The Pauline Privilege

65. Whether it is licit. The conjugal act in itself is licit and honorable: for it is a means ordained by God for propagating the human race; wherefore, if the right end is not excluded, it is not only licit, but, with the things to be supposed having been supposed, also meritorious. Moreover, in Sacred Scripture the conjugal act is directly commanded to the first parents in those words: increase and multiply;¹ but it cannot be said without blasphemy that God commands anything which is not licit and honorable. Finally Christ raised the matrimonial contract, by which spouses mutually confer on one another the right to conjugal acts, to the dignity of a sacrament; but only a contract by which those contracting obligate themselves to a licit and honorable thing could be raised to so great a dignity. Therefore St. Paul praises marriage and commands the conjugal act to spouses.²

¹ Gen. 1, 28; 1 Cor. 7, 3.

² Heb. 13, 4; 1 Cor. 7, 3.

66. The conjugal act is licit even in those circumstances in which generation of offspring cannot be obtained, provided it can be performed in a natural way. For by marriage legitimately contracted spouses have the right to the conjugal act as long as at least one of the essential ends of marriage can be obtained through that act; but since each is an essential end of marriage, both the generation of offspring and the quieting of concupiscence, although offspring cannot be generated, the conjugal act is not without its proper end, which is the quieting of concupiscence.

a. Old persons and sterile persons licitly have intercourse, even if generation of offspring from it is impossible, provided they are capable of natural intercourse, at least in an imperfect mode.

b. Intercourse is licit during pregnancy, even if at that time conception cannot occur, unless intercourse is prohibited on account of another cause.

c. A husband whose two testicles have been amputated on account of illness licitly has intercourse; likewise a wife whose ovaries have been extirpated or whose uterus even has been cut out.

Therefore through impotence supervening upon a valid marriage, spouses do not lose the right to the use of marriage: namely, removal of the testicles and excision of the ovaries or uterus are causes of impotence arising after marriage. There are authors who say that spouses in this case lose the right to the use of marriage and cannot licitly exercise anything except imperfect acts. Nevertheless they admonish that, since spouses upon whom impotence supervenes ordinarily use marriage in good faith, they are to be left in good faith.¹ But the opinion of those who say that intercourse in the case of supervening impotence is licit seems altogether probable. Generation indeed in this case is impossible, but after marriage has been entered it is not necessary that its primary end be able to be obtained, provided one of the essential ends is obtained. Moreover the right to intercourse acquired by a valid marriage is not taken away through that which happens accidentally; but it is accidental that a spouse, after entering a valid marriage, becomes impotent from illness or misfortune.

¹ Cf. Antonelli, Medicina pastoralis II, n. 426 ff.

67. How it must be completed. The conjugal act ought to be completed in such a way that the essential end of marriage, which is the generation of offspring, as regards the act itself, can be obtained in a natural way. It is not necessary that this end actually be obtained; but this is altogether required, that from the side of the act it can at least be obtained. For virile semen is not supplied by nature for any other end except that it serve for generating offspring by natural intercourse.

Therefore spouses sin gravely if they do anything by which generation is impeded, or if they come together in such a way that generation is either impossible or at least improbable: for they act against nature and the primary end of marriage.

a. If the man, after insemination has been completed, withdraws himself without awaiting the insemination of the woman, he does not sin, because nothing is done by which generation is impeded, since the insemination of the woman is not necessary; moreover a reason for acting in this way is easily present.

b. If the man withdraws himself before insemination, when the wife has already inseminated or is in proximate danger of inseminating, he does not sin, provided the danger of pouring forth semen is excluded and a reason for acting in this way is present: for since the insemination of the woman is not necessary for generation, nothing is done in this way by which generation is impeded.

c. If the wife restrains insemination when the man has already inseminated, the omission itself of insemination is not a sin, because it cannot impede generation. But the intention on account of which insemination is restrained can be gravely sinful, namely if it is done to impede generation.

a. Sometimes women, while they exercise the conjugal act, turn the mind to other things or procure sensible pain for themselves, lest they be aroused to insemination. If they do this to impede generation, they sin gravely from this depraved intention. But if they know that the insemination of the woman is not required for generation and therefore that conception cannot be impeded by this manner of acting, they certainly do not sin gravely; whether they sin lightly depends on the end on account of which they do these things.

b. Although the so-called insemination of the woman is not necessary for conception of offspring, nevertheless, according to the very probable hypothesis which physiologists now establish, the hope of future conception increases where the woman not only is herself aroused even to the effusion of humor, but moreover her insemination occurs at the same moment of time at which the man pours forth semen.¹

¹ Stohr-Kannamuller, Handbuch der Pastoralmedicin^4 (Freiburg: Herder, 1900), p. 467 f.

68. Conditions required for generation. For obtaining generation by natural intercourse, two things are required on the part of the act:

1. That the man penetrate the vessel of the woman with the genital member and pour forth semen there.

a. From recent physiology it is established that generation can occur, provided the virile semen is poured forth at the mouth of the womanly organ. Therefore, if the conjugal act cannot be had in another and more perfect mode, it is licit to exercise it in this way: for in order that the conjugal act can be exercised licitly in this case, nothing else is required except that the essential end of marriage, which is the generation of offspring, can be obtained, even if part of the semen is frustrated. But if the more perfect mode is possible, it is not licit to exercise the conjugal act in this imperfect mode, because this would be the same as morally impeding generation: for by this mode of coming together generation follows very rarely and only accidentally.

a. The conjugal act which is completed in such a way that the man only penetrates part of the vagina of the wife and there pours forth semen is not illicit of itself, unless it is done from the depraved intention of impeding generation, because in this way conception is indeed rendered more difficult, but not impossible nor improbable. But spouses are not bound to choose the more certain mode by which offspring may be conceived. Nevertheless, if without another cause they come together in this way only for rendering conception more difficult, they sin venially, because there is some disorder in rendering conception more difficult without cause.

b. Although spouses can omit the mode of coming together which leads to easier and more certain conception, provided the act remains truly apt for effecting conception, nevertheless it is not licit for them directly to posit a positive action by which conception is impeded, even only probably. Therefore it is illicit to introduce into the vagina of the woman not only means by which the semen is killed, but also means, a certain kind of fat or butter, by which the semen is not destroyed, yet conception is rendered less probable.

b. Spouses who on account of old age or another indisposition for the most part pour forth semen outside the vessel can licitly exercise the conjugal act, provided there is a probable hope of pouring forth semen within the vessel: for as long as a probable hope of generation is present, spouses have the right to intercourse; but if the semen in fact is poured forth, this occurs accidentally.¹

But if spouses, from supervening impotence, whether on the part of the man or on the part of the woman, cannot complete the conjugal act in such a way that the semen is at least in some measure received within the female vessel, intercourse is rendered illicit.

c. Spouses who exercise the conjugal act but both restrain insemination, i.e. break off intercourse before insemination, do not sin, the danger of pouring forth semen outside the vessel being excluded, if they do this by mutual consent and a sufficient cause is present for acting in this way, e.g. lest insemination harm health, or lest poor spouses be burdened by new offspring. The conjugal act in this case has the nature of an immodest touch, which in married persons, the danger of pollution being excluded, is not gravely illicit; and if it is done from a just cause, e.g. for quieting concupiscence, it is free from fault. But if one withdraws without the consent of the other, he sins gravely, because he injures the other's right in a grave matter; for the other has a right to completed intercourse. Nevertheless the hypothesis, namely that proximate danger of pollution is not induced by an act of this kind, will very rarely have place.

d. If the man withdraws himself and restrains insemination when the wife has already poured forth humor or is so aroused that she cannot impede the effusion, he does not commit mortal sin, and from a reasonable cause this manner of acting is excused: for since the insemination of the woman is not necessary for generation, its frustration is not grave.

The opinion of many authors, whom St. Alphonsus followed, l. 6, n. 91, 8, namely that by this action a grave sin is committed, rests on a false supposition, namely that the semen of the woman, necessary for generation, is frustrated. These authors indeed concede that that frustration is not so intrinsically evil that it cannot be excused for any reason; but they require a most grave cause, e.g. danger of death or scandal, in order that it be licit. But in truth Capellmann,² whom Berardi³ rightly follows, does not require so grave a cause; they think, for example, that the sense of great pain by which either party is affected suffices for the man to withdraw himself, whether because the wife has already poured forth humor or because he exposes himself to grave danger of pollution: for to permit the frustration of virile semen, and a fortiori of female humor, so grave a reason is not required.

¹ St. Alphonsus, n. 954.

² Medicina pastor.^9 (Aachen: Barth, 1893), p. 146.

³ Praxis confessar.^3, I, n. 993.

69. 2. That the woman retain the received semen.

a. The wife does not sin who immediately after intercourse rises, walks, works, or urinates: for since the vaginal walls immediately cohere with one another and close the vagina, so that the received semen ordinarily is not emitted, by that manner of acting nothing is done by which generation is impeded. Nevertheless, if this were done with the intention of expelling the semen and impeding generation, this depraved intention would be a mortal sin.

b. Every action by which a woman tries to expel the received semen for impeding generation, as to wash out the vagina with an irrigator, is a grave sin: for although the action which she uses may be insufficient for producing that effect, at least from the depraved intention she commits a grave sin. Neither the annoyances, however great, which perhaps women experience unless they cast out the semen by washing out the vagina, nor the miscarriages which they are accustomed to suffer, excuse this manner of acting: for if they do not wish to preserve the received semen, they ought to abstain from intercourse.

Vaginal washings rarely impede generation, even if they are done soon after intercourse; but there is absolutely no danger of losing the semen if they are done some hours after intercourse.

c. Just as a woman is bound to preserve the received semen, so also she is bound to avoid impeding its ascent into the uterus. Therefore it is in no way licit, by applying medicine before intercourse, to close the mouth of the uterus, by which the ascent of the semen is impeded and the fecundation of the ovule is rendered impossible: for every action which tends to this, that generation be impeded, is illicit.

Nevertheless, it is licit for a woman who was compelled by force or deceit to have intercourse to expel the received semen immediately after intercourse, before conception has occurred, by washing or another means: for the semen then has itself in the manner of an unjust aggressor, whom it is licit to repel.¹

d. If intercourse is completed in the natural and fitting mode, but the woman cannot retain the received semen on account of indisposition of the organs, intercourse is licit, because the ejection of the semen occurs accidentally.

¹ Lehmkuhl, Theol. mor. I, n. 849; Genicot, Theol. mor. I, n. 378.

70. On things licit in the conjugal act. In the use of marriage, acts of imperfect lust, whether mutual or solitary, which are either necessary or useful for completing the conjugal act, are licit for spouses: for to him to whom the end is permitted, the means are also permitted; and to him to whom the consummated act is permitted, acts which by nature itself are destined as a disposition and preparation for it are also permitted.

a. Hence when the intention of completing intercourse is present, sights, touches, etc., which excite toward intercourse, whether they are performed before intercourse or in intercourse itself, are licit for spouses. But spouses ought to take care that pollution not follow by lingering too long in acts of this kind; nevertheless, if it should sometimes follow beyond intention, it would be free from fault.

b. If intercourse on the part of the man has already been consummated and he withdraws before the woman has completed the act, she herself can complete the act by touches or in another way and procure full pleasure for herself.

a. For although this completion by the woman is not necessary for generation according to recent physiologists, nevertheless it cannot be denied that the insemination of the woman contributes something to the conception and formation of the fetus; and this natural destination of female insemination suffices for it to be licit for the woman to complete the act. Moreover, no reason appears why the woman cannot from her own part complete an act which she began by her own right and licitly. Finally, since from the institution of marriage she has a right to taking full pleasure from intercourse, she can procure it for herself from intercourse licit in every respect. Therefore for a wife who cannot inseminate either during or after intercourse, it is licit even immediately before intercourse to obtain for herself complete delectation, pollution or insemination, since delectation belongs to the complete conjugal act.

b. Capellmann judges that this completion is licit for the woman even when the conjugal act is not completed because of the fault of the man, who withdraws before insemination,¹ and Berardi agrees with him, because an act legitimately begun can be brought through to the due end.² But one must plainly agree with Lehmkuhl, who, n. 858, pronounces this illicit: for since insemination on the part of the man has not occurred, insemination on the part of the woman has the nature of mere pollution, since it can contribute in no way either to completing the conjugal act or to assisting conception.

c. But it is not licit for the man by touches to excite himself to insemination if the woman, after her insemination has been completed, withdraws without awaiting the insemination of the man: for this emission of semen would not be the completion of the act of generation, but voluntary pollution and frustration of semen.

