151. Disparity of Cult

1. Ioannes, a Hebrew, entered marriage with Petronilla, a Protestant. Both are converted to the Catholic faith, and it is asked whether the marriage must be renewed between them.

R. Benedict XIV, Const. Singulari nobis, Feb. 9, 1749, § 1, expressly affirms: "that both, after they have given their name to the Catholic faith, the one through baptism, the other through detestation of heresy, are again to be joined by the bond of marriage. For what they had entered before was altogether void because of the diriment impediment which is called disparity of cult." - I. M. 1016.

2. A Hebrew woman had been repudiated by a Jewish man, who soon had taken another wife. Moreover, the woman repudiated, having renounced Judaism, embraced the sect of the Protestants, and then married a Catholic man, who, wearied of this wife, contends that these nuptials are invalid, since the wife is still bound to the prior Jewish man.

It is asked: What is to be said to the case?

R. Two questions must be distinguished, one concerning the Pauline privilege, the other concerning the omitted interpellation. And as regards this latter, if the case is such that it is established with moral certainty that the infidel spouse does not wish to be converted nor to live peacefully, then, at least according to a very probable opinion, there was no need of warning or interpellation. But if the matter was not so manifest, the second marriage was entered illicitly; but as regards validity, according to the same opinion, it is just as if a spouse, before he certainly learns anything about the death of the other spouse, enters a new marriage; for the second will be valid or invalid according as the truth is on the part of the thing, or according as the spouse is in reality dead or, on the contrary, living. - As regards the former question, from the doctrine of the Fathers on the text of the Apostle, 1 Cor. 7:15, baptized Christians also are comprehended, although divided from Catholic unity. Cf. Baller., Op. Mor., v. 6, n. 719 seqq., ed. 1. Hence it is clear that the aforesaid marriage of the Hebrew woman with the Catholic man was valid from this head; for the first was dissolved by the subsequent marriage, if in reality that Jewish man departed, unwilling to be converted to the faith or to cohabit peacefully. Therefore that Catholic man cannot pass to other nuptials. - Baller., l. c.; I. M. 979, 980.

3. Sempronia, a Christian, wishing in France to marry Titius, a Hebrew, obtained a dispensation from the impediment of disparity of cult. But Titius has not yet exceeded the eighteenth year, which is the age required by French Law, Civil Code art. 144, for the validity of marriage; nevertheless they marry. The same is the law of the Italian Code, art. 55, and therefore the same difficulty.

It is asked: Are the nuptials valid in the case?

R. The distinguished Palmieri, in Op. Theol. Ant. Ball., v. 6, n. 1341, 1342, ed. 1, resolves this case thus: "The French law is supposed to have invalidating force. Gasparri denies it, Tr. Can. de Matr., v. 1, n. 297, because the man is incapable because of the law to which he is subject, requiring the completed eighteenth year, nor does the Church remove this incapacity, whose laws and dispensations cannot directly, as would be necessary here, reach an infidel. And D'Annibale is also cited, v. 3, n. 294, who, after he affirmed as more true that the marriages of infidels are ruled by the power and jurisdiction of Princes, whether faithful or infidel, adds: 'Wherefore, if an infidel enters nuptials with a faithful person, these, other things being equal, if they have not come together by the law of each, are void.' But those who deny to Princes the power of establishing impediments for marriages even of infidels will certainly be of another opinion. But even once that power is admitted, the doctrine denying that a marriage contracted from a dispensation of the Church by a faithful person with an infidel who is affected by an invalidating impediment of his own Prince is valid does not yet seem very probable. You certainly have two powers: one of the Church on the part of the faithful person, the other of the Prince on the part of the infidel; nevertheless powers concurring upon one thing, that is, marriage. But when powers disposing concerning one thing are unequal, it is equitable that the thing be ruled by the law of the superior power, which here is the Church: moreover the Church says that this marriage is valid if it is not contrary to the laws established by her. But that supposition does not seem sufficiently solid; for both the French Code and the Italian Code in the obvious sense seem rather to signify a mere prohibition than invalidation. But if the law is supposed to have invalidating force, that the marriage is valid, given the apostolic dispensation upon the impediment of disparity of cult, seems undoubted from that very Response of the Holy Office, Sept. 20, 1854, Collect. S. C. de P. F. n. 1239, 1449, which is adduced for proving that infidel Princes can establish diriment impediments. Cf. also Ench. Mor., ed. 3, 1002. And D'Annibale, although in the 3rd edition, n. 425, he followed the same opinion as regards the power of Princes in respect to infidels, nevertheless omitted that final conclusion, 'Wherefore, if an infidel,' etc.; whence he seems implicitly to have retracted it.

"All these things can be confirmed from those things which Benedict XIV has in Const. Singulari nobis, Feb. 9, 1749. In this Constitution the Supreme Pontiff treats of the validity of marriage between a Jewish man and a heretical woman, and weighs various laws, first of the Hebrews, then imperial, and finally ecclesiastical, by force of which alone he declares the aforesaid union null. And § 7, concerning civil law, has these things which pertain to our matter. 'The one law which pertains to this matter is that of Theodosius, which begins Ne quis, under the title of the Code de Iudaeis, whose words are these: Let no Jew take a Christian woman in marriage; nor let a Christian obtain marriage with a Jewish woman: for if anyone has admitted anything of this sort, this crime will be held in the place of adultery committed. But two difficulties occur here: (NOTE) The first, that this law, as being made by a lay Prince, ought to have no force in marriages.... (NOTE) The other is graver. For by the law of Theodosius the marriage of a Hebrew with a Christian, because of the unworthiness of the crime, was condemned most severely, not indeed as void, but as adultery....'

