of the contract itself is

OF BAL TIM ORE.

261

concerned. The civil government may, however, es¬

tablish certain conditions upon which the civil rights

of wedlock shall depend, so that no marriage or off¬

spring shall be considered legitimate if the prescrip¬

tions of the law be neglected. For it appears to be

necessary for the sake of social order, and for an

equitable and just distribution of rights and duties,

that it should be possible to recognize and prove a

marriage in regard to its civil capacity and effects.”

(Kenr. Theol. Dogmat. tom. iii. p. 391.)

This is primarily said of the marriages

of infidels ; but, as is evident, applies with

no less cogency to those of Christians.

296. The relations of Church and State

in this matter are thus explained by the

same author :

“ With us (in America), no controversy exists in

regard to the power of the Church ; for the simple

reason that it is restricted “ intra forum internum,”

that is, has no force in law, as our civil tribunals do

not recognize the laws of the Church, which, however,

fully obtain in conscience. When marriages are de¬

clared null and void by our civil law, this must be

understood of the civil effects ; for it is not the in¬

tention of the lawgivers to decide anything in rela¬

tion to spiritual matters, or such as pertain to the

charge of souls ; especially as by virtue of the Con¬

stitution of the United States the distinction between

Church and State must be carefully kept in view.

Nor has the civil power any authority in ecclesias-

262

SECOND PLENARY COUNCIL

tical things. Among us, therefore, marriages cele¬

brated according to the laws of the Church, by those

who are subject to her jurisdiction, are null and void

when so declared by ecclesiastical law ; so that those

who should, under the pretext of civil sanction, live to¬

gether as married persons, without having previously

removed the ecclesiastical impediments, may be de¬

prived of the privileges and communion of the faith¬

ful, and punished with the censures of the Church.”

“On the other hand, marriages that are not recog¬

nized by the civil law, its conditions not having been

complied with, may be considered valid by the Church,

if no divine, natural, or ecclesiastical law stands in

the way.” (Kenr. Theol. Dogm. vol. iii. p. 392.)

297. The law, in America, requires that

copies of the various marriage registers

should be sent annually to the city clerk,

so that they may be placed on file, in

order to serve as vouchers in the various

legal suits that may arise in regard to

marriages.

No small number of the clergy have

doubted whether the civil government has

a right to demand these copies of church

registers ; whether the furnishing them

might not imply authority in the civil

power to make laws in relation to this

sacrament.

Yet we scarcely think that these objec-

OF BALTIMORE.

263

tions are well taken. The State, as we

have seen, has undoubtedly the right of

regulating the civil effects of married life,

such as the legitimacy of children, inherit¬

ances, and kindred matters.

Now, to do this, it is clear that a well-

authenticated and incontrovertible knowl¬

edge of the validity of a matrimonial alli¬

ance is absolutely necessary.

It may be said, that civil courts can al¬

ways refer to the minister or parochial

sary delay, and useless labor ; and would

be withal accompanied with but scanty

results.

It seems, therefore, to be just and wise

that the civil law should demand that the

records of marriages should be annually

sent to the proper civil authorities.

§ 66. PUBLICATION OF BANNS : CASES.

298. The Fathers of the Council confirm

the following sanction of the preceding

Plenary Council of Baltimore :

“ The Fathers hereby ordain that in all the dioceses

of these States, after the Easter holidays of the year

264

SECOND PLENARY COUNCIL

1853, the banns of matrimony shall be published. We

exhort all ordinaries to grant dispensations only for

very grave reasons.”

To this the Fathers of the Second Plen¬

ary Council subjoin :

*• This most salutary discipline, which is already in

existence, we most earnestly desire to remain perma¬

nent.” (Cone. Plen. Balt. II. p. 174.)

299. The Statutes of the Diocese of

Newark contain the following enactments:

1st. Missionaries can dispense with one

of the three proclamations.

2d. In all places where mass is said,

every Sunday, two proclamations of the

banns should be made, unless a dispensa¬

tion be obtained.

3d. In those stations where mass is said

on alternate Sundays only, one publication

should take place where the parties them¬

selves reside; the other can be made in

the next mission.

4th. When persons live more than ten

miles distant from the church, one procla¬

mation is sufficient ; and it should take

place in the station nearest to their home,

or where the pastor resides.

5th. When the contracting parties live

OF BAL TIMORE.

265

in different missions, the banns should be

published in both places.