¹ Cf. Capellmann, Medicina pastor.^9, p. 143 f.

² Cf. Praxis confess.^3, I, n. 993.

501. Notion. Institution. 1. Matrimony (conjugium, connubium, nuptials), if it is considered as a natural and social institution, is the union of a man and a woman, legitimately entered, for generating and educating offspring.

a. The union of life for preserving and propagating the human race is perfect conjugal life, which carries with it the right and duty of coming together, and community of bed, table, and dwelling; for these things are plainly necessary, so that the end of matrimony intended by nature can suitably be obtained.

b. For establishing this union, which is the means of preserving and propagating the human race and at the same time the foundation of civil society, the author of nature established the diversity of the sexes; for promoting the same he inserted fitting appetites (Triebe) in human nature.

c. By this union of persons of different sex, in some measure they mutually complete and perfect one another, insofar as male and female constitute the adequate and complete principle of generation, education, and domestic life; but it can in no way be affirmed that male and female through matrimony mutually complete one another in the order of personality, as though an unmarried human being were imperfect and needed a complement in order to be a perfect human being.

2. God instituted matrimony in the earthly paradise, as is clear from the words which Adam pronounced from divine inspiration: This now is bone of my bones and flesh of my flesh. Wherefore a man shall leave his father and mother and shall cleave to his wife, and they shall be two in one flesh.² From the beginning God instituted matrimony in such a way that it would be an image and representation both of the union of the divine Word with human nature and of the union of Christ and the Church,³ and from the beginning he marked it with the property of unity and indissolubility, which by right it retained at least until the flood. Afterward, however, matrimony fell away from its primitive institution; for besides the fact that after the fall of the first parents it began also to be a remedy for concupiscence, it lost besides the prerogative of unity and indissolubility, since polygamy was granted to the patriarchs and even to gentiles by dispensation, and the bill of repudiation to the Israelite people.⁴ But Christ, after removing for all men the dispensation concerning polygamy and the bill of repudiation, restored matrimony to the dignity and purity of its first institution and elevated it to the rank of a sacrament, where, referring to the words of Genesis, he added: What therefore God has joined together, let not man separate.⁵

a. The words by which matrimony is instituted, Wherefore he shall leave, etc., are indeed attributed by the author of Genesis to Adam; but Adam could utter them only with the Lord inspiring him. Therefore Christ attributes these words to God himself.⁶ The unity and indissolubility of matrimony are contained in the words, And they shall be two in one flesh, from which Christ the Lord infers: Therefore now they are not two, but one flesh. What therefore God has joined together, let not man separate.

b. In fact unity was already violated earlier in particular cases, e.g., by Lamech;⁷ nevertheless, by right, as regards polygamy, a divine dispensation was made, according to some, to Noah and his sons, so that the human race might be multiplied more quickly;⁸ according to others, it was first granted to Abraham. Polygamy was also granted by God to gentiles, but the bill of repudiation seems to have been permitted to the Jews alone.

c. It is indeed disputed whether the bill of repudiation effected the dissolution of the bond of matrimony, or only this, that the spouses could separate with impunity; but the opinion which holds that through the bill of repudiation matrimony was dissolved is to be preferred, so that each party could pass validly and licitly to other nuptials.⁹

3. Matrimony can be considered in two ways, according as it is a contract and according as it is a sacrament. Although matrimony has the nature of a contract, nevertheless it differs from other contracts chiefly in these things: a. other contracts are not founded in nature in the same special way, nor are they ordered to the natural good of the whole human race; b. in other contracts the contracting parties can determine the conditions of the contract according to their choice, but in the matrimonial contract the object, conditions, and also duties are so determined by natural or ecclesiastical law that they cannot be changed by the choice of the contracting parties; c. other contracts can be dissolved by the mutual consent of the contracting parties, but the matrimonial contract cannot be dissolved by the consent of the contracting parties, so that the obligations and burdens once assumed by force of the contract cannot be cast off as long as both contracting parties are alive; d. other contracts are merely profane, but the matrimonial contract, considered in its nature alone, is a sacred thing.

That matrimony, considered only in the nature of the thing, abstracting from the character of sacrament, is a sacred and religious thing is clear, because it was instituted immediately by God; because it is a sketch of the union of the Word and human nature, of Christ and the Church; because by reason of its end it is ordered to God, since it was established for perpetuating the human race, which is destined to worship and glorify God. Therefore the more cultivated peoples of antiquity considered matrimony as a thing joined with religion and sanctity.¹⁰

¹ St. Alphonsus, bk. 6, nn. 831-1147. Thomas Sanchez, De sancto matrimonii sacramento (Antwerp, 1626). Basilius Pontius, De sacramento matrimonii (Lyons, 1640). Mich. Rosset, De sacramento matrimonii (Paris: Roger et Chernoviz, 1895-1896). Jos. Carriere, De matrimonio (Paris, 1877). Petrus Gasparri, Tractatus canonicus de matrimonio4 (Paris, 1904). H. J. Feije, De impedimentis et dispensationibus matrimonialibus4 (Louvain: Peeters, 1885). Julius de Becker, De sponsalibus et matrimonio2 (Brussels, 1904). Ballerini-Palmieri, Opus theologicum morale3 (Prato: Giachetti, 1900), vol. VI, De matrimonio. Lehmkuhl, Theologia mor. (Freiburg: Herder), II, tract. VIII, De matrimonio. M. Matharan, Casus de matrimonio (Paris: Victor Retaux, 1893). Fr. Heiner, Grundriss des katholischen Eherechtes4 (Munster: Schoningh, 1892). Joseph Schnitzer, Katholisches Eherecht2 (Freiburg: Herder, 1898). Rud. v. Scherer, Handbuch des Kirchenrechtes (Moser, Graz, 1898), II, pp. 84-593. M. Leitner, Lehrbuch des katholischen Eherechtes (Paderborn: Schoningh, 1902). Fr. Wernz, Ius decretalium IV (Prato: Giachetti, 1912). Freisen, Geschichte des kanonischen Eherechtes (Tubingen, 1888). Van de Burgt-Schaepmann, Tractatus de matrimonio3 (Utrecht: Van Rossum, 1908). Encyclical letter of Leo XIII, Arcanum (On the Sacrament of Matrimony), February 10, 1880. The Code of Canon Law treats matrimony in Cn. 1012-1143. J. Chelodi, Ius matrimoniale iuxta Codicem iur. can. (Trent: Comitato diocesano, 1918). Tim. Schafer, Das Eherecht nach dem Codex iur. can. (Munster: Aschendorff, 1918). H. Goller, Das Eherecht im neuen kirchlichen Gesetzbuch (Freiburg: Herder, 1918). Linneborn, Grundriss des Eherechts nach dem Codex iur. can. (Paderborn: Schoningh, 1919).

² Gen. 2, 23, 24.

³ Eph. 5, 22-33.

⁴ Cf. Gen. 16, 1 ff.; 25, 4; 29, 27. Deut. 24, 1 ff.

⁵ Matt. 19, 6.

⁶ Matt. 19, 4.

⁷ Gen. 4, 19.

⁸ Benedict XIV, De synodo, l. 13, c. 21, n. 8.

⁹ Cf. Pesch, Praelectiones dogmaticae, VII, n. 772 ff.

¹⁰ Cf. the encyclical Arcanum, around the middle.

502. On the Necessity of Matrimony.¹ a. Matrimony instituted by the author of nature must be called necessary for the human race, since only through matrimony can the human race suitably be preserved and propagated. Therefore by the same author of nature both the right to matrimony and also, generally, an inclination toward it have been inserted in all and each. Nevertheless it cannot be affirmed that a divine law, whether natural or positive, of contracting matrimony has been imposed per se and directly either on all and each human being, or on the human race as a community.

For a true precept which obliges the human race, but no determinate persons, can scarcely be understood. Moreover, for obtaining the end of propagation of the human race, the general inclination of men to entering matrimony is sufficient; for by it it happens that most contract and consummate matrimony. Finally, the Church teaches from sacred Scripture that celibacy is licit, indeed more perfect than the matrimonial state.²

b. Nevertheless it can happen that indirectly and per accidens, for some singular man from a special reason, there exists an obligation of entering matrimony, namely for avoiding incontinence, for repairing harm inflicted, for fulfilling a promise; besides, from the beginning of the world there existed for the first parents a positive obligation toward matrimony and its use, which God signified by these words: Increase and multiply, and fill the earth;³ for the end of propagation of the human race, which had necessarily to be obtained, in that order could not be obtained by another means.

¹ Wernz IV, n. 34; Gasparri I, 212 ff.; Leitner, section 4.

² Council of Trent, sess. 24, can. 10.

³ Gen. 1, 28.

503. The Ends of Matrimony. Some ends of matrimony are essential and internal, which God intended in the institution of matrimony; others are accidental and external, which the contracting parties can intend besides the essential ends; the essential ends again are primary or secondary.

a. The essential primary end is the procreation and education of offspring: Increase and multiply and fill the earth;¹ the essential secondary ends are mutual help in life, both in caring for domestic affairs, in educating offspring, and in giving holy love: Let us make him a helper like unto himself;² then the quieting of concupiscence, which does not incite to illicit things if satisfaction is licitly given to it through the conjugal act, which the words imply: But if they do not contain themselves, let them marry: for it is better to marry than to burn.³

b. Many accidental ends can be conceived, e.g., to reconcile peace between families, to preserve the honor of a family, to compose peace among blood-relatives, to obtain honors, riches, licit pleasures, etc.

Before the sin of the first parents matrimony was ordered to the office of nature, that is, to procreating and educating children and therefore to preserving and propagating the human race; after their fall it was also ordered to a remedy of concupiscence, that is, to avoiding sins of the flesh through the use of matrimony according to the laws of reason.

The principal end of matrimony, considered as it is instituted unto the office of nature, is not profane but sacred; for the primary end of matrimony is the procreation and education of offspring; but the adequate end of offspring is not temporal happiness, but God, to be worshiped by religion and afterward possessed in eternal beatitude and thereby glorified; therefore the direct end of matrimony is the generation and education of offspring for glorifying God. But this end is sacred and religious. Therefore matrimony is subject to that power to which the care of the last end of human life has been entrusted, that is, to the religious power.

¹ Gen. 1, 28.

² Gen. 2, 18.

³ 1 Cor. 7, 9.

504. The Goods of Matrimony. Following St. Augustine,¹ theologians distinguish a threefold good of matrimony: a. the good of offspring, which consists in the generation and education of offspring; b. the good of fidelity, which consists in the mutual fidelity which each spouse must preserve for the other, both because one grants to the other the use of the body, and because one concedes that use to no other; c. the good of sacrament, which consists in the inseparability of the spouses. Matrimony indeed has indissolubility by its nature; but because through the sacrament it is confirmed, it is commonly called the good of sacrament.

These three goods of matrimony are essential, namely such as pertain to the essence of matrimony, so that without them matrimony cannot be had. But they are essential in this way: a. the good of offspring, insofar as it consists both in the obligation of using matrimony in such a way that offspring can be generated, and in the obligation of preserving and educating offspring once received; b. the good of fidelity, insofar as it consists in the obligation of admitting one's own spouse, but excluding every other from use of the body; c. the good of sacrament, insofar as it consists in the indissoluble matrimonial bond.

¹ De bono coniugali, I, 32.

Marriage is also indissoluble, at least by divine law, so that no human power can dissolve a marriage once validly contracted; ‘“‘ What God hath joined together let no man put asunder.”¹ This text has the strictest application to the consummated marriage of baptized Christians which can only be dissolved by divine authority. The Pope can for a grave reason dispense in the ratified but not consummated marriage of a Christian; ratified marriage is also dissolved by religious profession of solemn vows; and there is the case of the Pauline privilege.

