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Historical Notes on the Canon Law on Solemnized Marriage

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Historical Notes on the Canon Law on Solemnized Marriage The Catholic Lawyer Volume 2 Number 2 Volume 2, April 1956, Number 2 Article 3 Historical Notes on the Canon Law on Solemnized Marriage William F. Cahill, B.A., J.C.D. Follow this and additional works at: https://scholarship.law.stjohns.edu/tcl Part of the Catholic Studies Commons This Article is brought to you for free and open access by the Journals at St. John's Law Scholarship Repository. It has been accepted for inclusion in The Catholic Lawyer by an authorized editor of St. John's Law Scholarship Repository. For more information, please contact [email protected]. The nature and importance of the Catholic marriage ceremony is best understood in the light of historicalantecedents. With such a perspective, the canon law is not likely to seem arbitrary. HISTORICAL NOTES ON THE CANON LAW ON SOLEMNIZED MARRIAGE WILLIAM F. CAHILL, B.A., J.C.D.* T HE law of the Catholic Church requires, under pain of nullity, that the marriages of Catholics shall be celebrated in the presence of the parties, of an authorized priest and of two witnesses.1 That law is the product of an historical development. The present legislation con- sidered apart from its historical antecedents can be made to seem arbitrary. Indeed, if the historical background is misconceived, the 2 present law may be seen as tyrannical. This essay briefly states the correlation between the present canons and their antecedents in history. For clarity, historical notes are not put in one place, but follow each of the four headings under which the present Church discipline is described. *Priest of the Diocese of Albany; Professor of Comparative Law in the Graduate Division of the School of Law of St. John's University. lCan. 1088, § 1, 1094 C.I.C.; Can. 79, § 1, 85 M.P. The initials C.I.C. (Codex luris Canonici) designate the CODE OF CANON LAW, effective May 19, 1918, which governs the marriages of Catholics of the Latin Rite. M.P. designates the MOTU PROPRIO, Crebrae allatae sunt, which, since -May 2, 1949, regulates the marriages of Catholics of the Eastern or Oriental Rites. English translation of the Canons here cited from the Latin CODE, together with commentary thereon, will be found in BOUSCAREN AND ELLIS, CANON LAW (1951), and in WOYWOOD-SMITH, A PRACTICAL COMMENTARY ON THE CODE OF CANON LAW (1952). English translation of the Canons of the MOTU PROPRIO is found in POSPISHIL, INTERRITUAL CANON LAW PROBLEMS (St. Basil's, Chesapeake City, Md., 1955); no complete English commentary on these Canons has come to our attention. 2 See, e.g., the article of Professor Gardner, Liberty, the State, and the School, 1 THE CATHOLIC LAWYER 285 (1955). The law requiring celebration of marriage before an authorized priest is there alleged to signify that the Church has abandoned the doctrine that consent of the parties is the effective cause of marriage; that the law was enacted in assumption of an unwarranted authority over marriage; that the law should be abrogated as it puts the welfare of the Church above that of the family, and that the prelates who opposed adoption of the law in the Council of Trent did so precisely because they saw in it the same difficulties as are now alleged by Professor Gardner, supra at 289, 291, 295. APRIL, 1956 The Presence of the Parties by baptism a man is endowed with juristic When Consent Is Exchanged personality in the Church, with all of the 7 To validly contract marriage, the parties duties of a Christian. Some of the laws must express their matrimonial consent in of the Church regarding marriage exempt each other's presence, personally or by from their application persons who have proxy.3 To be effective, the proxy's com- received baptism at the hands of non- 8 mission must be a special mandate to con- Catholics. No such exemption is made in tract marriage on behalf of his principal the Canons which require presence of the with a determined person, and the commis- parties when consent is exchanged. sion must be executed and witnessed in the The Church cannot legislate upon the 9 form prescribed.4 The marriage is null if marriages of unbaptized persons, as they the proxy does not personally perform his are not members of the Church in any commission, or if the principal, even with- sense. The State can bind the consciences out notice to his proxy or to the other of such persons by reasonable regulations party, revokes the commission before it is within the limits of natural law. In adjudi- 5 performed. cating upon such marriages, as the eccle- It should