Difference of Religion

562. Nature of the Impediment. The impediment of mixed religion exists between two baptized persons, one of whom is Catholic, the other acatholic, namely heretical or schismatic. Matrimony entered between them is called mixed matrimony (Mischehe).

1. Mixed marriages are prohibited by natural and divine law chiefly from a threefold reason:

a. The danger of perversion which the Catholic party undergoes; and although there may not be danger of losing the faith, nevertheless there is present at least the danger of growing cold in the faith and the danger of indifferentism.

b. The danger of perversion which offspring to be born from a mixed matrimony undergoes; and although the offspring may not be educated in heresy itself, nevertheless there is present at least the danger of neglecting truly Catholic education.

c. Communication in sacred things, which the contracting parties commit, because the Catholic party administers the sacrament to the heretic and in turn receives the sacrament from the heretic. To this is added moreover that the Catholic party administers the sacrament to one unworthy and thus cooperates in that person's sacrilege.

2. Mixed marriages are also prohibited by ecclesiastical law. The Church already in most ancient times prohibited them; and when in recent time these marriages grew strong, it renewed the ancient prohibitions in order to turn the faithful away from so great an evil.² The new Code deters from mixed marriages in grave words.³

From the decrees of the Holy See, these things must be provided by the parish priest before whom mixed spouses about to marry present themselves:⁴

a. First, he should try with all his strength to impede a matrimony of this kind.

b. But if he cannot impede it, conditions must be required: that all offspring be educated in the Catholic religion, and that full liberty of exercising their religion be granted to the Catholic party and to future offspring.

c. Safeguards must be required; namely, ordinarily in writing, the acatholic must promise that he or she will faithfully observe the conditions.⁵

d. These things having been premised, the matter is to be referred to the bishop, who will procure the dispensation from the Holy See.

e. The parish priest cannot assist at the matrimony except after the ordinary has been consulted; the ordinary can permit it if a grave cause urges and if he himself judges that the promised conditions will be observed.

f. Once mixed nuptials have been celebrated, he should diligently watch that the spouses faithfully fulfill the promises made.⁶

To a matrimony which is contracted by a Catholic party with another party, likewise Catholic, who has cast away the faith but has acceded to no heretical sect, the ecclesiastical impediment of mixed religion indeed does not stand opposed; nevertheless the matrimony is per se gravely illicit by natural and divine law, since the same dangers threaten.

¹ Krueckemeyer, Die Mischehe in Theorie und Praxis 1924. Ries, Die Mischehe, eine ernste Pastorationsfrage 1918. A. Stolz, Der verbotene Baum (Freiburg: Herder, 1904). H. Szillus, Eine verbotene Fracht (Essen: Fredebeul u. Konnen, 1904).

² Cf. the constitution of Benedict XIV, Magnae nobis, June 29, 1748, and the instruction of Pius IX, November 15, 1858, transmitted to the bishops.

³ Cn. 1060 ff.

⁴ S. Office, January 30, 1867; January 11, 1899.

⁵ Cn. 1061, 2.

⁶ Cn. 1064, 3.

563. The Requisites for Obtaining Dispensation are three: a. the due conditions; b. suitable safeguards; c. a grave cause of dispensation.

1. The conditions are: a. that all offspring be educated in the Catholic religion; b. that full liberty be granted to the Catholic party of exercising his or her religion.

Note. The twofold promise concerning procuring the conversion of the acatholic party and concerning not approaching a heretical minister, which formerly were required as conditions, in the new law are no longer counted among the conditions. Nevertheless there is discussion of them in another place, and those about to marry must be warned concerning them. Cn. 1062 says: the Catholic spouse is held prudently to procure the conversion of the acatholic party; and Cn. 1063: the spouses cannot also approach an acatholic minister for giving or renewing matrimonial consent.

In antiquity the Church never permitted mixed marriages except under this condition: that the acatholic party promised that he or she would return to the true faith. But after the rise of the Lutheran heresy it began to permit them even without this condition.¹

Since, if these conditions are not furnished, mixed matrimony is against natural and divine law, it is clear that there can never be dispensation from furnishing them,² and that the Church does not dispense from the canonical impediment unless the prohibition of divine law has ceased in a particular case.

The promise concerning procuring with one's powers the conversion of the acatholic party contains an obligation of charity; for fulfilling it, the Catholic party must chiefly provide these things: that by suitable warnings and counsels he or she prudently try to convert the acatholic party to the true faith; that he or she pour out prayers to God for that person's conversion; but especially that by his or her virtues, especially modesty, patience, and services, if it is the wife, the Catholic party commend esteem and love of the Catholic faith. Concerning this means are the words of St. Peter.³

2. Suitable safeguards, that is, such promises of each party as furnish prudent or moral certainty that the essential conditions will be faithfully fulfilled.

In what form the due safeguards must be provided, whether orally or in writing, before witnesses or a notary, with an oath or with only a word of honor, has not hitherto been prescribed by universal law.⁴ But by particular law, safeguards sometimes must be furnished in writing through written reversals; but if special reasons impede the safeguards from being furnished in writing, the bishop can permit the acatholic party to provide faith or promise by words, provided he is morally certain that the promises will afterward be fulfilled.⁵ Finally, diocesan statutes sometimes require also an oath, or a legal contract, or other safeguards besides.

3. A grave cause because of which dispensation is required and granted, since mixed matrimony is against the universal law of the Church.

Formerly the Church granted dispensation from the law prohibiting mixed marriages only for a public cause, that is, from hope of obtaining a great common good. Today dispensation is also granted from a private cause, which nevertheless must be truly grave. But if sometimes a canonical cause which has force only for other impediments suffices for the Church to grant dispensation, the Church itself has a grave cause of permitting marriages of this kind. Wherefore the betrothed per se sin who, without a truly grave cause, seek dispensation for entering a mixed matrimony and compel the Church by fear of a greater evil to grant it, although they are prepared to furnish the due safeguards.⁶

¹ The bishops of the ecclesiastical province of Milwaukee decreed that dispensation from the impediment of mixed religion is not to be granted unless the acatholic party has first received instruction concerning the Catholic religion, especially concerning matrimony and the obligations of the matrimonial state, for six weeks, twice in each week.

² The Apostolic See recently, September 26, 1890, in letters given to the bishops of Hungary, again affirmed that dispensation from the due conditions cannot be granted.

³ Instruction of S. C. de Propaganda Fide, December 9, 1822. 1 Pet. 3, 1 f. Cf. St. Augustine, Confessions, l. 9, c. 9.

⁴ Even the new Code, Cn. 1061, 2, has only this: safeguards are regularly required in writing.

⁵ S. Office, December 10, 1902.

⁶ Lehmkuhl, Casus consc. II, n. 911.

564. Liceity of Mixed Matrimony. When the safeguards have been furnished and dispensation obtained, mixed matrimony must be called per se licit. For two things stand in the way of mixed marriages: the danger of perversion which threatens both the Catholic party and the offspring to arise, and the prohibition of the Church. But at least the proximate danger of perversion ceases when the safeguards are furnished, and the prohibition of the Church ceases when dispensation is obtained. But from granted dispensation the liceity, and less still the full liceity, of mixed matrimony cannot always be gathered; for sometimes the Church by prudent counsel permits lesser evils, dangers of perversion, provided there is a serious will of observing the safeguards, in order to avoid greater evils, e.g., lest the Catholic party wholly defect from the faith, lest the betrothed live longer in civil marriage, etc.

a. If the danger of perversion in a particular case not only did not cease in reality, but was also proximate, the contracting parties would sin gravely against natural law.

b. Although every danger to the soul in the Catholic party and in the offspring is scarcely ever entirely excluded, nevertheless for a sufficiently grave cause some remote danger is licitly admitted. From this very fact, because some remote danger of perversion almost always remains, the Church dispenses in marriages of this kind with difficulty and never fails to dissuade them; moreover there are added the great harms which arise everywhere for the Catholic religion from mixed marriages.

c. There are those who say that mixed matrimony can never be licit, because forbidden communication in sacred things cannot be separated from it. But nothing occurs which could not licitly be done on account of a grave cause. And indeed, for a grave cause it is licit to administer a sacrament to one unworthy and in this way to cooperate in that person's sacrilege; it is licit to seek and receive a sacrament from a heretic, which he, if he wishes, can administer without sin, for if he is in bad faith he can procure for himself the state of grace through perfect contrition; finally, communication in sacred things with excommunicates after the Council of Constance is no longer prohibited unless they are excommunicated by name.¹

Note. Because mixed marriages are per se opposed both to divine law and to ecclesiastical law, and the Church always detests them; because moreover marriages of this kind ordinarily have an unhappy outcome, the parish priest will use every care to turn the Catholic party away from contracting a matrimony of this kind. And since, as experience testifies, once betrothals have been entered or longer familiarities have already been premised, the betrothed can scarcely be separated any longer, he should try to impede familiarities from being contracted between Catholics and acatholics, from which mixed marriages would arise. But if every effort will be fruitless, he will at least take care that the required conditions are furnished in such a way that certain hope of future execution is provided; and after mixed nuptials have been celebrated, he will diligently watch that the promised conditions are observed in reality.

¹ Cf. Lugo, De sacramentis, disp. 8, n. 220 ff.; Ballerini-Palmieri VI, n. 714.

578. Nature of the Impediment. The impediment of disparity of cult consists in this, that matrimony cannot be validly entered between one baptized in the Catholic Church or converted to it and one not baptized. But if one converted from heresy or schism afterward defects again from the Catholic Church, he is held as Catholic, and therefore is bound by this impediment.

Disparity of cult between spouses is called perfect if one party is baptized and the other not baptized; it is called imperfect if one party is Catholic and the other acatholic, that is, heretical or schismatic. The former, in the proper and strict sense, is called disparity of cult; the latter is properly called by the name mixed religion.

1. This impediment, insofar as it is diriment, is of ecclesiastical law. For although no testimony of ancient law establishing this impediment exists, nevertheless by the long use of the Church, which obtained the force of law, it is certain that disparity of cult dirimently impedes matrimony;¹ moreover, it is expressly established by the new Code.²

a. This impediment was established lest, from close familiarity with infidels, the faithful spouse, together with offspring, undergo danger of losing the faith; and then also lest matrimony, which among the baptized is a sacrament, be contracted by a baptized person with an unbaptized person; but especially because nothing is more opposed to matrimony, which by its nature involves an intimate union of minds, than disparity of cult and therefore disparity in the supreme principles of moral and religious life.

b. Therefore the Church can dispense in this impediment, and in regions of infidels indeed it dispenses more easily from an urgent cause; but in our regions a dispensation is granted with great difficulty, and much more difficultly if the matter concerns the matrimony of a Christian with a Jew. But if the Church for a grave cause dispenses in this impediment, this is done only under the same conditions under which mixed marriages are permitted.³ If these conditions are not furnished, dispensation is never granted. Moreover, a dispensation imparted by one having power from the Holy See, when the prescribed cautions have not been required or have been denied, is invalid. And the ordinary himself can declare the nullity of the matrimony, if it is evidently established concerning it because of this cause, nor is recourse to the Holy See necessary.⁴

c. For convalidating a matrimony invalid because of the impediment of disparity of cult, dispensation is granted more easily. Thus to American bishops there has been granted the faculty of convalidating by sanation in the root even marriages invalid because of disparity of cult; only if it is a matter of matrimony entered with a Jew must they recur to the Holy See in individual cases, all circumstances being accurately set forth.

2. This impediment, insofar as it is prohibiting, is of natural and divine law; the reason of the first is the danger of perversion which threatens both the faithful spouse and future offspring; the reason of the second is the prohibition which is had in the sacred Scriptures: "Do not bear the yoke with unbelievers,"⁵ that is, do not enter conjugal union with unbelievers.

Therefore matrimony between a baptized and an unbaptized person is also gravely illicit, and it can become licit only if the proximate danger of perversion becomes remote, and if there exists a grave cause of seeking and granting dispensation from this impediment.

3. Heretics and schismatics are not held by this impediment. Therefore matrimony between a validly baptized heretic or schismatic and an infidel is now valid.

a. Apostates from the true Catholic faith, likewise converted heretics or schismatics who afterward defect again from the true faith, are bound by this impediment.

b. A great difference intervenes between the ancient impediment of disparity of cult and the modern one. For hitherto disparity of cult dirimently impeded matrimony between any baptized person whatever and a non-baptized person; but now only between one baptized in the Catholic Church (to whom converted heretics or schismatics are equated) and a non-baptized person. Therefore matrimony between a validly baptized heretic and an infidel is valid, which formerly was invalid.

c. Because in this time there is often deserved doubt concerning the validity of baptism conferred by heretics, several marriages of heretics were invalid because of disparity of cult. Perhaps for this reason the Church restricted this impediment, lest many marriages of heretics be invalid.

d. Therefore marriages of heretics and schismatics contracted up to May 19, 1918, must be judged according to the former law.

¹ Cf. constitution of Benedict XIV, Singulari nobis (February 9, 1749), n. 10. At the beginning of the thirteenth century disparity of cult is already a diriment impediment of matrimony.

² No matrimony exists contracted by a non-baptized person with a person baptized in the Catholic Church or converted to the same from heresy or schism. Cn. 1070, 1.

³ What has been prescribed concerning mixed marriages (n. 540) must also be applied to marriages which the impediment of disparity of cult opposes. Cn. 1071.

⁴ S. Office, June 21, 1912.

⁵ 2 Cor. 6, 14; the same is also prohibited in 1 Cor. 7, 39.

579. In Doubt Concerning Baptism. Here there is no discussion except of the question whether doubtful baptism in a case of disparity of cult between those about to marry suffices for contracting valid matrimony. Now from several decrees and declarations of the Holy Office and from the new Code,¹ the following rule must be observed:

1. Doubtful baptism, whether there is doubt concerning its conferral or concerning the validity of the baptism conferred, in order to a matrimony both to be contracted and already contracted, is held as valid from presumption; and only if it is certain that baptism either was not conferred or was conferred invalidly is there present the simple impediment of disparity of cult.

a. A Catholic who truly doubts concerning the validity of the baptism received, whether in the case of entering matrimony or outside this case, must be rebaptized under condition: for the matter concerns a sacrament necessary for the salvation of the soul.

b. The practice of administering baptism under condition to an acatholic party who declares that he or she remains in heresy is illicit and to be reproved, if before entering matrimony a doubt arises concerning its validity. But when a doubt of this sort has arisen, investigations must first be instituted; if they have been useless, the doubt must be removed from presumption and the matrimony, whether to be contracted or already contracted, must be held as valid.

c. If doubtful baptism, which is presumed valid, was in reality null, some authors thought that the matrimony, although disparity of cult opposed it, was nevertheless valid, either because the Church had implicitly dispensed, or because it had exempted this case from the law of the impediment from the beginning. But in reality, from Cn. 1070, 2, it is invalid.

2. If doubtful baptism, which is presumed valid, is afterward discovered with certainty to be null, recourse must be had to the Holy See, which will prescribe what must be done.

In order that it may be known when the validity of baptism can duly be presumed, the Holy Office established these things:

With regard to heretics whose rituals prescribe the conferral of baptism without the necessary use of essential matter and form, the particular case must be examined.

With regard to others who according to their rituals baptize validly, the baptism must be judged valid, nor is further examination required in particular cases.

But if doubt persists, even in the first case baptism must be judged valid in order to the validity of matrimony. Hence the general principle which the Holy See holds in this matter is gathered: doubtful baptism, in order to matrimony to be contracted or already contracted, must be held as valid.

¹ S. Office, November 17, 1830; July 7, 1880; September 9, 1868; September 18, 1872; September 18, 1890. Cn. 1070, 2.

658. On licit assistance. 1. By common law, even in licit mixed marriages it is not permitted to furnish anything except passive assistance, which now consists in this, that the parish priest asks the questions concerning consent (perhaps with a brief address), but besides these is present by no positive act and by no sacred rite.¹

a. Active assistance is therefore especially forbidden so that the faithful may be admonished that the Church detests mixed marriages and never ceases to deter the faithful from contracting them.

b. Therefore a matrimony of this kind must be contracted outside the church, without sacred vestment and without any ritual ceremony. From a declaration of the Holy See, the cassock or customary prelatial garments are not considered sacred.²

2. Nevertheless, where graver evils would be feared from the denial of absolutely all active assistance, the ordinary can permit the matrimony to be celebrated in church with some of the customary ecclesiastical ceremonies, always excluding the celebration of Mass with the nuptial blessing.³

a. Licit assistance is partly passive, partly less solemn active assistance; not only the votive Mass for spouses, but also any other Mass which would be considered as a complementary matrimonial ceremony, is always excluded. Therefore it is permitted to celebrate the matrimony in church, to use a surplice and stole, and to employ some sacred rite, e.g. the blessing of the spouses such as is usually contained in diocesan rituals.

b. The evils for the prevention of which the Holy See permits some active assistance are especially these: complaints and hatreds of heretics against the faithful and the Church; the danger of civil matrimony or of matrimony before a heretical minister; the danger that the cautions will not be observed or that the Catholic spouse will defect from the faith, and like things.

3. In illicit mixed marriages, namely those in which the due cautions have not been furnished, not even passive assistance can be furnished. Nevertheless Pius VIII on 25 March 1830 and Gregory XVI on 30 April 1841 granted merely passive assistance for Prussia, Bavaria, Austria, and Hungary. This assistance consists in this, that those about to marry express consent before the parish priest, who does not ask for the consent and does not employ any liturgical rite.

a. Since the questions concerning consent are required for the validity of matrimony by the decree Ne temere and by the new Code, the Holy See declared that these same questions are not necessary for validity in illicit mixed marriages, but that merely passive assistance is tolerated according to the concession and instruction of Gregory XVI.

b. Finally, on 5 August 1916 the Holy Office declared that merely passive assistance is tolerated only for those regions to which special concessions were given before the decree Ne temere; but in other regions mixed marriages, even if contracted with merely passive assistance, are invalid. Since such concessions were given for Austria, Hungary, and Transylvania, mixed marriages contracted there with merely passive assistance are valid.

¹ Cn. 1102, 1, 2.

² S. Officium, 17 Jan. 1877.

³ Cn. 1109, 3; Cn. 1102, 2.

659. On approaching a heretical minister.¹ a. It is permitted to approach a heretical minister as a civil official, whether before or after the contracted matrimony, for a grave cause, where for example civil law prescribes this for fulfilling the civil act.

b. It is not permitted to approach a heretical minister as a sacred minister for celebrating matrimony; and those who do this sin gravely by reason of the ecclesiastical prohibition, scandal, and forbidden communication in sacred things, and furthermore they incur an excommunication reserved to the ordinary.²

c. If the parish priest certainly knows that the spouses have already approached the heretical minister or are going to approach him, let him not assist at their matrimony except from a most grave cause, scandal being removed and the ordinary first consulted.³

But if they approach the parish priest after they have already contracted before a heretical minister, as far as can be done care must be taken that the cautions be furnished and that the Catholic party, repenting of the deed, first be absolved from the committed sin and from the contracted censure.

¹ Here belongs the twofold instruction of the Holy Office, 17 Feb. 1864, to the bishops of the kingdom of Hanover, and 12 Dec. 1888, to the bishops of the oriental rites; Cn. 1063.

² Cn. 2319.

³ Cn. 1063, 2.

When a man and woman marry, they enter upon the closest possible union for mutual help and for the rearing and education of a family. Religion should be at the base of that union, and should furnish the fundamental principles for the education of their offspring. This, however, is hardly possible if husband and wife profess different religions, so that the very nature of marriage excludes difference of religion in husband and wife. If both the parties are baptized Christians, but only one is a Catholic, difference of religion is only a prohibitory impediment; if one of the parties is not baptized, and the other has been baptized in the Catholic Church or has been converted to it, it constitutes a diriment impediment. The first is commonly called a mixed marriage, and we will devote to it the following section.

Mixed marriages are forbidden by the natural, divine, and ecclesiastical law. For the parties are ministers to each other of the sacrament of Marriage; but it is unlawful for a Catholic without grave necessity to communicate in religious rites with a non-Catholic, and to receive a sacrament from him. Besides, it usually happens that in marrying a non-Catholic the Catholic party exposes himself to the danger of either losing his faith altogether, or at least of suffering its purity and brightness to be tarnished. The Church has forbidden mixed marriages from the earliest ages, and the Popes and bishops have issued innumerable instructions and warnings against them. It is without doubt a grave sin to contract a mixed marriage without a dispensation, and the Church shows her detestation of it by prohibiting any religious function at the marriage, even when a dispensation for it has been obtained (Can. 1060, 1102).

However, in countries where Catholics and non-Catholics live together, and especially if the latter greatly outnumber the former, as they do in Great Britain and in the United States, it is almost impossible to avoid mixed marriages sometimes, and the Holy See grants the necessary dispensation, Certain conditions must be fulfilled before the dispensation for a mixed marriage is granted. In the first place, there must be a grave canonical cause, or a good reason such as the Church recognizes to be sufficient for a dispensation in this matter. In order to remove as far as possible the danger connected with mixed marriages, the Church requires that the non-Catholic party shall promise to leave the Catholic the free exercise of his religion, and that both parties promise to bring up all the children in the Catholic faith. Moreover, the Catholic party must undertake to do his best to bring about the conversion of his spouse to the Catholic religion. The necessity of these promises is founded in the natural and divine law, and the common law of the Church requires that there should be moral certainty that they will be fulfilled and that as a rule they should be in writing (Can. 1061).

If one of the parties be a baptized Catholic, but one who has given up the practice of his religion without going over to any heretical sect, there is no strict impediment to his marrying a Catholic, but of course efforts should be made for his conversion, and if he remain indifferent the Bishop should be consulted (Can. 1066).

In England, when a dispensation has been obtained for a mixed marriage, some Bishops allow the priest to assist at it at the altar rails vested in surplice and stole.

The banns should not be published unless the local Ordinary judge that they may be permitted, taking the necessary precautions to avoid scandal, and omitting all mention of the difference of religion (Can. 1026).

A sermon before or after the function is not prohibited. Mass, however, should never be said nor the nuptial blessing given at a mixed marriage.

The Church does not allow the Catholic party to go through any marriage rite before a non-Catholic minister acting as such. If the non-Catholic minister acts as a civil magistrate, and Catholics are obliged to go through the marriage ceremony in his presence in order to have their marriages recognized by the State, it is permitted (Can. 1063).

According to Canon 1070, sec. 1, marriage contracted by a person not baptized with a person baptized in the Catholic Church or converted to the same from heresy or schism is null.

Sec. 2. If one party at the time of contracting marriage was commonly regarded as a baptized person,-or if his baptism was doubtful, in accordance with the rule of law that doubtful marriage is to be deemed valid until the contrary be proved, such marriages are to be held valid until it is proved for certain that one of the parties was baptized and the other was not baptized.

Such a marriage, as is clear from St Paul, has been unlawful from apostolic times, but in the first centuries of the Christian era it was not invalid, and there are several well-known instances of saints being married to pagans. Gradually, however, a marriage between a baptized Christian and a pagan came to be looked upon as invalid, unless contracted in virtue of the Church’s dispensation, and this has been the settled rule from about the beginning of the twelfth century. As the impediment is of positive law it can, of course, for grave reason be dispensed with, and then even the apostolic prohibition will cease¹ if the dangers which are common to mixed marriages and to difference of religion can be avoided.

¹ 2 Cor. vi 14.

Before the new Code came into force the impediment of difference of religion affected baptized non-Catholics as well as Catholics; By the common consent of commentators the effect of Section 1 is to restrict the impediment to those who have been baptized in the Catholic Church or converted to it from heresy or schism. Those are baptized in the Catholic Church who are baptized with the intention of incorporating them as members into the bodily communion of the Catholic Church. So that an infant who in danger of death was secretly baptized to procure its eternal salvation only, would not be baptized in the Catholic Church in the sense of this Canon.

I. Notion of the impediment. The impediment of mixed religion is understood as the impediment which exists between two baptized persons, of whom one is Catholic, while the other is enrolled in a heretical or schismatic sect (canon 1060). Marriages contracted between such persons are called mixed. It is said:

1. Between two baptized persons. If one was baptized in the Catholic Church and the other party is not baptized, there is the impediment of disparity of cult; if one party was baptized, but not in the Catholic Church, while the other is not baptized, no canonical impediment is had.

2. Of whom one party is Catholic, whether he or she was baptized in relation to the Catholic Church or was converted to it. Moreover, the person is still judged Catholic who has cast off the Catholic faith even externally, but has not been enrolled in a non-Catholic sect.

3. While the other is enrolled in a heretical or schismatic sect. It is not enough that the person be enrolled in a sect, for example, an atheistic one.

Corollary. One who has cast off the Catholic faith even externally, but has not been enrolled in a non-Catholic sect, is not held by the canonical impediment of mixed religion if he wishes to enter marriage with a Catholic; he is held by it if he wishes to contract with a party enrolled in a heretical or schismatic sect.¹

¹ Ter Haar, op. cit., pp. 1-2.

II. Existence of the impediment. Mixed marriages are most severely prohibited by ecclesiastical law, and very often they are forbidden also by divine law itself (St. Alphonsus VI, 56, 1044; Homo Apostolicus, tract 14, n. 6).

1. They are most severely prohibited by ecclesiastical law; this is clear from innumerable ecclesiastical documents,¹ and is expressly declared by canon 1060.

2. Very often they are forbidden also by divine law itself, namely because: 1° they involve communion in sacred things with heretics; 2° everywhere they create danger to the religion of the Catholic party;² 3° everywhere they are an impediment to the good education of the children.³ There is added that they favor indifferentism and obstruct the desired union of the spouses.⁴

¹ Cf. Apostolic Letter of Clement XIII, November 16, 1763 (Collectanea, n. 1421); Apostolic Letter of Pius VIII, March 25, 1830 (Collectanea, n. 1426); Apostolic Letter of Gregory XVI, April 30, 1841 (Collectanea, n. 1428); Constitution of Leo XIII Arcanum (§ 26), February 10, 1880; Encyclical of Pius XI Casti connubii, December 31, 1930 (A.A.S. 1930, p. 570), and others cited by Ter Haar, op. cit.

² Cited encyclical.

³ Cited encyclical.

⁴ Cited encyclical.

III. Cessation of the impediment. 1. The divine prohibition ceases when the proximate danger ceases which threatens, from the mixed marriage, the religion of the Catholic party and the education of the offspring, and when a cause occurs which renders honorable: 1° communion in sacred things with a heretic, which mixed marriage involves, insofar, namely, as both together confect and receive the sacrament;¹ 2° the petition of a sacrament from an unworthy person; and 3° the administration of it to an unworthy person.² The proximate danger of which we have spoken can be absent or can cease when, for example, the character of those about to marry is considered, or the particular circumstances which especially favor the religious condition of the Catholic party and the Catholic education of the offspring, or a cause for seeking such a marriage which effects that the danger is not approached rashly.

2. The ecclesiastical prohibition ceases through dispensation. But the power of dispensing of itself belongs to the Supreme Pontiff alone, not to Bishops, unless it has been specially granted to them (canon 1040).

¹ Many do not admit communion in sacred things. But Gregory XVI in his letter to the Bishops of Hungary, April 30, 1841, wrote: "It is sufficiently and more than sufficiently established what the Church has perpetually thought concerning marriages between Catholics and non-Catholics. Namely, she has always held nuptials of this kind to be entirely illicit and wholly pernicious, both on account of shameful communion in divine things, and..." etc. The reason is that the heretical party, even though he or she has furnished the cautions, is to be presumed to contract with an intention that is itself heretical.

² On the ministration of this sacrament to an unworthy person, see n. 769 sq.