(a) 'The Pope not unfrequently uses the power given to him by our Lord to dissolve the merely ratified marriage of Catholics for some grave reason. A probable suspicion of impotence in one of the parties, and a serious quarrel which leaves no hope of reconciliation, have been held sufficient causes for granting a dispensation from a ratified marriage. As the Pope has no jurisdiction over non-baptized persons, he cannot exercise his authority to dissolve their marriages. But if a non-baptized married couple were converted to the Faith, the Pope would have power to dissolve their marriage if it had not been consummated after baptism, for even if it had been consummated before baptism it would only rank as a ratified marriage. By authority of the Holy See a baptized pagan who had several wives is sometimes permitted to keep any one of them who may be converted with him, if the first is unwilling to become a Christian. Similarly, a married pagan converted in circumstances which render it impossible to interpellate the other party is sometimes allowed by papal dispensation to contract another marriage with a Catholic.

(b) Solemn profession in a religious order with solemn vows annuls a previously existing ratified marriage by ecclesiastical law. Mere entrance into religion and even profession of simple vows in orders that have solemn vows is not sufficient (Can. 1119). By ecclesiastical law a period of two months was granted after marriage, during which there was no obligation to render the debt, in order that either of the parties might use his privilege of entering religion. But this seems contrary to Can. 1111.

(c) The consummated marriage of two pagans may be dissolved by the Pauline privilege if one of them is converted to the Faith, and the other will neither be converted nor live at peace without trying to draw the convert to sin. It is in this sense that the Church interprets the words of St Paul: ‘“ But if the unbeliever depart, let him depart. For a brother or sister is not under servitude in such cases. But God hath called us in peace.’’?

The marriage is not dissolved by the Baptism of one of the parties, but if the conditions mentioned above are verified, the convert after Baptism may contract a second marriage with a Christian, and by this marriage the former is dissolved. In order that it may be known whether the other party is willing to be converted or at least to live at peace with the convert, he must be interpellated by the bishop or by his authority. Both interpellations are required, and more probably they are necessary for the validity of the second marriage, unless a dispensation from them is obtained from the Holy See. Thus in a case of insanity of the other party, a dispensation from the interpellations was granted, and in countries where Christians were forbidden to live with Jews, only one interpellation was put, ‘‘ Whether the other party was willing to be converted to the Faith,” and if a negative answer was given, the convert was free to marry again (Can. 1120 ff.). j

¹ Matt. xix 6.

A lawful marriage between non-baptized persons, even if consummated, is dissolved in favor of the faith from the Pauline privilege (canon 1120, § 1), or in the case of the Apostle, as it is called; about this one must deal more fully.

I. Summary notion of the privilege. The privilege consists in this, that a spouse who in infidelity entered marriage with another infidel can, after receiving Baptism, if the other party persists in infidelity and departs, pass to new nuptials. By the new nuptials the prior marriage, even if it was consummated, is dissolved.

II. The existence of the privilege is clear from these words of St. Paul: "If any brother has an unbelieving wife, and she consents to dwell with him, let him not put her away. And if any faithful woman has an unbelieving husband, and he consents to dwell with her, let her not put away her husband. For the unbelieving husband is sanctified by the faithful woman, and the unbelieving woman is sanctified by the faithful husband; otherwise your children would be unclean, but now they are holy. But if the unbeliever departs, let him depart; for the brother or sister is not subject to servitude in such things; but God has called us in peace."¹

It is disputed whether the Apostle merely promulgated a privilege established by God, or instituted it by force of a special faculty granted by Christ to the Apostles.

To the former opinion, which St. Alphonsus (VI, 955) and very many authors embrace, there are favorable the Sacred Congregation of Propaganda Fide² and the Holy Office, which several times taught the origin of the privilege "granted by Christ the Lord and promulgated through the Apostle Paul."³

III. Conditions of the privilege. In order that, by force of the Pauline privilege, it may be lawful to pass to new nuptials, it is required: 1° that the marriage have been contracted between two infidels; 2° that one of the spouses be converted to the Christian religion; 3° that the other spouse persist in infidelity up to the new nuptials; 4° that the other spouse, after the Baptism of the faithful party, depart from that party physically or morally; 5° that through an interpellation the departure be established, unless the Apostolic See has declared otherwise. It is said:

1. That the marriage have been contracted between two infidels (canon 1120, § 1).⁴ Hence there is no place for the privilege: 1° if a baptized person in the Catholic Church, after obtaining a dispensation from the impediment of disparity of cult, has contracted with an infidel (canon 1120, § 2); 2° if a baptized non-Catholic has contracted nuptials with an infidel; and this holds even if the said non-Catholic is converted to the Catholic Church (cf. canon 1120, § 1). Some indeed judge that a baptized non-Catholic who embraces the Catholic religion can enjoy the privilege, because he is truly converted.⁵ But this seems to have to be denied, because conversion has always been understood of Baptism.⁶

Objection 1. Canon 1120, § 2 declares: "This privilege does not obtain in marriage entered between a baptized party and a non-baptized party with a dispensation from the impediment of disparity of cult." Therefore it obtains in a marriage entered between a baptized party and a non-baptized party without a dispensation from the impediment of disparity of cult, as if a schismatic or heretical party contracts with a non-baptized party.

Response. From the fact that the former does not obtain, it is not necessarily deduced that the latter obtains; that this in fact cannot be deduced follows from those things by which it is proved that it is required that the marriage have been contracted between two infidels, that is, from Sacred Scripture,⁷ from the responses of the Holy Office,⁸ and from the obvious sense of canon 1120, § 1.

Objection 2. The Church has in fact dispensed in a marriage between a non-baptized party and a party baptized in schism or in heresy.

Response. Let that pass; for the question is not about a dispensation granted by the Church, but about the Pauline privilege.

2. That one of the spouses be converted to the Christian religion, that is, be baptized, and this either in the Catholic Church or in some Christian sect. It is said:

a) Be baptized; hence even catechumens before Baptism cannot enjoy the privilege.⁹

b) Either in the Catholic Church or in some Christian sect. A few deny this and judge that it is required that the infidel spouse be converted to the Catholic faith; and they rely both on the words of Paul "brother," "sister," "faithful," and on chapter 6 De divortiis, where it is said: If the other "is converted to the Catholic faith." But Tradition teaches that the foundation of the privilege is the sacrament of faith, or Baptism.¹⁰ If the Baptism of the converted party is doubtful, for the most part the difficulty is removed by repeating Baptism conditionally; for in the case of doubtful Baptism there can be no place for the Pauline privilege.¹¹ If a doubt about Baptism or its validity arises after the new marriage has been contracted, recourse should be had to the Holy Office.

3. That the other spouse persist in infidelity up to the new nuptials, that is, not be baptized. As soon as the other spouse also is baptized, the new marriage can no longer be entered.¹²

4. That the other spouse, after the Baptism of the faithful party, depart from that party physically or morally. Therefore it does not suffice that the infidel party not be baptized, but departure is also required; and indeed departure after the Baptism of the faithful party; departure before Baptism does not suffice. Moreover, both physical and moral departure suffices.

a) One departs physically: 1° who for any cause whatever is unwilling to cohabit. This departure, however, does not suffice if the faithful party, after receiving Baptism, has furnished to the infidel party a just cause of departing (canon 1123).¹³ I said after Baptism, because Baptism washes away all past things. One departs physically: 2° who indeed wishes to cohabit, but is physically impeded from it, provided he is not impeded because of a cause placed by the faithful party after Baptism. The case is present, for example, if the infidel party is detained in prison and there is no hope that he will soon be freed. This is denied by some, who require a malicious departure; but the response of the Holy Office is opposed to this opinion.¹⁴

b) One departs morally: 1° who is unwilling to cohabit without insult to the Creator, for example if the infidel party inflicts a formal injury on religion, or importunately excites the faithful party to sins of irreligion, lust, etc., or prevents the faithful party from fulfilling the precepts of religion, or refuses that the offspring be educated religiously. One departs morally: 2° who is unwilling to cohabit peacefully, for example if the infidel party treats the other spouse cruelly without just cause, or does not renounce concubinage, or - as it seems should be added - more often commits adultery, or by other continued vices reduces conjugal life to servitude (St. Alphonsus VI, 956).

The fact that the infidel spouse previously cohabited without insult to the Creator and peacefully does not prevent there being place for the privilege, if the infidel afterwards departs physically or morally; and this holds even if the faithful spouse after Baptism again consummated the marriage with the infidel party (canon 1124).

5. That the departure be established by interpellation, unless the Apostolic See has declared otherwise (canon 1121).

a) It is doubtful by what law interpellation is required;¹⁵ likewise whether it is necessary for the validity of the new marriage. Favoring the affirmative opinion are these words of canon 1121, § 1: "Before the converted spouse validly contracts..., he must... interpellate the non-baptized party."¹⁶ Furthermore, the interpellations must regularly be made after Baptism.¹⁷ But the infidel party must be asked: 1° whether he or she also wishes to be converted and receive Baptism; 2° whether at least he or she wishes to cohabit with the converted party peacefully, without insult to the Creator (canon 1121, § 1, 1° and 2°).

b) Interpellations should regularly be made, in at least summary and extrajudicial form, by authority of the Ordinary of the converted spouse. By that Ordinary there are also to be granted to the infidel spouse, if indeed he has requested them, delays for deliberating, yet with the warning that if the delays pass uselessly, the response will be presumed negative. Interpellations also made privately by the converted party himself are valid, indeed they are also licit, if the form prescribed above cannot be observed; nevertheless, in this case, for the external forum, these interpellations must be established by at least two witnesses or by another legitimate mode of proof (canon 1122). A single interpellation suffices, so that repetition is a matter of mere charity.¹⁸ Indeed interpellation need not even then be repeated when the infidel spouse previously lived peacefully with the faithful spouse, but afterwards departs.

c) Interpellation must be made unless the Apostolic See has declared otherwise. Besides this, Bishops, Vicars, and Prefects Apostolic are commonly granted the faculty of dispensing in certain circumstances.

Note. Those things which regard matrimony in the constitutions of Paul III Altitudo, June 1, 1537; of St. Pius V Romani Pontificis, August 2, 1571; and of Gregory XIII Populis, January 25, 1585, and which were written for particular places, are extended also to other regions in the same circumstances (canon 1125). It is said to other regions, that is, everywhere on earth, in the same circumstances. Now:

1° Paul III decrees "that polygamists who before conversion had several wives according to their customs, and do not remember which one they first took, once converted to the faith, may take one of them whom they wish, so that they may contract matrimony with her by words concerning the present, as is the custom; but those who do remember which one they first took, having dismissed the others, are to retain her. And we grant to them that those joined even in the third degree both of consanguinity and of affinity are not excluded from contracting marriages." The same holds concerning a woman who lived in polyandry.

2° Pius V declares that the same persons, even if they remember which was the first wife, may remain, the others having been dismissed, with the wife who was baptized with them. Nevertheless the first wife, if she is known to some, seems first to have to be interpellated as to whether she wishes to be converted. The text of Pius V does not indeed expressly declare this, but it is counseled by formula n. 23 of the Sacred Congregation of Propaganda Fide, where in the same case the faculty of dispensing is granted to Ordinaries under this condition, that the lawful wife of the convert has expressly refused conversion. It suffices, however, to interpellate the former wife, if she is known, as to whether she wishes to be converted; the other interpellation concerning peaceful cohabitation can be omitted.

3° Gregory XIII grants to local Ordinaries, pastors, and confessors of the Society of Jesus¹⁹ the faculty of dispensing with converted infidels, so that, the infidel spouse having been left, they may marry any one of the faithful, with the consent of the infidel in no way required or the response not waited for, "provided it is established, even summarily and extrajudicially, that the absent spouse, as was stated, cannot lawfully be admonished, or that, once admonished, he has not signified his will within the time fixed in that admonition." Many conclude from various responses of the Holy Office that these faculties can be extended to the case where it is established that interpellation will be useless.²⁰ The Supreme Pontiff adds: "and these marriages indeed, even if afterwards it should become known that the former infidel spouses could not declare their will because they were justly impeded, and had also been converted to the faith at the time of the second marriage contracted, nevertheless we decree that they must never be rescinded, but are valid and firm, and that the offspring to be received from them will be legitimate."

IV. Use of the privilege. 1. If the infidel who has been interpellated denies either conversion and due cohabitation, or due cohabitation alone and not conversion; likewise if he responds that he indeed wishes to cohabit peacefully, but is impeded from carrying out his will, the faithful spouse can pass to new nuptials (canon 1123), provided nevertheless that, if the infidel spouse admits conversion, the faithful spouse enters the nuptials before the Baptism of that spouse. Besides, for liceity it is required that the Ordinary or his delegate have declared that one can proceed to the use of the privilege.