be noted that the requirements siastical courts are required to do when of these Canons affect the marriages of all a party thereto wishes subsequently to baptized persons. The general canonical marry in the Church, the courts of the rule is that the marriages of all baptized Church must test the validity of the mar- Christians are subject not only to Divine riages upon the principles of natural law Law, but also to Canon Law. 6 This fol- as expressed in divine revelation, and upon 0 lows from the more general principle that the competent civil law.' 3 Can. 1088, § 1 C.I.C.; Can. 79, § 1 M.P. The 7 Can. 87 C.I.C. From invalidating and incapaci- expression of consent should be verbal and not by tating laws; those which expressly or equivalently signs, unless the parties cannot speak. Can. 1088, declare an act null or a person incapacitated (Can. § 2 C.I.C.; Can. 79, § 2 M.P. 11 C.I.C.); no ignorance excuses, unless the law contains express provision to the contrary. Can. 4 Can. 1089, §§ 1 and 2 C.I.C.; Can. 81, §§ 1 and 2 16, § I C.I.C. M.P. The principal must subscribe, if he can write. In either case, the commission must be subscribed 8 Cf. text infra at p. 13. by the pastor or Ordinary of the place where the 9 Cf. Can. 12 C.I.C. mandate is made, or by two witnesses; if the 10 Cf. BOUSCAREN AND ELLIS, CANON LAW 463 principal cannot sign his name, an additional wit- ness must sign. (1951). For example, a Church court considering a non-ceremonial or "common law" marriage of 5 Can. 1089, §§ 3 and 4 C.I.C.; Can. 81, §§ 3 and two unbaptized persons contracted in New York, 4 M.P. Marriage is made by the consent of com- would hold the marriage null if it were contracted petent parties, expressed according to law, and after April 28, 1933, but would hold the same if their consent be lacking it can be supplied by no marriage valid if it had been contracted between human power. Can. 1081, § 1 C.I.C.; Can. 72, § 1 January 1, 1908 and April 29, 1933. LAWS OF M.P. The Sacrament is the marriage contract N.Y. 1901, c. 339, § 19 had made common law itself. Can. 1012 C.I.C.; Can. 1 M.P. These are marriages invalid. That provision was repealed by direct declarations of fundamental doctrine. One Laws of N.Y. 1907, c. 742 (eff. Jan. 1, 1908). necessary consequence of these principles is the The clause which declares, "No marriage shall be nullity of a marriage contracted by a proxy whose valid unless solemnized . ." was inserted into mandate has been revoked. N. Y. DOM. REL. LAW § 11 by LAWS OF N.Y. 6 Can. 1016 C.I.C.; Can. 5 M.P. 1933, c. 606 (eff. April 29, 1933). THE CATHOLIC LAWYER HISTORICAL NOTE virtue of their office, to the territory at- In the Oriental Church before 1949, tached to that office. Valid assistance of a 17 only a few Rites had explicit provision for delegate is limited to the territory of his 8 proxy representation of one or both parties principal. Usually,' a priest validly assists at those in the celebration of marriage.1 1 In the marriages only in which at least one party is a subject West, proxy marriage was explicitly per- of the Rite in which mitted by the law of the Decretals, 12 and the priest holds office, or in which the that law was construed to permit marriage prelate delegating him holds office. by letter. 13 The present Canons do not ad- The Canons explicitly waive the presence mit of such construction. of a priest at the celebration of marriage in specified extraordinary circumstances, Marriage Celebrated Before but they do not, even then, relax the re- an Authorized Priest and Witnesses quirement that marriage shall be celebrated before at least two witnesses. The marriage The Code of Canon Law for the Latin is validly celebrated before the common Church establishes that: "Only those mar- witnesses only, where it is impossible for riages are valid which are contracted before the parties to have or to approach an the pastor or Ordinary of the place, or a priest delegated by either, and at least two and the Bishop who rules the diocese, are included witnesses .... -14 Canon 85 of the Motu in the terms "pastor" and "Ordinary." "Local Ordinary" includes not only the residential Bishop, Proprio 15 has the same requirement. but also his Vicar General, and it includes others Canon 1095 of the Code and Canon 86 who rule diocesan or quasi-diocesan territories of the Motu Proprio limit the valid assist- but who have not the title of bishop of the diocese. Among these latter are Administrators ance of the pastor or Ordinary, 16 acting in Apostolic and Vicars Capitular of vacant dioceses, and Vicars and Prefects Apostolic in mission terri- 11 GALTIER, LE MARIAGE ORIENTALE ET OCCI- tories.
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