IV. The requisites without which dispensation is not granted are set forth in canon 1061: the Church does not dispense from the impediment of mixed religion unless: 1° just and grave causes urge; 2° the non-Catholic spouse has furnished a caution concerning removing from the Catholic spouse the danger of perversion, and each spouse concerning all the offspring being baptized and educated only as Catholic; 3° moral certainty is had concerning the fulfillment of the cautions; 4° the cautions are regularly required in writing. Therefore three things are required absolutely, the fourth regularly. Therefore:

1. Just and grave causes must urge. Thus the cited canon and other ecclesiastical documents.² The reason is that, in order that the faithful be permitted to expose themselves to grave dangers of faith and morals, even under opportune cautions, some grave inconvenience otherwise not avoidable must be imminent.³

The cause must be proportioned to this very grave law, with attention also to the common good, which from an entered mixed marriage will easily suffer detriment from the fact that occasion is thus furnished for other mixed marriages. Indeed Benedict XIV teaches that dispensation is not to be granted except "some grave and usually public cause intervening";⁴ though this, as regards a public cause, has nowadays been mitigated. Practically one can speak thus:

a) "Causes which regard private advantages more, for example mature age, narrowness of place, insufficiency of dowry, the good of peace, betrothals contracted in good faith on account of which it would be feared that the bride would remain unmarried and defamed - according to the mind of the Holy See, these do not easily suffice of themselves";⁵ nor, one can add, does a great affection toward the other party, or a higher social condition to be obtained through mixed marriage. Nevertheless, "from our practice account is taken of those same causes, provided other circumstances of things concur, by which weight is added to them."⁶

b) Among sufficient causes these are usually numbered: 1° if a non-Catholic prince, with the cautions used, wishes to marry a Catholic woman, and great advantages for the Catholic religion would be hoped for from this; 2° if there is probable hope that some non-Catholic family, inclining to the true faith, may through the mixed marriage return to the Church; 3° if the mixed marriage is the only remedy so that children already begotten from another mixed marriage may be educated in the Catholic religion; 4° if great scandals arising from the defamation of a girl already made pregnant by a heretic or in some other way cannot be avoided except through a mixed marriage; 5° if in some region Catholics are few, and at the same time safe and free to profess the faith, while the heterodox are very many; 6° if the heretical party is prepared to promise in writing or before witnesses, with the promise confirmed by oath, that after the nuptials have been entered he or she will embrace the Catholic faith; likewise if the heretical party is already accustomed to go to a teacher, male or female, who teaches him or her the Catholic faith, and seems to do this with a sincere desire of knowing the truth; 7° if the mixed marriage will put an end to the base concubinage of those wishing to marry; 8° if through the mixed marriage it can be obtained that offspring, whether already born or to be born from the fornication of the parties, be baptized and educated as Catholic; 9° if there is a prudent fear that the Catholic party may go over to the heretics, or contract a merely civil marriage or a marriage before a non-Catholic minister.⁷ Nevertheless, in the last case moral certainty concerning the fulfillment of the cautions will not easily be had.

c) That one of the cited causes is present does not prevent the Ordinary from being able, or even being bound, to deny the dispensation if, from its concession, the common good will suffer detriment.⁸ Nevertheless, the practice of never dispensing, whatever cause may be present, seems to be opposed to the mind of the Church.

Corollary I. A dispensation given by an Ordinary without grave cause is invalid according to canon 84, § 1: "From an ecclesiastical law one is not to dispense without a just and reasonable cause, with consideration had of the gravity of the law from which dispensation is made; otherwise a dispensation given by an inferior is illicit and invalid."

Corollary II. One who without grave cause wishes to enter a mixed marriage, even though he says that he does not wish to contract otherwise than with dispensation, at least objectively sins gravely. For "the Church does not dispense from the impediment of mixed religion unless just and grave causes urge" (canon 1061, § 1, 1°). Hence the one of whom we speak wills a thing prohibited by the Church under grave obligation. There is added that in the case the grave danger which everywhere threatens the Catholic party and the offspring from a mixed marriage will scarcely cease, and therefore the divine prohibition also persists. The same must be said of one who wishes to enter a mixed marriage while the only grave cause on which the Church relies is the fear of a marriage being contracted without dispensation. The reason is that he illegitimately morally compels the Church to dispense in a matter so grave. Add that, especially in this hypothesis, proximate danger of spiritual harm both for the Catholic party and for the offspring will scarcely be lacking.

2. The prescribed cautions must be furnished. But the cautions to be furnished are: 1° that the non-Catholic party emit a promise of removing from the Catholic spouse the danger of perversion; 2° that each spouse promise that all the offspring will be baptized and educated only as Catholic. But the cautions are regularly to be required in writing. It is said:

a) The prescribed cautions must be furnished, and indeed in such a way that they are never omitted,⁹ not even in the article of death (canon 1043).¹⁰

b) Each spouse must promise that all the offspring will be baptized and educated only as Catholic; this you should understand both of offspring to be born and of offspring previously born from these same persons. If the offspring already born was begotten either from a preceding marriage or from illegitimate intercourse with a third person, let action be taken according to the rescript of the Sacred Congregation of Propaganda Fide¹¹ to the Bishop of Haarlem: "Although care is to be taken according to one's powers that the children, if there are any born from a preceding marriage of the non-Catholic party, be instructed in the Catholic religion, nevertheless this is not to be absolutely required for granting the dispensation, unless the same children were born from another mixed marriage and the parent did not observe the prior conditions."

c) The cautions are regularly to be required in writing, as canon 1061, § 2 has it. Always "the presentation of the cautions should be notorious, or at least such that it can be notorious, in order to remove every scandal."¹²

The Holy Office,¹³ to the question: "Whether the assertion of the Catholic party, given under oath, that the non-Catholic party had pledged faith to him or her concerning the conditions to be fulfilled, suffices" - responded: "Of itself and generally, in the negative, and according to the mind. The mind is: that if in some extraordinary case such circumstances concur that the Bishop can obtain moral certainty for himself both concerning the sincerity of cautions of this kind for the present and concerning their fulfillment for the future, and wholly special reasons are present which prevent the cautions from being furnished in the customary way, it is left to his conscience and prudence. Otherwise, notwithstanding the royal decree, the opportune cautions are to be furnished in writing, just as has been done up to now; nor is dispensation to be given unless the Bishop is morally certain that they will be fulfilled." Besides this, observe:

alpha) In those regions in which the cautions have force also in the civil forum, provided they are furnished in civil form, dispensation is not to be granted unless the cautions have been furnished in that form; otherwise a dispensation granted by those who dispense by indult is invalid.¹⁴

beta) The cautions are to be required before dispensation is sought.

gamma) A dispensation granted by an Ordinary without cautions is invalid. For canon 1061 declares: "The Church does not dispense unless..." etc.; once this is posited, it cannot be admitted that she has granted to an inferior the faculty of dispensing without cautions. Then the Holy Office¹⁵ declares invalid a dispensation in disparity of cult granted without cautions; this you will rightly apply to a dispensation in mixed religion, all the more because canon 1071, as regards the requisites for dispensation in disparity of cult, refers to canon 1061, which speaks of the requisites for dispensing in mixed religion. There is added the decree of the Holy Office¹⁶ just cited.

3. Moral certainty must be had concerning the fulfillment of the cautions. Thus the cited canon and other ecclesiastical documents.¹⁷ But the required moral certainty is understood as broad moral certainty, or the state of one opining, so that doubt strictly so called does not suffice. The Church requires the certainty set forth because she does not remove her prohibition unless she judges that the divine prohibition has ceased. But she cannot so judge unless she is morally certain concerning the fulfillment of the cautions. Besides this, note:

a) The required certainty is obtained by considering, along with the promise, either the special character of those promising, or the circumstances which favor the fulfillment of the cautions, or both. But since the question concerns both a promise which, as one regarding almost the whole of life, will be fulfilled with great difficulty, and since, as sad experience teaches, a very great part of those promising do not stand by their promises, the promise taken nakedly, that is, abstraction being made from the character of those about to marry and from the circumstances, whether of the persons in question or of places, etc., cannot found moral certainty.

b) It can be disputed whether a dispensation granted by an Ordinary who is not morally certain concerning the fulfillment of the cautions is valid. For on the one hand, it is admitted with difficulty that the validity of a dispensation depends upon the state of mind of the one dispensing. On the other hand, to the grant of the faculty of dispensing to Ordinaries is added the clause: "provided that first, regularly, according to the prescription of the Code of Canon Law, canon 1061, § 2, provision has been wholly made for the conditions required by the Church, and the Right Reverend Ordinary himself is morally certain that they will be fulfilled." But the word "provided that" denotes that validity is regarded. Moreover, the fact that the dispensation would be invalid would not prevent the marriage from being contracted validly.

c) A pastor who himself is not morally certain concerning the fulfillment of the cautions cannot simply recommend the dispensation; but if he proceeds further, he is bound to propose his doubt to the Ordinary.

¹ Ter Haar, De matrimoniis mixtis eorumque remediis.

² Pius VII in letters to the Archbishop of Mainz, October 8, 1803; Pius VIII in letters to the Bishops of Rhenania and Westphalia, March 25, 1830; Sacred Congregation of Propaganda Fide, March 11, 1868 (Collectanea, n. 1324).

³ Cf. Instruction of the Secretariat of State, March 27, 1830 (Collectanea, n. 811, note).

⁴ De Synodo Dioecesana, book 9, chapter 3, n. 5.

⁵ Bangen, Praelectiones iuris matrimonialis I, 217.

⁶ Bangen, Praelectiones iuris matrimonialis I, loc. cit.

⁷ Vlaming, Praelectiones iuris matrimonialis, I, n. 217.

⁸ Cf. Instruction of the Secretariat of State, March 27, 1830 (Collectanea, n. 811, note).

⁹ Secretariat of State, November 15, 1858 (Collectanea, n. 1169).

¹⁰ Holy Office, March 18, 1891 (Collectanea, n. 1750; cf. June 21, 1912).

¹¹ March 20, 1899.

¹² Holy Office, July 29, 1880.

¹³ December 10, 1902 (Collectanea, n. 2155).

¹⁴ Holy Office, January 20, 1932 (A.A.S. 1932, p. 25). Regions of this kind are Bavaria and Hungary (Wernz-Vidal, op. cit., n. 170, note 33).

¹⁵ June 21, 1912.

¹⁶ January 20, 1932 (A.A.S. 1932, p. 25).

¹⁷ Holy Office, February 17, 1875; June 6, 1879 (Collectanea, n. 1433); July 29, 1880; December 10, 1902.

V. Obligations of the parties. 1. The Catholic spouse is held by the obligation of prudently taking care of the conversion of the non-Catholic spouse (canon 1062), for instance by prayer and by the example of a truly religious life.

2. Even if dispensation has been obtained from the Church concerning the impediment of mixed religion, the spouses cannot, either before or after the marriage entered before the Church, also approach, whether personally or through a proxy, a non-Catholic minister as one assigned to sacred things, in order to give or renew matrimonial consent (canon 1063, § 1). Otherwise they commit not only the grave sin of sacrilege, namely on account of communion in sacred things with heretics, but the Catholic party also falls into excommunication reserved to the Ordinary.¹ Nevertheless, it is not disapproved that, when civil law commands it, the spouses present themselves also before a non-Catholic minister functioning only in the office of a civil official, and this only for completing the civil act, for the sake of civil effects (canon 1063, § 3).

Note. One who has been absolved in the internal forum from the excommunication of which we have spoken can use himself as such also in acts of the external forum; but unless the grant of absolution is proved, or at least legitimately presumed, in the external forum, the censure can be urged by the Superiors of the external forum, whom the guilty person must obey, until absolution has been had in the same forum (canon 2251). Therefore, if the delict has remained occult, absolution in the forum of conscience is certainly safe.

¹ It is not beside the point to add here the whole of canon 2319: "Catholics are subject to excommunication latae sententiae reserved to the Ordinary: 1° those who enter marriage before a non-Catholic minister against the prescription of canon 1063; 2° those who are united in marriage with an explicit or implicit pact that all or some offspring be educated outside the Catholic Church; 3° those who knowingly presume to offer their children to be baptized by non-Catholic ministers; 4° parents, or those holding the place of parents, who knowingly hand over their children to be educated or instructed in a non-Catholic religion. Those of whom § 1, nn. 2-4 speaks are besides suspected of heresy."

VI. Obligation of pastors of souls to forestall mixed marriages.

1. "Ordinaries and other pastors of souls should deter the faithful from mixed nuptials as much as they can" (canon 1064, 1°). But the means of deterring the faithful are:

a) Opportune instructions, both public and private: public, for example, instructions established on a determined Sunday or Sundays at each fixed Mass; admonitions added in the explanation of the Catechism, likewise in meetings of sodalities; sermons on mixed marriages in Missions and other spiritual exercises; private, for example, in the sacrament of Penance, in the visitation of the parish; finally, if they know that someone is thinking of contracting nuptials of this kind, by warning him and diligently exhorting him not to carry it out.¹

b) To turn Catholics away from too much familiarity with heretics; "otherwise it will more easily happen that heterodox friends, visiting Catholic friends at home, first touch even their sisters with some relationship, then pursue them with love, and finally desire to marry them. A similar thing must be said concerning heterodox female friends of daughters of families."²

c) The erection of purely Catholic social associations.

d) A series of instructions on the Catholic religion given to the non-Catholic bridegroom; this practice was begun in the United States of North America and is continued with great success.³

2. "If they are unable to prevent them," that is, mixed nuptials, "they should take care with every effort that they are not contracted against the laws of God and the Church" (canon 1064, 2°). Indeed, if the circumstances of the diocese or parish are such that, by denying dispensation or concurrence for obtaining it, mixed marriages can for the most part be prevented, this means also should be used, all the more because in such a case, with attention to the common good - which must be attended to, as natural law dictates - a sufficiently just and grave cause for dispensing is lacking.

Thus also Cardinals Gasparri and van Rossum;³ namely, according to the aforesaid men, the sense of canon 1064, 2° is this: if pastors of souls are unable to prevent mixed nuptials either by particular means or by a severe practice, let them take care with every effort that they are not contracted against the laws of God and the Church. "At least it must be said," Ter Haar adds,⁴ "that a stricter practice from epikeia and according to the mind of the legislator does not stand in the way of this canon. For the Church wills that superiors use the faculty of dispensing only prudently and for the common good."

¹ Provincial Council of Utrecht, p. 127.

² Vlaming, Praelectiones iuris matrimonialis I, 230.

³ Cf. the booklet Efficax antidotum ad matrimonia mixta praecavenda, by M. V. Kelly and J. B. Geniesse; but especially Ter Haar, op. cit., nn. 91-117. The Vicar General of the Bishop of 's-Hertogenbosch asked His Eminence Cardinal van Rossum: "Whether the practice hitherto observed in our diocese should be abandoned, namely of never seeking dispensation in the impediment of mixed religion except in quite extraordinary cases?" To these things His Eminence responded: "That practice hitherto observed, by which mixed marriages are so strongly and with such happy success restrained, can also in the future be observed in Holland with a safe conscience. To abandon it would be the same as promoting those unhappy marriages. This is foreign to the sense of the said canon. In order to procure greater certainty for Your Reverence in this very grave point, I myself approached the President of the Commission appointed to interpret the Code, with whom I communicated your letter on this matter. His Eminence Cardinal Gasparri fully agreed with me, using this brief argument: Does that practice prevent mixed marriages? (I answered: Without doubt.) If it is so, the matter fits perfectly with the prescription of canon 1064, 2°: If they are unable to prevent them" (Ned. Kath. Stemmen, 1919, p. 13).

⁴ Op. cit., n. 139.

VII. Obligation of the confessor. A confessor who knows that a penitent is seeking a mixed marriage should, everywhere and with every effort, dissuade that marriage. If the penitent refuses to comply with the counsel, one must proceed thus:

1. If some cause exists on the part of the penitent, and it is such as is acknowledged by the local Ordinary, the penitent, the things to be posited having been posited, is to be absolved and referred to the pastor. The same must be said if the confessor does not know whether the cause alleged by the penitent is acknowledged by the Ordinary or not.

2. If the cause which exists on the part of the penitent is not acknowledged by the local Ordinary, a distinction must be made:

a) If, once dispensation is denied, there is no fear of a civil marriage, the penitent is to be warned; and if he does not desist from the marriage, he is not to be absolved.

b) If, once dispensation is denied, there is fear of a civil marriage, one must speak thus:

alpha) If that cause is acknowledged by the Ordinary, the penitent is indeed of himself to be warned concerning the grave sin which he is about to commit (p. 605); but if no hope of fruit is hoped for, he should be left in good faith, the things to be posited having been posited, absolved, and referred to the pastor.

beta) If that cause is not acknowledged by the Ordinary, on account of the common good, the penitent is to be warned; and if he is willing to renounce the mixed marriage, the things to be posited having been posited, he is to be absolved. If he refuses, absolution cannot be granted.

We have repeatedly spoken of a cause acknowledged by the local Ordinary; for it belongs to him to judge what norm of acting, as regards causes, should seem to be followed in his diocese.

We have likewise repeatedly said that the penitent, the things to be posited having been posited, is of itself to be absolved and referred to the pastor. By these words we intend that absolution is not to be denied; for we freely admit that often absolution is better deferred until the penitent has arranged the matter with the pastor.

VIII. Assistance to be given at a mixed marriage. 1. If the pastor knows certainly that the parties have already contracted before a heretical minister as such, or as one assigned to sacred things, or that they are about to contract in that way, he should not assist at their marriage except for most grave causes, scandal having been removed, and the Ordinary having first been consulted (canon 1063, § 2). But if those about to marry neither manifest a depraved intention, nor are otherwise certainly foreseen to be about to contract before a heretical minister as such, nor question the pastor, he, if there is no hope of fruit, can be silent.¹

2. Announcements must be omitted unless the local Ordinary, in his prudence and with scandal removed, has judged it opportune to permit them, provided Apostolic dispensation has preceded and mention of the religion of the non-Catholic party is omitted (canon 1026; p. 605).

¹ Instruction of the Holy Office, February 17, 1864 (Collectanea, n. 1247); December 12, 1888 (Collectanea, n. 1696).

IX. Obligations to be fulfilled after a mixed marriage has been contracted. "When mixed nuptials have been celebrated, whether in their own territory or in another, they should diligently watch that the spouses faithfully fulfill the promises made" (canon 1064, 3°). But if the Catholic party should perhaps object that he or she is prevented by a pact from taking care that all the offspring be baptized and educated as Catholic, let that person be taught that a pact of this kind is invalid. Besides this, these things are to be observed:

1. If the mixed marriage was contracted illicitly but validly - which could especially have had place before the decree Ne temere concerning the form of marriage:

a) The Catholic party is not to be admitted to the sacraments unless first he or she is sorry for the sin committed, and has been absolved from penalties perhaps contracted; there will be discussion of penalties later.

The Holy Office says thus: "As regards valid marriages, they can be admitted to receiving the sacraments without prior renewal of consent, but are to be kept from receiving them until they have given true signs of repentance, and have promised that they will take care with all their strength both of the conversion of the heretical party and of the education in the Catholic religion of all offspring born and perhaps to be born, and finally until they have obtained absolution from incurred censures together with salutary penances, in the case in which they contracted before a heretical minister."¹

b) The pastor should take care that at least the Catholic party furnish the cautions in the external forum, and that these be sent to the Bishop.²

c) The Catholic father should use the paternal power which civil law grants to him over minor sons and daughters.³

d) The Catholic mother should likewise use paternal power if, with the circumstances considered, for instance because the father has been deprived of the said power, that power belongs to her.³

e) The Catholic spouse should use: 1° the right which perhaps a special agreement entered into gives to him or her; 2° the right, perhaps granted by law³ or agreement, of appointing a Catholic person who, after the spouse's death, will carry out the guardianship of the children.

2. If the marriage was contracted invalidly - for example, because the juridic form was not observed - then, the things to be posited having been posited, it must be convalidated; but there will be discussion of convalidation later.

Corollary. The Catholic party who does not do what is necessary and morally possible so that all the offspring be educated as Catholic is unworthy of absolution, both because he or she gravely fails in duty and because he or she gives grave scandal.

¹ August 23, 1877 (Collectanea, n. 1478).

² Holy Office, March 12, 1881.

³ Thus, for example, Dutch law.

I. Notion. By disparity of cult is understood the diversity of religion which exists between a party baptized in the Catholic Church, or converted to it from heresy or schism, and a non-baptized party. It does not matter whether the non-baptized party is pagan, Jewish, Mohammedan, or even a catechumen (cf. canon 1070, § 1). What is understood by the words "baptized in the Catholic Church," see n. 741.

II. Existence of the impediment. 1. By divine law, marriages between a baptized and a non-baptized party are prohibited for the same reasons as mixed marriages (n. 762; St. Thomas, Supplement, q. 59, a. 1).

2. By ecclesiastical law, a marriage contracted by a non-baptized person with a person baptized in the Catholic Church or converted to it from heresy or schism is null (canon 1070, § 1). Therefore, from the new Code in force, that is, from the day May 19, 1918, the impediment does not exist between a party who has been baptized, but not in the Catholic Church and not converted to it from heresy or schism, and a non-baptized party;¹ and this holds even if the non-baptized party is Catholic, or rather is regarded as Catholic.

Corollary I. Those baptized in the Catholic Church are subject to the impediment even if they were born of non-Catholics and educated non-Catholically. For the Code indeed exempts such persons from the juridic form of marriage (n. 742), but from this it does not follow that they are also exempt from the impediment of disparity of cult. There is added a response of the Holy Office - published in the letters of the Sacred Congregation of Propaganda Fide dated April 1, 1922² - which favors the opinion defended.

Corollary II. The divine natural prohibition extends itself further than the ecclesiastical diriment impediment; the former regards all baptized persons, the latter only those baptized in the Catholic Church or converted to it from heresy or schism. I said "divine-natural prohibition," since it is disputed whether divine positive law prohibits marriages of the faithful with infidels (cf. St. Thomas, Supplement, q. 59, a. 1, ad 1).

Corollary III. The diriment impediment of disparity of cult is in force everywhere, even in regions recently converted to the Catholic faith.³

III. Cessation of the impediment. The divine prohibition ceases almost as was said concerning mixed religion (n. 763). The ecclesiastical diriment impediment ceases through dispensation. But the power of dispensing outside mission places is rarely granted to Bishops.

IV. The requisites in order that a dispensation be granted are the same as those which are required for dispensation in mixed religion (canon 1071; n. 764). When marriage is to be contracted with a Hebrew party, the Holy Office adds to the dispensation the clause: "And provided that neither before nor after the marriage entered before the Catholic pastor do the parties go to a rabbi to celebrate marriage by the Jewish rite."

Note 1. The Holy Office, June 21, 1912, declared: 1° that dispensation upon the impediment of disparity of cult is never granted unless all the conditions "or cautions" have been expressed; 2° that a dispensation upon the impediment of disparity of cult imparted by one having power from the Holy See, without the prescribed cautions having been required, or with them repudiated, is invalid; 3° that the nullity of the marriage can be declared by the Ordinary himself when it is evident that the dispensation was thus invalidly granted.

Note 2. The Church, in dispensing upon the impediment of disparity of cult, is no longer understood, as before,⁴ to dispense from the impediments from which the non-Catholic party is exempt;⁵ indeed, it seems that already from the new Code these things held.⁶

Note 3. With regard to the declaration of nullity of marriage because of disparity of cult, what was said concerning the impediment of ligamen holds (p. 619; canon 1990).⁷

V. Obligations of those about to marry, etc. With regard to the obligations of those about to marry, of pastors of souls in forestalling marriages of this sort, of the confessor with respect to a penitent seeking such a marriage, likewise with regard to assistance to be given to marriages of this sort, and with regard to the obligation respecting a marriage contracted, the same things are to be observed as if there is question of a mixed marriage (canon 1071; n. 765 and following).

¹ From this it is also clear how this rather frequent case is to be resolved: Caius and Titia, non-Catholic spouses, are separated from each other by civil divorce. Titia, so that she may marry Sempronius, a Catholic, again, herself also desires to be joined to the Catholic Church. To set aside the impediment of bond by which she still seems bound to Caius, she proves in the forum of the Church that she certainly was not baptized in her sect, or certainly was baptized invalidly, while Caius was baptized. In such a case can the ecclesiastical judge decide that the prior marriage was invalid because of disparity of cult between Caius and Titia? I respond: if their marriage was celebrated before the day May 19, 1918, affirmatively; but if afterward, negatively (Vlaming, op. cit., I, n. 289).

² Cf. Archiv fur katholisches Kirchenrecht, 1927, p. 180.

³ Constitution of Benedict XIV, Singulari nobis, February 9, 1749.

⁴ Holy Office, September 16, 1824 (Collectanea, n. 1235).

⁵ Sacred Congregation of Propaganda Fide, May 20, 1931 (in Periodica de re morali, etc., 1932, p. 16).

⁶ Cf. the cited response of the Sacred Congregation of Propaganda Fide.

⁷ Cf. Pontifical Commission, October 16, 1919, ad 17 (A.A.S. 1919, p. 476 sq.).

VI. Cases of doubtful baptism. There is question either of a marriage to be contracted, or not yet contracted, or of a marriage already contracted.

1. When marriage has not yet been contracted, one must proceed in this way:

a) If there is question of a marriage to be contracted by a Catholic doubtfully validly baptized with a non-baptized person, the Catholic, with the things to be observed being observed, should be rebaptized under condition, and a dispensation in the impediment of disparity of cult should be requested. If because of the circumstances one cannot proceed to the repetition, under condition, of baptism, there is had a doubtful impediment by a doubt of fact, in which the Ordinary can dispense (canon 15).

b) If there is question of a marriage to be contracted by a Catholic with a non-Catholic person doubtfully baptized or doubtfully validly baptized, one must act thus:

If the non-Catholic wishes to be converted, with the things to be observed being observed, let him be rebaptized under condition; once this has been done, the impediment no longer subsists.

If the non-Catholic does not wish to be converted, it is not lawful to rebaptize him under condition,¹ and so to remove the impediment which perhaps exists. What therefore must be done? In the case there are present two impediments doubtful by a doubt of fact - namely of mixed religion and of disparity of cult - in which the Ordinary can dispense (canon 15). But, with approved practice considered, it is not lawful to put an end to the case in this way. In circumstances of this sort the truth must first be inquired into, so that it may be known whether there is need of a dispensation from mixed religion or from disparity of cult. If the doubt is not sufficiently solved, let a dispensation from mixed religion and, for caution, from disparity of cult be requested; indeed, it suffices to request a dispensation from mixed religion, because the Holy See joins to a dispensation from that impediment a dispensation for caution from the impediment of disparity of cult.

In inquiring into the truth, first let it be seen whether the matter can be proved directly, namely by documents or by witnesses.² If direct arguments are lacking or do not make full faith, recourse should be had to indirect proof taken from presumptions; in carrying out this business, the norms which follow hold:

a) In doubt concerning the fact of baptism, from a response of the Holy Office:³

1° Baptism should not be presumed if the non-Catholic party had parents belonging to a sect which rejects Baptism, or in which Baptism is conferred only on adults; likewise if he had parents who professed that they wished to belong to no sect, and that they honored the Supreme Being rather by upright morals, as they say, than by any special cult.

2° Baptism should be presumed if the parents belonged to a sect which holds Baptism necessary, or in which at least ordinarily it is conferred on children, and the same parents were zealous in their sect; likewise, if only one of the parents, who had the chief role in education, was zealous in his sect, which holds Baptism as necessary, provided that the other spouse is not then known to have been positively opposed to the conferral of Baptism.

3° But if each parent was negligent in the sect, or belonged to a sect which indeed retains Baptism but does not hold it as necessary; likewise if, after inquiry has been made, it is unknown or not sufficiently established whether that one parent had the chief role in education who, in his sect holding Baptism necessary, was zealous, in these cases recourse must be had to the Holy See.

b) In doubt concerning the validity of baptism, from a response of the Holy Office:⁴

1° With regard to heretics whose Rituals prescribe the conferral of Baptism without the necessary use of essential matter and form, the particular case must be examined.

2° With regard to others, who baptize validly according to their Rituals, Baptism must be judged valid. But if the doubt persists even in the first case, Baptism must be judged valid in order to the validity of marriage.