"But as regards that opinion which affirms the power of Princes over the marriage of infidels, it will not be beside the matter to note that the chief argument, taken from the Resolution of the Holy Office, Sept. 20, 1854, and of the S. C. de P. F., June 26, 1820, does not seem altogether demonstrative. For in the question proposed to the Holy Office there is question of a marriage altogether prohibited by civil law, even under penalty of death. Now from this it does not follow that there was a diriment impediment from civil law; it follows only that there was a prohibiting impediment. Hence even in the question it was not absolutely affirmed that the marriage was invalid because of such an impediment, BUT THAT IT SEEMED INVALID. Therefore the Vicar Apostolic himself, proposing the case, certainly did not know the force of that impediment, and therefore affirmed invalidity under opinion. But the Response of the Holy Office gives only a norm to be held practically in the particular case set forth, and has nothing concerning the question of the power of infidel Princes. But in another Response of the S. C. de P. F. there is question of a marriage already null by common opinion, from the omission of some prescribed ceremony. Therefore it does not necessarily follow from this that the marriage was null, as is had in the Response of the Sacred Congregation, by force of a diriment impediment; for it could well have been null because of defect of consent, since by common custom that marriage was held as null. And when it was expressly asked whether a diriment impediment, sanctioned by an infidel Prince, rendered marriages void and invalid, the Sacred Congregation did not respond to this question, but was content only to declare the marriage null in the particular case proposed. This indeed the Sacred Congregation could well have done in the case because it judged the general doctrine concerning the power of an infidel Prince to be true, and that a true diriment impediment had been present in that case. But it could also well have issued that Declaration because, since the aforesaid marriage, by the omission of the prescribed ceremony, no longer publicly had the form and appearance of marriage, but of mere cohabitation, and with the common opinion concerning the nullity of such a nuptial contract also prevailing, consent into marriage was lacking. It is indeed true that at the end of the Response of the Sacred Congregation it is said, 'and let an Instruction be given,' and in the Instruction it is openly affirmed: 'Secular Princes, whether faithful or infidel, retain the fullest power over the marriages of infidel subjects, so that, namely, by placing impediments which are not contrary to natural and divine law, they may thoroughly rescind them not only as regards civil effects, but also as regards the conjugal bond. For since, for the good of the republic, they can prescribe by their laws a certain form and solemnity for the legitimacy and validity of other contracts, there is no reason why they cannot effect this in the matrimonial contract of infidel subjects.'

"But from this precise Instruction a grave difficulty arises against the opposite opinion. For, while in the Decree it was said, 'and let an Instruction be given,' and the Instruction was composed by order of the Sacred Congregation and exhibited to the Fathers in Particular Congregation so that it might be approved, nevertheless the approval of the Fathers is altogether lacking in it, since it is not found in the Acts of the Sacred Congregation, cf. Collect. S. C. de P. F. n. 1447; whence in the same Collectanea this Instruction is not numbered with the other Decrees and Instructions, but is brought forward in a note separated from the text, and the defect of approval in the Acts is noted.

"Besides, that argument taken from the nature of contract and parity with other contracts is in reality not valid. For marriage is not a civil contract, as Schmalzgr. also asserts, l. 4, tit. 1, n. 367, but a contract existing by natural and divine law. Hence Pius VI, in the Letter to Charles, Bishop of Eger, July 11, 1789, expressly says: 'Whoever thinks ... that marriage, provided the character of sacrament is absent from it, is nothing except a merely civil contract, and therefore dissoluble by civil power, is mistaken. This is not so; for ... marriage is not a merely civil contract, but is a natural contract by divine law, instituted and made firm before every society; and it also differs from any other merely civil contract by this notable distinction, that in that civil kind consent is sometimes supplied by law for certain causes; but in marriage consent cannot be supplied by any human power.'

"And if a civil Prince could invalidate marriages to be contracted because marriage is a contract, as he can invalidate other contracts, why then could he not also rescind marriages already contracted, at least those not yet consummated, as he can rescind other contracts? And if, according to St. Thomas, children of families are of their own right as regards marriage, and do not depend on the parents themselves, who cannot invalidate the marriages of their children, how would they depend in this matter on a civil Prince invalidating marriage? Hence the same St. Thomas, Quodl. 5, a. 15, says that only by the authority of the Supreme Pontiff can a Statute be established, 'according to which certain persons are rendered illegitimate for contracting, so that, if they even contract, the marriage is dirimently impeded.'

"Therefore marriage, since it is not a merely civil contract, cannot be ruled by civil authority as regards its intrinsic nature, or as regards the matrimonial bond itself. But since it is sacred by its own force, by its own nature, by its own spontaneity, cf. Enchir. Moral., ed. 3, 971, it is fitting that it be ruled not by the command of civil Princes, but by religious authority, which alone can, in the name of God, moderate the sacred and religious contract of marriage. The Church certainly does this by her own right; she is furnished with this power, as regards Christians, because the marriage of Christians is a sacred thing, and moreover is a sacrament. But secular Princes, as regards infidels, certainly not insofar as they are civil Princes, but insofar as religious authority also is said to reside in them, have they too received this power from God? This certainly is that which still must be declared by the Sacred Congregations or defined by the Supreme Pontiff, and consequently still must be demonstrated by theologians, while the matter meanwhile remains under opinion. Indeed the Holy Office and the S. C. de P. F. everywhere declare the marriage of infidels valid, provided it is established that there was no impediment of natural or divine law; nor do they make any mention of another impediment. Cf. S. O., Dec. 15, 1885; E. M. 835, etc.