Chapter — The Casuist
Case XXVIII: The Pauline Privilege
Case submitted:
A certain unbaptized lady was married to an unbaptized man. They separated before the civil court. The lady got married again, and wished to join the Catholic Church with her husband. Not having been informed about her former marriage to the infidel, and finding them sincere and well disposed, I baptized them and married them.
I did it because, 1, they live in the mountains, among the Mor mons, and everything was prepared when I arrived there; 2, because I thought that she had the privilege by the "Casus Apostoli," although "interpellatio non facta fuit." Our bishop says that he doubts whether in his faculties he has the power to dispense in the "interpellatio partis infidelis." Do you know whether the Holy Father gives this power to the bishops in this country? Some say that they have the power.
It would be too bad, not only for that couple, but for numerous relatives, who desire to enter the true Church. In case the "interpellatio" is necessary "quoad validitatem," must I procure a dispensation "in radice"?
Solution:
The case here submitted gives rise to the following questions:
- Is the "interpellatio partis infidelis" required "ad validitatem" or only "ad licitatem novi matrimonii"?
- Have the bishops of the United States faculties to dispense "a facienda interpellatione"?
- What ought the priest to have done as soon as he learned of the first marriage?
- What is to be done now?
- Is the interpellation required for the validity of the new marriage, or only for its licitness?
Answer.—The theologians are not agreed as to whether the interpellation of the unbaptized party is required for the validity of the new marriage, or only to make it licit. The greater number favor the opinion that the interpellation is of divine command—juris divini —and that its omission, without Papal dispensation, makes the new marriage invalid. Card. D'Annibale (l. III. n. 476) says to the question “whether interpellation is necessary by divine law? The far more common opinion answers affirmatively.”
The theologians who hold that the interpellation is required for the licitness only of the new marriage, contend that the validity of the new marriage, contracted without the interpellation and without a Papal dispensation, will depend, "ex jure divino," on the willingness or unwillingness of the unbaptized party to be converted or to cohabit in peace, etc. The new marriage of the baptized party will be valid or invalid, according as the subsequent investigation shall prove that the unbaptized party to the first marriage was willing or unwilling to be baptized or to dwell with the Catholic party without sin, etc.
These theologians hold that the interpellation is a “a means of ascertaining whether the Pauline case is in fact verified, just as an inquiry into the death of a spouse is required for the lawful celebration of a new marriage, but its omission does not cause the new marriage to be null and void.”
Thus Ballerini-Palmieri (VI. n. 619), “But I do not know why, in our case also, one should not reason in the same way (as in the case of establishing the fact of the husband’s or wife’s death before contracting a new alliance), namely, that he who contracts a new marriage without the unbelieving party having been interrogated certainly sins, but contracts validly if the unbelieving party was unwilling either to cohabit or to be converted, and invalidly if that party consented to conversion or cohabitation.” Indeed, there are some theologians who argue that the omission of the interpellation would not even render the new marriage illicit, if the unwillingness of the unbaptized party to be converted had been proven for certain in some other way. But whatever may be said of the probability of these opinions which deny the need of interpellating "quoad validitatem novi matrimonii," it must be admitted that the greater number of theologians hold that the interpellations are "juris divini," and their omission, without Papal dispensation, renders the new marriage invalid. Moreover, innumerable decrees and answers of the Holy See prove beyond doubt that it is never licit to omit the interpellation without the permission of competent authority.
In the year 1884, the Bishop of Portland consulted the S. Congr. de Prop. Fide on the following question: “Whether, where the dissolution of a marriage contracted in unbelief is in question... and where the unbelieving party, released from her husband by legal divorce, has proceeded to another marriage, interpellation would be altogether necessary, even with the following very great inconveniences, namely: 1, the unbelieving woman regards the interpellation as injurious to herself; 2, her new husband hears the interpellation with indignation, and if the interpellation is made orally, the messenger will sometimes discharge his office not without danger; 3, where the man or woman released by divorce has already passed to another, as they say, marriage, he or she could not return to the former spouse: for the civil law stands in the way.”
To this question the S. Congr. de Prop. Fide replied as follows: “According to the intention. The intention is that neither divorce nor a second civil marriage is sufficient to exempt a party from the obligation of interpellation. But insofar as it is established at least summarily and extrajudicially that interpellation will be either impossible or useless, the Bishop shall use the faculty of dispensing, if he possesses it; if not, petition must be made to His Holiness for the faculty for ten cases. His Holiness approved and granted the faculty.” (G. P. F. 1360). Feije (Disp. n. 493) says: If the baptized party contract a new marriage, without interpellating, and without procuring a dispensation from the interpellations, then the baptized party sins grievously. The validity, however, of the marriage, in the opinion of many theologians, will depend on the subsequent consent or refusal of the unbaptized party to be converted and to cohabit peaceably, etc. This opinion, however, continues Feije, does not agree with the decisions of the S. Congr. de Prop. Fide (March 5, 1816), which Congregation has declared, in some particular cases, a marriage invalid which was contracted without first interpellating or procuring a Papal dispensation.