3° But if it is certainly known that there is no Baptism according to the actual custom of that sect, the marriage is null.

2. When marriage has been contracted, because of the favor of law one must stand for the value of the marriage until it is certainly proved that one party was baptized and the other was not baptized (canon 1070, § 2, compared also with canon 1014); understand: that one party was baptized in the Catholic Church, or was converted to it from heresy or schism. Hence a marriage is to be presumed valid:

a) Between a party certainly baptized Catholicly and a party doubtfully baptized.

b) Between two parties doubtfully baptized Catholicly.

c) Between a party doubtfully baptized Catholicly and a party certainly not baptized.

Objection. If one party was doubtfully baptized Catholicly, and the other certainly was not baptized, one cannot stand for the value of the marriage. For doubtful baptism in order to marriage is presumed valid.⁵

Response. The assertion concerning doubtful baptism, insofar as there is question of a contracted marriage, seems unable to be reconciled with the clear text of canon 1070, § 2 and canon 1014, and therefore no longer holds.

¹ Holy Office, April 3, 1878.

² To prove that baptism was conferred, if prejudice is done to no one, one witness above every exception is sufficient, or the oath of the baptized person himself, if he received baptism at adult age (canon 779).

³ August 1, 1883 (Collectanea, n. 662).

⁴ November 17, 1830 (Collectanea, n. 649).

⁵ Holy Office, September 9, 1868; July 7, 1880; August 1, 1883, etc.

§ 3. Non-Catholics, whether baptized or not baptized, if they contract among themselves, are nowhere bound to observe the Catholic form of betrothal or marriage."

51. "All those baptized in the Catholic Church, and converts, although they later defected." The law, therefore, is universal for every place, with consequently any other contrary law or custom, whether general or particular, abolished.

52. "All those baptized in the Catholic Church." The Decree is not extended to Catholics of the Eastern rite. Sacred Congregation of the Council, February 1, 1908. Therefore marriages of Catholics among themselves are valid, or their mixed marriages, if namely they contract with a schismatic or heretic, even when the form of the Decree is not observed. Nevertheless a marriage contracted by a Catholic of the Latin rite with a Catholic of the Eastern rite is not valid if the form established by the Decree Ne temere is not observed. Sacred Congregation of the Council, March 28, 1908. Cf. moreover the things which were said above concerning the Ruthenians, n. 30, paragraphs 2 and 3. Whether those also are bound by the aforesaid Decree who, born of non-Catholic parents, were baptized as Catholics and from earliest age grew up heretically, infideliter, or according to the rite of atheists, has not yet been defined, and recourse must be had in individual cases. Holy Office, March 31, 1911.

53. "Later defected": after baptism in the Catholic Church, or after conversion to it. Even in the German Empire, Catholics who have gone over to a heretical or schismatic sect, or converts to the Catholic faith who afterwards defected from it, even in youth or infancy, in order to contract validly with a Catholic person, must employ the form established in the Decree Ne temere, namely in such a way that they must contract before the pastor and at least two witnesses. Sacred Congregation of the Council, February 1, 1908. And the reason is that the Decree Provida, which alone is excepted, regards only marriages of heretics among themselves and with Catholics. Cf. n. 55.

54. "For the same Catholics, if with baptized non-Catholics," and accordingly all marriages of mixed religion, saving the exception indicated, are subject to this law. "Mixed religion." Those things remain unchanged which have been established for such nuptials, to be celebrated without the Catholic rite and outside the church. Cf. what was said above, n. 18, paragraph "By a Decree." "If with non-Catholics." Under the name of non-Catholics are also comprehended schismatics and heretics of the Eastern rites. Sacred Congregation of the Council, March 28, 1908.

55. "Unless for some particular place or region the Holy See has otherwise established." Only the Constitution Provida of Pius X, January 18, 1906, for the German Empire is comprehended. Nor are the other Indults and Declarations regarding the impediment of clandestinity by any means comprehended. Sacred Congregation of the Sacraments, February 1, 1908. But the aforesaid Constitution Provida was extended, as regards mixed marriages, to the Kingdom of Hungary. Sacred Congregation of the Sacraments, February 9, 1909.

56. After the extension of the Constitution Provida to the Kingdom of Hungary, between Germany and Hungary, as regards the validity of clandestine mixed marriages, a reciprocal relation is not had, such that two spouses both born in the Kingdom of Hungary do not validly contract, even clandestinely, in Germany, and, vice versa, two spouses both born in Germany do not validly enter a mixed clandestine marriage in the Kingdom of Hungary. Sacred Congregation of the Sacraments, June 18, 1909. Nor likewise does one born in Germany with one born in the Kingdom of Hungary validly enter a mixed marriage either in Germany or in the Kingdom of Hungary. But, in any case, both spouses must have been born in Germany, or respectively in the Kingdom of Hungary. Sacred Congregation of the Sacraments, June 18, 1909.

57. Heretics and schismatics, all of them, on the other hand, are not bound by the present Decree. They can validly contract betrothal and marriage in any place whatever.

58. "Let the present Decree be held as lawfully published and promulgated by its transmission to the local Ordinaries; and let the things disposed in it begin everywhere to have the force of law from the day of the solemn Pasch of the Resurrection of Our Lord Jesus Christ in the next year, 1908.

Meanwhile let all local Ordinaries take care that this Decree be published among the people as soon as possible, and explained in the individual parochial churches of their dioceses, so that it may be duly known by all.

These presents to have force by special mandate of our Most Holy Lord Pius, Pope X, anything whatsoever to the contrary, even things worthy of particular mention, notwithstanding."

59. "Everywhere to have the force of law." The Decree, therefore, has the force of a universal law in the whole Church. It is considered published and promulgated by its very transmission to the local Ordinaries. It abolishes any contrary law and custom whatsoever, even particular, anything whatsoever worthy of particular mention notwithstanding. Finally, its obligation begins from the day of the solemn Pasch of the Resurrection of the present year 1908, that is from April 19, from the beginning of that day, which is from midnight after the preceding day. Hence Ordinaries are warned to take care that this Decree be published among the people as soon as possible, and moreover be explained in the individual parochial churches of their dioceses; for this is altogether necessary so that the aforesaid Decree may be duly known and observed by all.

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.

“The Bishop of Bardstown explains that many Protestants, without any intention of embracing the Catholic religion, often solicit permission to give consent to contracting Matrimony either before one of his priests or before the bishop himself. It should be noted that in such circumstances the bishop and priests would act not as priests but as civil magistrates, which is permitted by the laws of the commonwealth. He now asks whether it is lawful for himself and his missionaries to preside over such Marriages.

“Response. If the question concerns a Marriage between two heretical parties, although intervention of this kind is not so reprobated that it can never be lawful, nevertheless it is commonly to be discouraged. But if one party is Catholic, after a dispensation has been obtained from the impediment of mixed religion and the usual clauses and conditions have been observed, it is lawful.” Holy Office, 20 December 1837.

“With what rite shall a priest assist at Marriages in which one party is non-Catholic? Is it lawful to pronounce the form, say the prayers, and bless the ring of the heretical bride?—Response. Negative.” Holy Office, 1 August 1821.

“Are those dwelling in those Protestant places where Baptism is doubtful to be regarded as unbelievers, so that the invalidating impediment of disparity of worship is judged to exist between Catholics and them?—Response. 1. With regard to heretics whose sects’ Rituals prescribe the conferral of Baptism without the necessary use of the essential matter and form, the particular case must be examined.—2. With regard to others who baptize validly according to their Ritual, the Baptism is to be judged valid. But if doubt persists even in the first case, the Baptism is to be judged valid in relation to the validity of Matrimony.—3. But if it is known with certainty that there is no Baptism according to the present custom of that sect, the Marriage is null.” Holy Office, 17 November 1830.

“His Holiness Gregory XVI, in an audience held on 20 December 1831, ... ordered that the following be added concerning the third case of the aforesaid Decree of 17 November 1830, which regards the certain nullity of the Baptism of the heretical party: recourse is to be had in individual cases.” Cf. Francis Sentis, Decrees of Clement VIII, Freiburg im Breisgau, 1870, p. 135; A. S. S., vol. 25, pp. 258, 260.

“The Marriage of those concerning whom it is certainly established that they were not validly baptized is to be regarded as the Marriage of two unbelievers. But the Marriage of those of whom only one party is known to have been validly baptized, while the other was baptized invalidly, is to be regarded as a Marriage affected by the invalidating impediment of disparity of worship, and therefore as null. Finally, if, after a diligent and accurate examination, the doubt concerning the valid reception of Baptism cannot be removed, and it is established as a fact that Baptism was received, Baptism of this kind is to be judged valid in relation to the validity of Matrimony, according to the Decree of 17 November 1830. But if it is known with certainty that there is no Baptism according to the present custom of that sect, the Marriage is null.” Holy Office, 3 April 1878; A. S. S., vol. 24, p. 574 ff.; C. 649.

“...We judge that great ruin will be brought upon the Catholic Church by unions of this kind. For if the mother, with whom the first education of the offspring rests, is alien to our sacred rites, what is not to be feared concerning the religion of the children? For she, solicitously considering their eternal salvation according to her maternal love, will omit no occasion by which she may imbue them with the doctrine of her sect, which she regards as alone true. And if, as will very frequently happen, she mocks her husband as though he were pursuing empty things when he fasts and abstains from meat on vigils, or washes away the stains of his soul in the Sacrament of Penance, or approaches the sacred table of the Eucharist, it must certainly also happen little by little that contempt for the most sacred things will glide into the minds of the children. But the things which they seize upon from a tender age are most difficult to uproot from their minds.

“And conversely, if the mother indeed practices the Catholic religion but the father is attached to some heretical sect and playfully mocks, in the sight of the children, the words and deeds of his wife which pertain to religion, will not the childish mind of the children, for whom the authority of the father has very great weight, begin to doubt somewhat concerning the truth of the religion which the mother follows? What if a serious dispute about religion arises between husband and wife? Will not the children, whose mind is driven this way and that by the alternating arguments in their parents’ dispute, gradually fall into religious indifferentism, than which nothing is more deadly, nothing more hostile to religion, since it utterly destroys every religion, whether true or false? It is also evident that by these unions a wider field is opened to the Lutheran heresy in which it can spread itself more broadly. For girls imbued with Lutheran error, who now are permitted to establish a domicile with their husbands only in certain places, if they marry Catholic men, must follow them wherever it pleases them to dwell. Moreover, the newly married woman will admit more persons of her sect into the husband’s household; nor can the ministers of the false sect, who visit her for the sake of greeting her, be prohibited from his house. They surely will not fail in their ministry, by which they confirm their sheep in error and suggest to the mother the art by which the seeds of good doctrine may wither in the minds of the children from the very time when they begin to spring forth.

“Therefore, the effort hitherto employed by Catholics to eliminate from these regions which they hold the errors condemned by the Church will have been in vain, since it will thereafter be lawful with impunity to profess the same poisonous doctrine in the midst of those same Catholics. To this is added that if either spouse who is Catholic dies, leaving children in their earliest age, the other, heretical spouse will be free to infect those children with the poisonous opinions of that spouse’s sect. You see, therefore, Our beloved son, what the Catholic religion can promise itself concerning the offspring born of these unions, and whether it is not greatly to be feared that through the unions by which they intend to propagate the Catholic faith, heresy may be propagated more widely; and, what is worst of all, that religious indifferentism, by which an entrance is very often opened to impiety, may acquire greater strength day by day....” Clement XIII, 16 November 1763, to the Bishop of Argerota. Cf. C. 1426.

“But some of you have also petitioned Us that We grant them the power to impart dispensations or permissions for contracting between persons of whom one professes the Catholic faith and the other heresy.... The Apostolic See has been accustomed to impart this permission only with very great reluctance and much caution, in order to remove the aforesaid danger insofar as possible, and only when some grave and generally public cause intervenes. But it has never granted, especially in Europe, that bishops, even when they petition most insistently, may give the same permission.... Therefore, if We now had to respond to this petition, Our response certainly could not depart from the constant rule of this Holy See and from the example and manner of acting of Our Predecessors.” Brief of Pius VII, 17 February 1809, to the Bishops of France.

“Concerning this matter, only the following has been tolerated in some places: parish priests who, in order to avert graver injuries to the Catholic cause, were compelled to offer their presence at the contracting of these nuptials, might indeed permit them to be effected in their presence—provided, of course, that no other canonical impediment was present—so that, after hearing the consent of both parties, they might afterward, in accordance with their office, record in the book of Marriages the act validly performed; but they were always to beware of approving by any act of their own such unlawful Marriages, and much more of mingling sacred prayers or any ecclesiastical rite with them.” Pius VIII, 25 March 1830, to the Bishops of the Rhine Provinces.

“...And to this matter altogether pertain the most ancient canons severely prohibiting mixed unions themselves and the more recent enactments of the Supreme Pontiffs, concerning which Benedict XIV, of immortal memory, speaks in his Encyclical Letters to the Bishops of the Kingdom of Poland and in the most celebrated work entitled On the Diocesan Synod. Hence, moreover, it has come about that this Apostolic See, to which alone belongs the power of dispensing from an impediment of mixed religion of this kind, if, relaxing something of the severity of the canons, it has sometimes permitted these mixed unions, has done this with very great reluctance and only for grave causes, and always under the express condition that the necessary and suitable cautions be given beforehand: namely, that not only could the Catholic spouse not be perverted by the non-Catholic spouse, and indeed that the Catholic spouse should know himself bound to withdraw the non-Catholic from error according to his powers, but also that all offspring of either sex to be procreated from these mixed Marriages must be educated altogether in the holiness of the Catholic religion. These cautions can never be remitted or dispensed from, since they are founded in the natural and divine law itself, which the Church and this Holy See strive with all effort to preserve safe and intact, and against which those undoubtedly sin most gravely who, by rashly contracting these mixed nuptials, commit themselves and the offspring to be received therefrom to the danger of perversion. Moreover, in granting dispensations of this kind, in addition to the stated cautions, which must always be premised and from which dispensation can never in any way be given, conditions were also added that these mixed unions must be celebrated outside the church, without the blessing of the parish priest, and without any other ecclesiastical rite. These conditions principally have this purpose: that there may never be effaced from the minds of Catholics the memory both of the canons which detest mixed Marriages of this kind and of that most constant solicitude by which Holy Mother Church has never ceased to turn and deter her children from contracting those same mixed unions to the ruin of themselves and of their future offspring.... Our same Most Holy Lord established that, in granting these dispensations, the formula of that Rescript is to be used in which, although the aforesaid conditions concerning the celebration of these mixed unions outside the church, without the blessing of the parish priest, and without another ecclesiastical rite are not expressly declared, they are nevertheless implicitly contained. And His Holiness earnestly admonishes, exhorts, and urges in the Lord all archbishops, bishops, and other Ordinaries of places, and commands them that when in the future they obtain from this Holy See, through the formula of this Rescript, the faculty of dispensing from the impediment of mixed religion, they never cease, in executing the same faculty, to watch with every care and diligence that the conditions concerning the celebration of these mixed Marriages outside the church, without the blessing of the parish priest, and without another ecclesiastical rite are also diligently fulfilled. But if in some places the sacred Prelates should recognize that the same conditions cannot be fulfilled without graver injuries and evils arising therefrom, in this case alone, in order to avoid greater injuries and evils of this kind, His Holiness entrusts it to the prudent judgment of those same sacred Prelates that they themselves—provided that the cautions concerning removal of the danger of perversion from the Catholic spouse, the conversion of the non-Catholic spouse to be procured according to his powers by the Catholic spouse, and the complete education of all offspring of either sex in the holiness of the Catholic religion are always preserved safe and firm and observed with the greatest diligence—judge when the aforementioned conditions concerning contracting these mixed nuptials outside the church and without the blessing of the parish priest cannot be fulfilled at all, and when, in entering these mixed unions, the custom of employing the rite legitimately prescribed in the diocesan Ritual for contracting Marriages can be tolerated, the celebration of Mass nevertheless always being excluded, and all the circumstances of things, places, and persons being most diligently weighed, and the conscience of the Prelates themselves being burdened concerning the truth and gravity of all the circumstances. His Holiness, however, greatly desires that those same sacred Prelates preserve with the greatest possible silence and secrecy an indulgence—or rather a tolerance—of this kind, committed altogether to their judgment and conscience.” Instruction of the Secretariat of State to all Ordinaries of places, 15 November 1858. Cf. C. 1428.

“...Therefore, the following matters seemed to you worthy of explanation. And first, you ask what is to be understood by the words upon which, in the praised Instruction, the faculty or tolerance of blessing mixed Marriages rests and, as it were, is bound, namely, for avoiding graver evils and injuries. Without doubt, graver evils and injuries arise therefrom: 1. Whenever, because a blessing has been denied to mixed Marriages, the complaints and hatred of heretics against the faithful and the ecclesiastical laws would easily be stirred up.—2. Whenever, after the blessing has been denied by the Catholic parish priest, the betrothed parties, before or after the Marriage celebrated before him, approach a petty minister, or even come together in a church of the heterodox to obtain a sacrilegious blessing, the Catholic parish priest being altogether set aside.—3. Whenever, moreover, it would have to be feared that, if the blessing sought by them were refused, either the necessary cautions concerning removal of the danger of perversion from the Catholic spouse and the education of all the offspring in the Catholic religion would not be observed, or, what would be more detestable, the Catholic party might pass over to the camp of the heretics, to the eternal ruin of that party and of the future offspring. Evidently, these and similar things are those grave injuries and evils for avoiding which the Supreme Pontiff declared that it could be granted or tolerated that the nuptial blessing be imparted in mixed Marriages. Through these things, therefore, an easy and correct interpretation and practice of the Instruction offers itself to all Vicars Apostolic.

“Hence the response to the second matter is also evident from what has been said. For immediately, by attending to the things said above, anxieties and doubts will vanish concerning an incorrect and therefore discordant interpretation of the Instruction and its application to practical cases or events. But whenever, on account of the considerable distance of places, the Prelates cannot by themselves ascertain the gravity and truth of the causes and circumstances concerning mixed Marriages to be honored with a priestly blessing, they will be able to accomplish these same things through missionaries subject to them, who nevertheless are to be excellently instructed concerning the aforesaid causes and Instruction and endowed with prudence and zeal according to knowledge.

“The matters which in the third place made you anxious concerning the silence and secrecy inculcated in the praised Instruction insofar as possible do not seem to be understood so strictly that this indulgence—or rather tolerance—of the Holy See in blessing mixed nuptials is to become known to no one. For you ought to know that His Holiness wished the Prelates to be admonished that the blessing should not be imparted indiscriminately and without discretion to mixed Marriages, nor should they use such a faculty through public instructions as though by way of a rule, but very prudently and cautiously, lest the most salutary conditions of the Church, which are always understood to be implicitly joined to such dispensations, be handed over to oblivion. Certainly it will be clear to Your Amplitude and to the other Vicars Apostolic that the mind of the Supreme Pontiff is no other, if you attend to the things contained in the Apostolic Letter in the form of a Brief given to the Bishop of Trier on 3 October 1853 concerning this matter. After the Supreme Pontiff Pius IX granted to the Ordinary of Trier that, when the causes already mentioned above concurred, a blessing could be imparted to mixed Marriages, he continued in this manner: These conditions (outside the church and without the blessing of the parish priest) principally have this purpose: that there may never be effaced from the minds of Catholics the memory of the canons which detest these unions and of that most constant solicitude by which Holy Mother Church has been accustomed to turn her children from contracting those same nuptials to the ruin of their future offspring.

“From what has been said, therefore, a certain norm is proposed to you and to the other Vicars Apostolic for rightly interpreting and reducing to practice the things handed down in the Instruction of Cardinal Antonelli concerning the blessing to be given to mixed nuptials.

“Finally, to the questions which Your Amplitude also proposed as though consequential ones to be resolved, the Sacred Congregation judged that response should be made as follows: The practice of missionaries is by no means to be disapproved, whereby, in order to uncover the fraud of heretics who, after rejecting their own wife, might presume to unite with a Catholic woman, among the other investigations their banns are published, but without any mention being made of the religion of those who are to contract the nuptials.

“But with regard to the doubt: Can the Sacraments be given to the Catholic party who is disposed in mind to contract before a Protestant minister, either before or after the Catholic Marriage?—It will have to be considered whether the betrothed parties approach the Protestant minister merely in order to satisfy civil law, or rather in order to communicate in sacred rites. If the latter, since the heterodox minister assists in his capacity as one devoted to sacred rites, and the Catholic party persists in that party’s depraved intention, the Catholic party cannot be admitted to participation in the Sacraments until, by withdrawing from the depraved purpose, that party truly comes to repentance. Concerning this matter it will be useful to consult Benedict XIV, On the Diocesan Synod, book 6, chapter 7, § 2.

“Lastly, it was asked: Is the Catholic party who contracted Marriage with a heretic and before a petty minister—validly, however, by virtue of the extension granted by Benedict XIV for Holland—to be admitted to a renewal of mutual consent before the Catholic parish priest or missionary, who might also recite the formula: I join you together...? Moreover, can spouses converted from heresy who urgently request it be admitted to the same renewal of consent?—In places in which Marriages contracted either between heretics themselves or between one Catholic party and another heterodox party are valid even when the Tridentine form has not been observed—provided that no other canonical impediment has stood in the way—the spouses cannot be admitted to a Marriage, already indissoluble of itself, as though it were to be contracted anew through words expressing mutual present consent, nor is the formula, I join you together in Matrimony, to be recited by the priest. Nevertheless, if the question concerns mixed Marriages already contracted before a heretical minister, insofar as the cautions necessary by law were given and the Catholic party, repenting of the deed, requests the blessing, it can be imparted to that party after absolution from censures has first been given and salutary penances imposed, but the celebration of Mass must always be excluded. Likewise, the nuptial blessing is also to be imparted in Mass to spouses converted from heresy, provided that they request it. But in every case let the parish priest thoroughly instruct the spouses that a blessing of this kind pertains only to the rite, not to the validity of the union.” Holy Office and Sacred Congregation for the Propagation of the Faith, 4 December 1862.

“...What priestly zeal had already suggested to the sacred Prelates of Hungary, let it now, after the enactment of this law, be attended to with all the greater effort and with all their strength: that the faithful be turned away and altogether deterred from contracting mixed nuptials. For with regard to the remedy proposed by Your Eminence—namely, obtaining from the Holy Apostolic See a faculty by which it would be lawful for you to dispense with a Catholic bridegroom or bride who is to marry under the prohibition of mixed religion, and even to impart the nuptial blessing at least in those cases of mixed Marriages to be entered in which, from a rightly known disposition of the mind and will of the Catholic party, indeed of both betrothed parties, it can be hoped that, insofar as possible, a Catholic education will be given even to that offspring which, by force of civil law, would not be educated as Catholic, although the offspring would not be received into the bosom of the Church either through the form of Baptism imparted with this intention or through another external act—the Most Eminent Fathers judged this to be such that it can never be permitted, nor even tolerated, by the same Holy Apostolic See. Your Eminence certainly knows that the Church can never permit the celebration of mixed nuptials unless grave canonical causes concur and unless suitable cautions are furnished, by virtue of which the danger of perversion is removed from the Catholic spouse and provision is made for the Catholic instruction and education of all the offspring. This Catholic doctrine has very frequently been enunciated by the Supreme Pontiffs and declared even in those concessions in which they professed that they had reached those limits of indulgence beyond which it would be altogether unlawful to proceed. Passing over the other Pontiffs, Pius VIII, of holy memory, most gravely inculcates in the Apostolic Letter given to the Archbishop of Cologne and his suffragans on 25 March 1830: “You know, Venerable Brothers, that all those cautions have this purpose: that in this matter the natural and divine laws may be preserved safe and intact; since it is established that Catholic persons, whether men or women, who contract nuptials with non-Catholics in such a manner that they rashly commit themselves or their future offspring to the danger of perversion, not only violate the canonical enactments, but also sin directly and most gravely against the natural and divine law. And from this you now understand that We too would be guilty of a most grave crime before God and the Church if, concerning nuptials of this kind to be contracted in those regions, We consented to those things being done by you or by the parish priests of your dioceses by which, if not in words, nevertheless by the deeds themselves, they would indiscriminately be approved.” Moreover, Gregory XVI, of holy memory, in the Letter to those same Bishops of Hungary, your Predecessors, by which he extended to that kingdom an equal indulgence at the extreme limits, asserted altogether the same divine law concerning cautions founded in the divine and natural law itself, against which anyone who rashly commits himself or his future offspring to the danger of perversion undoubtedly sins most gravely. And finally, by command of Pius IX, of holy memory, it was declared in express words to all archbishops, bishops, and Ordinaries on 15 November 1858: “These cautions can never be remitted or dispensed from, since they are founded in the natural and divine law itself, which the Church and this Holy See strive with all effort to preserve safe and intact, and against which those undoubtedly sin most gravely who, by rashly contracting these mixed nuptials, commit themselves and the offspring to be received therefrom to the danger of perversion.” In accordance with this doctrine, the Holy Apostolic See has always constantly maintained and still maintains that it is in no way lawful to dispense from the prohibition of mixed religion unless, in each case, in addition to the canonical causes, the following three conditions concur at the same time, namely: 1. That the parties, and especially the heretical party, have furnished true cautions by which they bind themselves before the Church to those things which the same Church requires from them; among these, the Catholic education of absolutely all the offspring without any exception or restriction holds the principal place. 2. That the ecclesiastical superior possess moral certainty both concerning the sincerity of the cautions for the present and concerning their fulfillment for the future. 3. That the furnishing of the caution be notorious, or at least be capable of being such, for removing every scandal.

“Since these things are so, it is in no way possible that that hope which rests solely upon the good disposition of the will of the contracting parties can take the place of true cautions: both because the contracting parties would in fact assume no obligation before the Church, and because this hope, in the present condition of affairs as described by Your Eminence, does not exclude, but rather supposes, that the offspring to be born which follows the sex of the heretical parent is to be baptized by the minister of the sect and assigned to instruction in the same sect. This would not only subvert the whole purpose of the cautions on behalf of the Church, but would constitute a caution on behalf of heresy. From these things it follows necessarily that it is not lawful, in the circumstances of affairs set forth, to impart the nuptial blessing. For if without the customary cautions it is never lawful to dispense from the prohibition of mixed religion, much less can it be lawful to honor with the sacred rite of blessing such Marriages as, according to the unshaken doctrine of the Church, are altogether contrary not only to ecclesiastical law but also to natural and divine law....” Holy Office, 21 July 1880, to the Cardinal Primate and Archbishop of Esztergom; M. E., vol. 5, part 1, p. 198.

“...Passing now to another point concerning the assistance at mixed Marriages imposed upon parish priests, We say that if, after the above-mentioned admonition has first been given in order to call the Catholic party away from the unlawful Marriage, that party nevertheless persists in the will to contract it and it is foreseen that the Marriage will infallibly follow, the Catholic parish priest will then be able to offer his material presence, but in such a manner that he is bound to observe the following precautions: 1. That he not assist at such a Marriage in a sacred place, nor be clothed in any vestment displaying a sacred rite, nor recite any ecclesiastical prayers over the contracting parties, and in no way bless them. 2. That he require and receive from the heretical contracting party a written declaration by which, under oath and in the presence of two witnesses who must themselves also subscribe it, that party binds himself or herself to permit the other party the free exercise of the Catholic religion and to educate in it all children to be born, without any distinction of sex.... 3. That the Catholic contracting party also issue a declaration subscribed by that party and two witnesses, in which, under oath, the party promises not only never to apostatize from the Catholic religion, but also to educate in it all offspring to be born and to procure efficaciously the conversion of the other, non-Catholic contracting party. 4. With regard to the proclamations commanded by the Imperial Decree, which the bishops object are civil rather than sacred acts, We respond: since they are preordained to the future celebration of the Marriage and consequently contain positive cooperation in it—which certainly exceeds the limits of simple tolerance—We cannot consent that they be made....” Rescript of Pius VI to Cardinal de Frankenberg, Archbishop of Mechelen, and to the Bishops of Belgium, 13 July 1792.

