Disparity of worship (Can. 1070)

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.

“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.

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.

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.