6th. Dispensations should be asked for

in writing, and canonical reasons alleged.

(Statuta, app. i. p. 50, edit. 1869.)

300. Strangely enough, these wise pre¬

scriptions are but too frequently evaded

in part, or entirely set aside. The pub¬

lication of the banns is regarded with

aversion by no small number of the faith¬

ful. They would rather pay any sum of

money than be “ called out.”

And yet, in the publication of the banns,

the church wishes to confer an honor on

those who are about to receive this great

sacrament. We can see no reason why it

should be celebrated at night, or by stealth.

Marriage is honorable in all.

“The law of the publication of the banns

binds sub gravi.” (Gury, De Matrim. n. 734.

p. 497, edit. Bailer. Romas, 1869.)

Speaking of this country, Kenrick says:

“A pastor, who should omit the publication of the

banns, would commit a grievous sin, though he were

certain that no impediment stood in the way.” (Kenr.

Mor. vol. ii. p. 310.)

Again, he says :

266

SECOND PLENARY COUNCIL

“The banns of ‘mixed’ marriages should not be

published in the church, lest thus the ecclesiastical

authority should seem to approve of them.” (Ib.)

301. Canonical reasons for which a dis¬

pensation may be given, are :

1st. If there is any danger lest the mar¬

riage should be maliciously impeded.

2d. Any injury, infamy, or imminent

scandal that would result from a delay of

marriage.

3d. Fear lest a girl, that is pregnant,

should be abandoned by her lover.

4th. Ridicule and shame, to which the

parties might be exposed ; if, for example,

both are very old ; or one far advanced in

years, and the other very young. (Gury,

1. c. p. 501.)

To this, Father Ballerini subjoins:

“Three things should be borne in mind :

“1. Both the bishop and the vicar general can del¬

egate the faculty of dispensing with proclamations, to

others.

“2. If, in the case of the necessity of immediate

marriage, the proclamations should have to be made

afterwards, the marriage itself should not be con¬

summated before the publications have taken place.

3. “ Though no pastor, can ‘per se ’ dispense with

the proclamations, as he possesses no power in ‘foro

OF BALTIMORE.

2 67

externo,’ yet, in case of necessity, he may assist at a

marriage, without having previously published the

banns, whenever timely recourse to the ordinary is

impossible. In other words, he may, in certain cases,

make use of the principle, ‘ Necessity knows no law.’ ”

(Baller. apud Gury, not. a. p. 502, vol. ii.)

302. We subjoin one or two cases that

may sometimes occur.

Sylvanus, a parish priest, is notified by a

young man of his parish that he wishes to

get married as soon as possible, but with¬

out being “ called out,” as his intended is

already far advanced with child. The pas¬

tor promises to write at once for a dispen¬

sation from the banns, and appoints a cer¬

tain day for the celebration of the marriage.

But, alas! so many matters were to be at¬

tended to by Sylvanus, as to make him

altogether oblivious of the dispensation.

The parties present themselves at the time

specified, and it is only then that he remem¬

bers the case. After short hesitation, he

joins them in wedlock. Was his conduct

reprehensible ?

We answer, he certainly could, nay, was

obliged to marry them, when they came,

as the law is supposed not to be binding

263

SECOND PLENARY COUNCIL

in such a case. But he should, perhaps,

have been a little more thoughtful in pro¬

curing the dispensation.

303. At another time, Sylvanus has a

similar case in hand. He writes promptly

for the dispensation, but obtains no answer.

Again, he marries the couple, taking it

for granted that his petition was granted.

Was he correct with regard to his mode

of action ?

We reply in the affirmative. At any

rate, it may safely be assumed that the

bishop was willing to suspend the law un¬

der such circumstances. The best way to

obviate these difficulties, is to send one of

the parties about to be married, to the or¬

dinary for the dispensation.

304. Finally Sylvanus forgets to publish

the banns on the first Sunday set down for

that purpose ; on the following Sunday he

proclaims them. The parties about to get

married, thinking that the two publications

had been made, wish to be united in matri¬

mony forthwith. Sylvanus, in fact, cele¬

brates the marriage, and then makes the

second proclamation on the Sunday suc¬

ceeding the marriage.

OF BALTIMORE.

269

It may be asked, therefore : Can the

publication of the banns sometimes take

place after the marriage itself has been

contracted? We reply in the affirmative.