“If, therefore, on account of the condition of times, places, and persons, the Marriage of a non-Catholic man with a Catholic woman, and conversely, can in no way be prevented without danger of greater evil and scandal to the detriment of religion, then indeed, in order to prevent greater injuries and scandals, one must abstain from correcting the Catholic spouse by censures expressly pronounced against that spouse by name. Indeed, it must be tolerated both that the customary banns be made by the Catholic parish priest, but with all mention of the religion of those who are to contract the nuptials omitted, and also that merely testimonial letters concerning the banns made be granted, in which, if no invalidating impediment is present, it is declared only that ‘nothing besides the prohibition of the Church on account of the impediment of mixed religion stands in the way of the Marriage to be contracted,’ with no word added from which even a slight suspicion of consent or approval might arise. But if it is recognized that it can conduce to the utility of the Church and the common good of souls that nuptials of this kind, however unlawful and prohibited, be celebrated before a Catholic parish priest rather than before a heretical minister, to whom the parties might easily have recourse, then the Catholic parish priest himself, or another priest acting in his place, will be able to be present at those nuptials by material presence alone, every ecclesiastical rite being excluded, just as if he acted the part of a mere witness commonly called qualified or authorized; namely, so that, after hearing the consent of each spouse, he may afterward, in accordance with his office, record in the book of Marriages the act validly performed.” Instruction to the Bishops of Bavaria, 12 September 1834. Cf. C. 1429.

“The required cautions formerly had to be confirmed in writing or even by oath; but today ‘such a promise suffices as, having been brought into an agreement, furnishes a moral foundation concerning the truth of its execution, so that an execution of this kind can prudently be expected,’ from the Decision of the Holy Office, 30 June 1842.” Marc, Alphonsian Moral Institutions, 2nd ed., no. 1987; Holy Office, 17 February 1875; C. 1437, 1439; M. E., vol. 12, p. 438.

“If, in some extraordinary case, such circumstances concur that the bishop can acquire for himself moral certainty both concerning the sincerity of cautions of this kind for the present and concerning their fulfillment for the future, and altogether special reasons are present which prevent the cautions from being given in the customary manner, the matter is entrusted to his conscience and prudence. Otherwise, notwithstanding the royal Decree, suitable cautions are to be furnished in writing, as has been done hitherto; nor is a dispensation to be given unless the bishop is morally certain that they will be fulfilled.” Holy Office, 10 December 1902; M. E., vol. 15, p. 247; A. S. S., vol. 36, p. 165.

“With regard to the first article concerning banns or proclamations, it can be tolerated that they be made not only outside the church, as is permitted in the aforesaid royal letters, but also altogether outside a sacred place. And this will be the first public sign of the disapproval of these Marriages. But in order that the disapproval itself may become more manifest and may indicate on the part of the parish priest that his cooperation will be a purely material and compelled concurrence, it is preferable to add to the customary formula of the banns some expression indicating that Marriages of this kind are to be detested.” Rescript of Pius VI, 31 May 1783, to the Archbishop of Mechelen. Cf. Rescript of Pius VI to Cardinal de Frankenberg, Archbishop of Mechelen, and to the Bishops of Belgium, 13 July 1792.

“...Let them beware, moreover, lest in publishing mixed Marriages they express the religion of the non-Catholic contracting party; rather, let them announce only the names and surnames of the contracting parties....” Pius VI, Extension of the Declaration of Benedict XIV to the Duchy of Cleves, 19 June 1793.

The Sacred Congregation for the Propagation of the Faith declared on 4 July 1874 that proclamations can be made in mixed unions when they seem necessary and suitable in the judgment of the Ordinary for discovering impediments, with mention of the religion of those who are to contract the nuptials omitted. C. 1223.

“...And indeed, with regard to the blessing, as you know very well, this Apostolic See has been accustomed to prohibit it even in those Marriages which are entered between Catholics and non-Catholics after permission from the same See has been obtained and the cautions prescribed by it have been employed. And even if it could thereafter be tolerated that the custom introduced in some regions of blessing mixed Marriages entered with the permission of the Church and the aforesaid cautions be observed, nevertheless the same blessing must never be tolerated in those cases in which, with no permission of the Church intervening and without the necessary cautions having first been given, a manifest and most grave crime is committed in the very entering of the matrimonial covenant.... And these things accord with the precepts and admonitions which you know, Venerable Brother, to have been recorded either in Our Letters or in those of Our Predecessor Pius VIII to various archbishops and bishops, or in Instructions issued either by his command or by Ours. Nor indeed does it matter if those Instructions were given only to certain Prelates who had consulted this Apostolic See, as though others were free not to follow their judgment.... Although those Letters and Instructions, insofar as they grant or tolerate something new, refer only to the places for which they were given, nevertheless their rationale is circumscribed by no limits insofar as they announce the immutable doctrine of the Church, inculcate the judgment of the canons, and proscribe depraved customs which may have become prevalent somewhere....” Gregory XVI, Letter of 23 May 1846, to the Archbishop of Freiburg. Cf. C. 1423, 1433.

“Whether, in mixed Marriages, the priest must also abstain from pronouncing the words: I join you together in Matrimony.—Response. Let the parish priest assisting at a Marriage of mixed religion abstain.” Holy Office, 26 November 1835; C. 1427.

"... We judge that from marriages of this sort great ruin will be brought upon the Catholic Church. For if the mother, in whose power is the first education of the offspring, is alien from our Sacred rites, what is not to be feared concerning the Religion of the children? For she, solicitously thinking according to maternal love concerning their eternal salvation, will omit no occasion by which she may imbue them with the doctrine of her sect, which she thinks uniquely true. And if she mocks the husband, either fasting on vigils and abstaining from meats, or washing away the stains of his soul in the sacrament of Penance, or approaching the sacred table of the Eucharist, as pursuing empty things, as will happen very often, this also surely must gradually happen, that contempt of most sacred things slip into the minds of the children. But the things which they seize from tender age are most difficult to tear out from their minds.

And conversely, if the mother indeed worships the Catholic religion, but the father, addicted to some Heretical sect, in the sight of the children playfully mocks the sayings and deeds of the wife which pertain to Religion, will not the childish mind of the children, among whom the authority of the father has very great force, have doubted somewhat concerning the truth of the Religion which the mother follows? What if a serious dispute about Religion arises between husband and wife? Will not the children, whose mind, amid the alternating moments in the dispute of the parents, is driven this way and that, gradually slip into indifference of Religion, than which nothing is more deadly, nothing more hostile to Religion, since it utterly removes every Religion, true or false? That too is manifest, that by these marriages a more open field is opened to Lutheran heresy, by which it can diffuse itself more widely. For girls imbued with Lutheran error, to whom now it is lawful to establish domicile with their husbands only in certain particular places, if they have married Catholic men, must follow them wherever it has pleased them to dwell. Besides, the new bride will admit several persons of her sect into the family of the husband; nor can Ministers of the false sect, who come to her for the sake of greeting her, be prohibited from his house. These indeed will not be wanting in their ministry, by which they confirm their sheep in error, and they will suggest to the mother the art by which, in the minds of the children, the seeds of good doctrine may dry up from the very time when they begin to spring forth.

Therefore the zeal of Catholics used up to now will have been in vain, by which the errors condemned by the Church are eliminated from these regions which they hold, when in the future it will have been permitted with impunity to profess that same poisonous doctrine in the midst of those Catholics. To this is added that if either of the spouses, who is Catholic, dies and leaves children in first age, it will be free to the other Heretical spouse to infect his or her children with the poisonous sentiments of the sect. You see therefore, Our beloved Son, what the Catholic religion can promise itself concerning the offspring received from these marriages, and whether it is to be greatly feared lest through those unions by which they intend to propagate the Catholic faith, heresy be propagated more widely; and, what is most dreadful of all, that indifference of whatever Religion may take greater forces day by day, by which, for the most part, access is opened to impiety...." Clement XIII, 16 Nov. 1763, to the Bishop of Argerotan.

"... And to this altogether pertain the most ancient canons severely forbidding mixed marriages themselves, and the more recent Sanctions of the Supreme Pontiffs, concerning which Benedict XIV of immortal memory speaks in his encyclical Letters to the Bishops of the kingdom of Poland, and in the most celebrated work which is inscribed On the Diocesan Synod. Hence moreover it happens that this Apostolic See, to which alone belongs the power of dispensing over an impediment of mixed religion of this sort, if, relaxing something from the severity of the canons, it has sometimes permitted these mixed marriages, did this only for grave causes and very reluctantly, and never except always under the express condition concerning the necessary and opportune cautions to be premised, namely that not only could the Catholic spouse not be perverted by the non-Catholic, but indeed that the Catholic spouse himself should know that he is bound to draw back the non-Catholic from error according to his strength; and also that all the offspring of either sex, to be procreated from these mixed marriages, must altogether be educated in the sanctity of the Catholic religion. These cautions indeed can never be remitted, or dispensed from, since they are founded in the natural and divine law itself, which the Church and this Holy See strive with all zeal to guard safe and intact, and against which, without any doubt, they sin most gravely who, by rashly contracting these promiscuous nuptials, commit themselves and the offspring to be received therefrom to the danger of perversion. Moreover, in granting dispensations of this sort, besides the mentioned cautions, which must always be premised, and over which dispensation can in no way ever be made, conditions were also added that these mixed marriages must be celebrated outside the church and without the blessing of the parish priest and without any other ecclesiastical rite. These conditions indeed especially look to this, that in the minds of Catholics there never be forgotten the memory both of the canons, which detest mixed Matrimonies of this sort, and of that most constant zeal, by which holy Mother Church has never ceased to avert and deter her children from these same mixed marriages being contracted to their own destruction and that of future offspring.... The same Most Holy Lord of Ours established that in the concession of these dispensations the formula of that Rescript is to be used, in which, even if the aforesaid conditions concerning these mixed marriages being celebrated outside the church and without the blessing of the parish priest and other ecclesiastical rite are not openly declared, nevertheless they are implicitly contained. And His Holiness vehemently admonishes, exhorts, and excites in the Lord all Archbishops, Bishops, and other local Ordinaries, and commands them, that when in the future by the formula of this Rescript they shall have obtained from this Holy See the faculty of dispensing over the impediment of mixed religion, in executing the same faculty they never cease to watch with all care and zeal, that the conditions also be sedulously fulfilled concerning these mixed Matrimonies being celebrated outside the church and without the blessing of the parish priest and other ecclesiastical rite. But if in some places the sacred Prelates shall have known that the same conditions cannot be fulfilled without graver damages and evils arising therefrom, in this case only, in order to avoid greater damages and evils of this sort, His Holiness commits to the prudent judgment of the same sacred Prelates that they themselves, the cautions always being safe and firm and most diligently observed concerning removing the danger of perversion from the Catholic spouse, procuring the conversion of the non-Catholic spouse by the Catholic spouse himself according to his strength, and all the offspring of either sex being altogether educated in the sanctity of the Catholic religion, judge when the commemorated conditions concerning contracting these mixed nuptials outside the church and without the blessing of the parish priest can by no means be fulfilled, and when, in entering these promiscuous marriages, there can be tolerated the custom of employing the rite legitimately prescribed in the diocesan Ritual for contracting Marriages, yet always with the celebration of Mass excluded, and with all circumstances of things, places, and persons most diligently weighed, and the conscience of the Prelates themselves burdened concerning the truth and gravity of all the circumstances. But His Holiness greatly desires that these same sacred Prelates keep this indulgence, or rather toleration, wholly committed to their judgment and conscience, with the greatest silence and secrecy with which it can be done." Instruction of the Secretariat of State to all local Ordinaries, 15 Nov. 1858.

"... Therefore the following matters seemed to you worthy of explanation. And first, you ask what is to be understood by the words by which, in the praised Instruction, the faculty or tolerance of blessing mixed marriages is supported and as it were bound, namely, to avoid graver evils and damages. Without doubt graver evils and damages arise therefrom: 1. Whenever, because the blessing is denied to mixed marriages, complaints and hatreds of Heretics against the faithful and against ecclesiastical laws would easily be excited. 2. Whenever, the blessing having been denied by the Catholic Parish Priest, the spouses, before or after the marriage celebrated before him, approach a petty Minister, or even come together in a temple of Heterodox persons, to obtain a sacrilegious blessing, the Catholic Parish Priest being altogether set aside. 3. Whenever besides it would be feared that, the blessing sought by them having been refused, either the necessary cautions concerning removing the danger of perversion from the Catholic spouse and concerning educating all the offspring in the Catholic Religion would not be observed, or, what would be more detestable, lest the Catholic party pass over to the camp of the Heretics, to the eternal destruction of himself and the future offspring. Evidently these and like things are those grave damages and evils, to avoid which the Supreme Pontiff declared that it could be indulged, or tolerated, that in mixed marriages the nuptial blessing be imparted. Therefore by these things an easy and correct interpretation and practice of the Instruction offers itself to all Apostolic Vicars.

Whence also from the things said the response to the second is clear. For immediately, by attending to the aforesaid matters, anxieties and doubts will vanish concerning a not correct and therefore discrepant interpretation of the Instruction, and its application to practical cases or events. But whenever, because of the notable distance of places, Prelates cannot by themselves know the gravity and truth of the causes and circumstances concerning mixed marriages to be honored with the Priestly blessing, they will be able to fulfill these same things through Missionaries subject to them, who nevertheless are very well instructed concerning the aforesaid causes and the Instruction, endowed with prudence and zeal according to knowledge.

Those things which in the third place made you anxious concerning silence and secrecy, inculcated in the praised Instruction as far as possible, do not seem to be understood so strictly that this indulgence, or rather toleration, of the Holy See in blessing mixed nuptials becomes known to no one. For you should know that His Holiness wished the Prelates to be warned, that the blessing not be imparted indiscriminately and without selection to mixed marriages; nor that they use such a faculty by public instructions, as if also by way of rule, but very prudently and cautiously, so that the most salutary conditions of the Church, which are always understood to be implicitly joined to such dispensations, are not handed over to oblivion. Surely that there is no other mind of the Supreme Pontiff will be clear to A. T. and the other Apostolic Vicars, if you attend to those things which are contained in the apostolic Letters in the form of a Brief given to the Bishop of Trier on 3 October 1853 concerning this matter. The Supreme Pontiff Pius IX, after he indulged to the Ordinary of Trier that, when the causes already commemorated above concur, the blessing could be imparted to mixed marriages, proceeds in this way: These conditions indeed (outside the church and without the blessing of the Parish Priest) especially look to this, that in the minds of Catholics the memory of the Canons which detest these unions never be forgotten, and of that most constant zeal by which Holy Mother Church has been accustomed to avert her children from the same nuptials being contracted to the destruction of their future offspring.

Therefore from the things said a certain norm is proposed to you and to the other Apostolic Vicars for correctly interpreting and reducing to practice those things which are handed down in the Instruction of Cardinal Antonelli concerning the blessing to be given to mixed nuptials.

Finally, to the questions which A. T. also proposed to be solved as consectary, the Sacred Congregation judged that response should be made thus: The practice of Missionaries is by no means to be disapproved, by which, in order to detect the fraud of Heretics who, their own wife having been rejected, would presume to be joined with a Catholic woman, among other investigations, their banns are published, yet with no mention made of the religion of those who are about to contract the nuptials.

But as to the doubt: Can the Sacraments be given to the Catholic party prepared in mind to go before a Protestant Minister either before or after the Catholic marriage? It will have to be attended whether the spouses approach the Protestant Minister so that they may satisfy only civil law, or truly so that they may communicate in sacred rites. If this second, since the Heterodox Minister assists as one devoted to sacred rites, and the Catholic party persists in his depraved intention, he cannot be admitted to the participation of the Sacraments until, by drawing back from the depraved purpose, he truly comes to his senses. Concerning this matter it will be opportune to consult Benedict XIV, On the Diocesan Synod, book VI, ch. VII, § 2.

Lastly it was asked: Whether the Catholic party is to be admitted, who contracted marriage with a Heretic and before a petty Minister, yet validly by force of the Benedictine extension for Holland, to the renewal of mutual consent before the Parish Priest or Catholic Missionary, who could also recite the formula: I join you...? Moreover, whether spouses converted from heresy, who insistently ask this, can be admitted to the same renewal of consent? In places in which marriages of Heretics among themselves, or between one Catholic party and another Heterodox party, are valid even when the Tridentine form has not been observed, provided that no other Canonical impediment has stood in the way, the spouses cannot be admitted to marriage, already indissoluble in itself, as if to be contracted anew by words expressing mutual consent de praesenti; nor will the formula, I join you in matrimony, be recited by the Priest. Nevertheless, if there is question of mixed marriages already contracted before a Heretical Minister, insofar as the cautions necessary by law have been supplied, and the Catholic party, repentant of the fact, asks for the blessing, it will be able to be imparted to that person, with absolution from censures first given, and salutary penances imposed, yet always with the celebration of Mass excluded. Likewise also to spouses converted from heresy, provided that they ask, the nuptial blessing is to be imparted in Mass. But the Parish Priest, in any case whatsoever, should teach the spouses together that a blessing of this sort pertains only to the rite, not to the validity, of the marriage." S. O., S. C. de P. F., 4 Dec. 1862.

"... What priestly zeal had already suggested to the sacred Prelates of Hungary, now after this law has been passed let it be cared for all the more with all strength, that the faithful be averted from contracting mixed nuptials, and altogether deterred. For as regards the remedy proposed by Your Eminence, namely of obtaining from the Holy Apostolic See a faculty by which it would be lawful for you to dispense with a Catholic bridegroom or bride about to marry in the prohibition of mixed religion, and also to impart the nuptial blessing in at least those cases of mixed marriages to be entered, in which, from the rightly known mind and disposition of will of the Catholic party, indeed of both spouses, it can be hoped that Catholic education, as far as possible, will be bestowed even upon that offspring which by force of civil law would not be educated Catholic, even if by its form, either by baptism imparted with this intention, or by another external act, it would not be received into the bosom of the Church; this seemed such to the Most Eminent Fathers that it can never be permitted, nor even tolerated, by the same Holy Apostolic See. Indeed Your Eminence knows that the Church can never permit the celebration of mixed nuptials unless grave canonical causes concur, and unless opportune cautions are exhibited, by whose force the danger of perversion is removed from the Catholic spouse, and provision is made for the Catholic instruction and education of all the offspring. This Catholic doctrine indeed has very often been announced and declared by the Supreme Pontiffs even in those concessions in which they professed that their indulgence had touched those limits which it is altogether unlawful to transgress. That other Pontiffs be passed over, Pius VIII of holy memory, in Apostolic letters given to the Archbishop of Cologne and his suffragans on 25 March 1830, most gravely inculcates: 'But you know, Venerable brothers, that all these cautions look to this, that in this matter the natural and divine laws be held safe and intact; since it is established that Catholic persons, whether men or women, who contract nuptials with non-Catholics in such a way that they rashly commit themselves or their future offspring to the danger of perversion, not only violate canonical sanctions, but also directly and most gravely sin against the natural and divine law. And hence you already understand that we too would be guilty before God and the Church of a most grave crime, if concerning nuptials of this sort to be contracted in those regions we consented that those things be done by you or by the parish priests of your dioceses, by which, if not in words, nevertheless by the facts themselves they would be approved indiscriminately.' Indeed Gregory XVI of holy memory also, to those same Bishops of Hungary, your predecessors, in the letters by which he extended to that Kingdom a like indulgence of the extreme limits, asserted entirely the same divine law concerning cautions founded in the divine and natural law itself, against which without doubt he sins most gravely, whoever rashly commits himself or his future offspring to the danger of perversion. And finally, by order of Pius IX of holy memory, to all Archbishops, Bishops, and Ordinaries on 15 Nov. of the year 1858 it was declared in express words: 'These cautions indeed can never be remitted or dispensed from, since they are founded in the natural and divine law itself, which the Church and this Holy See strive with every zeal to guard safe and intact, and against which without any doubt they sin most gravely who, by rashly contracting these promiscuous nuptials, commit themselves and the offspring to be received therefrom to the danger of perversion.' According to this doctrine the Holy Apostolic See has always constantly held and holds that in no way is it lawful to dispense in the prohibition of mixed religion, unless in individual cases, besides canonical causes, the three following conditions concur at the same time, namely: 1. That the parties, and especially the heretical party, have supplied true cautions, by which they bind themselves before the Church to those things which the same Church requires from them; among which the Catholic education of absolutely all the offspring without any exception or restriction holds the chief place. 2. That the ecclesiastical superior have moral certainty both concerning the sincerity of the cautions for the present, and concerning their fulfillment for the future. 3. That the exhibition of the caution be notorious, or at least capable of being such for removing every scandal.

Since these things are so, it can in no way be done that that hope, which is founded solely in the good disposition of will of the contracting parties, can hold the place of true cautions, both because in reality the contracting parties would assume no obligation before the Church, and because this hope, in the present condition of affairs, as it has been described by Your Eminence, does not exclude, indeed supposes, that offspring to be born, which follows the sex of the heretical parent, is to be baptized by a minister of the sect and enrolled by instruction in the same sect; which thing would not only overturn the whole reason of cautions for the Church, but would constitute a caution for heresy. From these things it necessarily follows that it is not lawful in the exposed circumstances of affairs to impart the nuptial blessing. For if without the customary cautions it is never lawful to dispense over the prohibition of mixed religion, much less will it be lawful to honor with the sacred rite of blessing such marriages which, according to the unshaken doctrine of the Church, are altogether opposed not only to ecclesiastical law, but to the natural and divine law...." S. O. 21 July 1880, to the Cardinal Primate and Archbishop of Esztergom. Nouv. Revue Theol. Vol. 18, p. 5 ff.

"... Passing now to another point concerning the commanded assistance of parish priests in mixed marriages, we say that if, the above-named admonition having been premised for calling back the Catholic party from the illicit marriage, the party nevertheless persists in the will of contracting it, and the marriage is foreseen as infallibly about to follow, then the Catholic parish priest will be able to exhibit his material presence, yet in such a way that he is bound to observe the following cautions: 1st, that he not assist at such a marriage in a sacred place, nor vested in any vestment bearing the sacred rite, nor will he recite over the contracting parties any ecclesiastical prayers, and in no way will he bless them. 2nd, that he require and receive from the heretical contracting party a declaration in writing, by which with an oath, in the presence of two witnesses, who also must subscribe, he binds himself to permitting to the co-party the free use of the Catholic religion and to educating in the same all children to be born, without any distinction of sex.... 3rd, that the Catholic contracting party himself also put forth a declaration subscribed by himself and two witnesses, in which with an oath he promises not only that he will never apostatize from his Catholic religion, but that he will educate in it all offspring to be born, and that he will efficaciously procure the conversion of the other non-Catholic contracting party. 4th, as regards the proclamations commanded by the Caesarean decree, which the Bishops reprehend as being acts civil rather than sacred, we respond: since they are preordained to the future celebration of marriage, and consequently contain positive cooperation with the same, which certainly exceeds the limits of simple tolerance, we cannot consent that these be made...." Rescript of Pius VI to Cardinal de Frankenberg, Archbishop of Mechlin, and the Bishops of Belgium, 13 July 1792.

"The required cautions formerly had to be confirmed in writing or even by oath; but today there suffices such a promise which, reduced into an agreement, supplies a moral foundation concerning the truth of execution, so that an execution of this sort can prudently be expected; from the decision of the Holy Office, 30 June 1842." Marc, Instit. Moral. Alphons., ed. 2, n. 1987.

"As to the first article of banns or proclamations, it can be tolerated that they be made not only outside the Church, as is permitted in the aforesaid royal letters, but also in every way outside a sacred place. And this will be the first public sign of disapproval of these marriages; but, that the disapproval itself may become more manifest, and may indicate on the part of the parish priest that his cooperation will be a purely material and compelled concurrence, it is preferable to add to the customary formula of banns some expression indicating that marriages of this kind are execrable." Rescript of Pius VI, 31 May 1783, to the Archbishop of Mechlin. Cf. Rescript of Pius VI to Cardinal de Frankenberg, Archbishop of Mechlin, and the Bishops of Belgium, 13 July 1792.

"... Let them beware besides, lest in publishing mixed marriages they express the religion of the non-Catholic contracting party, but let them announce only the names and surnames of the contracting parties...." Pius VI, Extension of the declaration of Benedict XIV to the Duchy of Cleves, 19 June 1793.

"... And indeed as regards the blessing, as you know very well, this Apostolic See has been accustomed to prohibit it also in those marriages which are entered between Catholics and non-Catholics, with leave of the same See having been obtained, and with the cautions prescribed by it having been applied. And if afterwards it could be tolerated that a custom introduced in some regions be observed of blessing mixed marriages entered with the leave of the Church and the aforesaid cautions, nevertheless the same blessing is never to be tolerated in those cases in which, with no leave of the Church acceding and without the necessary cautions premised, a manifest and most grave crime is admitted in the very entering of the marriage covenant.... And these things are consonant with the precepts and admonitions which, whether in Our letters or those of Our predecessor Pius VIII to various Archbishops and Bishops, or in instructions published either by his order or by Ours, you know to have been recorded, Venerable brother. Nor indeed does it matter if those instructions were given only to some prelates who had consulted this Apostolic See, as if it were free for others not to follow their opinion.... Even if those letters and instructions, in that part in which they indulge or tolerate something new, are referred only to those places for which they were given, nevertheless the reason of them is circumscribed by no limits, insofar as they announce the unchangeable doctrine of the Church, inculcate the opinion of the canons, and proscribe depraved usages which are growing strong anywhere...." Gregory XVI, Letter of 23 May 1846 to the Archbishop of Freiburg.

"... It is necessary that satisfaction be made by the aforesaid spouses to the Church, whose most holy law has been violated, and that cautions concerning removing from themselves and from their offspring the danger of eternal salvation be supplied to the same, even in the external forum, and to this end recourse to the Bishop is to be required." S. I. C. 12 March 1881, to Apostolic Vicar B. Acta S. Sed. Vol. 16, p. 235.

Disparity of worship is understood in general as a diversity of religion between the contracting parties. But here it is properly understood as the disparity which intervenes between a baptized and a non-baptized person. Nevertheless, we shall also speak here of disparity of worship between baptized persons contracting matrimony, or of mixed marriages.

824. Principles. - I. Disparity of worship which exists between a baptized person and an unbeliever or non-baptized person renders matrimony invalid. Thus from unwritten law, that is, from custom having the force of law ¹. - See St. Ligorius, no. 1044. - This is established from the common doctrine of the Holy Fathers and theologians ², and Benedict XIV asserts that it is well established in the letter to the Cardinal of York, section 10.

¹ Since this impediment seemed to rest upon custom, but custom has no force in places in which, far from having become prevalent, it has not even begun, this gave rise to the fact which Diana (volume 6, treatise 1, resolution 15, no. 2), Verricelli (On Matrimony, question 175, no. 6), Clericatus (On Matrimony, decision 26, no. 23), and, after them, Benedict XIV (constitution Singulari Nobis, February 9, 1749, section 19) relate: that certain grave theologians, among whom was Lessius, in a consultation held at Rome, judged that disparity of worship among the Chinese and Japanese in those beginnings of conversion was not a diriment impediment, and that in these circumstances the bishops there could suspend the promulgation of the law. But, as Benedict XIV adds (ibid.), an end was placed upon the question by decreeing that the custom's not having been received could bring it about that, when the Chinese and Japanese began to embrace the Catholic faith, the Holy See could give the Apostolic Vicars a faculty by which they might dispense them from the impediment of disparity of worship. Benedict XIV further relates from documents printed at Paris in the years 1627 and 1676 that this faculty was granted; and several grants of this kind may be seen in Father Perrone (On Matrimony, book 2, section 1, chapter 7, article 2).

Moreover, since the Holy See under Clement XIII, through an instruction sent to missionaries from the Congregation of the Holy Office, prescribed that if marriages between Catholics and unbelievers happened to have been contracted without a dispensation, the consent would afterward have to be renewed, it is clear from this that there too this impediment was thereafter held to be diriment.

