ABOUT THE NE TEMERE DECREE

New Zealand Tablet, 9 November 1911, Page 2233

ABOUT THE NE TEMERE DECREE

By X.

-111. The Need for the Decree. We have seen that Christian marriage is a Sacrament of the New Law, and is therefore in its essential conditions and intrinsic properties under the exclusive jurisdiction of the Church. But the Church does not on this account disregard the enactments which the State makes to regulate the civil effects of marriage. Indeed, no other institution so urgently points on!; to the State its obligation to foster by benign laws the holy estate of marriage; and this because no other institution has so high an appreciation of this holy estate with its corresponding obligation of parenthood. Marriage is indeed a' Sacrament, but it is by excellence the great social contract. From it springs tbe family, which is the social unit. It is the mother of the world, it preserves kingdoms and fills cities and churches; it makes the spirit of a nation, and, when pure itself, the domestic virtues to which it gives birth impart to the nation a happiness, a prosperity, and a grandeur beyond all price. Thus it has every claim upon the community, and every order in the community must rally round it. The Church must consecrate it, and mark and guard its essential conditions. The State must have its laws of clandestinity to protect the young and innocent from being victimised, its property laws to safeguard the rights of the offspring, and so forth ; and it must join forces with the Church to avert that strife against parenthood which both defiles the Sacrament and corrupts the State. The Church does not question the legal validity of civil marriage, so that our belief in the sacramental character of the marriage of Christians, so long us we secure their legal validity, does not bring us into conflict with the laws of the State. The fears, therefore, that certain clergymen profess to entertain that the civil law will be disregarded by Catholics have no external justification, but must be attributed to some inherent defect or bias in the men themselves. This

defect or bias seems to render some of them incapable of understanding even the simplest language, or of imagining that a priest who supports the decree can be anything else than a liar ' who accepts and attempts to vindicate what he knows in his heart to be utterly false and injurious.' I do not suppose that any explanation of the decree would allay the fears or silence the ravings cf. such men as these, but there are many who will be glad to get a simple explanation of it from one who has read it. , Historians are not agreed as to whether the presence of a priest had at any time before the Council cf Trent been required for the validity of marriage. The mutual expression of consent without witnesses is considered by some to have been sufficient for validity, though of course it was always unlawful and sinful to contract marriage except in the presence of the Church. But the abuses resulting from marriages, the consent to which was not attested by witnesses, and which could not be proved in case of litigation, must have been very many and very great. Sometimes a husband, .?■ wetimes a wife, deserted the lawful partner, and, denying that any contract had been made, formed a new connection and lived in a state of adultery. To eradicate this and other obvious evils the Church, in the Council of Trent (1563), made a law declaring clandestine marriages, that is, marriages attempted without the presence of a priest and two or more witnesses, not only unlawful as they always had been, but for the future invalid. ' Those who otherwise than in the presence of the parish priest himself or of another priest; acting with the license of the parish priest or "f the Ordinary, and in the presence of two or three witnesses, shall attempt to contract Matrimony, the Holy Synod renders them altogether incapable of contracting mam ape thus, and decrees that contracts of this kind are null and void.' : Manifestly this decree does not rob women and children of their rights, as a certain critic declares, but it safeguards the honor and rights of women and children and of men too, and this under the severest penalties. This is no 'unwarrantable interference with the liberties of the subject,' but it is a perfectly warrant-

able and much-called-for curb and restraint upon the license of wickecLmen and women who, for the gratification of the passion of lust, and not for the honor of God and the good of posterity, would wish to contract marriage; and who, without this curb, would contract it in such a way that they could at the swiftly changing call of passion, repudiate the partner's rights and fojrm new, if not mors sinful, connections. The reverend Critics of the Decree of Trent will continue to hold it up to public scorn, but the principle of that decree has been embodied in the laws of almost every civilised State. Scotland is, I believe, the only place in the British Empire where clandestine marriages are still valid in law. fe The Decree of Trent, however, was to have force only in those places where it was formally promulgated, and for one reason or another there were many places where it was not promulgated, so that its benefits, though considerable, were not so far-reaching as the presence of the evils it was intended to cope with demanded. Moreover, when it came into force many doubts continued to arise owing to which it was not always easy to decide whether a particular marriage was valid or invalid. Sometimes doubts arose as to the person of the parish priest, before whom alone a valid marriage could be contracted. The law laid down that he was the parish priest in whose parish one or other of the contracting parties had a domicile or quasi-domicile, but in practice the fact of the necessary domicile or quasi-domicile was not always easy to ascertain. Add to this the doubts continually arising from the diversity of the marriage laws of the various countries of the Old and the New Worlds. Consider the marriages of tourists alone that take place in the South of Europe, in the cities by the Swiss Lakes, in America, in Australasia, in every part of the world now that travel is within the reach of so many.' If people did not understand clearly what was required

for a valid marriage in each different State what complications would not arise? The story of the Yelvcrtons would be repeated a thousand times a year. These difficulties and others, with their oftentimes deplorable results, confronted the bishops of the Catholic world, and these petitioned the Holy See to introduce some change into the law that would minimise these evils so far at least as Catholics were concerned. The Pope saw what the rulers of States do not yet appear to have seen : that it was possible to supply a remedy to meet the evil. He submitted to the Sacred Congregation of the Council the task of examining the matter and of submitting to him whatever measures it should deem opportune. He also asked the opinion of the Commission set up for the revision and codification of the Canon Law. These two Commissions held frequent meetings, consulted the most eminent jurists from every country in the world, and at length issued the Ne Temere Decree, which was approved by the Pope on August 2, 1907 and came into force on Easter Sunday, 1908. An exception was made for the Chinese Empire, where it was not enforced until Easter, 1909, and for a part of Germany and Hungary, where the bishops asked for and obtained a dispensation. There are some persons who suppose that the Pope does not deliberate at - all, that he has no commissions of experts continuously sitting and consulting for him, but that now and again when a sudden impulse seizes him, he takes up his pen and dashes off an infallible declaration to be binding on the whole Church. This Decree, promulgated after the most mature deliberation, enacts one simple law for all Catholics, and gets rid for ever of all questions concerning domicile, and of many other, causes of doubt and confusion. It is a great step in the direction of simplicity and uniformity, and so far from making the Catholic slaves to Rome more slavish still, its first effect will be to put an end to those appeals to Rome which had been so frequent, and to practically make the Bishop’s court the final court of appeal in matrimonial causes.

Statesmen in their province are becoming convinced that they too must quickly follow in the direction of the Ne Tenure Decree, and grapple before it is too late with that diversity of marriage laws which is to-day the Realise of such hopeless confusion. The London Times of February 13, 1911, wrote in its leading, article: ‘lt is not very creditable, as one sees when- one takes a large view of things, that we are in these days of enlightenment in a condition of greater confusion in regard to the fundamental social institution than was the world five centuries ago. The endlessly diverse marriage laws of the States of America, the variety to be found on the Continent, and even in the same country, the differences which exist in the United Kingdom and in our Colonies— divisions are a reproach to our time, whether they indicate ethical anarchy or perplexity, or indifference in matters than which none are of more consequence.’ Such a reproach cannot be cast upon the Church, and for this all observant, intelligent, and far-seeing men welcome her wise legislation.