This appears certain from the note of

Ballerini quoted above. Yet there must

be a necessity for so doing. Was there

such a necessity in the case referred to ?

We think there was, as otherwise the con¬

tracting parties would have been exposed

to no slight inconveniences.

§67. CLANDESTINE MARRIAGES : DECREE OF

COUNCIL OF TRENT : TEACHING OF THE

SECOND PLENARY COUNCIL OF BALTI¬

MORE : DECISION OF THE PROPAGANDA

\ ITH REGARD TO CHINA.

305. We now proceed to explain the last

part of this chapter of the Second Plenary

Council of Baltimore. The fathers say:

“ The decree of the Council of Trent regarding

clandestine marriages, has certainly not been pro¬

mulgated in the greater part of the dioceses in this

country. The Fathers of the Fifth Council of Balti¬

more thought that it was scarcely expedient to ex¬

tend the decree of the Council of Trent to the other

parishes in the Diocese of Detroit, beyond those of

2 JO

SECOND PLENARY COUNCIL

the city itself ; nor to any of the other dioceses in the

United States, except where it is known to be already

promulgated : and the Holy See should be requested

to dispense also with it in the city of Detroit itself.”

(Cone. Plen. Balt. II. n. 340, p. 177.)

306. To this, the Fathers of the Second

Plenary Council of Baltimore add : *

“ As the same state of things still continues to ex¬

ist, we adhere to the above opinion. For many grave

inconveniences would appear to us inevitable, if the

presence of the parish priest were necessary to the

validity of marriage among Catholics. ... In order

that all doubt may cease, and safety of conscience be

insured, and at the same time uniformity may exist

in a matter of such vital importance, it would seem

to us best, that if possible, the present discipline

which is almost everywhere prevalent in our midst,

should, by authority of the Holy See, be introduced

throughout the land, except in the Province of New

Orleans.” (Cone. Plen. Balt. II. p. 177.)

Rome’s answer, however, to this petition

was :

“ As the Fathers of Baltimore, in tit. v. c. ix. n. 367,

requested that in all the provinces of the United States,

except New Orleans, the impediment of clandestinity

should be declared as abolished, the Most Holy Father

has thought fit by no means to accede to such a de¬

mand.” (Instr. iii. S. C. de Prop. Fid. ap. C. Balt. p.

cxiv.)

OF BAL TIM ORE.

271

307. This question deserves somewhat

of closer attention. No one will deny that

the difficulties and perplexities surrounding

the present discipline are neither few nor

slight. Both sides of the question, as well

as the wishes of the Holy See, will best be

seen from an Instruction of the Holy See

given in 1821 to the bishops of China, and

lately also sent to Bishop Baltes, of the

Diocese of Alton, Illinois.

The condition of China is similar to that

of America in this respect, and therefore

the Holy See applies the same rules to

both, as is evident from the fact of the

same Instruction being sent to both coun¬

tries.

308. We proceed to analyze it. Its main

points are thus summed up :

From letters of Chinese missionaries, the

Sacred Congregation is informed that in

China the custom prevails of contracting

marriage according to the laws of the

Church and Empire, with a second part)'',

even when carnal intercourse, preceded by

a promise of marriage, has taken place

with a different person.

Now, according to a Declaration of Pope

272 SECOND PLENARY COUNCIL.

Gregory IX., a promise of marriage fol¬

lowed by carnal intercourse constitutes a

true marriage, and hence the second union,

though contracted according to all the pre¬

scriptions of the Church and State, is null

and void, and the parties must be compel¬

led to return to their first betrothed.

But, replied the missionaries in their let¬

ter to the Sacred Congregation, the people

were never instructed in any such doctrine;

that therefore they were invincibly igno¬

rant of the law ; that it was scarcely prac¬

ticable in future to promulgate it, on ac¬

count of grave difficulties and scandals that

would doubtless be occasioned by it among

Christians as well as pagans, all of whom

firmly believe that no marriage is valid ex¬

cept when celebrated according to the pre¬

scriptions either of the Church or State.

309. From this statement, the Sacred

Congregation infers that the following

doubts may arise :

1st. Whether in China, where the de¬

cree of the Council of Trent is not yet

promulgated, a promise of marriage fol¬

lowed by carnal intercourse constitutes a

true marriage, even though the act be

OF BAL TIM ORE.