² Namely, the theologians establish not only from the doctrine of the Fathers but also from Sacred Scripture that marriages of this kind are prohibited by both the natural law, the positive divine law, and also the canons of the Church, and thus are illicit. Concerning this matter see Sanchez, book 7, disputation 71, and Schmalzgrueber, book 4, title 6, nos. 121-124. But at the same time they admit that from none of these sources can it be gathered that those marriages are also invalid; and, as Benedict XIV says in the constitution cited by the Author, since that impediment was not established by Canon law, it remains that it be found to have been received and confirmed by the common custom of the Catholic Church.

II. A diversity of religion between baptized persons does not constitute a diriment impediment. This is proved from the fact that marriages between Catholics and heretics are declared invalid by no law or custom. - Thus the unanimous consent of the theologians.

III. A diversity of religion between Catholics and heretics or apostates constitutes an impeding impediment. This is gathered both from the practice of the Church, which has always turned the faithful away from these marriages with the greatest solicitude, and from the express Declaration of Benedict XIV, who calls these unions detestable, which Holy Mother Church has perpetually condemned and forbidden. Bull Matrimonia, concerning the marriages of Holland, November 4, 1741.

825. Questions. - QUESTION 1. By what law is matrimony between baptized and non-baptized persons invalidated?

Reply. It is certain that it is invalidated by ecclesiastical law alone ³. For in the first centuries of the Church this impediment did not exist, and several marriages of this kind are read of as approved in ecclesiastical history, such as the matrimony of St. Monica with Patricius ⁴. - This is also confirmed from the Declaration of Pius VI in the letter to Cardinal de Frankenberg, Exequendo, July 23, 1782 ⁵.

³ Catharinus with a few others cited by Sanchez (book 7, disputation 71, no. 6) preferred to hold that these unions are invalid by divine law; Schmalzgrueber reports and refutes their reasons (book 4, title 6, no. 126 and following). For the Doctors who support the opposite common and true opinion, see Sanchez, l.c., no. 7.

⁴ See several examples of this kind, and testimonies of the Holy Fathers concerning the same matter, in Schmalzgrueber, book 4, title 6, nos. 120-125.

⁵ The Declaration of Pius VI does not concern the impediment invalidating marriages between believers and unbelievers, but the impeding impediment between Catholics and non-Catholics.

826. • QUESTION 2. To whom belongs the faculty of dispensing from such an impediment?

Reply. To the Roman Pontiff alone, with bishops altogether excluded unless they have obtained this faculty from the Supreme Pontiff. Yet it was never granted to them by the Holy See, although they petitioned for it most urgently, as Pius VII testifies in the letter Vix nova of February 17, 1809, to the bishops of France ⁶.

⁶ The reply of the Author, as is evident, concerns only marriages of Catholics with non-Catholics; for we already said in the note to the preceding number that, among barbarous nations, the faculty of dispensing in marriages of Christians with unbelievers had several times been given to bishops, Prefects of Missions, and missionaries among those peoples. See Perrone, On Matrimony, book 2, section 1, chapter 7, article 2.

827. • QUESTION 3. Under what conditions is the aforesaid dispensation granted?

Reply. Three things must be present: 1. that the danger of seduction be absent for the Catholic party; 2. that the children of both sexes to be born of the matrimony are to be educated in the Catholic religion; 3. that there be a grave reason. These are established from the practice of the Church. See the letter of Gregory XVI to the Archbishop of Freiburg, May 23, 1846. Hence the error is evident of those who believe that they satisfy God and the Church if they instruct sons in the religion of the father and daughters in the religion of the mother ⁷.

⁷ These things likewise concern only a dispensation for marriages between Catholics and non-Catholics. But from several Instructions, which you also have in Father Perrone (On Matrimony, book 2, section 1, chapter 7, article 2), the following conditions are found prescribed as to be observed in dispensations concerning marriages between Christians and unbelievers: 1. that cohabitation with the unbeliever would bring neither insult to the Creator nor danger of perversion; 2. that the offspring would be instructed in the Christian religion; 3. that a dispensation would be granted only in places - understand a Province, Vicariate, etc., but not a village in which there might happen to be more Christians - where there were more unbelievers than Christians; 4. that the dispensation would be granted only for grave causes, so that a dispensation would rather be given from impediments of consanguinity or affinity if marriages with unbelievers were avoided by this means; 5. it is sometimes added that there be a probable hope of the conversion of the unbelieving contracting party.

828. • QUESTION 4. Is a matrimony entered between Catholics and heretics valid if, after a dispensation has been obtained, the heretical party is unwilling to acquiesce in the condition imposed by the Church, namely, that the children OF BOTH SEXES be educated in the Catholic religion?

Reply. Yes. For there is question of a merely impeding impediment, and consequently this condition does not affect the validity of the matrimony.

QUESTION 5. Can the Pastor assist at a mixed marriage if a dispensation has intervened?

Reply. Yes. Thus the Sacred Congregation of the Inquisition replied on December 20, 1838: If the other party is Catholic, a dispensation having been obtained from the impediment of mixed religion and the customary clauses and conditions having been observed, it is lawful.

829. • QUESTION 6. How ought the Pastor to conduct himself in these circumstances?

Reply. The celebration of the matrimony ought to take place before the Pastor and two witnesses according to the prescriptions of the Holy Council of Trent, but outside the church, under which the sacristy is included, and without the blessing of the Pastor. These are the very words of the instrument of dispensation composed concerning the impediment of mixed religion according to the instruction of the Sacred Congregation of the Inquisition. It is also established from the Decision of the Holy Office of November 25, 1838. Hence it is evident that the Priest cannot then wear the stole and surplice ⁸.

⁸ Nevertheless, in the Instruction of November 15, 1858, given by order of Our Most Holy Lord Pope Pius IX to all archbishops, bishops, and local ordinaries concerning mixed marriages, the following is contained concerning the present matter: But if in some places the sacred Prelates recognize that the same conditions cannot be fulfilled without graver losses and evils arising from them, in this case alone His Holiness, for avoiding greater losses and evils of this kind, commits to the prudent judgment of the same sacred Prelates that they themselves, while the cautions concerning removing the danger of perversion from the Catholic spouse, concerning the conversion of the non-Catholic spouse being sought as far as possible by the Catholic spouse, and concerning all the offspring of both sexes being educated altogether in the holiness of the Catholic religion always remain firm and are most diligently observed, judge when the aforesaid conditions of contracting these mixed nuptials outside the church and without the blessing of the Pastor cannot be fulfilled, and when in entering these mixed marriages the custom of employing the rite legitimately prescribed in the Diocesan Ritual for marriages to be contracted can be tolerated, the celebration of Mass, however, always being excluded.

QUESTION 7. Can the banns be proclaimed?

Reply. No. This is established from the same instrument, in which one reads: the proclamations being omitted. It is also confirmed from the letter of Pius VI cited above to Cardinal de Frankenberg.

830. • QUESTION 8. Can the Pastor assist at the matrimony if both parties are unwilling to consent to the Catholic education of the offspring, but the heretical party altogether demands that the offspring of his or her sex follow his or her religion?

Reply. No; rather, he ought to abstain from every intervention. Thus the Sacred Congregation of the Inquisition, June 17, 1829 ⁹.

⁹ But in the instruction added to the Letters of Gregory XVI given to the Primate and Bishops of Hungary on April 20, 1841, the following is contained: His Holiness declared that it can be tolerated that, whenever, from the condition of times, places, and persons, a matrimony of a non-Catholic man with a Catholic woman, and conversely, although the necessary cautions have been omitted, cannot be impeded without graver danger, and moreover it appears expedient for the utility of the Church and the common good that it, although forbidden and illicit, be contracted before a Catholic pastor rather than before a non-Catholic minister, to whom the parties would easily have recourse, the same Catholic pastor, or another priest acting in his place, may be present at the matrimony with material presence only, no ecclesiastical rite being employed, just as if he acted only as what they call a qualified or authorized witness, namely, so that after hearing the consent of each spouse he may thereafter, by reason of his office, enter the validly performed act in the register of marriages. Reported by Roskovany, volume 2, page 818.

QUESTION 9. If a dispensation from the impediment of mixed religion has not been obtained, can the Pastor assist if the law prescribes his assistance?

Reply. This regularly cannot be done unless the Pastor intervenes as a civil magistrate. Thus the Sacred Congregation of the Inquisition, December 20, 1838. Nevertheless, the Supreme Pontiffs are accustomed to permit assistance of this kind where necessity requires it, provided that the promise of each party concerning the education of the offspring in Catholicism has first been altogether required. Thus Pius VII granted to Pastors who were living in Russia and Germany the faculty of assisting, if they were compelled, at mixed marriages entered without a dispensation having been obtained. Nevertheless, the presence of the Pastor does not prevent the spouses contracting in this manner from sinning gravely. Gregory XVI confirmed this.

QUESTION 10. Can a Catholic who contracts these nuptials without a dispensation afterward be admitted to the Sacraments when he wishes to partake of them?

Reply. Yes. This is established from the cited letter of Pius VI to Cardinal de Frankenberg, in which the following is contained: To this we say that, when he demonstrates that he repents of his sinful union, this can be granted to him, provided that before confession he sincerely declares that he will procure the conversion of his heretical spouse, renew his promise concerning the education of the offspring in the orthodox Religion, and repair the scandal given to the other faithful. If such conditions concur, We do not oppose the Catholic party becoming a participant in the Sacraments.

QUESTION 11. Can a Catholic Priest, with a safe conscience, assist at the matrimony if the spouses also contract matrimony in a Protestant church according to the Protestant rite, either before or afterward?

Reply. No. - Thus the Sacred Congregation of the Inquisition, April 21, 1847 ¹⁰.

¹⁰ Concerning those who in these circumstances celebrate matrimony without the presence of the Pastor in places where the form prescribed by the Council of Trent is in force, Pius VIII decreed thus in letters given to the Archbishop of Cologne on March 26, 1830: But now by these Our Letters We will and command that mixed marriages which hereafter happen to be contracted in your Dioceses without the form prescribed by the Council of Trent being observed, if no other canonical impediment obstructs them, be held as ratified and true marriages; as We by Our apostolic authority declare and decree that those marriages are true and ratified.

831. • QUESTION 12. Are Calvinists and Lutherans living in places where Baptism is doubtful and suspect to be regarded as unbelievers, so that the diriment impediment of disparity of worship is considered to exist between Catholics and them?

Reply. The Congregation of the Holy Office itself replied thus to this question on November 17, 1830:

1. As regards heretics whose sectarian Rituals prescribe the conferral of Baptism without the necessary use of the essential matter and form, the particular case must be examined.

2. As regards others who baptize validly according to their Rituals, Baptism must be considered valid. But if doubt persists even in the first case, Baptism must be considered valid in relation to the validity of the matrimony.

3. But if it is certainly known that there is no Baptism according to the present custom of that sect, the matrimony is null.

On the same day and feria, Our Most Holy Lord Gregory XVI, Pope by Divine Providence, in the customary audience granted to the Reverend Father Assessor of the Holy Office, approved the aforesaid resolution rendered by the Most Eminent Fathers.

The aforesaid Decision was renewed by the same Sacred Congregation of the Inquisition on July 20, 1840.

Hence it appears that the following must be established:

1. In a doubt concerning the validity of Baptism, the validity of the matrimony is generally to be presumed ¹¹.

¹¹ Indeed, validity must be retained according to the decree cited above. For the Church is then considered to dispense if perhaps the Baptism was in fact not valid.

2. If there is question of a matrimony to be celebrated between Catholics and one party certainly lacks Baptism, it is evident that this Sacrament must be conferred upon that party before the matrimony. But if the matrimony has already been celebrated with this defect, it must be revalidated after Baptism has been conferred.

3. Finally, if there is question of an invalidly baptized heretic in relation to a mixed marriage, recourse must be had to the Holy See ¹².

¹² Since this matrimony is certainly invalid, if the spouses cannot be separated and the other party is unwilling to receive Baptism, it remains that a dispensation be sought.

902. Mixed marriages, understood in the broad sense, are those which are entered between a Catholic and a non-Catholic, whether baptized or not. But in the strict sense, the impediment of mixed religion, as it is distinguished from the impediment of disparity of cult, is that which exists between two baptized persons, of whom one is Catholic, the other heretical or schismatic; marriage indeed it renders illicit, but not invalid. We shall speak: 1° on the illicitness of mixed marriages; 2° on dispensation from this impediment; 3° on the manner of celebrating them.

¹ Roskovany, De Matrimoniis mixtis; Feije, De Matrim. mixtis, Louvain, 1877; id., De Impedimentis, n. 566-574; Mazzei, De Matrim. personarum diversae religionis, Rome, 1771; Carrière, n. 753-765; Baller. P., n. 1084-1113; Gasparri, n. 442-472; Rosset, III, n. 1734-1769; De Becker, p. 258-267; Wernz, n. 573-590; Ullathorne, An Instruction on Mixed Marriages; Lambing, Mixed Marriages, 1876.

1° On the Illicitness of Mixed Marriages

903. Principle: Mixed marriages, entered without dispensation, are gravely illicit. This is certain.

(A) In Scripture we already find the foundations of this prohibition. (a) For it carefully prohibits association with heretics: "A heretical man after a first and second correction avoid"²; "If anyone comes to you, and does not bring this doctrine, do not receive him into the house, nor say Ave to him. For he who says Ave to him communicates in his evil works."³ Now he who contracts marriage with a heretic not only says ave to him, but has intimate and permanent association with him. (b) Besides, Paul being witness⁴, Christian marriage is the symbol of the perfect union of Christ with the Church: women ought to be subject to their husbands as to the Lord, and husbands to love their wives as Christ loved the Church and handed Himself over for her; but if husband and wife are not of the same faith, their union is very imperfect, since it is not a union of minds in the same faith, nor in the same hope or charity; therefore it represents the union of Christ and the Church only very imperfectly and remotely.

² Titus, III, 10.

³ II John, I, 10-11.

⁴ Ephesians, V, 22-32.

904. (B) Councils and Roman Pontiffs not only in a general way strictly prohibited and severely condemned association with heretics, but also especially marriages with them. Thus the Council of Elvira (A.D. 305) decreed¹: "Heretics, if they are unwilling to transfer themselves to the Catholic Church, Catholic girls are not to be given even to them: but it was pleasing to give them neither to Jews nor to heretics; because there can be no association of the faithful person with the unbeliever." Many other Councils, both particular and general, established the same.

¹ Can. 16, ap. Labbe, Concilia, I, p. 973. The Council of Laodicea established the same (around A.D. 364), can. 10, 31, ap. Labbe, I, p. 1510-1511.

Nor did the Supreme Pontiffs hold otherwise. Urban VIII, December 30, 1624, declared that "marriages of Catholics with heretics must be altogether fled"²; Clement XI³, June 25, 1706, prohibited the same, "unless the good of the whole Republic demands this"; Benedict XIV, November 4, 1741, calls them detestable marriages, which Holy Mother Church perpetually condemned and interdicted, and he greatly praises the zeal of those Prelates who strive by more severe penalties to deter Catholics from these sacrilegious bonds; Clement XIII, November 16, 1763, writes that from conjugal unions of this kind a great disaster is brought upon the Church; Pius VIII, March 25, 1830, declares that the Church abhors marriages of this kind, which bring with them no little deformity and spiritual danger; Gregory XVI, April 30, 1841, says: "She herself has always held such nuptials as illicit and plainly pernicious, both because of the criminal communion in divine things, and because of the impending danger of perversion for the Catholic spouse, and the depraved institution of offspring." Leo XIII confirms their doctrine, writing in the Constitution Arcanum: "That such conjugal unions are chiefly to be abhorred is most clearly seen from this, that they furnish occasion for forbidden association and communication in sacred things, create danger for the religion of the Catholic spouse, are an impediment to the good education of children, and very often impel minds to become accustomed to holding all religions in equal account, with the distinction between true and false removed." All these things have been gravely sanctioned by the Code: "Everywhere the Church most severely prohibits that marriage be entered between two baptized persons, of whom one is Catholic, but the other enrolled in a heretical or schismatic sect: but if there is danger of perversion of the Catholic spouse and of the offspring, the union is forbidden even by divine law itself."⁴

² Apud Rosset, n. 1739.

³ Ibid.

⁴ Code, c. 1060.

905. (C) Theological reason⁵. (a) Mixed marriages harm the intimate union and happiness of spouses. There ought to be an intimate union between spouses, and true concord of minds; the husband ought to love the wife as Christ loved the Church, and the woman to obey the man as the Lord. But this intimate union and friendship can scarcely exist where unity of faith is lacking; for friendship receives or makes equals, or in other words demands that friends feel the same and wish the same; now where faith is diverse, there will be discrepancy of minds not only in religious matters, but also in many historical or ethical questions which are indivisibly connected with religion, especially in those which concern the education of offspring. Thence frequent dissensions arise, which disturb the peace of the family.

⁵ Here it is worthwhile to note that by the same arguments it can be shown how full of dangers are conjugal unions entered between Catholic girls and men who are irreligious.

This posited, the perfect happiness of spouses cannot exist. For true beatitude is enjoyed when they pray together, attend the same divine offices in church, receive the same sacraments, are made participants of the same divine banquet, provoke one another to the practice of the same virtues, are strengthened by the same hope, are united by the same charity. But these things are impossible when the spouses are not of the same faith: for then either each prays separately, or one or the other acts against conscience by exercising acts of religion which inwardly he does not approve. - Besides, since, from the things said, each differs in many things, mutual diffidence steals into their souls, and mutual love grows cold, without which nevertheless there is no true conjugal happiness.

906. (b) Marriages of this kind are very dangerous to the Catholic party as regards faith, and sometimes as regards morals. First of all, to enter nuptials with heretics is a communication in divine things, insofar as the Catholic party administers the sacrament to the heretic, and conversely. Besides, a Catholic, often associating with the heretic and his family, can easily be imbued with not a few errors, and conceive doubts concerning certain truths of faith, or at least blush over some acts of religion, especially since it not rarely happens that the ignorance and simplicity of Catholics are mocked. The danger becomes greater when, notwithstanding the promises made at the time of the nuptials, the husband prohibits the Catholic wife from attending Mass and other divine offices; nor is it less when a heretical woman by perfidious persuasion gradually turns the man away from the practice of religion; for, as Bellarmine rightly writes¹: "Such indeed is the nature of women, that it is much easier for them to draw men into error, than for men to lead them to truth." The danger of indifferentism also is very great: for when in the same family there are found persons cultivating a different religion, and frequent and intimate relations are had among them, the persuasion easily arises that the various forms of religions are worthy of the same estimation. - Nor are dangers lacking as regards morals; for since the abuse of marriage very greatly prevails among Protestants, as is established from their own testimony¹, the Catholic wife can more easily be drawn by a heretical husband to illicit acts.

¹ Letter among the familiar letters 35, ap. Ball. P., n. 1093.

¹ Cf. Sinclair, The Crowning sin of the Age, Boston, 1892, p. 16 sq.; Pomeroy, The Ethics of Marriage, New York, 1895, ch. III; Storer, Is it I? Boston, 1868, p. 104-112.

907. (c) Often the dangers are greater for the children who are born from marriages of this kind. Sometimes the non-Catholic party stands in the way of their Catholic education. Even when they are instructed in a Catholic manner, they easily slip into indifferentism: for they see that the same religion is not cultivated by the parents, and thence they are prone to infer that it matters not much what religion is observed; for if the parents themselves do not think the same concerning religion, who can be certain concerning the absolute truth of religion? Are not all religions of equal value? - Not rarely the heretical party mocks certain Catholic dogmas or practices, and thus excites doubts in the minds of the children. - Besides, if the mother is heretical, she can scarcely instill the sense of true piety into the hearts of the children; if the father is Protestant, the children, even when imbued by the mother with Catholic principles, when they grow up, are too prone to embrace the errors of the father, or even more often to bid farewell to every religion.

This indeed is established by lamentable experience; for although mixed marriages do not always obtain unhappy outcomes, but sometimes produce good effects, either by drawing the non-Catholic party to the true faith, or by removing prejudices; nevertheless more often greater evils than goods arise from them, especially as regards the offspring². For from a computation recently made in the United States of America, sixty-six young people per cent, born from these marriages, cultivate no religion; while, when both parents are Catholic, only eight per cent bid farewell to religion¹.

² Cf. Americ. Eccles. Review, vol. I, 1889, p. 61-74; vol. II, 1891, p. 9-23.

¹ That reckoning was instituted by the Protestants themselves; cf. Association Men, New York, November 1901; Literary Digest, January 4, 1902, p. 17.

908. Corollaries. (A) Catholics who, without dispensation, enter marriage with heretics sin gravely. Nor does custom even of the longest time render it licit, as the Holy See declared many times, especially the Holy Office², January 3, 1871: "Wherefore although, as you affirm, the opinion has long since grown up there, that mixed nuptials can licitly be entered without dispensation of the Holy See, nevertheless this opinion, notwithstanding any custom whatever, cannot be tolerated." - This is true even if in the case the danger of perversion is absent; for there are other dangers, and besides, even when the natural precept ceases, the positive precept of the Church remains, founded on the presumption of danger.

² Ap. Collect. P. F., n. 1434.

Hence, when they have contracted without dispensation, they ought to have recourse to the Bishop, so that they may satisfy for the violation of the law and promise to employ the necessary cautions for removing the danger of perversion from themselves and their offspring³. These cautions are to be exacted even at the point of death⁴.

³ Thus S. Office, March 12, 1881, ap. Collect. P. F., n. 1440.

⁴ S. Office, March 18, 1901, ap. Acta S. Sedis, XXXI, p. 52.

909. (B) Pastors sin gravely when they assist even passively at marriages of this kind, because they cooperate in the sin of the contracting parties; thus the S. C. of the Council⁵ decreed: "Catholic pastors cannot be present at the celebration of these marriages. For it is shameful for them to be witnesses of so great a crime, and by some rite or by their presence to confirm a sacrilegious marriage."

⁵ Ap. Roskovany, II, p. 102; Gasparri, n. 446.

Yet passive assistance of the pastor is tolerated by the Holy See in certain regions: (a) if it is required by civil law under grave penalties; (b) as often as a mixed marriage cannot be impeded without graver damage, and besides it seems to be expedient for the utility of the Church and the common good if it is contracted before the pastor rather than before a non-Catholic minister, to whom the parties would easily flee⁶. - Moreover in these cases the pastor should have recourse to the Bishop, and the Bishop himself to the Holy See, if there is time and there is question of places for which this declaration was not given.

⁶ Thus from the Letter of Gregory XVI, April 30, 1841, to the Bishops of Hungary, ap. Collect. P. F., n. 1428, p. 522.

910. (C) Pastors ought with all their strength, by exhortations, persuasions, and also rebukes, to try that marriages of this kind not be entered. This is clear from the Code, c. 1064: "Let Pastors, as much as they can, deter from mixed nuptials."

To the matter the Third Plenary Council of Baltimore says, n. 133: "To attain this end, however, these things especially conduce: (a) the frequent instruction of pastors by which the faithful are taught concerning the prohibition of the Church against mixed marriages." - This instruction indeed ought to be given at an opportune time, that is, before the Catholic party has been captivated by love toward the non-Catholic party; therefore in the sacred tribunal, when the confessor knows that the penitent rather often frequents non-Catholics, - before Sodalities of young people, where it is established that amorous dealings are had with heretics, - before parents, so that they themselves may watch over adolescent offspring.

(b) "The uniform practice of the same pastors in occurring cases, of impeding with all their strength, by exhortations, persuasions, and also rebukes, that marriages of this kind be entered." This cannot be efficacious unless priests deter younger persons from excessive frequenting of Protestants; and therefore furnish occasions to Catholic youth for coming together, and for devoting themselves to honorable recreation, with certain parents or persons of mature age and proved virtue present: for unless Catholic adolescents come together, they will go to the gatherings and associations of heretics.

(c) "An accurate examination concerning the canonical and grave causes which are required for a dispensation to be granted upon this impediment of mixed communion." Wherefore pastors should not always and easily acquiesce to those seeking dispensation; but they should inquire concerning the canonical causes, and not immediately believe whatever those about to marry say, but accurately investigate the matter.

911. (D) "After mixed nuptials have been celebrated, let pastors know that they are burdened by a grave charge of conscience to watch that the conditions promised by the spouses be observed and obtain effect."¹ For unless pastors do this, and therefore sometimes visit families of this kind, often those promises will fall into oblivion, and the religious education of children will be little attended to. - Likewise, according to the Holy Office², since in this most grave matter nothing is to be left to the judgment of the priest alone, priests should as soon as possible make the Bishop more certain concerning any mixed marriage to be contracted, with all the circumstances of things, places, and persons most accurately reported.

¹ Thus S. C. de Prop. Fide to the Archbishop of Baltimore, June 25, 1884, ap. Collect. P. F., n. 1442; Code, c. 1064, n. 3.

² Instruction to the Bishops of the East, December 15, 1888, n. 13, ap. Collect. P. F., n. 1444.

2° On Dispensation from the Impediment of Mixed Religion

912. On the faculty of dispensing. Nevertheless, when these marriages cannot be prevented, or when in some particular case it is foreseen that greater goods than evils will come from them, or at least that the dangers will be sufficiently removed, the Supreme Pontiff is accustomed to dispense from the impediment of mixed religion, for a just cause. He indeed alone can do this by his own authority, since here there is question of a general law; but sometimes he grants the faculty of dispensing to Bishops, especially in those regions where many heretics are found¹.

¹ Thus in the United States of America, Bishops enjoy the faculty "of dispensing with their subjects upon the impeding impediment of mixed religion, provided that provision has been made for all the conditions prescribed by the Church." If, however, there is another impediment, for example of consanguinity or affinity, they cannot dispense unless they have an Indult of cumulating and at the same time the faculty of dispensing upon this other impediment. Besides, they enjoy the power "of dispensing in mixed marriages already contracted, not likewise to be contracted, upon the degrees of consanguinity and affinity, upon which they have already obtained apostolic faculty for Catholics, insofar as the Catholic party, with absolution first given from the guilt of incest and censures, can contract marriage anew duly and legitimately with the non-Catholic party, and of declaring legitimate the offspring received and to be received, provided that provision has been made for the conditions prescribed by the Church." - Formerly the prior faculty could not be exercised as regards Italians concerning whom it was not established that they had wholly abandoned Italian domicile; but that restriction was removed by a decree of the Holy Office, May 4, 1887. Cf. Putzer, n. 217; Zitelli, Dispens., p. 94.

A mixed marriage contracted with dispensation, and with the due cautions to be set forth below, becomes legitimate, nor can it be called sacrilegious.

913. On the conditions necessary for dispensation. (A) A grave and canonical cause is required, without which it cannot be permitted that the faithful expose themselves to grave dangers of faith and morals. Now this cause can be (a) any reason tending to the public good, for example if it can probably be hoped that the heretical family, or at least the non-Catholic party about to marry, will embrace the true faith; if Catholics are few and mixed marriages can contribute to removing the prejudices of heretics; if otherwise great scandals would arise; if mixed marriage is the only means that children, born from another marriage, be instructed in the Catholic religion; (b) also a reason of the private good of the contracting parties, provided that, after all circumstances have been carefully inspected, it can be foreseen that greater goods than evils will come from this marriage; which especially occurs when the Catholic party excels in faith, virtue, prudence, and fortitude.

(B) Besides, certain cautions are prescribed¹. The non-Catholic party must promise (a) that he or she will leave full liberty to the Catholic spouse for the exercise of his or her religion; (b) that all offspring of each sex will be instructed in the Catholic religion, even if it should happen that the Catholic consort is snatched away by premature death². - But the Catholic party is held to strive, according to the laws of charity and prudence, to promote the conversion of the other party.

¹ Code, c. 1061, § 1, n. 2.

