VIII

CANON LAW OF MARRIAGE

IN the long and acrimonious rivalry between civil and ecclesiastical tribunals during the Middle Ages, canonists boldly laid claim to exclusive jurisdiction of Church courts in a large part of the litigation then current. There were two principal grounds on which that exclusive jurisdiction was claimed: (1) The character of the parties and (2) the presence of some ecclesiastical element in the issues.

On the first ground mentioned it was contended, and the contention was generally conceded, that no priest, nor member of a religious order, could be required to appear in a civil court. Of all matters, whether civil or criminal, to which a religious or priest was a party, ecclesiastical courts asserted exclusive jurisdiction because the relation of such priests to the papal government was such as to preclude civil courts from entertaining any control over them.

The strategy of a monopoly on marriage was so obvious as to move the Roman Church to assert exclusive jurisdiction on the second ground—that it was an ecclesiastical matter.

On that ground the canon law listed marriage as one of the seven sacraments and therefore within ecclesiastical jurisdiction exclusively so far as the requisites, form and validity of the contract and status are concerned. Being declared a sacrament, it lay wholly within the realm of Church functions. So did the Council of Trent in its twenty-fourth session, November 11, 1563, utter this solemn canon:

"If any one saith that matrimony is not truly and properly one of the seven sacraments of the evangelical law, a sacrament instituted by Christ the Lord; but that it has been invented by men in the Church; and that it does not confer grace; let him be anathema."—Dogmatic Canons and Decrees, page 161."

But clerical fees for solemnizing marriages were so extortionate and bore so heavily upon those required too pay them, that, together with other still more intolerable demands of the officiating clergy in the exercise of their monopoly, that they drove vast numbers of young people to enter privately into the marital relation without clerical intervention.

As a cure for this leakage in the parish revenues, the Council of Trent in the eighteenth and last year of its protracted sessions enacted the Tamesti decree providing that marriages of baptized persons are invalid unless solemnized before a priest.

But France and other lands made objection to the enforcement of the decree within their borders and its operation was therefore in some degree limited to lands wherein it encountered less resistance. In 1907 it was re promulgated by Pope Pius X as the Ne Temere decree and placed in operation as widely as possible. Finally it was incorporated into the new Codex Juris Canonici as Canon 1094 and thus made binding on all Roman Catholics in the world from and after May 19, 1918. As given in the Codex it is translated by Woywod thus:

"Those marriages only are valid which are contracted either before the pastor or the Ordinary of the place, or a priest delegated by either, and at least two witnesses, in conformity, however, with the rules laid down in the following Canons, and saving for the exceptions mentioned below in Canons 1098 and 1099."

The canons referred to and which follow that quoted relate to the manner of delegating the requisite power to another priest than the pastor or Ordinary. Canon 1098 provides that if none of the priests mentioned can be had the parties may contract marriage before two witnesses without the presence of any clergyman at all, and Canon 1099 defines who are considered as coming within the provisions of the law as stated.

In its final form the law under consideration contains some modifications from its original form and Canon 1099 seems to exempt from its operation those marriages to which neither party is a Roman Catholic.

It is under the law as now embodied in Canon 1094 that Roman priests are so accustomed to break up families living happily in lawful wedlock by diligently beguiling the Roman Catholic husband or wife into the belief that the marriage, though perfectly valid under the law of the land, is void under the canon law and the parties to it are living in adultery and their children are illegitimate. No Roman Catholic so married is admitted to communion in the Church of Rome.

It is chiefly in cases designated in canon law as mixed marriages that such clerical wickedness is practiced. In addition to the requirement that such marriages shall be solemnized in conformity to Canon 1094 the parties are required to get a special dispensation from the local Ordinary, or enthroned bishop permitting the wedding ceremony to take place.

As further demonstrating the iron grip of the Roman hierarchy on the domestic life of all Roman Catholics, the Protestant party to such a marriage is required to enter into a solemn obligation to permit all children that may be born of the union to be reared in the Roman faith. In divorce proceedings at Urbana, Ohio, in April, 1922, it was shown in court that the Protestant husband in such a marriage had been required to sign the following declaration in writing in relation to that point:

"I, the undersigned, not a member of the Catholic Church, wishing to contract marriage with Celia Tarpy, a member of the Catholic Church, propose to do so with the understanding that the marriage bond thus contracted is indissoluble except by death; and I promise, on my word of honor, that she shall be permitted the free exercise of her religion according to her belief; and that all children of either sex born of this marriage shall be baptized and educated in the faith according to the teachings of the Roman Catholic Church.
"I furthermore promise that no other marriage ceremony than that of the Catholic priest shall take place.
(Signed) "BENJAMIN E. SEIBERT. "In the presence of Father F. T. Moran, of Cleveland."

The foregoing provisions of canon law are by no means mere formalities. They are rigidly enforced by courts of the papal government in full operation constantly for that purpose. The Official Catholic Directory, published annually by P. J. Kennedy and Sons, printers to the Holy Apostolic See in New York, lists as part of the administrative machinery attached to the thrones of Roman prelates Matrimonial Courts. Some of them are designated in Latin as Curiae pro Causis Matrimonalibus, the English equivalent of which is Courts for Matrimonial Causes. No other autocrat or government in Europe or elsewhere abroad is permitted thus to maintain courts for the enforcement of its vast system of alien law on American citizens.

Those courts are not mere ornaments and they are not confined to the United States. They are found in every part of the world and their work is every where pernicious and deadly. The following proceeding in the Legislative Assembly of New South Wales, Australia, reported in The Argus of that city, on Friday, October 6, 1922, shows the domestic havoc which the system here portrayed is working in that land:

SYDNEY, Wednesday.—Mr. Arkins asked the Minister for Justice (Mr. Ley), in the New South Wales Legislative Assembly today, whether he was in a position to make a statement on the "Shergold" case.
Mr. Ley said: Robert Patrick Shergold married Ada Margaret Lawler at Newcastle on January 6, 1919, Whilst so married he did, on February 17, 1920, at Singleton, marry Eileen Mary Urquhart, his first wife then being alive. On March 7, 1921, Shergold was charged with bigamy, and, having pleaded guilty, was sentenced to 12 months' imprisonment. His sentence was suspended under the provisions of section 558 of the Crimes Act relating to first offenders. Shergold and Miss Urquhart were both of the Roman Catholic faith, and Shergold's wife was a Protestant. After discovering that he was married, Miss Urquhart refused to live with Shergold. Representations made to me and confirmed by investigation show that pressure was brought to bear upon Miss Urquhart to return and live with the bigamist Shergold.
With a view to persuading her to rejoin him, the matter was submitted to the Roman Catholic bishop of the diocese in which the parties lived, and subsequently the following letter was written to Miss Urquhart, in which she was addressed as Mrs. Eileen Shergold:
"Dear Madam: After fully considering all the documentary evidence placed before him and all the circumstances of the case, the bishop has come to the conclusion that your marriage at Singleton with Robert Shergold is a valid and good marriage in the eyes of the Church, and as yourself and your husband Robert Shergold, are now willing to live together, his lordship directs me to inform you that you may do so.
"Yours faithfully, "B. Mackeirnan"
There were cries of "Shame!"

In the preface to his work on Rome and the Newest Fashions in Religion, the late William E. Gladstone, of England, related a still more flagrant case of the ruin of a family and the outrageous wrongs inflicted on a faithful wife and mother of a large family of adult children by a judgment direct from Rome which permitted her faithless husband to marry a Roman Catholic paramour while lawfully married to the wife mentioned.