273

committed without any marital affection

or intention, but merely through lust, and

even when the parties think that they only

commit fornication, by no means thereby

contracting marriage, and that therefore

they are still at liberty to pass to other

nuptials ; such being the universal per¬

suasion and custom of their countrymen.

2d. What should be observed by mis¬

sionaries, especially confessors, in regard

to those taithful who, having made a prom¬

ise of marriage, which was followed by

sexual intercourse, should contract with a

different party, thinking the latter to be a

just, and valid marriage.

3d. Which is the best advice to mis¬

sionaries seeking a means to prevent clan¬

destine marriages and the sad consequences

following from them ?

As will be observed, the first doubt con¬

tains the dogmatic question ; the second

and third refer to its practical bearings

310. In reply fo the first, the Sacred

Congregation premises :

(a) That it can scarcely be supposed

that all the faithful, without exception,

should be unaware of the law of the

2/4

SECOND PLENARY COUNCIL

Church : some may ; but others there

surely must be who are cognizant of it.

(p) We must remember the rule which

Pirhinghius lays down for such cases,

namely, that “ the Church presumes the

marital intent, as the spouses are sup¬

posed to have excluded sin, and therefore

to have acted, not as fornicators, but in legit¬

imate wedlock. The bethrothed therefore

should not be listened to, at least in ‘ foro

externo,’ in asserting the contrary, though

in the tribunal of penance, or in ‘ foro in-

terno,’ this rule does not obtain.”

31 1. Having premised these two points,

the Sacred Congregation answers the first

doubt in the following manner :

“ In places where the decree of the

Council of Trent is not promulgated, if

two persons, having promised marriage,

subsequently have sexual intercourse

‘ affectu libidinoso, non autem maritali,’

such an act does not cause the promise

of marriage to become a true marriage in

‘ foro conscientise,’ or in the tribunal of

penance and before God ; and hence they

are at liberty to contract other nuptials,

OF BAL TIMORE.

275

provided the previous engagement be dis-

solved for sufficient reasons.

“ But if such an act be proved in ‘ foro

externo/ or before the proper ecclesiasti¬

cal tribunal, they can be compelled by

ecclesiastical authority to consider each

other as truly married, and to cohabit in

consequence.”

312. From this we infer :

(«) That except in the tribunal of pen¬

ance, or the confessional, the bishop or pas¬

tor, or any other ecclesiastical superior,

must consider such parties as legitimately

married, even though they protest that

they never had any intention of marrying

when they committed the act.

(6) That even in the confessional, a

promise of marriage, with subsequent car¬

nal intercourse is, “per se,” sufficient evi¬

dence of the marital intent, as it is supposed

that they wished to avoid sin.

(r) That, however, if in the confessional

parties assert that they had no such inten¬

tion, it may be regarded as an evidence

that marriage was not contracted.

313. Now, how shall the confessor dis-

2 y6

SECOND PLENARY COUNCIL

cern when this marital intent existed, and

when it did not ?

The Sacred Congregation, in answer to

this, says that caution should be used; that

the confessor should quietly ask the peni¬

tent whether the act was committed with

any marital affection. If a negative reply

is given, nothing should be said, as the

second marriage is valid.

If, however, an affirmative answer is re¬

turned, he must frankly be told to sepa¬

rate and return to the first spouse, with

whom the act was committed, and rather

suffer any punishment than cohabit with

the second one.

314. But, how prevent the scandal which

such a doctrine must cause among the

people ?

The Sacred Congregation replied to

this, that the best advice which could be

given by the Church was to promulgate

the Tridentine decree — that when the

presence of the pastor was not possible,

two witnesses would be sufficient ; that in

missionary countries, where the decree

could be promulgated in its full extent, it

was merely requisite to contract in presence

OF BALTIMORE.

2 77

of the missionary priest or quasi pastor, or

any one else deputed by him, and two or

three witnesses ; that where it could be but

partially published, it would be quite suffi¬

cient to contract marriage before two or

three witnesses, in case the pastor could

not be present ; under condition, however,

of receiving ecclesiastical benediction from

a priest, when occasions should present

themselves of doing so. The marital

consent cannot be renewed a second time.

This, as concludes the Instruction, would

seem to be the only way by which inordi¬

nate and clandestine marriages can be en¬

tirely cut off with the divine assistance, and

in which this great sacrament may be rein¬

stated in the pristine dignity which among

no small number of the faithful it seems to

have lost.