Disparity of Worship (marriage with the unbaptized)

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.

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. 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.

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.

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.

“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.

117. • I. Notion.

Disparity of worship is the diversity of religion which exists between two persons, of whom one has validly received baptism and the other has not.

118. • II. Extension of the impediment.

"There is no matrimony contracted by a non-baptized person with a person baptized in the Catholic Church or converted to the same from heresy or schism." (Can. 1070, § 1.)

a) Before the Code all the baptized, even non-Catholics, were subject to that impediment.

b) But now the impediment affects only directly those baptized in the Catholic Church or converted to the same from heresy or schism; indirectly, the non-baptized who intend to contract with such persons.

119. • III. Who are considered baptized in the Catholic Church.

a) Certainly those who, by their own will if in adult age, or by the will of parents or guardians if infants, were baptized for this end, that they be joined to the communion of the Catholic Church. It suffices that that intention be tacit.

b) More probably, infants who, placed in danger of death, were baptized by a Catholic person, even without the knowledge of the parents.

Indeed, those who were baptized by a Catholic contrary to the prescription of cc. 750-751.

c) Yet if the aforesaid children born of non-Catholics (b) were educated from infancy in heresy or schism or without any religion, it is not established that they are held by the impediment, especially if they were baptized illegitimately in the Catholic Church.

Practically, while a doubt of law stands, they are not bound by the impediment.

120. • IV. Who are converted.

a) Those who return to the Catholic Church of their own accord.

b) Children who, having attained the use of reason, were educated as Catholics by parents or guardians.

121. • V. Doubtful baptism with respect to matrimony.

a) If there is question of celebrating.

The doubt must be shaken out as far as possible. If after diligent investigation a serious doubt remains, if the Catholic party is doubtfully baptized, let that party be rebaptized conditionally; if the non-Catholic party, who wishes to be converted, then that party also is to be rebaptized conditionally; but if he does not wish to be converted, it is not licit to rebaptize him conditionally, but it is preferable to obtain, as a precaution, a dispensation upon disparity of worship, together with a dispensation from mixed religion.

Marc warns that such a dispensation as a precaution can be granted by the Ordinary, since there is question of a doubt of fact, according to can. 15.¹

¹ Op. cit., n° 2039.

b) If there is question of a matrimony already celebrated.

In doubt, matrimony is always presumed valid. (Can. 1070, § 2.)

But note well that this presumption yields to truth.

Whence, if a person baptized in the Catholic Church or converted to the Catholic Church contracted matrimony without dispensation from the impediment of disparity of worship with a person who truly is not baptized, the matrimony is in reality null.

122. • VI. From what law that impediment proceeds.

Indubitably it is of merely ecclesiastical law.

123. • VII. Cessation of the impediment.

a) Besides the conversion and baptism of the unbelieving party, that impediment ceases through a dispensation of the Roman Pontiff granted through the organ of the Holy Office. Outside mission places, Ordinaries of places very rarely have the faculty of dispensing.

1. In Catholic regions a dispensation is rarely granted, especially if there is question of matrimony with a Jew.

2. The cautions which are required for mixed nuptials must always be exacted (can. 1071).²

² Cf. above n° 83.

The delegate dispenses invalidly if the cautions are not furnished.³

³ S. Off., 21 Jun. 1912, Acta Apostolicae Sedis 1912, p. 443.

3. As to the rite to be employed, the same restrictions are in force as for mixed nuptials. (Can. 1071.)⁴

⁴ Cf. above n° 87.

4. More probably, a dispensation upon disparity of worship still implies, as in the prior law,⁵ dispensation from all impediments from which the unbelieving party is exempt, such as consanguinity in the second degree of the oblique line, etc. For "the style of the Curia, to which the aforesaid dispensation is referred, must be attended to also in the new law (can. 20), where there is lacking an express prescription of law, whether general or particular."⁶

⁵ Instr. S. Officii, 16 Sept. 1824 ad 2, Coll. De Pr. Fide, I, n. 784.

⁶ Capello, op. cit., n° 422. Thus also Vermeersch-Creusen, op. cit., n. 346.

Marc rather favors the contrary opinion.⁷

⁷ Op. cit., n. 2038, note 1.

b) The impediment seems also to cease in a case of true necessity.

Such a case indeed will be rare, but not altogether impossible. "Hence, if in some region of unbelievers there were so few Christians that they could not contract matrimonies among themselves, and on account of the distance of places or other circumstances they could not ask for a dispensation upon disparity of worship, Christians, at least probably, would not be held by this impediment."⁸

⁸ Capello, op. cit., n. 199.

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.

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.

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.

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.