2. If the infidel responds nothing, it must be seen whether the interpellation reached him and whether he could easily respond, so that departure can be gathered from the denied response. If the matter remains doubtful, and no fruit is hoped from a repeated interpellation, a dispensation from interpellation should be obtained.

3. The faithful spouse can enter new nuptials with a Catholic person only (cf. canons 1123, 1124). Unless a dispensation is obtained, marriage with a heretical person will be illicit; with an infidel, because of disparity of cult, it will be invalid. Moreover note:

a) If the infidel admits both conversion and due cohabitation, the faithful spouse, as is clear, is bound to cohabit with him.

b) If the infidel admits due cohabitation, but not conversion, the faithful spouse indeed cannot contract a new marriage; nevertheless, equally as the faithful spouse whose other party has fallen into heresy, he can institute divorce from bed and cohabitation, after a warning has first been given and after he has awaited conversion for a reasonable time. This is the doctrine and practice of the Church.²¹

4. By the new nuptials the prior marriage is dissolved, so that the infidel party after those nuptials have been contracted, not before, can validly contract a new marriage (canon 1126; St. Alphonsus VI, 957).²² That the prior marriage is dissolved through solemn profession which the faithful spouse may perhaps emit is denied rather commonly. Finally, the new nuptials are held by the Church as first nuptials, so that the faithful spouse is not judged a bigamist.

¹ 1 Corinthians 7:12-15.

² Collectanea, n. 1305 sq.

³ For example, in the Instruction to the Vicar Apostolic of Natal, July 11, 1866 (Collectanea, n. 1295).

⁴ Holy Office to the Bishop of Cochin, August 5, 1759, ad 4 (Collectanea, n. 421); in Nanking, March 5, 1852 (Collectanea, n. 1070).

⁵ Ami du Clerge, 1921, p. 69 sq. and p. 234 sq.

⁶ Cf. Gregorianum, 1923, p. 241 sq. and p. 329 sq.

⁷ 1 Corinthians 7:12-15.

⁸ August 5, 1759, ad 4 (Collectanea, n. 421); March 5, 1852 (Collectanea, n. 1070).

⁹ Sacred Congregation of Propaganda Fide, January 16, 1803 (Collectanea, n. 665).

¹⁰ C. Gaudemus, 8, De Divortiis.

¹¹ Holy Office, March 13, 1901; cf. Gregorianum, loc. cit.; Holy Office, March 8, 1911. Nevertheless the Supreme Pontiff can, the requisite conditions being fulfilled, by vicarious power dissolve the marriage previously entered (n. 722).

¹² Holy Office, August 5, 1759, ad 2 (Collectanea, n. 421); Sacred Congregation of Propaganda Fide, January 30, 1807 (Collectanea, n. 690).

¹³ July 8, 1891 (Collectanea, n. 1760).

¹⁴ Holy Office, December 14, 1848, ad 2 (Collectanea, n. 1036).

¹⁵ Holy Office, August 5, 1759 (Collectanea, n. 924); July 4, 1855 (Collectanea, n. 950).

¹⁶ Cf. Holy Office, September 16, 1824 (Collectanea, n. 784); June 12, 1850 (Collectanea, n. 1044).

¹⁷ Cf. Sacred Congregation of Propaganda Fide, January 17, 1836, ad 1 (Collectanea, n. 845).

¹⁸ Holy Office, April 13, 1859 (Collectanea, n. 1175); June 3, 1874 (Collectanea, n. 1415); Holy Office, June 12, 1850, ad 1 (Collectanea, n. 1044).

¹⁹ "With canon 1125 considered, the faculty now seems to be extended to all confessors" (Aertnys-Damen, II, 922, question 1°).

²⁰ Cf. Vermeersch, De casu Apostoli, n. 77.

²¹ Cf. Wernz-Vidal, n. 702.

²² Constitution of Benedict XIV Postremo mense, February 28, 1747.

"1. Whether, for the effect of dissolving marriage according to the privilege conceded by Christ the Lord in favor of the faith and promulgated by the Apostle, the interpellation of the party persevering in unbelief is by Divine law and therefore so necessary that, it having been neglected, there is plainly no place for dissolving the marriage? Or whether it belongs only to judicial form, and is not required except so that the dissolution be done licitly, especially when it is otherwise established, by morally certain indications, that the other spouse wishes neither to embrace the faith nor to cohabit without contumely of the Creator?

2. Supposing that the first part is answered affirmatively, it is asked whether the interrogation concerning the Religion to be embraced alone suffices, namely whether the party remaining in unbelief wishes to be converted or not, which some of the Missionaries think, relying on the authority of Thomas Sanchez; or rather whether the interpellation whether at least the party persevering in unbelief consents to cohabit without contumely of the Creator is also essential and absolutely required, so that, it having been omitted, the marriage can be dissolved not only not licitly, but also not validly?

3. Whether the solemn expulsion of a wife made by a husband, namely by giving a bill of repudiation before the chiefs of the village, according to the laws of the Kingdom, can hold the place of interpellation and be reputed for it, since it is most certain concerning the will of that husband, namely that he in no way wishes to have the aforesaid woman as wife for the future; or rather, no account being had of the repudiation, in those circumstances also, the double interpellation prescribed in law is required for the validity of the dissolution of the marriage?

4. It is asked how a Missionary ought to conduct himself toward an unbelieving woman, repudiated without any cause of adultery by her husband, also an unbeliever, who has married another, when she asks to be baptized, and there is suspicion whether she is prepared in soul to return to her husband, if perhaps afterwards he recalls her and consents to cohabit without contumely of the Creator? Ought he first to question her concerning this matter, and meanwhile defer Baptism until she is better disposed, even with danger of dying without Baptism? But what if she consents, but only with this condition, namely when the concubine shall have been expelled?

5. It is asked whether adultery gives occasion to unbelieving spouses, just as to Christians, of celebrating perpetual divorce, so that it is altogether intact for the innocent party, when he or she shall have been washed in the sacred Font, either to send a notice of renunciation to the world, or to pass life in the state of widowhood, although the other party wishes to be reconciled and to cohabit without contumely of the Creator?

6. Since an unbelieving husband permits his wife, already tinged with the waters of holy Baptism, indeed to observe Religion, nor does he formally command anything of mortal sin, but in the use of marriage he entices her very importunately to many grave things against conjugal chastity, so that the woman is always in grave danger of sinning mortally: It is asked, in this case, whether the aforesaid woman can leave him and pass to other vows? But what if the danger does not come from the other spouse, but from others who are in the same house, for example from a father-in-law who solicits his daughter-in-law to incest, or from a mother-in-law, a most quarrelsome woman and very much addicted to superstitions?

Resp. To the 1st: There is no place for dissolution of a marriage contracted in unbelief, in the case concerning which there is question, unless interpellation has first been made, or unless, for legitimate causes, an apostolic dispensation concerning the interpellation has been obtained.

To the 2nd: The unbelieving spouse is to be interpellated, not only whether he or she wishes to be converted, but also, in the case in which he or she does not wish to be converted, whether he or she wishes to cohabit with the faithful spouse without contumely of the Creator, according to the disposition of Innocent III, chap. Quanto, On divorces.

To the 3rd: Interpellation is to be made, even in the case concerning which there is question, if it can be done, or recourse is to be had to the Apostolic See for obtaining dispensation.

To the 4th: Nothing prevents Baptism from being conferred on the woman concerning whom there is question in the case, provided she is otherwise sufficiently instructed.

To the 5th: A spouse converted to the faith and baptized can make divorce, as regards bed, from an unbelieving spouse because of adultery committed by him, although he seeks pardon and wishes to cohabit without contumely of the Creator.

To the 6th: A converted woman can withdraw from an unbelieving man and pass to other vows, in the case in which he draws her to grave sins against conjugal chastity (chap. Quanto and chap. Gaudemus of Innocent III, On divorces). But if the drawing of the converted woman to mortal sin does not come from her unbelieving husband, but from others who dwell in his house, a father-in-law, for example, or a mother-in-law, the faithful woman, where other means are not at hand, can withdraw herself from that house where she is drawn to grave sinning; but she cannot dissolve the marriage and pass to another." S. C. de P. F. 5 March 1816, to the Provicar General of Western Tongking.

"If the marriage happened with the Catholic party after the reception of baptism, it will have to be inquired whether there had preceded the canonical interpellation of the spouse still unbelieving, or at least whether dispensation concerning that interpellation had been granted by legitimate authority. Insofar as it shall be established that the interpellation was made, or that dispensation from it was granted, the first marriage can no longer constitute a bond invalidating the second union; but insofar as neither the interpellation nor the dispensation from it preceded, the first marriage will indeed obstruct the second, but the Ordinary will have to suspend judgment and refer the case with all its circumstances to the Holy See." Instr. S. O. 20 June 1883, n. 44; Instr. S. C. de P. F. 1883, n. 45.

"What is to be thought concerning the marriage of the said man with a Christian girl, contracted without interpellation and dispensation, and what is now to be done? From the things set forth, the first marriage contracted by the man in gentility with a gentile woman subsists, and therefore R. P. D. the Apostolic Vicar, the Orator, should take care, in the more prudent way in which it can be done, to call the parties to himself for the producing of their rights, and, if he finds nothing to the contrary, should oblige him to return to the first marriage." S. C. S. I. 20 June 1858; S. C. de P. F. March 1816.

"There are gentiles who, for the sake of carrying on commerce, leave their own place for a time, that they may betake themselves to other Provinces at a distance of ten or fifteen days' journey, and sometimes more, and there they take other wives while the first are living. One of these recently was converted to the faith with his second wife; then, receiving a message that the first wife was grieving over his conversion, and even was urging him not to embrace the faith, he asked for Baptism, promising that he, content with the second, would absolutely abandon this first wife, and that in no way would he cohabit with her when returned to his own places. A certain Chinese Missionary, to whom the faculty of dispensing from the monition had in no way been granted by the Apostolic Vicar, assented to his wishes, and, judging that in this circumstance there was no place for doubt, baptized this Christian together with his second wife, and, having compelled them to a renewal of consent, joined them in solemn marriage. Afterwards that Christian, having returned, found the first wife changed, and in every way disposed to embracing the faith. It is asked whether, in the proposed case, the marriage entered into with the second wife is valid? The reason for doubting for us is, on the one hand, that that Missionary had no faculty of dispensing from the monition; but, on the other hand, several Missionaries protest, indeed admitting that in this case the marriage with the second wife had been celebrated illicitly, but not so certainly invalidly: both because, on 5 January 1777, when the S. C. de P. F. was interrogated by us whether certain marriages of this sort, celebrated through ignorance without dispensation, would be invalid, it answered nothing, although it answered other things; and because, with Benedict XIV of holy memory as witness, book 13, On the Diocesan Synod, ch. 21, art. 6, most Theologians assert that judicial interpellation can licitly be omitted as often as it is judged to be of no utility; but the Supreme Pontiff does not reject this opinion as false, and declares it only not sufficiently safe in practice. But in the proposed case the interpellation seemed useless to them, since it was clearly established concerning the will of the prior wife. Resp. With attention to the circumstances concurring in the fact, the spouses of whom there is question are not to be disturbed; but let Missionaries beware of imparting dispensation from the interpellation of the spouse if they lack a faculty of this sort."

"Whether, when marriage has been delayed on the part of the faithful party for a notable time after the interpellation made, or after a dispensation from it has been obtained, a new interpellation, or a new dispensation, is necessary? And insofar as affirmatively, what space of time ought to intervene between the first and the second, either interpellation or dispensation from it? Resp. Negatively, insofar as the interpellation was made; affirmatively, after a year, in the case of dispensation obtained at the beginning." S. C. de P. F. 26 June 1820, D. Escodeca, Missionary Ap. in Sutchuen.

"The interpellation is to be made after Baptism." S. C. S. I. 13 Apr.

1859, 21 Nov. 1883. For a grave cause, and with special faculty obtained from the Apostolic See, it can also be made before Baptism. S. C. S. I. 3 June 1874.

"... We decree that those who before conversion had several wives according to their customs, and do not remember whom they took first, when converted to the faith, should take one of them whom they wish, and with her contract marriage by words de praesenti, as is customary; but those who remember whom they took first, the others having been dismissed, should retain her." Paul III, Const. Altitudo Divini consilii, 1537, for the West Indies.