² In certain regions, as in Prussia, it is provided by civil law that children of each sex be educated in the religion of the father, or at least according to his judgment, and at the same time it is forbidden to priests to exact any promise concerning offspring to be religiously instructed; which is opposed to canonical law. Then indeed it is tolerated that pastors assist at mixed marriages entered without these cautions; but they must do nothing which may seem to approve nuptials of this kind, nor mingle with them prayers or religious rites. Thus Pius VIII, March 25, 1830, ap. Collect. P. F., n. 1426.

In the Code, c. 1061, it is established that promises of this kind must regularly be made in writing. If this cannot be obtained, it suffices that they be made so seriously that the Bishop has moral certitude that they will be faithfully fulfilled; but when, because of various circumstances, such certitude cannot be acquired, he can by right require that the promises be confirmed by oath³. Sometimes it is also expedient that they be made in writing and be preserved in the parochial archive⁴, so that at an opportune time they can be shown to those whom the matter concerns.

³ Thus the Holy Office, February 17, 1875, ap. Collect. P. F., n. 1437.

⁴ Which is prescribed in some dioceses, for example in Trent (Statutes, n. 144); in Wilmington (Excerpta, n. 167); in Baltimore for a non-Catholic man, but not for a woman (Statutes, n. 61).

3° On the Manner of Celebrating Mixed Marriages

914. (A) Even when dispensation has been granted, and the necessary cautions exhibited, by common law the pastor can offer only the assistance necessary for validity, avoiding all those things which savor of a religious rite. Therefore the priest, with the witnesses, outside the church, without sacred vestments, should ask for and receive the mutual consent of the parties⁵, and afterwards inscribe the marriage in the book.

⁵ Code, c. 1064, n. 4.

In certain places it is permitted that nuptials be entered in the sacristy or in a private chapel¹, and that the priest question the parties concerning consent and declare them united in marriage; likewise the blessing of the ring and a brief allocution can be permitted with the consent of the Bishop².

¹ Thus S. Office, January 17, 1877, ap. Wernz, n. 588.

² Thus S. Office, January 17, 1877, ap. Gasparri, n. 463; cf. Collect. P. F., n. 1443; Statuts Synodaux de Paris, n. 482.

Besides, where grave inconveniences are feared from assistance of this kind, the Bishop can permit more active assistance³, with certain religious rites, the celebration of Mass and therefore the nuptial blessing always excluded⁴: according to the decree of the Holy Office, January 17, 1872, not only in this case is the Mass for bridegroom and bride prohibited, but also any Mass which could be held as the complement of the ceremony of marriage.⁵ - Hence in all these things the pastor will faithfully follow the Statutes and precepts of the Bishop.⁶

³ On the question whether it is expedient or not to offer active assistance to mixed marriages, cf. Amer. Eccles. Review, VIII, 1893, p. 172-179; 354, 364.

⁴ Instruct. Antonelli, November 15, 1858, ap. Collect. P. F., n. 1450; Code, c. 1102.

⁵ S. Office, January 17, 1872, ap. Gasparri, n. 463.

⁶ In the United States of America, the manner of assisting at mixed marriages is described in the Excerpta, ed. 8, p. 242-247: "First the priest should question the man concerning consent in this manner: 'N. N., wilt thou take N. N. here present for thy lawful wife?' - The bridegroom responds: 'I will.' - Then the woman: 'N. N., wilt thou take N. N. here present for thy lawful husband?' - The bride responds: 'I will.' - Then with right hands joined to one another, they give mutual faith to themselves by the following formula, the bridegroom first saying: 'I, N. N., take thee,' etc., as above (n. 885, note 1). - When these things have been carried out, the priest shall say: 'By the authority committed to me, I pronounce you united in the bonds of matrimony.' - Then the bridegroom will place the ring on the ring finger of the left hand of the bride, saying: 'With this ring I thee wed, and I plight unto thee my troth.' - After these things, the priest should address the spouses with the words added in the Appendix, or similar words..."

915. (B) The spouses cannot either before or after the marriage entered before the pastor approach a non-Catholic minister, unless he acts the part of a civil magistrate, and the law prescribes this for obtaining the civil effects of marriage. Now he acts the part of a civil magistrate when he receives and addresses the spouses not in a temple, but in a hall, and without sacred vestments⁷.

⁷ Code, c. 1063.

The Catholic party who enters marriage before a non-Catholic minister, as one assigned to sacred things, sins gravely, insofar as he or she communicates in sacred things with a heretic and furnishes scandal; and incurs excommunication reserved to the Ordinary⁸. - Hence "if the pastor certainly knows that the betrothed are about to violate or have already violated this law, let him not assist at their marriage, unless from most grave causes, scandal being removed and the Ordinary first consulted."¹ But if he does not certainly know that they are about to go to the heretical minister, he can be silent concerning the law of the Church, when he foresees that the admonition will not be profitable, for avoiding greater evils².

⁸ Code, c. 2319, § 1, n. 1.

¹ Code, c. 1063, § 2.

² Thus S. Office, December 12, 1886, to the Bishops of the East, ap. Collect., n. 1444 (9).

(C) On this occasion it was also asked whether it is licit for a Catholic priest to act as a civil minister in the celebration of the marriage of two heretics; now the Holy Office responded³, December 20, 1837: "Although an intervention of this kind is not so reprobated that it could never be licit, nevertheless commonly it is to be dissuaded." Yet most recently the Prefect of the S. C. de Prop. Fide wrote to the Archbishop of New Orleans, January 26, 1895, that this is licit, because in this case the priest is as an authorizable witness⁴.

³ Collect. P. F., n. 1523; cf. n. 1523, ad 3.

⁴ Ap. De Becker, p. 267.

N. B. - "The faithful are also to be deterred from contracting marriage with those who notoriously have cast off the Catholic faith, even if they have not passed to a non-Catholic sect, or who are enrolled in societies condemned by the Church. Let the pastor not assist at the aforesaid nuptials unless the Ordinary has been consulted, who, after inspecting all the circumstances of the matter, can permit him to be present at the marriage, provided that a grave cause urges and according to his own prudent judgment the Ordinary judges that sufficient provision has been made for the Catholic education of all offspring and for removing the danger of perversion of the other spouse."

"If a public sinner or one notoriously bound by censure shall first have refused to approach sacramental confession or to be reconciled with the Church, let the pastor not assist at his marriage, unless a grave cause urges, concerning which, if it can be done, he should consult the Ordinary."

A high regard for Christian marriage which they are about to contract, and an ardent zeal to make their union resemble as closely as possible its arch-type, the union between Christ and the Church.

Unfortunately they are not, because Protestants deny the sacramental character of marriage.

Four centuries of Protestant teaching have established two convictions in the consciousness of the English-speaking world. The first is that the marriage of Christians is in no sense a sacramental union, and the second, that marriage is not a lasting, but a terminable, union. . . . It is a contract which can be terminated at will by the parties concerned, provided that they fulfil the conditions prescribed by the State.¹

¹ America, January 17, 1931, p. 350.

The Holy Father is very far from granting that other assumption of the profaners of marriage, namely that Catholics may marry persons of any other religion, or of no religion at all, or even professed atheists, without concerning themselves in the least about the religion of their chosen partner, and without any regard to ecclesiastical authority. On the contrary, the Sovereign Pontiff emphasizes¹ the just aversion which the Church professes for mixed marriages, and recalls to mind the words of the Code (Canon 1060) : “Everywhere and with the greatest strictness the Church forbids marriages between baptized persons, one of whom is a Catholic and the other a member of a schismatical or heretical sect.”²

¹ Pp. 47, 48.

² Experience only confirms the wisdom of this judgment. Compare Rev. P. Ter Haar, C.SS.R., De matrimoniis mixtis eorumque remediis.

For the parties themselves, a less complete accord of thought, sentiment, and action, flowing from the fundamental disagreement on the question of religion.¹ Also, the greater difficulty of fulfilling the task of mutual sanctification; less assurance of peace and cordial understanding; and a fatal tendency toward religious indifference. For the children there is reason to fear apostasy, or religious indifference, which is next door to loss of faith and ungodliness.

¹ See the convincing and popular exposition of this subject in “Marry Your Own” by D. A. Lord, S.J. (St. Louis, The Queen’s Work.)

Yes, she sometimes does, for grave reasons based on religious interests; for example, when in an exceptional case a well-grounded hope of the other party's early conversion makes the disadvantages and dangers more remote; and when a reason of a political nature demands such a concession.¹ Sometimes, too, the reason for the dispensation is hardness of heart; it is given to prevent a still greater evil. But when she does dispense, the Church imposes conditions dictated by the spiritual interests of the parties and of the children. She requires that the Catholic party work for the conversion of the other; that the non-Catholic party agree in writing to allow the Catholic party full liberty to practise his or her religion devoutly. Moreover both parties must promise in writing to educate in the Catholic Faith all the children that may be born of the marriage.²

¹ [Translator’s note: This latter reason would seem to have application only in countries, such as many of those of Europe, where matrimonial alliances between royal families have political importance.]

² See Code of Canon Law, Canons 1061, 1062.

It is a matter of natural and Divine law if there is danger of perversion for the Catholic spouse or for the children. (Canon 1060).

It is in fact more severe on marriages with unbaptized persons, because for these it promulgates a more severe sanction: such marriages are null and void if contracted without a dispensation.

806. Notion. Disparity of worship, as it is taken here, is an impediment instituted by ecclesiastical law which dirimes matrimony between a non-baptized party and a party baptized in the Catholic Church or converted to it from heresy or schism.⁷⁴

Among older authors, for example, St. Raymond of Peñafort, compiler of the Decretals of Gregory IX, disparity of worship also includes mixed religion between a Catholic party and a baptized non-Catholic party.⁷⁵ Hence it is customary to distinguish imperfect disparity of worship, or mixed religion, and perfect disparity of worship, or diversity of religion between a baptized and a non-baptized person. Since above, n. 784, we already spoke of the impedient impediment of mixed religion, it remains that we now treat perfect disparity of worship, which indeed is twofold: antecedent and consequent. The former precedes the matrimony to be contracted; the latter supervenes upon a matrimony already contracted. We shall treat antecedent disparity alone, adding a few things below in a scholion concerning consequent disparity.

⁷⁴ Code of Canon Law, can. 1070, § 1.

⁷⁵ Summa, bk. 4, tit. 10.

807. Origin of this impediment. The principal end of matrimony itself, namely, the true and perfect good of the offspring and of the spouses, requires that matrimony not be entered between a baptized and a non-baptized party. For although, absolutely speaking, the offspring begotten of parents disparate in worship can both be rightly baptized and be well educated in the Catholic religion, just as the Catholic party can also do many things for his own spiritual salvation and that of the other party, nevertheless experience proves that the altogether contrary very often occurs, namely, that the spiritual salvation of the offspring and of the Catholic spouse perishes. For this reason, already in the Mosaic law God prohibited the Israelites from entering matrimony with gentile peoples.⁷⁶ In the first centuries of the Christian era, several particular Councils⁷⁷ gravely prohibited marriages between a member of the faithful and an unbeliever, and especially between a member of the faithful and a Jew; but it is not so clear whether at that time these marriages were considered invalid or merely illicit. Certainly marriages between a member of the faithful and an unbeliever were sometimes validly contracted, for example, between St. Cecilia and Valerian, between St. Monica and Patricius, and between Clotilda and Clovis; but again it is not clear whether they were contracted with the due dispensation or not. Gratian (about the year 1150) enumerates the impediment of disparity of worship in the same manner as the impediments of consanguinity and affinity, which were certainly held as diriment.⁷⁸ From the time of Gratian, disparity of worship seems to have been held by all as a diriment impediment of matrimony. Therefore St. Thomas presupposes as something known to all: "Disparity of worship preceding matrimony impedes it from being contracted and dirimes it when contracted."⁷⁹ Nevertheless, it is unknown which ecumenical Council or which Supreme Pontiff established this diriment impediment for the whole Church; hence Benedict XIV says: "Marriages because of disparity of worship are invalid, not indeed by the law of the sacred canons, but by the general custom of the Church, which has flourished for many centuries and obtains the force of law."⁸⁰ The same Pontiff thinks that this customary law already existed in the sixth century.⁸¹ But now the Code of Canon Law, can. 1070, § 1, establishes: "A matrimony contracted by a non-baptized person with a person baptized in the Catholic Church or converted to it from heresy or schism is null." Therefore, from May 19, 1918, this impediment no longer exists between a pagan and a person baptized in a non-Catholic Church and not yet converted, which indeed is very much to be attended to in practice. The terminology "a person baptized in the Catholic Church" seems to be taken in the same sense in which can. 1099, § 1, employs it. Cf. above, n. 754.

⁷⁶ Cf. Deut. 7:3.

⁷⁷ For example, the Council of Elvira, 306; the Council of Arles, 314; the Council of Hippo, 393; the Second Council of Orléans, 533.

⁷⁸ "Those who have been joined contrary to a decree of God or of the Church are commanded to be separated from one another, such as members of the faithful with unbelievers, blood relatives with blood relatives, or relations by affinity with relations by affinity. All these, if they have been joined to one another, are to be separated" (c. 14, C. 28, q. 1).

⁷⁹ Suppl., q. 59, a. 1, ad 1.

⁸⁰ Constitution Singulari nobis, February 9, 1749.

⁸¹ Opera inedita, 431.

808. In a case of doubtful baptism, serious inquiry must be made so that the truth may be discovered. But while the doubt remains, one must proceed as follows: 1. If there is question of a matrimony to be contracted, then the doubtful baptism of the Catholic party is to be repeated. But if the baptism of the other party is doubtful and that party does not wish to be converted to the faith, then a dispensation from the impediment of mixed religion is to be sought and, for greater security, also from the impediment of disparity of worship. 2. If there is question of a matrimony already contracted, before the Code of Canon Law (May 19, 1918) the general rule was: In relation to matrimony, a doubtful baptism is held to be valid. Thus the Holy Office declared several times. - But when the doubtful baptism is afterward known with certainty to be null and invalid, nevertheless the matrimony cannot be dissolved by private authority because of the impediment of disparity of worship, but recourse must be made to the Ordinary, who, "with the intervention of the defender of the matrimonial bond, without need of a second sentence,"⁸² can declare the nullity of the aforesaid matrimony.

Some grave authors⁸³ thought otherwise concerning this matter, namely, they taught that a matrimony contracted between persons putatively baptized always remained valid, even if it was afterward discovered that either of the contracting parties was not baptized (or was invalidly baptized). Thus, for example, Santi-Leitner⁸⁴ says: "Whenever matrimony was contracted with certainty or presumption of baptism, the matrimony was valid. And because it was valid, afterward, when the invalidity of the baptism was discovered, it is not rendered invalid, because a matrimony once valid is always valid." In other words: Whenever matrimony is contracted between persons certainly or doubtfully baptized, there arises a presumption of law and of law that the matrimony is valid, against which presumption no exception is admitted because of the impediment of disparity of worship. Deservedly it is said in the "De Breuil-Denison case": "This doctrine does not seem easily reconcilable with certain authentic declarations of the Sacred Congregation of the Holy Office. For in the Instruction of the Holy Office of June 5, 1889, it is said: 'When there is question of the impediment of disparity of worship and it is evidently established that one party is baptized and the other party was not, ... the matrimony can be declared null by the Ordinary.'"⁸⁵ But how could the matrimony be declared null if it had been valid from the beginning? Besides, this opinion seems to be manifestly opposed to canon 1070, § 2.

After the Code, another rule was established if there is question of a contracted matrimony while the doubt remains: "If at the time the matrimony was contracted a party was commonly held as baptized, or his baptism was doubtful, one must stand, according to the norm of can. 1014, for the validity of the matrimony until it is certainly proved that one party is baptized and the other is not baptized."⁸⁶ Therefore in doubt matrimony must always be favored. The only exception seems to be the privilege of faith, which in a doubtful matter enjoys the favor of law⁸⁷ (Code of Canon Law, can. 1127). Therefore, for example, if a non-baptized person contracted matrimony with a Catholic person doubtfully baptized, the doubtful baptism can be considered as null, and therefore such a matrimony can be dissolved by the Pauline privilege or by a dispensation of the Holy See.^87a But whether the baptism is to be repeated conditionally for the greater security of eternal salvation and for the licit reception of the other sacraments is another question, which must be resolved after all the circumstances have been considered. If, after an investigation has been made, the nullity of the baptism is established, either the matter must be referred to the Ordinary, who can declare the matrimony null, as was said above, or the putative spouses must renew their matrimonial consent in legitimate form after baptism has been validly conferred. If the party whose baptism is established to be null indeed refuses to receive baptism, but wishes to persevere in the matrimony and to furnish the prescribed guarantees, a dispensation from the impediment of disparity of worship is to be sought.

⁸² Thus the Holy Office, June 5, 1889; and the Code of Canon Law, can. 1990.

⁸³ Gasparri, De matrim., n. 598; Leitner, Lehrb. des kirchl. Eherechtes, 273.

⁸⁴ Prael. iur. can. IV, 71.

⁸⁵ Acta Ap. Sed. III, 400.

⁸⁶ Code of Canon Law, can. 1070, § 2.

⁸⁷ Ibid., can. 1127.

^87a Cf. Holy Office, November 5, 1924.

809. Cessation of the impediment of disparity of worship. This impediment can cease in three ways:

1. By the valid reception of baptism and the legitimate renewal of consent. This is evident of itself.

2. By dispensation, which the Supreme Pontiff is wont to concede through the Holy Office,⁸⁸ or, in mission territories, through Vicars Apostolic or even simple missionaries. In Catholic regions this dispensation is rarely conceded, especially if there is question of entering matrimony with a Jew.⁸⁹ But in grave danger of death or another urgent case, Ordinaries, parish priests, or even all priests can dispense from this impediment, as will be said below, n. 857. A dispensation from the impediment of disparity of worship cannot be given unless those things are observed which were indicated above for celebrating mixed marriages, and especially unless the guarantees prescribed for mixed marriages are first furnished, namely, the education of all the offspring in the Catholic faith and freedom of worship for the Catholic spouse. But if these guarantees were not sought or were denied, the dispensation conceded is invalid, and the Ordinary can pronounce the nullity of a matrimony thus contracted without its being necessary in individual cases to recur to the Holy See for a definitive sentence. Thus the Holy Office, June 21, 1912.⁹⁰ The dispensation is invalid if each contracting party has not furnished these guarantees. These things are indeed especially to be attended to if a parish priest or priest dispenses from this impediment in grave danger of death.

Likewise to be noted is the Instruction of the Holy Office of September 16, 1824, which seems still to remain in force today after the promulgation of the Code: "In dispensing with the Catholic party from disparity of worship so that the party may contract with an unbeliever, the Church is understood to dispense also from those impediments from which the unbelieving party is exempt, so that, because of the indivisibility of the contract, the latter's exemption remains communicated also to the other party."⁹¹ The unbelieving party is exempt from all impediments of merely ecclesiastical law because he is not subject to the jurisdiction of the Church. Impediments of this kind are age, affinity, crime, etc. Hence, when, for example, a dispensation from the impediment of disparity of worship has been conceded, the affinity which the unbelieving party incurs has also implicitly been dispensed, as is evident from the following case resolved in the same Instruction of the Holy Office: "Paul, a Christian widower, took Balbina, an unbeliever, as his wife.... Demetrius, Paul's son from a prior wife, declares that he had relations with Balbina. It is asked whether an impediment of affinity in the first degree results from such copulation with an unbelieving woman. - If Paul took Balbina after a prior apostolic dispensation, even if the copulation of Demetrius with the same Balbina had preceded, the matrimony is now to be held as valid." Today affinity no longer arises from illicit copulation.

3. In a case of impossibility. Hence, if in some region there are so few Christians that they cannot enter matrimony among themselves and cannot, because of the distance of places or for other reasons, seek a dispensation, the impediment ceases, since in this case the natural right to matrimony seems to prevail over the ecclesiastical law establishing the impediment of disparity of worship. Several authors, for example, Gasparri⁹² and Leitner,⁹³ deservedly teach thus; their opinion is favored by the Holy Office, June 4, 1851, which teaches that the faithful who in circumstances of this kind entered matrimony with non-baptized persons without first obtaining a dispensation are not to be disturbed. Nevertheless, even in these cases the guarantees recounted above are required, since they are required not by ecclesiastical law alone, but by divine law.

⁸⁸ Constitution Sapienti consilio, June 29, 1908, I, 5; Code of Canon Law, can. 247, § 3.

⁸⁹ Cf. the dispensation denied to the Jew Popper, in Leitner, Lehrb. d. kirchl. Eherechtes, 275.

⁹⁰ Acta Ap. Sed. IV, 443.

⁹¹ Collect. de Prop. Fide, n. 784.

⁹² De matrim., n. 623.

⁹³ Lehrb. des kirchl. Eherechtes, 273.

810. Scholion 1. Supervening disparity of worship is present when, after a legitimate matrimony of pagans has been contracted, one of the spouses is validly baptized. How one must then act is evident from the things said above, n. 671, concerning the "Pauline privilege."

Scholion 2. As regards the ceremonies to be employed in the celebration of a matrimony between a baptized and a non-baptized party, nearly the same things have force which are prescribed for the celebration of a mixed matrimony, unless special things are required in the indult of dispensation.

S. Th., Suppl., q. 59, a. 1-5.

885. Disparity of worship (disparite de culte; verschil van eeredienst) is a diversity of religious worship which exists between two persons, of whom one is validly baptized and the other is not. Hence of itself it exists not only between Catholics, but also between non-Catholics baptized in heresy and schism, and unbelievers who do not have Christian worship; - but not between Catholics and heretics or schismatics, who have substantially the same worship of the true God through the true mediator Christ.

Considered according to natural and divine law, it is generally an impeding impediment on account of the danger of perversion; but by ecclesiastical law it is universally an impediment, and indeed a diriment one, which gradually was introduced by custom from the fifth century onward, which obtained the force of law, so that it bound all baptized persons, even non-Catholics, from the beginning of the twelfth century. But now in the new code of law it is expressly established and has become a written law; yet at the same time it was limited to Catholics, so that those who, baptized outside the Catholic Church, were never Catholics, would now no longer be bound by the diriment impediment.

886. Principle. No matrimony is contracted by a non-baptized person with a person baptized in the Catholic Church or converted to the same from heresy or schism. - Thus can. 1070, § 1.

The following are subject to the canonical impediment:

1° All baptized in the Catholic Church; namely,

a) Adults, or those having the use of reason, who voluntarily received Baptism in order to the Catholic Church.

b) Infants who, from the intention even merely interpretative of both or either parent or of one holding their place, were baptized in order to the Catholic Church, even if the minister intended otherwise.

c) Infants who, from the intention of the baptizer alone, were baptized in order to the Catholic Church, even children of non-Catholics, if in a case of necessity they are thus baptized, as can be gathered from the Holy Office, Apr. 1, 1922, or if illegitimately against the prescription of can. 750-751; this last, however, is called back into doubt by some.

2° Also those converted to the Catholic Church from heresy or schism; namely,

a) Those who of their own accord returned to the Catholic Church and emitted a profession of faith in it.

b) Children who, baptized outside the Church, from infancy, i.e., at least from the use of reason, have in fact been educated Catholicly.

3° And indeed all the aforesaid, although afterward they defected from the Catholic Church; indeed also those born of non-Catholics although baptized in the Catholic Church, who from infancy grew up in heresy or schism or unbelief or without any religion (interpreting commission, Apr. 29, 1940), although this had been denied by some on account of parity with can. 1099, § 2. But since that exception is there explicitly established for the form of celebration of matrimony, and on the contrary in can. 1070 this exception is in no way indicated, parity seems to be lacking.

But non-Catholics baptized outside the Catholic Church and never converted to it, by the new law, i.e., from May 19, 1918, now validly contract matrimony with an unbeliever.

The impediment, insofar as it is diriment, is of ecclesiastical law; insofar as it is prohibitive, it also arises from natural and divine law, both on account of the danger of perversion of the faithful party and of the offspring; and because matrimony among Christians is born to be a sacrament, which requires parity of Baptism in each recipient; and because matrimony involves an intimate conjunction of souls, to which nothing is more opposed than disparity in worship or in the supreme principles of religious and moral life.

Hence II Cor. VI, 14: "Do not bear the yoke with unbelievers. For what participation has justice with iniquity? or what society has light with darkness?", which principle of divine law is found in the tradition of the Church also applied to matrimony not to be contracted with an unbeliever (cf. I Cor. VII, 39).

Hence St. Thomas, q. 59, a. 1:

"1° It is said, II Cor. VI, 14: What agreement is there of light with darkness? But the greatest agreement is between husband and wife. Therefore he who is in the light of faith cannot contract matrimony with her who is in the darkness of unbelief.

2° The more principal good of matrimony is offspring to be educated to the worship of God. But since education is commonly done between father and mother, each according to his faith intends to educate the offspring to the worship of God. And therefore, if they are of diverse faith, the intention of one will be contrary to the intention of the other. And thus there cannot be fitting matrimony between them. And on account of this preceding disparity of worship impedes the matrimony itself, lest it be contracted." Hence "disparity of worship is contrary to matrimony by reason of its more principal good, which is the good of offspring" (ad 4).

But since the proximate danger of perversion sometimes can be absent and grave reasons commend matrimony, hence natural and divine law sometimes does not urge, and then the Church can dispense from the canonical impediment.

887. What in a case of doubtful Baptism? - Doubt can precede matrimony to be contracted or follow upon matrimony contracted.

A. As regards matrimony to be contracted. If after diligent inquiry a founded doubt remains concerning the reception or validity of Baptism, the Catholic party doubtfully baptized is to be rebaptized under condition; likewise the non-Catholic party who wishes to convert; but if that party does not wish to convert, he cannot be rebaptized under condition (can. 731, § 2), but, together with the dispensation of mixed religion, for caution let dispensation be sought over disparity of worship, which in the case, since it concerns a doubt of fact, can be granted by the Ordinary according to can. 15.

B. As regards matrimony already contracted. In doubt, the matrimony is always presumed valid, according to can. 1070, § 2: "If the party at the time of contracted matrimony was commonly held as baptized, or his Baptism was doubtful, one must stand, according to norm 1014, for the value of the matrimony, until it is certainly proved that one party is baptized, but the other not baptized." This, however, is a mere presumption, which therefore yields to truth; hence if a person baptized Catholicly unknowingly contracted with a non-baptized person, the matrimony is in fact null, and therefore is to be convalidated or declared null according to can. 1990.

For judging the value of Baptism, practical norms were established by the Holy Office.

a) As regards the inquiry to be instituted, from the resolution of Nov. 17, 1830:

1° As regards heretics whose rituals prescribe the conferral of Baptism without the necessary use of essential matter and form, the particular case must be examined.

2° As regards others, who according to their rituals validly baptize, Baptism must be considered valid, nor is further examination required in particular cases.

3° If doubt persists, even in the first case, Baptism must be considered valid in order to the validity of Matrimony.

b) As regards a doubt of fact, investigations having been carried out uselessly, from the response of Aug. 1, 1883:

1° Baptism is to be presumed if someone had parents belonging to a sect which holds it as necessary, - or in which at least it is ordinarily administered and those same parents were zealous in their sect; - or, if according to the sect of only one parent and that parent's zealous disposition of soul the presumption favors Baptism, provided that parent in fact and without doubt had the principal parts in the education of the offspring, nor is the other spouse known to have been positively opposed to the conferral of Baptism.

2° On the contrary, Baptism is not to be presumed if the non-Catholic party had parents belonging to a sect which rejects Baptism, or does not admit Baptism of infants; - or had parents who professed that they did not wish to belong to any sect and that they honored the Supreme Being rather by upright morals than by some special worship.

3° Nothing can be presumed and therefore in individual cases recourse must be had to the Holy See, if the parents were indifferent in their sect, which ordinarily administers Baptism; - or belonged to a sect which does not reject Baptism but does not hold it as necessary and in which it is not ordinarily administered; - or if, inquiry having been made, it is unknown whether the spouse who favors Baptism had the principal parts in the education.