Little, if anything, can be concluded from the rulings of the S. Congregations concerning the necessity of interpellating on pain of invalidating the new marriage. The decisions of the Sacred Congregations refer to particular cases, and they purposely refrain from using terms that might be construed as settling a general point in dispute among the theologians. Thus the Propaganda was asked, March 5, 1816, “whether interpellation is of divine law and therefore so necessary that, if it is neglected, there is plainly no possibility of dissolving the marriage,” and returned this answer, “that it did not wish to answer this petition expressly,” etc.
There is no foundation for the categorical statement that "outside of the case of a Papal dispensation, the interpellation is always required, jure divino, and that on pain of invalidity of a new marriage" (Smith, Marriage Process, n. 305).
Since theoretically, therefore, theologians are not agreed as to the nature of the need of interpellating, practically the interpellations are always to be made, or a Papal dispensation from them must be procured, because any other course would leave the subsequent marriage a doubtful contract, and jeopardize the validity of the sacrament.
Second Question.—Have the bishops of the United States faculties to dispense from the interpellations? They have no general faculties. Some individual bishops may have faculties to dispense from the interpellations for a certain number of cases, but there are no general faculties given to all our bishops as a body. Smith (Mar. Proc. n. 302) says: "Bishops in the United States have no such Papal delegation, at least generally speaking, and consequently recourse is to be had to Rome in each case with us, as is also plainly intimated by the S. Congr. de Prop. Fide, Instr. Causae Mat. sect. 45, The words of the “Instruction” (Append. III of the Plenary Council of Baltimore) are as follows: “If a marriage happens with a Catholic party after the reception of baptism, it must be ascertained whether a canonical interpellation of the spouse who still remained unbelieving preceded it, or at least whether dispensation from that interpellation was granted by lawful authority. Insofar as it is established that the interpellation was made or that a dispensation from it was granted, the first marriage can no longer constitute a bond invalidating the second union; but insofar as neither interpellation nor its dispensation preceded, the first marriage will indeed stand in the way of the second, but the Ordinary must suspend judgment and refer the case, with all its circumstances, to the Holy See, which will indicate to the Ordinary what is to be done.” Putzer (Comment. in Facult Apost. n. 130) says: "An hac facultate etiam nostri Episcopi (U. S. A.) gaudeant, publice non constat."
Among the faculties granted by the Holy See to the bishops of the United States is this one: “To dispense with pagans and unbelievers having several wives, so that after conversion and baptism they may retain whichever one of them they prefer, if she also becomes a believer, unless the first wife wishes to be converted.”
Our bishops, therefore, may dispense from the second of the two interpellations, namely, whether the unbaptized party will cohabit in peace, etc., but not from the first interpellation, namely, whether the unbaptized party is willing to receive baptism.
Third Question.—What ought the priest to have done as soon as he learned of the first marriage? In the first place he might have prudently suspected the possibility, if not the probability, of some such previous marriage and divorce under the circumstances, since such things are so common in the United States, and elicited the information in time to make the interpellations or to procure a dispensation from the proper authorities. Of course, this was impossible at the moment when the priest did, as a matter of fact, learn of the previous marriage and divorce. The parties live far away in the mountains. They are living together in good faith as husband and wife. They are to be baptized and then married. Everything is ready. The only practicable course open to the priest would seem to be to leave them in good faith and marry them and then procure a dispensation from the interpellations and have them renew their consent.
There is ample reason, under the circumstances, to petition the Holy See for a dispensation. The second husband is a Catholic now, and the parties are in good faith, and there is no hope of the wife ever returning to the first husband, from whom she is legally divorced and who is unbaptized.
The effect of this Papal dispensation from the interpellations is “so that the marriage of the newly converted party with another believer may be valid and enjoy complete firmness, even if it should afterward be established that the unbelieving spouse was well disposed at the moment when the dispensation was given, indeed, even if it should be proved that at that very moment the party who was believed to be unbelieving had already been baptized” (De Becker, de Mat. p. 456).
Fourth Question.—What is to be done now? Leave the parties in good faith and procure a dispensation from the interpellations and then make them renew their consent. In this case, according to a recent reply of the Congr. of the Holy Office, there is no "sanatio in radice," “in this case there is no place for a dispensation in radice,” etc. (Jan. 17, 1900). Consequently, after procuring the dispensation, the parties must be married over again, that is, renew their consent in the presence of the parish priest and two witnesses.