"... Therefore, since, as We have received, among the Indians remaining in their infidelity several wives are permitted, whom they themselves repudiate even for the lightest causes, from this it has happened that, for those receiving Baptism, it has been permitted to remain with that wife who has been baptized together with the husband; and since it very often happens that she is not the first spouse, whence both Ministers and Bishops are tormented by very grave scruples, thinking that that is not a true marriage; but since it is very harsh to separate them from the wives with whom these Indians have received Baptism, especially because it would be most difficult to find the first spouse: therefore We, wishing kindly to consult with paternal affection for the state of the said Indians, and to free the Bishops and Ministers themselves from scruples of this sort, of Our own motion and from Our certain knowledge, and from the fullness of apostolic power, by the apostolic authority and tenor of the present letters declare that Indians thus baptized, as is premised, and to be baptized in the future, may remain with the wife who has been baptized and will be baptized with them, as with a legitimate wife, the others having been dismissed, and that a marriage of this sort legitimately subsists between them, etc." Pius V, 2 Aug. 1571.

"Since therefore it often happens that many Infidels of either sex, but especially of the male sex, after marriages contracted according to the gentile rite, captured by enemies from Ancola, Ethiopia, Brazil, and other Indian regions, are carried away from their native territories and their own spouses into most remote regions, so that both they themselves, and the captives who remain in the fatherland, if afterwards they are converted to the faith, cannot warn their unbelieving spouses, separated by so long an interval of places, whether they wish to cohabit with them without contumely of the Creator, as is proper, either because sometimes there is no access even for messengers to hostile and barbarous provinces, or because they are wholly ignorant into what regions they have been transported, or because the very length of the journey brings great difficulty: for that reason We, considering that marriages of this sort contracted among Infidels are indeed true, but not to be judged so ratified that, necessity persuading, they cannot be dissolved, having compassion with paternal piety on the weakness of such peoples, grant, to all and singular the local Ordinaries and Parish Priests of the said places, and to Priests of the Society of Jesus approved for hearing confessions by the Superiors of the same Society, and sent for the time to the said regions, or admitted in them, by apostolic authority and the tenor of the present letters, full faculty of dispensing with whatsoever faithful Christians of either sex dwelling in the said regions and later converted to the faith, who before receiving Baptism had contracted marriage, so that each of them, the unbelieving spouse surviving, and his or her consent in no way required, or response not awaited, may licitly contract and solemnize in the face of the Church marriages with any faithful person even of another rite, and may afterwards, when they have been consummated by carnal copula, remain in them as long as they live: provided that it is established, summarily and extrajudicially, that the absent spouse, as is stated above, cannot legitimately be warned, or, having been warned, has not signified his or her will within the time fixed in that same warning; which marriages indeed, even if afterwards it should become known that the prior Infidel spouses, justly impeded, were unable to declare their will, and were converted to the faith even at the time of the second marriage contracted, nevertheless must never be rescinded, but are to be valid and firm, and We decree that the offspring to be received therefrom will be legitimate." Gregory XIII, 25 Jan. 1585. Cf. Const. of Benedict XIV, In suprema Catholicae Ecclesiae, 16 Jan. 1745.

"... There are several among the Christians who, in the time of gentility, sold their own wives to Gentiles, afterwards embraced the faith, received sacred Baptism, and in good faith entered into a new marriage with Christian women without any prior monition, either because they were ignorant of its necessity, or because the sold wife was too far distant, or because they did not know where she was now living, or finally because they feared that on account of the monition they would be ill-treated by the second husband and accused before the Prefects concerning the Christian Religion. It is asked: 1. Whether a marriage made in these circumstances is valid? 2. Whether and when there belongs to the Apostolic Vicars of this part the right of dispensing from the aforesaid monition, especially if the Christian has had children from the second Christian wife? But if it does not belong, it is humbly requested. 3. When these women thus sold have migrated to provinces in which the number of Christians abounds, and they cannot be found nor is there any message concerning them, whether ignorance of the fact, namely whether perhaps they had become Christians before the seller passed to second nuptials, ought to impede the dispensation? 4. Finally, whether, in the hypothesis in which these women can be warned, it suffices once to exhort them, either personally or through another, that they become Christians, saying nothing concerning the marriage, so that if on this occasion the aforesaid women are unwilling to be converted, it is lawful for the faithful party to pass to new nuptials? Resp. To the 1st, 2nd, and 3rd: The Most Holy One is to be supplicated for the concession of an Indult according to the Brief of Gregory XIII of the year 1585, and the Instruction of the Holy Office of the year 1760, which is to be transmitted; once that Indult has been obtained, the Apostolic Vicar can use the faculty of dispensing according to the form of the mentioned Brief of Gregory XIII and of the Instruction. To the 4th: Negatively." S. C. de P. F. 3 Jan. 1777, Missionary of the Province of Sutchuen in China.

"1. Whether under the name of a legitimate impediment, by which the faithful spouse is dispensed from the interpellation of the unbelieving spouse, there comes only the presumption of the shamelessness of the man who, just as the first time he sold his wife, seems to be feared lest, having recovered her, he would dare to sell her a second time also? 2. Whether there comes only the presumption that the unbelieving party is unwilling to return, namely because in the preceding cohabitation, either on account of diversity of temperaments or from other causes, both disagreed among themselves and were agitated by continual dissensions? 3. Whether there comes only the presumption that the unbelieving husband, from the fact that he has already passed to other nuptials, is unwilling to reject the second wife so as to adhere again to the first; or, if perhaps he wishes again to receive the first, nevertheless is unwilling to reject the second, but to retain both together? 4. Whether there comes only the fear of Christians, namely lest the unbelieving party, understanding from the interpellation made to him that there are Christians in such a place, could thence bring trouble upon the Christian Religion? Resp. To the 1st, 2nd, and 3rd: Negatively. To the 4th: In a case of this sort, the Apostolic See is to be consulted." Clement XIV in C. S. O. 23 Nov. 1769, Apostolic Vicar of Shensi and Shansi.

The Pauline privilege persists even if, after the conversion of either spouse, consent is renewed. Holy Office, 20 September 1848, Vicar Apostolic of New Zealand; Zitelli, p. 120.

“1. Whether, for the purpose of dissolving a Marriage according to the privilege in favor of the faith granted by Christ the Lord and promulgated by the Apostle, the interpellation of the party persevering in unbelief is of divine law and therefore so necessary that, if it is neglected, there is plainly no place for dissolving the Marriage? Or does it pertain only to the judicial form and is required only that the dissolution be made lawfully, especially when it is otherwise established by morally certain indications that the other spouse wishes neither to embrace the faith nor to cohabit without insult to the Creator?

“2. Supposing that the first part is answered affirmatively, it is asked whether the inquiry concerning embracing religion alone suffices, namely, whether the party remaining in unbelief wishes to be converted or not, as some of the missionaries, relying upon the authority of Thomas Sánchez, think; or whether rather the interpellation as to whether the party persevering in unbelief at least consents to cohabit without insult to the Creator is also essential and absolutely required, so that, if it is omitted, the Marriage can be dissolved not only unlawfully but also invalidly?

“3. Whether the solemn expulsion of a wife effected by her husband, namely, by giving a writ of repudiation before the leading men of the village according to the laws of the kingdom, can take the place of an interpellation and be regarded as such, since it is most certainly established concerning the will of that husband, namely, that henceforth he by no means wishes to have the aforesaid woman as wife; or whether rather, no account being taken of the repudiation, even in those circumstances the twofold interpellation prescribed in law is required for the validity of the dissolution of the Marriage?

“4. It is asked how the missionary ought to conduct himself toward an unbelieving woman who, without any cause of adultery, was repudiated by her husband, likewise an unbeliever, who married another, when she asks to be baptized and there is a suspicion whether she is disposed in soul to return to her husband if perhaps he should afterwards recall her and consent to cohabit without insult to the Creator. Ought he first to question her concerning this matter and meanwhile defer Baptism until she is better disposed, even with danger of dying without Baptism? But what if she consents, though only with this condition, namely, when the concubine shall have been expelled?

“5. It is asked whether adultery gives unbelieving spouses, as it does Christians, an occasion for effecting a perpetual divorce, so that it is entirely open to the innocent party, when washed in the sacred font, either to bid farewell to the world or to pass life in the state of widowhood, although the other party wishes to be reconciled and to cohabit without insult to the Creator?

“6. When an unbelieving husband indeed permits his wife, already washed in the waters of sacred Baptism, to observe her religion and does not formally command anything that is a mortal sin, but so importunately entices her in the use of Matrimony to many grave things contrary to conjugal chastity that the woman is always in grave danger of sinning mortally, it is asked whether, in this case, the aforesaid woman can leave him and pass to other vows. But what if the danger comes not from the other spouse, but from others who are in the same house, for example, from a father-in-law who solicits his daughter-in-law to incest, or from a mother-in-law who is a most quarrelsome woman and most addicted to superstitions?

“Response. To 1: There is no place for dissolution of a Marriage contracted in unbelief, in the case in question, unless an interpellation has first been made, or unless, for legitimate causes, an Apostolic dispensation from the interpellation has been obtained.

“To 2: The unbelieving spouse is to be interpellated not only as to whether he wishes to be converted, but also, in the event that he does not wish to be converted, whether he wishes to cohabit with the faithful spouse without insult to the Creator, according to the provision of Innocent III, chapter Quanto, On Divorces.

“To 3: The interpellation is to be made even in the case in question, if it can be made; otherwise recourse is to be had to the Apostolic See in order to obtain a dispensation.

“To 4: Nothing prevents Baptism from being conferred upon the woman in question, provided that she is otherwise sufficiently instructed.

“To 5: A spouse converted to the faith and baptized can make a divorce as regards the marriage bed from an unbelieving spouse on account of adultery committed by him, although he seeks pardon and wishes to cohabit without insult to the Creator.

“To 6: The converted woman can depart from the unbelieving husband and pass to other vows, in the event that he draws her into grave sins against conjugal chastity (chapter Quanto and chapter Gaudemus of Innocent III, On Divorces). But if the drawing of the converted woman into mortal sin proceeds not from her unbelieving husband but from others who dwell in his house—a father-in-law, for example, or a mother-in-law—the faithful woman can, when other means are not available, withdraw herself from that house where she is drawn into sinning gravely; but she cannot dissolve the Marriage and pass to another.” Sacred Congregation for the Propagation of the Faith, 5 March 1816, to the Pro-Vicar General of Western Tonkin.

“If a Marriage with a Catholic party should occur after the reception of Baptism, it will have to be investigated whether the canonical interpellation of the still-unbelieving spouse preceded, or whether at least a dispensation from that interpellation was granted by legitimate authority. Insofar as it is established that the interpellation was made or that a dispensation from it was granted, the first Marriage can no longer constitute a bond invalidating the second union; but insofar as neither the interpellation nor its dispensation preceded, the first Marriage will indeed stand in the way of the second, but the Ordinary must suspend judgment and refer the case with all its circumstances to the Holy See.” Instruction of the Holy Office, 20 June 1883, no. 44; Instruction of the Sacred Congregation for the Propagation of the Faith, 1883, no. 45.

“What is to be thought concerning the Marriage of the said man with a Christian maiden, contracted without interpellation and dispensation, and what is now to be done?—Response. From the things set forth, the first Marriage contracted by the man in paganism with a pagan woman subsists; therefore, let the Most Reverend Lord Vicar Apostolic, the petitioner, take care, in the more prudent manner in which it can be done, to summon the parties before himself to set forth their rights, and, if he finds nothing to the contrary, let him oblige them to return to the first union.” Holy Office, 20 June 1858; Sacred Congregation for the Propagation of the Faith, March 1816.