888. Observations. - 1° The impediment ceases both by the conversion and Baptism of the unbeliever, and by legitimate dispensation, which is granted more easily in places of unbelievers, rarely in Catholic regions, especially if there is question of matrimony with a Jew.

2° Nevertheless the Church never dispenses except from a grave cause and only under the cautions which are required for mixed nuptials. Moreover, all things which are prescribed concerning mixed nuptials (n. 867) must also be applied to matrimonies to which disparity of worship stands opposed (can. 1071).

3° Indeed, a dispensation conceded by delegated power is invalid when the prescribed cautions have not been required or have been denied; and the Ordinary himself can declare the nullity of the matrimony without recourse to the Holy See if, on account of this cause, it is evidently established (can. 1990; Holy Office, June 21, 1912).

4° Formerly, from the instruction of the Holy Office, Sept. 16, 1824, a dispensation over disparity of worship implied dispensation from all impediments from which the unbelieving party is exempt, as consanguinity in the second degree of the collateral line, etc. But the Holy Office declared that this no longer holds, Apr. 15-May 20, 1931: namely, on account of can. 1036, § 3.

1984. Besides mortal sin and excommunication, which render matrimony illicit, FOUR prohibiting impediments are numbered, comprehended in these little verses:

Prohibition of the Church, time, betrothals, vow,
Impede it from being made, permit what is made to stand.

To these impediments TWO others were formerly numbered, namely: - 1. The impediment of Catechism, which was contracted by him who answered for an infant, when the ceremonies were supplied after Baptism conferred in necessity; or, according to others, by him who recited the profession of faith in the name of the one to be baptized before Baptism. This impediment was removed by the Council of Trent (sess. 24, de reform. Matrim., cap. 2). - 2. The impediment of Crime, under which name were comprehended certain delicts, e.g. incest with one's own mother or daughter, abduction of another's bride, wife-murder, priest-murder, public penance as long as it endured, etc.; but this impediment has become obsolete by desuetude.¹⁴ - By others also the dissent of parents is reckoned among prohibiting impediments. See what was said n. 1951 and 1973, qu. 6.

1985. By PROHIBITION OF THE CHURCH, in the strict sense, is understood an interdict from man, and it is defined: A prohibition by which an ecclesiastical Superior forbids, for a just cause, matrimony to be contracted between certain persons, until that cause or reason has been removed. But under the name of ecclesiastical Superior here comes not only the Pontiff for the universal Church, and the Bishop for his diocese, or the vicar general; but also the pastor, who, although he does not judicially see to matrimonial causes as to other causes, nevertheless can place an INTERDICT as pastor, until namely the cause is discussed and decided by the ordinary judge.

The CAUSES of the prohibition can be: either betrothals entered with another, or suspicion of a latent impediment, or fear of disturbances, ignorance of the elements of faith, or another thing of this sort.¹⁵ If the prohibition was made on account of a grave cause, the contracting parties sin gravely in contracting matrimony; but lightly, if the prohibition is on account of a light cause, e.g. on account of the veneration of some feast.¹⁶

In a broader sense, PROHIBITION OF THE CHURCH comprehends moreover certain general prohibitions noted in law, such as: that matrimony not be celebrated when proclamations have been omitted; that it not be entered into clandestinely, which prohibition everywhere constitutes an impedient impediment, but where Trent has been promulgated, is a diriment impediment. Concerning these it will more conveniently be said below, where proclamations and clandestinity are treated (n. 2056 and 2040).

Among these prohibitions noted by law, the first place must be assigned to that by which MIXED MARRIAGES are forbidden, concerning which one must speak more fully.

1986. MIXED matrimony, or matrimony of mixed religion, is called that which is contracted between baptized persons, of whom one is Catholic, but the other non-Catholic.

Principles. I. "MIXED marriages are detestable unions, which Holy Mother Church has perpetually CONDEMNED and interdicted." - Thus Benedict XIV, in the Decree concerning marriages of heretics in Holland.¹⁷

But why they are to be detested Our Most Holy Lord Pope LEO XIII explains in a few words in the Encyclical Arcanum, saying: "This also must be guarded against, namely that marriages not easily be desired with those alien to the Catholic name: for it can scarcely be hoped that souls dissenting about the discipline of religion will be otherwise concordant in other things. Indeed, it is chiefly from this that one perceives that marriages of this sort must be abhorred, because they furnish occasion for forbidden association and communication in sacred things, create danger to the religion of the Catholic spouse, are an impediment to the good instruction of children, and very often impel souls to become accustomed to having equal regard for all religions, the distinction between true and false having been removed."

1987. II. Mixed marriages sometimes CAN BECOME LICIT, namely from pontifical dispensation conceded on account of a grave cause, with due cautions moreover being employed and certain conditions being observed. Thus it has been declared many times by the Supreme Pontiffs, and by name by Pius IX in the Instruction promulgated on 15 Nov. 1858.¹⁸

1. PONTIFICAL DISPENSATION is required, since it pertains to the Apostolic See alone to dispense in the general law of the Church.¹⁹ - This dispensation, if at times it concedes it through the Congregation of the Holy Office, it concedes only unwillingly, and solely for grave causes, e.g. on account of hope of gaining the non-Catholic family for the faith, or for avoiding scandals.

2. DUE CAUTIONS must be employed, "namely that a) not only can the Catholic spouse not be perverted by the non-Catholic;²⁰ indeed b) the Catholic spouse himself knows that he is bound, according to his powers, to draw the non-Catholic back from error; but also c) that all offspring of either sex to be procreated from these mixed marriages must altogether be educated in the holiness of the Catholic religion. These cautions indeed can never be remitted or dispensed, since they are founded in the natural and divine law itself, which the Church and the Holy See strive with every zeal to guard whole and intact."²¹ The required cautions formerly had to be confirmed in writing or even by oath; but today it suffices that there be "such a promise, reduced to an agreement, as furnishes a moral foundation concerning the truth of the execution, so that such execution can prudently be expected;" from the decision of the Holy Office, 30 June 1842.²² - But if, in some places, diocesan Statutes prescribe writing or oath, or even other cautions besides those enumerated, they must be obeyed.

3. CERTAIN CONDITIONS must be observed, which regard the celebration of matrimony, namely "that these mixed unions be celebrated outside the church, and without the blessing of the pastor, and without any other ecclesiastical rite." - Hence, only passive presence of the pastor is permitted; which ought to be such that he does not assist at the matrimony in a sacred place, nor with vestments which display a sacred rite. Moreover, he ought not recite liturgical prayers over the contracting parties, nor bless them in any way. - Yet it is right for him to question them concerning the will of entering matrimony. But it is not licit to make proclamations of such marriages, as is clear from the Letter of Pius VI to Cardinal de Frankenberg, 13 July 1782.²³

But the Church does not urge the observance of these conditions with the highest rigor; for, "if in some places the sacred Prelates know that the same CONDITIONS cannot be fulfilled without graver damages and evils arising from it: in this case only His Holiness commits it to the prudent judgment of the same sacred Prelates, for avoiding greater damages and evils of this sort, that they themselves, with the cautions always saved and firm and most diligently observed..., judge when the commemorated conditions concerning these mixed nuptials to be contracted outside the church and without the blessing of the pastor can in no way be fulfilled; and when, in entering these promiscuous marriages, the custom of employing the rite legitimately prescribed in the diocesan Ritual for marriages to be contracted can be tolerated; yet with the celebration of Mass always excluded, and all the circumstances of things, places, and persons most diligently weighed, and with the conscience of the Prelates themselves burdened concerning the truth and gravity of all the circumstances."²⁴

If ACTIVE assistance of the pastor is judged to be permitted, it can also be tolerated, when circumstances advise it, that the customary PROCLAMATIONS be made, with mention of the religion of the parties to be married being omitted, and that TESTIMONIAL LETTERS be conceded concerning the facts, which state only that nothing, besides the prohibition of the Church, stands in the way of arranging the matrimony, all words being omitted from which suspicion of consent or of any approval could arise.²⁵

And let these things have been said concerning MIXED marriages which have become licit. But since pastors are accustomed to be especially anxious concerning illicit mixed marriages, it comes aptly here to be inquired what must be done in such circumstances.

1988. Questions. Q. 1. Whether the pastor CAN ASSIST at a mixed matrimony which, on account of defect of dispensation, remains illicit?

Resp. Negatively, speaking regularly: because such assistance is material cooperation toward an illicit act, and therefore prohibited of itself.²⁶ "Nevertheless, if it is recognized that it can yield to the utility of the Church and the common good of souls that nuptials of this sort, however illicit and forbidden, be celebrated before a Catholic pastor rather than before a heretical minister, to whom the parties could easily flee: then the Catholic pastor himself, or another priest acting in his place, will be able to be present at the same nuptials only by material presence, every ecclesiastical rite being excluded, just as if he performed only the parts of a merely qualified witness, as it is commonly called, or one able to authorize."

That is, so that, after hearing the consent of each spouse, afterward according to his office he may record the act validly performed in the book of marriages.¹ Likewise, proclamations can be made and testimonial letters conceded, in the manner in which it was said above.² But the pastor, in this matter, should do nothing without consulting the Bishop.³

Q. 2. What if the spouses also wish to contract before a HERETICAL MINISTER?

Resp. 1. "When civil law commands it, it is not disapproved that the Catholic party together with the heretical party present themselves, before or after matrimony contracted according to the form of Trent, also before a minister addicted to heresy, only to fulfill the civil act, namely that they may be held civilly as honorable spouses, and that the offspring may be judged legitimate."⁴

2. "But truly, whenever the heretical minister is regarded as one devoted to sacred things and as performing the office of a pastor, it is NOT LICIT for the Catholic party together with the heretical party to furnish matrimonial consent before such a little minister; because he would be employed to complete a certain religious ceremony, and the Catholic party would associate himself with a heretical rite: whence there would arise a certain implicit adherence to heresy, and consequently an altogether illicit communication in divine things with heretics."⁵ Wherefore the PASTOR, if the spouses nevertheless wish to express consent before a heretical minister, should abstain from every intervention. - But in these most miserable circumstances, if every scandal can be removed, and a most grave cause accedes, e.g. the danger of concubinage, in those places where the impediment of clandestinity prevails, it seems that passive assistance of the pastor can be permitted.⁶

3. "Pastors should know moreover that, if they are questioned by the contracting parties, or if they know certainly that these are going to a heretical minister devoted to sacred things, to furnish matrimonial consent, they cannot be silent; but they are bound to admonish the same spouses concerning the most grave sin which they commit, and concerning the censures which they incur"⁷ (see n. 1314, 3). - "Nevertheless, for preventing grave evils, if, in some particular case, the pastor has not been questioned by the spouses whether it is licit now to go to the heretical minister; and no explicit declaration is made by the same spouses concerning going to the heretical minister; yet he foresees that they perhaps are going there to renew matrimonial consent, and moreover from the circumstances occurring in the case he foresees that admonition certainly will not be profitable, indeed that it will be harmful, and from this that a material sin is to be turned into formal fault: then LET HIM BE SILENT, scandal however being removed, and provided the other conditions and cautions required by the Church have been duly placed, especially concerning the free exercise of religion to be conceded to the Catholic party, and also concerning all offspring to be educated in the Catholic religion."⁸ Matrimony in such a case becomes licit, and the spouses, on account of good faith, sin only materially by going to the heretical minister.

4. "But if finally consent wishes TO BE RENEWED before the pastor after it has already been furnished before a heretical minister, and this is publicly known, or is notified to the pastor by the spouses themselves: the pastor will not be present at this matrimony unless, other things to be observed having been observed as is supposed, the Catholic party, repentant of the deed, after salutary penances have been premised, has first duly obtained absolution from the censures contracted."⁹ But cautions must be furnished by the spouses also in the external forum, and for this end recourse to the Bishop is required.¹⁰

5. Finally, when the spouses refuse to stand by the prescriptions of the Church, it must be said as concerning the case in which they pertinaciously intend to contract before a heretical minister (see above n. 2).

Note. In certain regions, Bishops obtain the faculty of dispensing their subjects over the said impediment of mixed religion, except Italians, concerning whom it is not established that they have altogether abandoned an Italian domicile.¹¹

1989. FORBIDDEN or closed TIME, as they say, is an impediment by which "from the first Sunday of Advent up to the day of Epiphany, and from Ash Wednesday up to the Octave of Easter inclusive, the solemnities of nuptials are prohibited."¹² The reason of the prohibition is that these solemnities vehemently draw souls away from spiritual things, to which the Christian faithful ought to attend especially in this sacred time: whence it obliges under grave sin of itself (cf. n. 1217, 5).¹³

But under the name of solemnities are understood: - 1) The blessing of nuptials, which is had in the Mass For the groom and bride: this solemn blessing is prohibited under grave sin. - 2) The solemn leading of the bride into the house of the groom, which namely is done with great pomp and great preparation: in this matter one can also sin gravely, if the solemnities are too immoderate: which is to be judged according to the customs of places, from common sense. - 3) More solemn banquets; but "these are not prohibited under grave sin, unless the excess is great: indeed, if they are done moderately, there will be no fault."¹⁴

Therefore by universal law there are NOT PROHIBITED either betrothals, or proclamations, or the celebration of matrimony, with only that blessing employed which is had in the Ritual; nor the leading of the bride itself without solemnities.¹⁵ Nevertheless, in some places, the celebration of matrimony, although not solemn, is prohibited by customary law or diocesan law, by which one must stand under grave sin, unless a dispensation of the Bishop intervenes.¹⁶ But it is not licit for him, without a special faculty, to permit the solemnities of nuptials, because he cannot dispense, by his own authority, in the universal law of the Church.¹⁷

1990. BETROTHALS validly entered and not legitimately dissolved induce a true and mutual obligation, so that it is no longer licit for either party, against the faith given, to enter another matrimony; although once celebrated, this would be valid. - Recall what was said n. 1952 and 1953.

1991. Under the name of VOW, which constitutes a prohibiting impediment of matrimony, comes a simple vow, whether of not marrying, or of preserving chastity, or of entering Religion, or of receiving sacred Orders.

Principles. I. A simple vow is an impediment prohibiting the celebration of matrimony UNDER GRAVE SIN. - The reason is that one contracting with such a vow either directly transgresses it, namely if it is a vow of not marrying, or exposes himself to the proximate danger of transgressing, as is evident: and therefore, since it is a question of a grave obligation, without doubt he sins gravely against the vow. Besides, he sins against justice, because the counterpart not admonished is gravely deceived. To these there is also added the positive declaration of law.¹⁸

1992. II. The OBLIGATION of the vow, after matrimony has been illicitly celebrated, IS NOT REMOVED, except insofar as its fulfillment has been made morally impossible. - The reason: because on the one hand no one ought to report advantage from his own malice, but on the other no one can be held to the impossible.

Hence: 1. He who enters matrimony, disregarding a vow of NOT MARRYING, or consummates matrimony, disregarding a vow of virginity alone, indeed sins gravely; but now he is held to nothing further, since the vow has been made simply impossible.

2. He who, after spurning a vow of CHASTITY, contracts matrimony, is held to all those things which can be observed in the conjugal state, namely: - 1) He cannot ask the debt, unless charity toward the counterpart placed in danger of incontinence advises it; but generally he can render it, because the right of the spouse asking prevails. But - 2) He cannot render when the counterpart does not have the right of asking, namely in the first two-month period, unless the matrimony has already been consummated: for once it has been consummated, he is bound to render, provided the spouse has not lost the right of asking for another cause, e.g. on account of adultery or incest. - 3) When the counterpart has died, he cannot hasten to new nuptials. But if, during matrimony, he commits adultery, by this very fact he also becomes guilty of violation of the vow.¹⁹

3. He who after emitting a vow of ENTERING RELIGION contracts matrimony, is held to the following: - 1) Within the first two-month period conceded for deliberating, he cannot consummate the matrimony, either by asking or by rendering the debt, but is bound to enter Religion. - 2) After the two-month period has elapsed, the obligation of the vow still endures, if the counterpart, whose will must be seriously explored, is willing to consent to its execution; but if the counterpart does not consent, he can not only render the debt, but also ask it. - 3) If the counterpart loses the right of asking perpetually, or consents to the observance of the vow, or has died, the obligation of the vow revives, unless perhaps the circumstances have been so changed that the vow now ceases intrinsically, e.g. if the one vowing has now grown old. If the vow had been of entrance into an Institute where simple vows are emitted, the obligation would comprehend only those things which we have just said under 3).

4. He who enters matrimony after emitting a vow of RECEIVING SACRED ORDERS can use matrimony, both by asking and by rendering the debt; but he is bound to fulfill the vow, if the counterpart consents, or if she has died, or if she has lost the right of asking perpetually.

Note. The things said concerning the fulfillment of a vow after contracted matrimony indeed hold of themselves, and in the rigor of law; but IN PRACTICE, for the most part, it will be more advisable that recourse be had to DISPENSATION.

1993. IT IS ASKED. Who can DISPENSE from the aforesaid vows?

Resp. 1. If the vow is not reserved to the Pope, e.g. a vow of not marrying or of receiving sacred Orders, the Bishop, by ordinary right, can dispense for a just cause.

Resp. 2. If the vow is reserved to the Pope, as is a vow of perfect chastity and a vow of entering Religion strictly so called, provided all the conditions for reservation are verified, one must distinguish: - 1) Before matrimony, the Bishop cannot dispense by ordinary right, unless there is danger in delay, and easy recourse to the Pontiff is not open (cf. n. 645, q. 2). - 2) After matrimony has been contracted, he can dispense from a vow of chastity, in order to asking the debt, since this faculty is conferred on Bishops by force of custom, which furnishes jurisdiction, from cap. Cum contingat, de foro competenti.²⁰ - Nevertheless, in a vow of chastity which spouses have emitted by mutual consent, the Pope alone can dispense, as Authors commonly teach.²¹

What Regular Confessors can do from privilege, see n. 2191, 2.

Note. There is a sufficient CAUSE for obtaining dispensation or commutation in a vow of chastity, or in a vow of entering religion, "if someone on account of grave temptation is in probable danger even of one fall, because through one fall chastity is already lost."²² - Likewise, if someone has violated a girl by force, or seduced a woman by promise of matrimony; if a girl, bereft of her father, has been left with a very poor mother, and can lead life only from her own labor and with difficulty; if the same, bereft of her mother, has a father who vehemently presses, grows angry, and impels her to nuptials, so that to live with him, unless she obeys, becomes most hard; if the one vowing labors under a disease which, by the counsel of physicians, cannot be met by other medicines, and it is more certain to use the remedy of matrimony, etc.²³

1565. - Today four impediments impeding Matrimony are numbered, namely 1° prohibition of the Church made for various causes; 2° likewise prohibition of the Church lest at a certain determined time the solemnities of Matrimony be celebrated; 3° a betrothal contract already entered with another person and not legitimately dissolved; 4° a vow which, from its nature, cannot be observed in the contract or society of marriage. These four are comprehended in the following verse:

The Church's prohibition, time, betrothals, vow.

It will be enough to append a few things concerning each.

1566. - It is a prohibition, whether particular or general, made by the Church or by some ecclesiastical Superior, lest some Matrimony be celebrated.

1° Particular prohibition is had when, from a just and special cause, Matrimony is interdicted to someone, whether by the Pastor or by the Bishop;¹ e.g. because probable suspicion of a diriment impediment has arisen. But suspicion here will be probable if there is present either rumor, such as moves grave and prudent men, or one witness, sworn nevertheless and not from hearing only; this nevertheless suffices if there is question of the impediment of consanguinity and there is another witness from certain knowledge, even if not sworn.²

2° General prohibition is had especially in a threefold case, namely 1° lest Matrimony be contracted between a heretic and a Catholic woman, and conversely; 2° lest it be contracted without the proclamation of banns; 3° lest it be contracted without the duly required consent of parents. Concerning banns we have already spoken above, n. 1533; likewise concerning the consent of parents, n. 1548. q. 8°. 9°. But concerning the impediment of mixed Communion we speak below.

1567. - It is some determined time in the course of the year, which is called ferial or closed, and in which the Church forbids the solemnities of nuptials. Trent.¹ Such now is the time which flows from the First Vespers of the First Sunday of Advent up to Epiphany inclusively, and from Ash Wednesday up to the Octave of Easter likewise inclusively.

For the rest, Trent prohibits only the solemnities of nuptials in the aforesaid time, namely to bless them solemnly, to lead the bride home with noise, and to arrange more solemn nuptial banquets. But it does not forbid the Pastor privately to join the spouses, although in various places, because of custom or through Episcopal constitutions, outside the case of urgent necessity or dispensation of the Ordinary, this also is prohibited.

See n. 1529. II.

A fourfold vow impeding Matrimony is distinguished, namely 1° vow of chastity; 2° vow of not marrying; 3° vow of entering Religion; 4° vow of receiving Sacred Orders.

1568. - I. Vow of chastity.

1° He who has emitted such a vow sins gravely by entering Matrimony with the intention of consummating it, because he violates the vow.

2° He also sins gravely, even excluding this intention, because he exposes himself to the danger of violating the vow, and deceives the other party.

3° Once Matrimony has been contracted, he can neither ask nor render the debt while the first two months are running, because from divine privilege spouses at this time are exempt from the obligation of the conjugal debt, according to the things said above n. 1551. 2°. But after this time has elapsed, he can (indeed, is held to) render and satisfy the right of the other, yet not ask without dispensation from the vow or without irritation of the vow made by the other spouse.

4° He ought altogether to abstain if the other consents, or loses the right of asking, e.g. on account of adultery or incest. But if he can abstain with difficulty, he ought as soon as possible to seek dispensation or to seek the aforesaid irritation from the other spouse.

5° If the other spouse dies, he cannot proceed to new nuptials unless he has obtained dispensation from his vow also for this effect. - Lacroix.¹

1569. - II. Vow of not marrying, or vow of virginity.

1° He who, after emitting this vow, contracts Matrimony, sins gravely, as is manifest.

2° Once Matrimony has been contracted, he can render and also ask the debt, because the observance of the vow has now been made impossible. - But if he strictly vowed virginity, he cannot ask the first time.

3° For the same reason (namely because the observance of the vow has been made impossible), the spouse having died, he can at least probably contract a new Matrimony. - Heiss² excepts, with the Instruction of Eichstaett, if the vow was of not marrying; we assent to him, because the reason of impossibility does not militate for it.

In practice it is sometimes doubtful whether someone vowed virginity or celibacy, or rather chastity. The penitent will have to be interrogated whether he was led by the intention of freeing himself from the burdens of Matrimony and of serving God more holily, or only by love and affection of purity; in the first case he is to be judged to have vowed celibacy and virginity, but in the second truly chastity. - Lacroix.³

1570. - III. Vow of entering Religion.

1° He who has emitted such a vow sins gravely by entering Matrimony, both because he deceives the other party and because he exposes himself to the danger of violating the vow.

2° Before the consummation of Matrimony he is held to enter Religion; and therefore he sins mortally when for the first time, whether by asking or rendering the debt, he consummates the Matrimony; because he ought to fulfill the vow when he can. But he can fulfill it by not consummating Matrimony in the first two months, since then from divine privilege anyone can enter Religion, and the other party, the spouse solemnly professing, is freed from the bond of Matrimony, according to the things said above n. 1551. 2°.

3° After Matrimony has been consummated he can ask and render the debt, because the execution of the vow has been made impossible, and the asking of the conjugal act is not against that vow, since he did not vow chastity, but Religion.

4° Even after Matrimony has been consummated, of itself he is held to enter Religion as often as he can do this without injury to the right of the other party, e.g. if the other consents, or loses the right of asking the debt in perpetuity, or if the Matrimony is dissolved by death; because the obligation of the vow always subsists. But in practice, in these cases it is more expedient that recourse be had to dispensation, unless nevertheless the circumstances, by reason of age, offspring perhaps received from Matrimony, the state of fortune, and capability also for religious offices, are so changed that the matter of the vow has certainly been made impossible.

1571. - IV. Vow of receiving Orders.

1° He who emitted that vow sins gravely by entering Matrimony, as is well known.

2° He is held to receive Orders if he can, e.g. if he obtains the consent of the other. According to several he is held to enter Religion before the consummation of Matrimony, even against the will of the other, so that he can fulfill the vow. But others more probably deny this.¹

3° Matrimony having been entered, he can consummate it if he can no longer fulfill the vow.

1572. Questions. - Quaer. 1° Who can dispense in impedient impediments?

Resp. 1° No one can dispense [except the Pope. Feije, n. 601 (2)] from the impediment arising from valid betrothals, since in this matter there is question of a strict debt of justice. The same must be said of the necessity of the consent of parents, which is to be taken from natural law; nevertheless this naturally ceases if the parents dissent unjustly.

Resp. 2° Bishops, or ordinary Pastors of souls enjoying full jurisdiction in the external forum, can dispense 1° in the obligation of banns; 2° as regards the contract (but not as regards the solemn blessing) of Matrimony during the ferial time, where custom or particular constitution also interdicts this; 3° in a vow of temporary chastity, and of virginity and of not marrying.

But they cannot dispense 1° as regards the vow of perpetual chastity; 2° as regards the vow of entering Religion; 3° as regards the impediment of mixed Communion. For this threefold impediment is reserved to the Pope. - But our Bishops can dispense in 1° and 2° (p. LXX. n. 4), and, if there is question of Marriages to be contracted to which no other diriment impediment obstructs, also in 3° (p. LXXIV. n. 4. 5).

Resp. 3° What Regulars can do, see n. 1203. I. 2°. 3°.

Quaer. 2° Can the Bishop, when necessity is urgent, namely when there is danger in delay, dispense in a vow of perpetual chastity for contracting Matrimony?

Resp. Affirmatively, provided that that danger is truly present, and access to the Pontiff is not easily open. For the rest, the question as regards our Bishops is useless, as is clear from the things said in the preceding question.

82. • I. Notion.

Mixed religion is present when one party is Catholic, but the other is enrolled in a heretical or schismatic sect and validly baptized.

83. • II. Mixed religion as a prohibiting impediment of matrimony.

a. From ecclesiastical law.

"Everywhere the Church most severely prohibits matrimony from being entered between two baptized persons, of whom one is Catholic, but the other is enrolled in a heretical or schismatic sect." (Can. 1060.)

b. Sometimes from natural and divine law.

"But if there is present a danger of perversion of the Catholic spouse and of the offspring, the union is forbidden also by divine law itself." (Ibid.)

84. • III. What the Church thinks concerning mixed marriages.

a. The Church detests mixed marriages, since they import communion in divine things with a heterodox person, since the spouses mutually administer to each other the sacrament of matrimony, and besides induce a grave danger for the Catholic party of losing the faith and for the offspring to be born of non-Catholic education. And unless that twofold danger is guarded against and made remote, the natural divine law itself forbids unions of this kind. (Can. 1060.)

b. Wherefore "Ordinaries and other pastors of souls:

1° Should deter the faithful from mixed nuptials, as much as they can;

2° If they cannot impede them, should take care with every effort that they not be contracted against the laws of God and of the Church." (Can. 1064.)

85. • IV. Dispensation from this impediment.

By proper right it pertains to the Holy See alone, namely to the Holy Office (can. 247 § 3), even for regions subject to the Sacred Congregation de Propaganda Fide and the Sacred Congregation for the Oriental Church (Can. 252 § 4; Can. 257 § 2).

Bishops do not have such power, unless it has been specially delegated to them by the Holy See, which nevertheless they are accustomed to obtain.

86. • V. Conditions required for dispensation.

a. "Just and grave causes must urge." (Can. 1061 § 1, 1°.)

Such causes are: the good of the Christian republic, grave danger of apostasy for the Catholic party, fear of a civil marriage or one before a non-Catholic minister, founded hope of conversion of the non-Catholic party, etc.

Dispensation without a just and grave cause, if granted by the Roman Pontiff, would be illicit but valid, saving natural law; if by a Bishop by force of an indult, it would be illicit and invalid.

b. "The non-Catholic spouse must have given a caution concerning removing from the Catholic spouse the danger of perversion, and each spouse concerning all offspring to be baptized and educated only Catholic." (Can. 1061 § 1, 2°.)