“There are pagans who, for the sake of conducting commerce, leave their own place for a time in order to betake themselves to other provinces at a distance of ten or fifteen days’ journey, and sometimes more, and there marry other wives while the first are living. One of these was recently converted to the faith together with his second wife; then, receiving word that his first wife grieved over his conversion and indeed exhorted him not to embrace the faith, he requested Baptism, promising that, content with the second, he would abandon the first absolutely and would in no way cohabit with her when he returned to his own country. A certain Chinese missionary assented to his wishes, although the faculty of dispensing from the interpellation had in no way been granted to him by the Vicar Apostolic; and, thinking that in this circumstance there was no room for doubt, he baptized this Christian together with the second wife and, after obliging them to renew their consent, joined them in solemn Matrimony. Afterwards that Christian, having returned, found the first wife changed and disposed in every way to embrace the faith. It is asked whether, in the proposed case, the Marriage entered into with the second wife is valid. The reason for our doubt is, on the one hand, that this missionary had no faculty of dispensing from the interpellation; on the other hand, however, several missionaries protest, admitting indeed that in this case the Marriage with the second wife was celebrated unlawfully, but not so certainly invalidly: both because, when the Sacred Congregation for the Propagation of the Faith was questioned by us on 3 January 1777 as to whether certain Marriages of this kind, celebrated through ignorance without a dispensation, were invalid, it gave no response, although it responded to other things; and because, according to Benedict XIV of holy memory, book 13, On the Diocesan Synod, chapter 21, article 6, most theologians assert that a judicial interpellation can lawfully be omitted whenever it is judged that it will be of no utility; the Supreme Pontiff, however, did not reject this opinion as false, but declared it only not sufficiently safe in practice. But in the proposed case the interpellation seemed useless to them, since the will of the first wife was clearly established.—Response. In view of the circumstances concurring in the fact, the spouses in question are not to be disturbed; but let missionaries beware of granting a dispensation from the interpellation of a spouse if they lack such a faculty.” Sacred Congregation for the Propagation of the Faith, 5 March 1787.

“Whether, when Matrimony has been delayed for a notable time on the part of the faithful party after the interpellation was made or after a dispensation from it was obtained, a new interpellation or a new dispensation is necessary? And insofar as the response is affirmative, what interval of time ought to intervene between the first and second interpellation, or between the first and second dispensation from it?—Response. Negative insofar as an interpellation was made; affirmative after a year in the case of a dispensation obtained at the beginning.” Sacred Congregation for the Propagation of the Faith, 26 June 1820, to D. Escodeca, Apostolic Missionary in Sichuan.

“The interpellation is to be made after Baptism.” Holy Office, 13 April 1859; 21 November 1883. For a grave cause, and with a special faculty obtained from the Apostolic See, it can also be made before Baptism. Holy Office, 3 June 1874.

“...We decree that those who before conversion had several wives according to their customs and do not remember which one they received first, after being converted to the faith, may take one of them whom they wish and contract Matrimony with her by words of the present tense, as is customary; but those who remember which one they received first, dismissing the others, shall retain her.” Paul III, Constitution Altitudo Divini consilii, 1537, for the West Indies.

“...Since therefore, as We have learned, the Indians while remaining in their unbelief are permitted several wives, whom they repudiate even for the slightest causes, it has consequently occurred that those receiving Baptism have been permitted to remain with that wife who is baptized together with her husband; and because it very often happens that she is not the first spouse, both ministers and bishops are consequently tormented by the gravest scruples, judging that this is not a true Marriage. But because it is most harsh to separate them from the wives with whom the Indians themselves received Baptism, especially because it would be most difficult to find the first spouse, therefore We, wishing benignly to provide for the state of the said Indians with paternal affection and to free the bishops and ministers themselves from scruples of this kind, by Our own motion, from Our certain knowledge, and from the fullness of Apostolic power, by Apostolic authority and the tenor of the present letters declare that Indians baptized in the manner set forth above and to be baptized in the future can remain with the wife who was or will be baptized with them as with a legitimate wife, the others being dismissed, and that a Marriage of this kind legitimately subsists between them, etc.” Pius V, Brief Romani Pontificis, 2 August 1571; A. S. S., vol. 26, p. 150.

“Therefore, since it often happens that many unbelievers of either sex, but especially of the male sex, after contracting Marriages according to a pagan rite, are captured by enemies from Angola, Ethiopia, Brazil, and other regions of the Indies and driven from the boundaries of their native lands and their own spouses into the most remote regions, to such an extent that neither they themselves nor the captives who remain in their native land, if they are afterwards converted to the faith, can, as is fitting, admonish the unbelieving spouses separated by so great a distance of places as to whether they wish to cohabit with them without insult to the Creator, either because sometimes access even for messengers is not open to hostile and barbarous provinces, or because they are altogether ignorant into which regions they were carried, or because the very length of the journey presents great difficulty; therefore We, considering that unions of this kind contracted between unbelievers are indeed judged true, yet not so ratified that, when necessity urges, they cannot be dissolved, and having compassion with paternal piety upon the infirmity of such peoples, by Apostolic authority and the tenor of the present letters grant full faculty to each and every Ordinary of the said places, and to parish priests of the Society of Jesus approved for hearing confessions by the superiors of that Society and sent to or admitted into the said regions for the time being, to dispense with any Christian faithful of either sex dwelling in the said regions and later converted to the faith who had contracted Matrimony before receiving Baptism, so that any one of them, while an unbelieving spouse survives and without the latter’s consent being sought or a response awaited, can lawfully contract Marriages with any faithful person, even one of another rite, solemnize them in the face of the Church, and, after they have subsequently been consummated by carnal intercourse, remain in them as long as they live; provided that it is established, even summarily and extrajudicially, that the spouse absent as stated above cannot lawfully be admonished, or that, having been admonished, did not signify his or her will within the time fixed in the same admonition. We decree that these Marriages, even if it afterwards becomes known that the prior unbelieving spouses were unable, being justly impeded, to declare their will and had even been converted to the faith at the time the second Marriage was contracted, must nevertheless never be rescinded, but shall be valid and firm, and that the offspring to be received therefrom shall be legitimate.” Gregory XIII, 25 January 1585. Cf. Constitution of Benedict XIV, In suprema catholicae Ecclesiae, 16 January 1745; C. 1309.

“...There are several among the Christians who, in the time of paganism, sold their own wives to pagans, afterwards embraced the faith, received sacred Baptism, and in good faith entered into a new Marriage with Christian women without any prior interpellation, whether because they were ignorant of its necessity, or because the wife who had been sold was too far distant, or because they did not know where she now dwelt, or finally because they feared that on account of the interpellation they would be ill-treated by the second husband and accused before the governors concerning the Christian religion. It is asked: 1. Is a Marriage made in these circumstances valid? 2. Whether and when does the right of dispensing from the aforesaid interpellation belong to the Vicars Apostolic of this region, especially if the Christian has received children from the second Christian wife? But if it does not belong to them, it is humbly requested. 3. When these women thus sold migrated to provinces in which the number of Christians abounds, but cannot be found and there is no word concerning them, ought ignorance of the fact whether perhaps they became Christians before the seller passed to second nuptials to impede the dispensation? 4. Finally, in the hypothesis in which these women can be admonished, does it suffice to exhort them once, either personally or through another, to become Christians, saying nothing concerning the Marriage, so that, if on this occasion the aforesaid women are unwilling to be converted, it is lawful for the faithful party to pass to new nuptials?—Response. To 1, 2, and 3: Petition is to be made to His Holiness for the granting of an Indult according to the Brief of Gregory XIII of the year 1585 and the Instruction of the Holy Office of the year 1760, which is to be transmitted; after this Indult has been obtained, the Vicar Apostolic can use the faculty of dispensing according to the form of the aforesaid Brief of Gregory XIII and the Instruction. To 4: Negative.” Sacred Congregation for the Propagation of the Faith, 3 January 1777, to the Missionaries of the Province of Sichuan in China.

“1. Under the name of a legitimate impediment, by reason of which the faithful spouse is dispensed from the interpellation of the unbelieving spouse, does there fall the mere presumption of the husband’s shamelessness, namely, that just as he sold his wife the first time, it seems to be feared that, after recovering her, he would dare to sell her a second time also? 2. Does there fall the mere presumption that the unbelieving party is unwilling to return because, namely, during the preceding cohabitation, either on account of a difference of temperaments or for other causes, both disagreed with one another and were troubled by continual dissensions? 3. Does there fall the mere presumption that the unbelieving husband, because he has already passed to other nuptials, is unwilling to reject the second wife in order to cleave again to the first; or, if perhaps he wishes to receive the first again, is nevertheless unwilling to reject the second, but wishes to retain both at the same time? 4. Does there fall the mere fear of Christians, namely, that the unbelieving party, learning from the interpellation made to him that Christians are present in such a place, can consequently bring harassment upon the Christian religion?—Response. To 1, 2, and 3: Negative. To 4: In a case of this kind, let the Apostolic See be consulted.” Clement XIV in the Congregation of the Holy Office, 23 November 1769, to the Vicars Apostolic of Shaanxi and Shanxi.

1. Paulus, an infidel, converted to the faith, married Paulina, a Catholic. After three years of marriage, Paulus, having apostatized from the faith, returns to infidelity. Can Paulina 1. marry another Catholic? 2. at least be separated from Paulus by divorce from bed and cohabitation?

R. To the 1st: Negatively. "Faithful spouses cannot, on account of the return of the other spouse to infidelity, contract another marriage with another faithful person." S. C. de P. F., Dec. 7, 1626. - To the 2nd: The other particular circumstances of the case which are present must be set forth and weighed. "Catholic spouses can remain with an apostate infidel, or separate themselves from him, according as the danger of perversion and the dishonor of the Creator, in the judgment of a prudent confessor, require; and the sacraments can be administered to these." S. O., Sept. 19, 1671. Cf. Collect. S. C. de P. F. n. 1257, 1280-1282, 1284, 1287, 1288; I. M. 978.

2. Franciscus, converted to the faith, once the interpellation had been made and a negative response had been received, decided to pass to other nuptials only after a notable time. - Must the interpellation be repeated?

R. If the spouse remains in infidelity, the interpellation must not be made again. But if the spouse has embraced the faith, or now embraces it, Franciscus is bound to receive her. S. C. de P. F., June 26, 1820; Enchir. Moral. n. 980; Innocent III, c. Gaudemus.

3. Francisca, recently converted to the faith, having obtained an apostolic dispensation from making the interpellation, enters into marriage with Caius, a Christian. After three months her former husband appears, reclaiming her, and he had already received baptism a whole year before. - Must Francisca return to the former husband?

R. Negatively. The reason is that, by the apostolic dispensation, that former marriage was dissolved. Whatever may be said concerning the question by what law the Supreme Pontiff dissolves the bond of marriage consummated in infidelity, cf. Ballerini apud Gury 759, it is wholly certain what Benedict XIV affirms, de Synodo, l. 13, cap. 21, n. 5: "The first marriage remains dissolved at that very moment, and indeed irrevocably, at which the spouse converted passed to other nuptials with a faithful person, whether because he was vindicated into this liberty by divine law, for the reason that the infidel spouse, judicially interpellated, had denied himself to evangelical truth or to harmless cohabitation, or because peculiar circumstances of things opened the way to an apostolic indult; which indult indeed, since it is bound to no condition, perpetually asserts the validity and firmness of the second marriage, and closes off return to the first nuptials, even if someone should contend that he can prove that the first spouse interpellated had not been free to respond, or that he had even then been prepared to embrace the Christian Religion, indeed that before that day on which the second marriage was celebrated by the converted spouse, he himself also had given his name to Christ and received baptism." Enchir. Moral. 980; I. M. 980.

4. Ubaldus, a missionary, furnished with the faculty of dispensing with gentiles and infidels having several wives, so that after conversion and baptism they can retain whichever of them they prefer, if she also becomes faithful, unless the first wishes to be converted, using this same faculty with a certain gentile woman converted to the faith at the same time as her last husband, likewise converted to the faith, dispensed so that she might retain this man in preference to her first legitimate husband, who was in another region and persisted in infidelity, without his being interpellated as to whether he wished to cohabit peacefully and be converted to the faith.

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

R. 1. That Ubaldus used the aforesaid faculty, not with a gentile man converted to the faith, but with a gentile woman converted to the faith, seems to deserve no blame. For in the aforesaid faculty, what is said of a man in relation to several wives is valid also with respect to a woman in relation to several husbands. S. C. de P. F., Jan. 14, 1793; Collect. n. 1317. This declaration was again given by the Holy Office, June 12, 1850; Collect. S. C. de P. F. n. 1339. Nevertheless, there is a later Decision of the Holy Office, Sept. 5, 1885; Collect. S. C. de P. F. n. 1345, which seems to suppose that the aforesaid faculty, as regards polygamy, does not also comprehend a faculty as regards polyandry. Therefore, in the case, it would certainly be safer to have recourse to the Holy See for an extension of the aforesaid faculty.