The aforesaid cautions are to be required even when danger of death is urgent. (Can. 1043.)

c. "There must be had moral certitude concerning the fulfillment of the cautions." (ibid. 3°.)

d. "The cautions are regularly to be required in writing." (ibid. § 2.)

Care must be taken that the written promise be preserved in the parochial or episcopal archive.

"Once mixed nuptials have been celebrated, whether in one's own or in another territory, let them diligently watch (Ordinaries and other pastors of souls) that the spouses faithfully fulfill the promises made." (Can. 1064, 3°.)

87. • VI. The rite to be observed in a mixed marriage.

a. The pastor or delegate must altogether require and receive the consent of the parties before two witnesses, as in other marriages. (Can. 1102 § 1.) And therefore the so-called passive assistance is altogether prohibited as invalid, even in places where it had previously been granted for illicit mixed marriages.¹

¹ Cf. Response of the Pontifical Commission for Authentically Interpreting the Canons of the Code, of the day 10 March 1928 (Acta Apostolicae Sedis, v. XX, p. 120).

b. "All sacred rites are prohibited" (Can. 1102 § 2), and the matrimony is celebrated outside the church. (Can. 1109 § 3.)

The priest is to be clothed in no sacred habit for celebrating the matrimony.

c. "If, however, grave evils are foreseen from this prohibition," the Ordinary can dispense in this law and permit that matrimony be celebrated in church with some "of the customary ecclesiastical ceremonies, the celebration of Mass always being excluded." (Can. 1102 § 2; 1109 § 3.)

88. • VII. The prohibition of approaching a non-Catholic minister as one devoted to sacred things.

a. "Even if a dispensation has been obtained from the Church concerning the impediment of mixed religion, the spouses cannot, either before or after matrimony entered before the Church, also approach, whether personally or by procurator, a non-Catholic minister as one devoted to sacred things, for the purpose of offering or renewing matrimonial consent." (Can. 1063 § 1.)

This prohibition does not admit dispensation, as pertaining to divine law.

For the manner of acting which is here reproved would be, for the Catholic party, sacrilegious participation in a heretical or schismatic rite.

b. Note the words "as one devoted to sacred things." For indeed "it is not disapproved... that, when civil law commands it, the spouses present themselves also before a non-Catholic minister, functioning only in the office of a civil official, and this only for fulfilling the civil act, for the sake of civil effects." (Can. 1063 § 3.)

c. "If the pastor certainly knows that the spouses are going to violate or have already violated this law, he should not assist at their matrimony, unless for most grave causes, scandal being removed and the Ordinary first consulted." (ibid. § 2.)

A grave obligation is imposed here on the pastor, as is clear from the legislator's manner of speaking. Those most grave causes will be, e.g., danger of invalid matrimony, or apostasy of the Catholic party, or education of the offspring in heresy, etc.

89. • VIII. Penalties against delinquents concerning mixed marriages.

a. "Catholics who shall have dared to enter a mixed marriage, even a valid one, without dispensation of the Church, remain by the fact itself excluded from legitimate ecclesiastical and sacramental acts until they have obtained dispensation from the Ordinary." (Can. 2375.)

For what those legitimate ecclesiastical acts are, see can. 2256, 2°.

Question 1. From what law does this impediment proceed?

Resp. It is certain that the impediment of disparity of cult, insofar as it is diriment, depends on ecclesiastical law alone. For in the first centuries of the Church this impediment did not exist, and several Marriages of this kind are read as having been approved in ecclesiastical history, as the Marriage of St. Monica with Patricius, of St. Cecilia with Valerian, of St. Chlotildis with Clovis while still pagan, etc. ... But the impediment of mixed religion, and also of disparity of cult insofar as it is impeding, proceeds both from natural and divine law and from ecclesiastical law. Second Plenary Council of Baltimore, Appendix p. 311. - Third Plenary Council of Baltimore, p. 130. - Acta S. Sedis, vol. 6, p. 456. - Sanchez, lib. 7, disp. 71, n. 7.

Question 2. What does an appropriate caution, taken accurately and most strictly, signify?

Resp. It signifies "such a promise which, having been brought into a pact, furnishes a moral foundation concerning the truth of execution, so that such execution can prudently be expected." Thus the Holy Office, 30 June 1842.

Question 3. Whether a dispensation concerning the impediment of disparity of cult imparted by one having power from the Holy See, when the prescribed cautions were not required or were denied, must be held valid?

Resp. "That a dispensation imparted as it is set forth is null." Holy Office, 21 June 1912.

Question 4. How were the words of Formula D, n. 3, to be understood: "except, however, the case of marriage with a Jewish man or woman"?

Resp. They were to be understood in this sense, that by force of this Faculty our Bishops were able to dispense with all, even Jews, except only non-reformed Jews; indeed, they were able to dispense even with these if there had been danger in delay. Cf. Zeitschrift fur Kath. Theol., Innsbruck, v. 15, p. 390. - Holy Office, 12 June 1882; 3 Aug. 1889. - Wernz, v. 4, n. 510, note 35.¹

¹ Cf. Addenda, p. 1117, n. 70.

The vow dirimently invalidating Marriage is only the solemn vow of chastity, emitted by profession in an approved Religion. But the Order dirimently invalidating Marriage is sacred Order, namely the presbyterate, diaconate, and subdiaconate.

Canon XV. Because of the abundance of girls, Christian virgins are by no means to be given in marriage to Gentiles, lest an age swelling in its flower be dissolved in adultery of the soul.

Theodosius the Great forbade a Jew to marry a Christian woman, with the penalty of adultery proposed. Cod. Theod., book III, title 7, law 2.

From these three canons you understand how greatly, already from the first centuries, the Church shrank from nuptials with unbelievers or heretics. Yet no separation is prescribed, but only a certain penance is imposed for the crime.

Canon X. Those who are of the Church ought not indiscriminately to join their sons or daughters in marriage with heretics.

Canon XXXI. One ought not to contract marriage with any heretic, or to give sons or daughters, but rather to receive, if they profess that they will be Christians.

Canon XII. It pleased the council that the sons or daughters of bishops or of any clerics whatever are not joined in marriage to Gentiles or heretics or schismatics.

Canon XIV. Since in certain provinces it has been conceded to readers and psalmists to marry wives, the holy synod established that it is not lawful for any of these to receive a wife of another sect ... But neither ought one about to be married to be coupled to a heretic or a Jew or a pagan, unless perhaps the person to be coupled to the orthodox person promises to pass over to the orthodox faith. If anyone shall have transgressed this definition of the holy synod, he will be subject to canonical correction.

Cf. Canon XXXI, cited above from the Council of Laodicea. Canon XXXII of the Quinisext Synod in A.D. 692 declared the marriage of an orthodox man with a heretical woman, and conversely, ἄκυρον and to be dissolved; but there is no authority of the same.

Canon LXVII. It is not fitting to mingle marriages with all heretics and either to give sons or daughters, but rather to receive, if nevertheless they profess that they are going to be Christians and Catholics.

Canon XIX. It has pleased us that no Christian shall take a Jewish woman as wife in marriage, nor a Jew a Christian woman; because we judge that between persons of this sort there are illicit nuptials. But if, after being admonished, they delay separating themselves from this consortship, they are without doubt to be removed from the grace of communion.

Canon XIV. At the suggestion of the council, our most glorious Lord (King Reccared) ordered this to be inserted in the canons, that it is not lawful for Jews to have Christian wives or concubines.

Canon LXIII. Jews who have Christian women in marriage are to be admonished by the bishop of that city, that if they desire to remain with them, they become Christians. But if, after being admonished, they are unwilling, let them be separated; because an unbeliever cannot remain in marriage with her who has already been transferred into the Christian faith. Moreover, the children who exist as born from such persons are to follow the faith and condition of the mother. Similarly also those who have been procreated from unbelieving women and faithful men are to follow the Christian religion, not Jewish superstition.

Canon X. If any Christian has presumed to couple his daughter in marriage to a Jew, unless the Jew has perfectly believed in Christ and been baptized, and if a Christian widow has led a Jew as husband ... let him be anathema.

Canon III. Those who, simulating an appearance of religion (the Petrobrusians), condemn the sacrament of the Body and Blood of the Lord, the baptism of children, the priesthood and the other ecclesiastical orders, and the bonds of legitimate nuptials, we expel and condemn as heretics from the Church of God, and we command that they be restrained by external powers.

Canon XXIII. Those, moreover, who, simulating an appearance of religiosity, condemn the sacrament of the Body and Blood of the Lord, the baptism of children, the priesthood and the other ecclesiastical orders, and the legitimate bonds of nuptials, we expel and condemn as heretics from the Church of God, and we command that they be restrained by external powers.

XXI. QUESTION VIII. What is the impediment of disparity of worship? ANSWER. Disparity of worship signifies a diverse religion, such as is between a believer and an unbaptized unbeliever. This impediment has been introduced by ecclesiastical right, from which, a just and grave cause urging, the Supreme Pontiff can dispense. For a believer ought to contract matrimony as a sacrament. But an unbaptized person is capable of no sacrament without Baptism. When a danger of subversion threatens, marriages of this kind are forbidden by natural and divine right. Similarly the marriages of Catholics with heretics are forbidden both by divine and by ecclesiastical right, yet not invalid. For heretics are excommunicated. Therefore they are not to be admitted into the most straitened society of matrimony. And assuredly the Supreme Pontiffs permit these save in causes most grave and most urgent, for the avoiding of graver inconveniences.

Mary, a Catholic, having obtained a dispensation from the Bishop from the impediment of mixed religion, married Titius, an Anglican. After the marriage was contracted, Titius, notwithstanding his promises, prohibited Mary from ever entering a Catholic church and began to treat her cruelly; hence Mary returned to her father’s home, where she is now sought as a wife by Paul, a Catholic man. Mary’s parish priest, who obtained for Mary the dispensation from the impediment of mixed religion, afterwards discovered with certainty that Titius had never been baptized; hence he asks whether Mary is still free so that she can enter a Catholic and happier marriage. Hence it is asked:

1. By what law are the impediments of mixed religion and disparity of worship established?

2. How is the statement “A doubtful Baptism is considered valid in relation to marriage” to be understood?

3. Is it lawful to institute a partial divorce by private authority?

4. What is to be said of the case?

1. By what law are the impediments of mixed marriage and difference of religion established?

Marriages between Catholics and non-Catholics are forbidden by natural, divine, and ecclesiastical law; if the non-Catholic party is not baptized, the impediment is diriment by custom having the force of universal law.¹

1 Manual of Moral Theology, vol. ii, 308 ff.

2. How is the rule to be understood about doubtful Baptism and marriage.

Theologians are not agreed. Lehmkuhl holds that where the Church’s authority has intervened in such a case, the words are to be taken quite literally, and that the impediment is removed if it existed on account of the non-Baptism of one of the parties.² Wernz, Génicot, and others hold that the rule rests on presumptions, so that if the truth afterwards becomes certain, the presumption ceases.³

2 Theol. Moral., vol. ii, 985.

3 Manual of Moral Theology, vol. ii, 313.

3. Is separation by private authority a toro et mensa allowed?

Yes, by mutual consent for the purpose of leading a more perfect life and when there is no danger of incontinence. The innocent party may separate from the other by private authority if that other has been guilty of certain and notorious adultery, as also for a time on account of serious danger to soul or body.⁴

4 Ibid., 281.

4. The case. The dispensation for a mixed marriage in all probability did not remove the impediment of difference of religion which really existed between the parties. Indeed the bishops in England as a rule have not authority to dispense from the diriment impediment of difference of religion, though they can dispense in a mixed marriage. Hence, according to the better opinion, Mary’s marriage with Titius was null and void. However, the parish priest may not on his own authority allow her to marry Paul. Both ecclesiastical and civil law stand in the way. He should collect all the evidence that he can, submit it to the bishop, and then await the result.

Bertha is married to a man who does not know anything about his baptism. Bertha is a Catholic. The man was the son of a non- Catholic family, the mother being a Methodist, but the son has apparently no religion at all. I think therefore that I should procure for them a dispensation super impedimento disparitatis cultus. Now the man always runs away when I go there, as I have been attending his stepdaughter. I would hardly care to look to him for a renewal of consent, because he would not know what it was all about, and if they did renew their consent I would be uneasy about its being a valid consent. It would be hard enough to make the wife do the renewing, because she has lived with a man who was not her husband, before her present marriage, and is perfectly satisfied that the present marriage is all that it ought to be. I don’t know whether I ought to get a dispensation in radice, or whether to get an ordinary dispensation and take advantage of what Sabetti says, viz., that the opinion seems entirely certain that the party who is ignorant of the impediment need not renew the consent in this one case—that a Catholic marry an unbaptized person. I never met this man, but his wife tells me he is a very good man, and once I became acquainted with him he would be glad to see me; but he would not understand about the impediment and might think that I was unnecessarily interfering in his private concerns. Should I get a sanatio in radice, or the ordinary dispensation, and will it be sufficient in the second case to have the wife renew her consent?

Answer. The cause of the difficulty about this marriage is the uncertainty of the husband’s baptism. If he was never baptized, or if ever baptized, then never validly, there seems to have existed at the time of his marriage to a Catholic woman a diriment impediment disparitatis cultus, which was not removed by a dispensation, since we suppose that they were not married by a priest, and which rendered any marriage with a baptized woman invalid. That the man, and even the woman, were ignorant at the time of the impediment and its effect, did not stay its operation of invalidating the marriage. Their marriage consent may have been perfectly valid and sufficient—qua consensus—still it could not create a valid marriage contract, because it was vitiated or rendered inoperative by reason of the impediment.

In the present case the man’s consent was valid, because he knew nothing of the impediment. It would seem also that the woman was ignorant of any diriment impediment, and at the time of the marriage gave a valid consent. “In dubio standum est pro valore.” In case, therefore, that it be fully established that the man was never baptized, and it be impossible or extremely difficult to bring about a renewal of consent, a sanatio in radice may be procured and applied without renewal of consent on either part; or better still, application should be made to Rome, according to the Holy Office, if the parties were married without a dispensation super impedimento disparitatis cultus, and the baptism of one of the parties was in doubt at the time of the marriage, but afterward was proven to have been no baptism at all. In this case Rome will advise what course ought to be pursued in each instance. If the woman was aware, at the time of her marriage, or has become aware since, that her marriage was invalid on account of a diriment impediment, she must renew her consent, since the consent that she gave at her marriage was worthless on account of her knowledge of the impediment, or has become worthless since, owing to such knowledge, and therefore can not be said to endure, so that it might be healed, since it never existed or has ceased to exist. Therefore it must be renewed, i. e., a new consent must be given or there can be no valid contract. But all this reasoning has proceeded on the assumption that there existed from the beginning of this marriage a sufficient impediment to have invalidated the marriage. Now is such really the case? Is it certain that this man was never baptized? Is his baptism sufficiently doubtful to create a presumption against the validity of his marriage? No, by no means. It is not certain that he was never baptized. He himself does not know anything about his baptism, but his mother was a Methodist, and the Methodists as a religious body baptize validly. This fact alone creates a presumption, according to the decisions of the Congregation of the Holy Office, in favor of the man’s baptism, with respect to the validity of a marriage contracted or to be contracted.

Only in cases where it is perfectly certain that one of the parties to a marriage contract was never validly baptized, can there be question of the impediment disparitatis cultus. In our case there is no such certainty. The whole question must, therefore, be solved on -other lines. There is well founded doubt whether this man was ever validly baptized. Upon investigation the doubt remains. It can not be said with certainty that he was baptized, and it can not be said with certainty that he was not baptized. It is a case of “baptismus dubius.” Now this man, only doubtfully baptized, marries a baptized woman, before a magistrate or a non-Catholic minister of the Gospel, without any dispensation super impedimento disparitatis cultus. Is such a marriage invalid, or is it valid, or is its validity doubtful.

“Whether the marriage is valid if a grave doubt arises concerning the baptism of one party?” The solution of this question is to be found in the decrees of the Holy Office, v. g., decrees Nov. 17, 1830; July 7, 1880; Sept 18, 1890, etc., etc.

According to these decrees, when the baptism of one of the parties to a marriage contract is doubtful, whether the doubt concern the fact of the baptism or its validity, “with respect both to a marriage to be contracted and to one already contracted, it is held valid by presumption.” It is only in cases where it is altogether certain that no baptism was ever conferred, or if conferred, then invalidly, that the impediment disparitatis cultus, invalidates the marriage. Now if a person, regarding whose baptism there exists grave doubt, but whose baptism is presumed to have been valid in ordine ad matrimonium, is married to a baptized person, without a dispensation, then theologians consider such a marriage valid, even though, in reality, the person thus married was never baptized; they hold that in such cases the Church dispenses super impedimento disparitatis cultus. If, however, in the same case, when a doubtful baptism has been presumed valid, and a marriage is contracted, and afterward it be established on incontrovertible evidence that the doubtful baptism, thus presumed valid, was in reality no baptism, then recourse must be had to the Holy See, which will decide what is to be done in each particular case.

For determining when a baptism may be presumed valid, in ordine ad matrimonium, the Holy Office lays down the following rules:

1. If the person, whose baptism is in doubt, belonged to a sect which does not insist, in its ritual, on the essential form and matter of baptism, then each case must be examined separately.

2. If the person belonged to a sect whose ritual does prescribe the essentials for a valid baptism, then the baptism of such a person is presumed to have been valid, and no further investigation is necessary.

3. If, upon examination, in either case, the baptism continues doubtful, then it is presumed valid, with respect to the validity of marriage,

A general rule of the Holy See in this matter is: A doubtful Baptism, with respect to a marriage to be contracted or one already contracted, must be held valid.

In conclusion, therefore, we say that this Catholic woman’s marriage to this doubtfully baptized man, although entered into without a dispensation, is to be presumed valid in the eyes of the Church until it is proven invalid.

WRITING to the Christians of Corinth, St. Paul says: " Bear not the yoke with unbelievers."* In these words, and those which follow them, the Apostle tells the Corinthian Christians that they should enter into no intimate union, and especially marriage, with non-baptized persons. The danger of perversion, the difficulty of bringing up children in the faith and practice of Christianity, if one of the parents were an unbeliever, and the communicating with unbelievers in sacred rites, were the reasons of this prohibition. These reasons show that the prohibition is of natural and divine law. However, a marriage entered into in spite of the prohibition would be valid, though unlawful. In other words, difference of worship is only a prohibitory impediment by natural and divine law, not a diriment impediment of marriage.

During the early Christian centuries this prohibitory impediment was frequently insisted on in local councils of the Church and even in the imperial legislation of the later Roman Empire. Between the eighth and the twelfth century, marriage contracted in spite of the prohibition began to be looked upon as null and void, as no marriage at all. The change was gradually introduced by custom, and so it came to pass that about the twelfth century difference of worship became a diriment impediment of

* 2 Cor. vi. 14.

marriage by a universal custom of the Church. In the sixteenth century, when a considerable number of Japanese were converted to the Christian faith, the question arose whether this customary law bound them. It was decided that they were bound by it just as by other universal laws of the Church, whether written or unwritten. Henceforth it was a settled principle of Catholic marriage law that a baptized Christian could not validly marry a non-baptized person without a dispensation from the competent authority.

There is no room for difficulty in this impediment of Christian marriage when the baptism of one of the parties is certain and the non-baptism of the other is likewise certain. But great difficulties arose when the baptism was uncertain. Cases of such uncertainty would be comparatively rare when both parties were Catholics, and if the difficulty arose it could easily be removed by making certain of the baptism by administering it conditionally. Some priests did this even in the case of the doubtful baptism of non-Catholics, but the practice was condemned by the Roman authorities. In modern times marriage cases wherein difficulties arose from doubtful baptism were by no means uncommon. In course of time a great number of decrees on such cases were issued by the Roman authorities, and, based on these, certain rules were formulated by canonists and theologians or even by the Roman Congregations themselves.

In settling such cases the Roman Congregations constantly adhered to and applied the principle—Doubtful baptism must be held as valid baptism with regard to the validity of marriage.

In the application of this principle to the solution of marriage cases it was presupposed that careful inquiries had been made concerning the baptism of the parties. Sometimes these inquiries were impossible, evidence on the fact of baptism or on its validity could not be obtained. The Bishop of Savannah reported to the Holy See that cases like the following frequently occurred in his part of the United States: Two non-Catholics married and afterward separated. One of them subsequently wished to become a Catholic and to marry a Catholic. It was sometimes impossible to obtain evidence concerning the baptism, especially of the other party to the previous marriage. The bishop asked whether in such cases of marriage between non-Catholics he might make use of presumptions concerning the baptism of the parties, founded on the religious character and practice of the parents or of the sect to which they belonged, and of the prescriptions of their rituals. The Sacred Congregation of the Holy Office on August 1, 1883, answered in general that this might be done, after inquiries had been made in each particular case. Further on we shall have occasion to refer again to this well-known decree of the Holy Office.

Applying the principle that doubtful baptism must be held to be valid baptism with respect to the validity of marriage, it follows that marriage between a party certainly baptized and another doubtfully baptized must be held to be valid. Marriage must also be held to be valid when contracted between two parties both doubtfully baptized. Marriage between one doubtfully baptized and another certainly not baptized will be invalid.

Before the issue of the new Code of Canon Law there was great disagreement among canonists and theologians as to the meaning of these rules, based on numerous decrees of the Roman Congregations, and on which all were agreed. There were two main currents of opinion as to the meaning of the rules. According to one opinion, the rules were to be taken in an absolute sense, so that if, for instance, at the time of marriage one of the parties was certainly baptized and the other doubtfully baptized, the marriage was and remained valid even though subsequently it was discovered for certain that the latter party had never been baptized. This was the opinion of Cardinal Gasparri.* The other opinion held that the sense of the rules was that such marriages were to be held valid as long as the doubt remained about the baptism. There was a presumption of law that such marriages were valid as long as the doubt remained, but as a presumption of law yields to the truth, such marriages were to be held invalid if afterward it became certain that one of the parties was certainly baptized, and the other was certainly not baptized. This was the opinion of Wernz and of others.†

No great difficulties could ordinarily arise from the application of the rule that marriage between one certainly baptized and another doubtfully baptized must be looked upon as valid. It was but an application of the principle that in doubt sentence must be given in favour of marriage. The same may be said of cases where both parties were doubtfully baptized.

* De matrimonio, n. 597.

† Wernz, Jus Decretalium, IV., n. 508.

But there were great difficulties about the third rule, which decided that marriage between one doubtfully baptized and another certainly not baptized was invalid. It is difficult to understand how such a marriage could remain invalid, even if it were afterward discovered that in fact neither party was baptized. The marriage would then be a legitimate marriage between two unbaptized persons over whom the Church has no jurisdiction. Cardinal Gasparri admits that in this case such a marriage would in fact be valid. Yet several decrees are quoted which seem to apply the rule absolutely without reserve. One of these is the following: An Anglican, about the validity of whose baptism there was grave doubt, married an Anabaptist woman who certainly was not baptized. They quarrelled and separated. The man afterward married a Lutheran and expressed a desire to be received into the Catholic Church. The question as to which marriage was valid was submitted to Rome. On July 20, 1840, the Holy Office answered: Provided that it was certain that the Anabaptist was not baptized, the first marriage was invalid; and provided that there was no other diriment impediment between the parties, the second was valid. Here was a question of previous marriage, a diriment impediment to a second marriage by natural and divine law. There was grave doubt as to whether the Anglican had been validly baptized. And yet, on the ground that the Anabaptist certainly had not been baptized, the man is allowed to remain with his Lutheran wife. There are other decrees of the same import. On them and on other grounds Lehmkuhl based his theory that doubtfully baptized persons were subject to the jurisdiction of the Church by divine law. The contention was novel, and it has not met with the approval of canonists and theologians in general.

Moreover, the rule that marriage between one party doubtfully baptized and another certainly not baptized is invalid seems to expose the validity of marriage too much to subjective estimates of greater or less or sufficient probability. The rule seems to have disappeared from the legislation of the new Code.

The law of the Church on difference of worship in its relation to marriage is now contained in Canons 1070 and 1071 of the new Code. We are only concerned here with Canon 1070. There are two sections of this Canon, the first of which is as follows:

"Marriage contracted by a person not baptized with a person baptized in the Catholic Church or with a convert to it from heresy or schism is null." The diriment impediment of difference of worship therefore exists now by the written law of the Church between a non-baptized person and one baptized in the Catholic Church or one converted to the same. This law governs cases wherein the Catholic baptism of one of the parties is certain and the other is certainly not baptized.

The second section contains the law which now governs cases wherein one of the parties was only commonly held to be baptized or his baptism was doubtful at the time of the marriage. It is as follows:

"If a party at the time of contracting marriage was commonly held to be baptized or his baptism was doubtful, the validity of the marriage must be upheld in accordance with Canon 1014 until it is proved for certain that one of the parties was baptized and the other not baptized." nothing about non-Catholic baptized persons. Very frequently, so frequently that in many dioceses it is accepted as the rule, there is room for doubt as to the fact of baptism in the case of non-Catholics, or at least as to its validity. At most, non-Catholics will be commonly held to be baptized if their baptism is not actually doubtful. It seems to me, then, that non-Catholics are chiefly referred to in Section 2 of the Canon, The baptism of Catholics is usually certain, and only in comparatively rare instances can it be said of them that they are commonly held to be baptized; and rarer still are cases of doubtful baptism among Catholics. Section 2, then, should be applied to non-Catholic marriages, as to that of the Anglican and the Anabaptist quoted above, when occasion requires. I am led to this conclusion by the following arguments. As Fr. Ferreres says, heretics and schismatics must still in general be considered to be subject to ecclesiastical law unless they are expressly excepted. They are expressly excepted in the provisions of the Ne temere decree as embodied in the new Code, but they are not expressly excepted from this Section 2 of Canon 1070.

Canon 1014 merely states that marriage is favoured by law, and that, in doubt, its validity must be upheld until the contrary is proved. Now, therefore, in case of doubt concerning the baptism of one of the parties to a marriage, the validity of the marriage must be upheld in all cases until it is conclusively proved that one of the parties has been baptized and the other has not been baptized. There is a presumption of law that a marriage is valid when one of the parties is doubtfully baptized, and it must be held to be valid as far as this impediment of difference of worship is concerned until it is proved that one of the parties was baptized and the other not baptized, and the existence of the impediment is established for certain.

Does this rule apply only to Catholics, or does it apply to Catholics and non-Catholics alike? Fr. Ferreres, in his Epitome, recently issued, prints the two sections of the Canon as one, and then says: " Unde validum est matrimonium inter haereticum baptizatum (extra Ecclesiam Catholicam nec ad hanc conversum) et non baptizatum."*

It seems to me that we must distinguish between the two sections of the Canon. The first section refers only to one who has been baptized in the Catholic Church or who has been converted to it from heresy or schism. It asserts

* Epitome, n. 931.

The law is general, and Ubi lex non distinguit nec nos distinguere debemus. Indeed, as already observed, it seems specially meant for cases of non-Catholic marriages which for one reason or another come under the judgment of the Church. Such cases are very common in modern times; they have been legislated for in the past, as we have already seen. It is inconceivable that the new Code provides us with no rules by which to decide practical and important cases when they arise.

Cardinal Gasparri, in his references to the Code, gives some dozen decrees and instructions on which Section 2 of Canon 1070 is based. At least one, that of the Holy Office, August 1, 1883, to the Bishop of Savannah, refers exclusively to non-Catholic marriages. It seems to me, then, that though the Church asserts nothing expressly about non-Catholic marriages and this impediment of difference of worship, yet she gives us a rule whereby we may decide the practical difficulties which frequently arise from non-Catholic marriages. Applying that rule, I should say that marriage between a person certainly and validly baptized, even outside the Catholic Church, and another certainly not baptized, is invalid. But in cases where baptism outside the Church or within the Church is not certain or not certainly valid, the validity of the marriage must be upheld until it is proved that one of the parties was baptized and the other not baptized.