2. Nor did Ubaldus sin in this, that he used that faculty with a woman who had had several husbands not simultaneously and jointly, but successively; namely, who, the first husband having been dismissed, married another, and, this one likewise dismissed, adhered to another. For the word several in the aforesaid faculty can be understood in both ways: both simultaneously and jointly, and also successively, whether they are cohabiting or have been left. S. C. de P. F., Jan. 14, 1806; Collect. n. 1321.

3. But the question is whether Ubaldus acted rightly by dispensing from the interpellation. According to the Instruction of the Holy Office, June 11, 1760, to the Superior of the Mission of Pegu, Collect. S. C. de P. F. n. 1313, Ubaldus indeed could dispense from the interpellation, but only when there stood a true impossibility and an urgent necessity, concerning which nothing is said in the case; and after a summary process had been made, of which likewise no mention is made in the case. For the aforesaid faculty is explained thus in that Instruction: "Although on the sheet of faculties which are granted by the Holy See ... the following is read, Of dispensing with gentiles, etc. ... nevertheless ... there is not to be dispensation from the interpellation of the infidel spouse except when the infidel party is absent, and either it is not known where he or she is, or on account of distance the interpellation is rendered too difficult, and also for urgent reasons and in a case of necessity, and rarely. But the Father Superior of the Mission must diligently observe, and with every possible caution, that in each of these cases in which he will believe it necessary to dispense from the interpellation, it will not suffice that he be internally persuaded of it, but he must make a summary little process, from which this necessity may appear for every future time, either because the one interpellated does not respond, or because it is not known where he is, or because he has given proofs by the fact of his open dissent; and it will be well in such a case, lest caution be lacking, that citations also be made ad valvas et per edictum, with the assignment of a fitting time ad comparendum et denuntiandum, etc. This previous summary little process arises from the letter and the spirit of the Gregorian Brief: provided that it be established even summarily and extrajudicially, etc." Cf. Enchir. Mor. n. 980.

Outside the aforesaid case of impossibility and urgent necessity, according to the recent Instruction of the same Holy Office, March 28, 1860, Collectan. cit. n. 1297, a partial interpellation must altogether be made; for there it is said: "The infidel, if after baptism he wishes to enjoy the Pauline privilege, if he has had only one wife and she legitimate, is bound to interpellate her: 1. whether she wishes to be converted; 2. whether at least she wishes to cohabit peacefully without injury to the Creator. He will accept her consenting to both or to either, according as the laws establish. The same is to be said of a woman who would wish to be converted; and in this spouses who are infidels are judged as equals. But for polygamous infidels a special concession was made in favor of the faith, namely, that that interpellation must be made as regards the first part, that is, whether she wishes only to be converted. If the first wife refuses, he will be able to choose any one from the others, provided that she also becomes faithful, consent having been renewed. For by these words is expressed the aforesaid faculty granted to missionaries, of dispensing with gentiles, etc. Therefore to this prior wife full nuptial right is attributed; for this reason, if she is converted, she will be able to remain in legitimate wedlock, provided it be without injury to the Creator; but if he wishes to enjoy the Pauline indult, he will make the interpellation as is noted above, nor can missionaries at their pleasure turn aside from this rule, but if they find anything worthy of note to the contrary, they will most faithfully report it to the Sacred Congregation." And "whenever it is certainly established that the infidel spouse wishes neither to embrace the faith of Christ, nor to cohabit with the converted spouse without dishonor to the Creator, bishops, as delegates of the Apostolic See, and vicars apostolic, will be able to dispense upon the interpellation, provided that necessity urges and there is not sufficient time to have recourse to the Holy See." S. O., Aug. 11, 1859; Collect. S. C. de P. F. n. 1351.

And in another later Instruction of the Holy Office, June 20, 1866, Collectan. cit. n. 1354, these things worthy of note as regards the present case are had: "It is a most thoroughly established principle that a marriage celebrated, in the time of infidelity, by a man with a woman, while another was living with whom he had bound himself by an earlier marriage, is null and void, both by divine and by natural law. Hence, where it is established that an infidel man wished to enter true marriage, not simple cohabitation, with the first woman whom he took, and that no impediment of natural law stood in the way of this marriage, that first woman is to be held as a just and legitimate wife; but all the others whom, while she had not yet been removed by death, the man afterward married are to be held as adulteresses and concubines. Therefore the polygamist must retain the wife earlier in time, who alone is the just and legitimate wife, and dismiss the rest as adulteresses and concubines.... In only one case does this obligation cease, and it becomes free for the polygamist, converted to the Christian religion, to dissolve the conjugal bond of the prior and only legitimate wife, and to contract other nuptials with the woman whom he himself has preferred, namely, when there can be place for the privilege granted in favor of the faith by Christ the Lord and promulgated by the Apostle Paul.... Such is the force of the Pauline privilege, that a marriage entered into and consummated by infidels in the state of infidelity is dissolved when, one of the spouses having been converted to the faith, the other wishes neither to be converted, nor to consent to cohabit without dishonor to the Creator. Therefore it is clear, 1. that this privilege belongs only to the true and legitimate husband toward the true and legitimate wife, and vice versa. It is clear, 2. that the converted spouse cannot enjoy this privilege except after baptism has been received, and after the interpellation has duly been made to the other spouse concerning embracing evangelical truth and permitting peaceful cohabitation. It is clear, 3. that no place can exist for this privilege if both legitimate spouses are converted to the faith at the same time. But as regards the interpellation, two things besides must be noted. First, that to polygamous infidels embracing the Christian religion together with one of their concubines, it is conceded by the Apostolic See that they are bound to interpellate only concerning the purpose of conversion. The other, that with any infidels converted to the faith, by the authority of the same Apostolic See, dispensation can be given so that they omit both interpellations, whenever these either cannot in reality be made, or, if made, are judged to be of no utility, according to those things which are handed down by Benedict XIV, l. 13, c. 21, de Syn. dioec."

Also worthy of note, as regards the present case, is the recent Response of the Holy Office, Nov. 22, 1871; Collect. S. C. de P. F. n. 1356. "Whether the missionaries can use in its whole latitude the power granted universally by St. Pius V through the Brief which begins Romani Pontificis, Aug. 2, 1571. Cf. Enchir. Moral. n. 980. - R. The Brief of Pius V, of holy memory, regards the case in which the first legitimate wife is not known, and at the same time it is most difficult to find her; but in its use the rule prescribed by his successor Gregory XIII must be observed, that is, that before the neophyte is joined in marriage with another woman who has been baptized together with him, it must be established by a summary and extrajudicial process that it is in reality most difficult to find the first wife."

From all these things it appears that Ubaldus did not act rightly. For there was no question of a case of true impossibility and urgent necessity. Nor indeed, in the case, was it most difficult to find the first spouse. The cited Brief of St. Pius V. - Cf. S. C. de P. F., March 20, 1836; Sept. 26, 1837; S. O., June 8, 1836; July 4, 1855; Aug. 6, 1856; Aug. 11, 1859; March 28, 1860; June 3, 1874; Nov. 29, 1882; Collect. n. 1331, 1332, 1333, 1344, 1348, 1351, 1352, 2185, where these things are confirmed in particular cases and are still more declared. I. M. 980; Collectan. S. C. de P. F. n. 2185 ad 2; Compend. Privil. Soc. Iesu n. 388.

665. Proposition 1. "A non-consummated matrimony between baptized persons, or between a baptized party and a non-baptized party, is dissolved with regard to the bond:

a) by the law itself through solemn religious profession;

b) by a dispensation of the Supreme Pontiff, provided that a just cause is present and both parties request it, or at least one of them, even if the other is unwilling."²⁵⁸

The first part of the proposition is defined by the Council of Trent:²⁵⁹ "If anyone says that a ratified, non-consummated matrimony is not dissolved by the solemn religious profession of one of the spouses, let him be anathema."

It is said: through solemn religious profession. Therefore matrimony is dissolved neither by entrance into religion, nor by simple profession,²⁶⁰ nor by a solemnized vow of chastity in the subdiaconate. Solemn profession is found in several ancient religious orders of men, for example, the Benedictines, Dominicans, Franciscans, and so forth; but indeed only in a few religious orders of women, for example, the Poor Clares, Dominican nuns of the Second Order, and so forth. Hence in practice it must be seen whether there is a profession which is recognized by the Church as solemn.

Since, however, according to the current discipline of the Church solemn vows are ordinarily not emitted until at least four years after entrance into religion, it follows that the spouse remaining in the world would have to wait for at least four years before being able to enter new nuptials. But because this is sometimes hard, when the case occurs permission is to be sought from the Holy See for solemn vows to be emitted immediately after the novitiate. Solemn profession does not dissolve a ratified matrimony unless it is joined with a vow of perfect chastity. Hence if in some military orders a solemn profession was indeed emitted, but with conjugal chastity only, or with a prohibition against proceeding to second nuptials, such a solemn profession did not dissolve a ratified matrimony.²⁶¹

A vow, as they say, solemnized in the reception of the subdiaconate likewise does not dissolve a preceding ratified matrimony (although it invalidates a subsequent matrimony, as will be said below). Concerning this matter John XXII²⁶² decreed: "Desiring to put an end to the ancient contention ... by the present edict we declare that, although a vow solemnized through the reception of sacred order, as regards impeding a matrimony to be contracted and invalidating it if contracted afterward, must be accounted efficacious according to the statutes of the canons, nevertheless, for dissolving one previously contracted, even if it has not been consummated through carnal intercourse, since we find this decreed neither by divine law nor by the sacred canons, it is to be accounted invalid."

²⁵⁸ Thus the Code of Canon Law, c. 1119.

²⁵⁹ Sess. 24, can. 6, De matrimonio (Denz., n. 976).

²⁶⁰ A simple vow of chastity or simple profession (even that of the Jesuits) does not dissolve a ratified matrimony. Thus Pius IX expressly decreed on January 25, 1861, saying: "A ratified and non-consummated matrimony is dissolved only by solemn profession of vows, but not by profession of simple vows." A few authors, for example, Pontius, Leurenius, Bouix, and Perrone (who, however, later corrected this error), falsely attributed the same force of dissolving matrimony to simple vows emitted in the Society of Jesus after two years from entrance.

²⁶¹ Cf. Feije, loc. cit., n. 515.

²⁶² Extravag., c. un., tit. 6, De voto.

666. By what law solemn religious profession dissolves a ratified matrimony is much disputed among authors. A few, for example, Habert and Collet, teach that this effect arises from natural law, that is, from the very nature of solemn profession; very many, for example, Suarez, Layman, Schmalzgrueber, Pirhing, Leitner, Gasparri, Wernz, De Smet, and others,²⁶³ teach that it arises from ecclesiastical law alone; almost all Thomists and several outsiders, for example, Valentia, Sanchez, and Benedict XIV,²⁶⁴ derive this effect from positive divine law. The reason for this last opinion is manifold:

a) "Before carnal intercourse there is only a spiritual bond between the spouses; but afterward there is also a carnal bond between them; and therefore, just as after carnal intercourse matrimony is dissolved by carnal death, so before carnal intercourse it is dissolved through entrance into religion; because religion is a certain spiritual death, by which someone, dying to the world, lives to God." Thus St. Thomas.²⁶⁵ This comparison of profession with spiritual death occurs very frequently among the ancient authors.

b) Ratified matrimony, as a true sacrament, is indissoluble by divine law. Therefore it cannot be dissolved except through something which has the same sanction. Since, therefore, it is of faith that solemn religious profession dissolves a ratified matrimony, it is more fittingly said that this effect was granted to it also by divine law. This is confirmed: If solemn religious profession did not dissolve by divine law, but only by ecclesiastical law, then some Pope could decree that this effect should no longer belong to it.²⁶⁶ But this seems impossible because of the definition of the Council of Trent brought forward above, which is a dogmatic and not merely a disciplinary definition, as is now most commonly admitted.²⁶⁷

From c. 7, X 3, 31, theologians and canonists deduced that a two-month period was granted to spouses, within which they could deliberate upon entering religion, and therefore that they were not bound to render the conjugal debt.²⁶⁸ The Code of Canon Law is altogether silent concerning this two-month period; therefore, according to the current discipline, a spouse is bound immediately after matrimony has been duly contracted to render the conjugal debt to the other party reasonably requesting it.²⁶⁹

Moreover, in our times it can scarcely ever happen that someone lawfully enters matrimony with the intention of entering religion within two months; because the civil laws existing almost everywhere and prescribing civil matrimony do not permit divorce because of mere entrance into religion, and consequently grave inconveniences could easily arise for the party left in the world if someone first contracted matrimony and then shortly afterward entered religion. Moreover, according to the current discipline, no married person can be validly admitted to the novitiate without previous permission of the Holy See.²⁷⁰

²⁶³ Fahrner, Gesch. der Ehescheidung im kan. Recht, 292 ff., clearly sets forth the diverse opinions of the diverse authors.

²⁶⁴ Quaest. can. et mor., q. 546, n. 35.

²⁶⁵ Suppl., q. 61, a. 2.

²⁶⁶ Wernz-Vidal (Ius can., V, n. 626, note 47) attempts to prove that the Supreme Pontiff can truly remove this effect from solemn profession, citing a fact known to all: in France, Belgium, and other regions nuns no longer emit solemn profession. Therefore the Pope removed solemn profession in some orders, and a fortiori he can remove from solemn profession the force of dissolving a ratified matrimony. No one fails to see how weak this argument is. It is freely conceded that the Pope can suppress solemn profession in some orders, indeed can suppress some entire order, as, for example, Clement XIV did concerning the Society of Jesus; but it by no means follows from this that the Pope can indeed leave a truly solemn profession to some order and nevertheless remove from that profession the effect of dissolving a ratified matrimony. This is also evident from the following example: someone can extinguish a light entirely; but while the light exists, he cannot prevent the light from producing the effect of illuminating. Still weaker is the argument repeated a hundred times: the solemnity of a vow is from the institution of the Church, as Boniface VIII testifies; therefore the Church can freely change, indeed abolish, this solemnity. The response is: Certainly accidental solemnity is from the institution of the Church, but by no means essential solemnity. We have written at greater length concerning this matter in Commersches Jahrbuch, XXII, 55 ff.

²⁶⁷ Cf. Billot, De eccl. sacr., II, thesis 45, p. 415.

²⁶⁸ Cf. St. Thomas, Suppl., q. 62, a. 2, ad 2.

²⁶⁹ The Code of Canon Law, c. 1111, decrees concerning this matter: "Each spouse has from the very beginning of matrimony an equal right and duty as regards the acts proper to conjugal life."

²⁷⁰ Code of Canon Law, c. 542, n. 1.

667. You will ask: 1. If carnal intercourse was had between the betrothed before matrimony, but not yet after matrimony was duly contracted, does the privilege of dissolving the bond of the contracted matrimony through solemn profession remain? Affirmatively. The reason is that such a matrimony is truly ratified only and not consummated. This opinion seems to be placed beyond all doubt after Leo XIII (in 1892) abolished presumed matrimony, which was judged to be present when the betrothed, with marital affection, completed carnal intercourse.²⁷¹

2. Can solemn religious profession dissolve the bond of a matrimony which was indeed consummated in infidelity, but after the conversion of one or both spouses remained without carnal intercourse? Theoretically speaking, the affirmative opinion is truer and more ancient. St. Bonaventure²⁷² already taught it, and Dominic Soto,²⁷³ Sanchez,²⁷⁴ and others follow him. The reason is that the ratified matrimony of Christians, as a sacrament, constitutes a stronger bond than a consummated legitimate matrimony; which is plainly evident from the fact that, by the Pauline privilege, a subsequent ratified matrimony dissolves a preceding consummated legitimate matrimony. Now solemn religious profession dissolves the ratified matrimony of Christians. Therefore, a fortiori, it dissolves a consummated legitimate matrimony, according to the maxim of Roman Law: "If I conquer him who conquers you, much more do I conquer you."²⁷⁵

In practice, however, since a matter of great moment is involved and the proposed opinion is not certain, the Holy See is to be approached, which, according to the things said above, can dissolve the bond in marriages of this kind.²⁷⁶ It is certain that the bond of such a matrimony is not dissolved by the reception of sacred orders.

²⁷¹ Cf. Wernz-Vidal, Ius can., V, n. 628.

²⁷² In IV, dist. 39, a. 2, q. 2 (Ad Aquas Claras, 1899, IV, 839 f.).

²⁷³ In IV, dist. 39, q. un., a. 4.

²⁷⁴ De matrimonii sacramento, l. 7, disp. 76, nn. 8-10, where he says that this opinion is altogether to be held.

²⁷⁵ L. 14, § 3, D. 44, 3.

²⁷⁶ Cf. Fahrner, Gesch. der Ehescheidung, 313 f.

668. The second part of the proposition is indeed not of faith, but today it is so certain that it would be rash to deny it, and therefore it is deservedly called "Catholic doctrine."²⁷⁷ For the Holy See, already from the times of Martin V, has constantly and frequently dissolved non-consummated marriages if a grave cause was present. But it is impious to assert that the Holy See constantly errs in so grave a matter, namely, by using a power which it does not have.²⁷⁸

For obtaining this dispensation, two things are required: 1. a just cause; for divine law is involved, in which the Supreme Pontiff cannot dispense without a just cause; 2. a petition by at least one of the spouses, since the matrimony cannot be dissolved if both spouses are unwilling.

Certain older authors of great name denied such power to the Supreme Pontiff, since the practice of the Roman Curia at that time was not so certain. It must also be admitted that the intrinsic reasons brought forward by some authors for the dispensing faculty of the Supreme Pontiff are not very convincing; and consequently, before the practice of the Roman Curia in this matter was constant and known to all, the diversity of opinions is easily understood. For the argument often brought forward for this faculty of dispensing, taken from the words of Christ to Peter, "Whatsoever thou shalt loose upon earth, it shall be loosed also in heaven," truly proves too much and consequently proves nothing; for there is no reason why from the same text a faculty of dissolving even a consummated matrimony could not be inferred, which faculty nevertheless no one concedes to the Supreme Pontiff.

We have already admonished above that the indissolubility of matrimony cannot be derived either solely from the nature of the contract or solely from the aspect of the sacrament, but from the positive will of God. Moreover, it seems certain that a ratified matrimony of Christians is not of less dignity and efficacy, both by reason of the contract and by reason of the sacrament, than a consummated matrimony, because the copular theory is to be rejected, as was said above. But if the Supreme Pontiffs nevertheless very frequently dissolved ratified matrimony and never the consummated matrimony of Christians, this manner of acting and faculty seems to be derived from the positive will of Christ, who will be with His Church even to the consummation of the world and does not permit her to err in a matter which so intimately touches the morals of the entire Christian people.²⁷⁹

The power of the Supreme Pontiff being admitted, it is remarkable into how diverse opinions theologians and canonists go in explaining the intrinsic nature of this power. Some will that it be an act of judgment declaring the nullity of the matrimony; some call it a dispensation properly so called, others one broadly so called; finally, some will that it be only a declaration of divine law. Moreover, all these appear to be sufficiently useless disputes. It must, however, be committed to memory that the Supreme Pontiff cannot even validly dissolve a ratified matrimony without grave cause. For divine law is involved, in which the Pope cannot arbitrarily dispense.

²⁷⁷ Sacred Congregation of the Sacraments, May 7, 1923 (Acta Ap. Sed. XV, 389).

²⁷⁸ Benedict XIV (Quaest. can., q. 279) says: "No question can any longer be raised concerning the power of the Supreme Pontiff in that which pertains to dispensing over a ratified and non-consummated matrimony, since today the affirmative opinion is common among theologians and canonists and received in practice, as is notorious."

²⁷⁹ Among canonists, Alanus (at the beginning of the thirteenth century), in the apparatus to Compilation I, seems to have been the first who expressly taught that the Pope can dissolve the bond of a ratified matrimony. Vincentius Hispanus, Hostiensis, and Johannes Andreae follow him (cf. Fahrner, loc. cit., p. 208 f.). Among theologians, Cajetan (Opusc. 28) seems to have been the first explicit assertor of this doctrine. Certainly St. Antoninus (Summa theol., p. 3, tit. 1, c. 21), who himself saw dispensations of this kind granted by Martin V and Eugene IV, holds this power of the Supreme Pontiff as probable, but speaks very hesitantly. Theologians of the thirteenth century denied this power of the Supreme Pontiff, for example, St. Bonaventure, Scotus, and Paludanus, whom several others later follow, for example, Francis de Vitoria, Dominic Soto, Peter Soto, Sylvius, Tournely, Drouven, Billuart, Reiffenstuel, and others. But already Thomas Sanchez, who treats this question very well (De matrimonii sacramento, l. 2, disp. 14-16), cited fifty authors for the opinion teaching that the power of dispensing in a ratified and non-consummated matrimony belongs to the Supreme Pontiff.

669. Scholion. On the manner of petitioning for a dispensation over a non-consummated matrimony. When there is question of a dispensation to be petitioned over a non-consummated matrimony, it is customary to proceed in the following manner: The spouse who petitions for the dissolution of the non-consummated matrimony is to present his petition to the bishop (through the pastor), with an accurate statement of the fact and of the motives for the dispensation to be petitioned. After the bishop has extrajudicially²⁸⁰ investigated all things to be known or necessary to know, he sends the received petition to the Sacred Congregation of the Sacraments. (The bishops of missions, however, must send the petition to the Sacred Congregation for the Propagation of the Faith.)

Upon receiving this extrajudicial information, the Sacred Congregation is accustomed to delegate the bishop or an investigating judge to make the processual informations. How these processual informations are to be made is indicated in the Decree concerning processes in causes of dispensation over a ratified, non-consummated matrimony issued by the Sacred Congregation of the Sacraments on May 7, 1923,²⁸¹ for example, concerning the defender of the bond, bodily inspection, testimony of the seventh hand, and so forth.

The object of this information is twofold: the verification of the motives for dispensation and the proof of the non-consummation of the matrimony. To verify the motives for dispensation is not so difficult; on the contrary, it is sometimes most difficult to prove with certainty the non-consummation of the matrimony. A dispensation is never granted unless it is morally certain that the matrimony has not been consummated.

Canonists are accustomed to distinguish three cases: 1. non-consummation of a matrimony "constrained by time," that is, if the spouses, after the matrimony was celebrated, never cohabited or remained secretly in the same place; 2. non-consummation of a matrimony "with intercourse not attempted," that is, when the spouses indeed cohabited in the same house, but never attempted to use matrimony; 3. non-consummation of a matrimony "with intercourse attempted," that is, if the spouses also attempted to use matrimony, but were unable to complete this, for example, because of impotence. The fact of the non-consummation of the matrimony is to be proved by sworn witnesses and by indications not doubtful, for example, by bodily inspection.

An example of non-consummation "constrained by time" is furnished by the Nicosian cause of January 19, 1889, where the husband's mother, immediately when the spouses went out from the church after the matrimony had been celebrated, carried the husband off by force; nor did the spouses ever meet afterward.²⁸² An example of non-consummation "with intercourse not attempted" is furnished by the Leopolitan cause, which had been dismissed three times and obtained the requested dispensation only on the fourth occasion. Behold the summary of the case: A certain count married a countess who was already pregnant from an illicit love; for a sufficiently long time the spouses cohabited, but both the husband and the wife swore that they had never consummated the matrimony. At length they obtained a dispensation over the ratified and non-consummated matrimony.²⁸³ An example of the third case, namely, non-consummation of a matrimony "with intercourse attempted," is furnished by all cases in which a matrimony is dissolved because of the impediment of impotence.²⁸⁴

After the bishop has completed all the informations and sent them to the Sacred Congregation of the Sacraments, the Most Eminent Cardinals of this Congregation, after hearing the opinions of the consultors, decree whether the dispensation over the ratified matrimony is to be recommended to the Most Holy Father or not. If they decree affirmatively, the secretary of the Congregation proposes the case to the Supreme Pontiff, who is then accustomed to grant the requested dispensation. From all these things it is evident how great is the diligence employed by the Roman Curia before it dissolves the bond of a ratified and non-consummated matrimony.

²⁸⁰ Cf. the Code of Canon Law, c. 1963. If the bishop wished to proceed judicially without a special delegation of the Holy See, the whole process would be null (cf. the Piscian cause, November 24, 1906, in Analecta ecclesiastica XIV [1906], 441). According to the present practice, the prior judicial inquiry concerning the fact of non-consummation pertains to a single investigating judge, to whom the Sacred Congregation of the Sacraments has committed this inquiry. Code of Canon Law, c. 1966.

²⁸¹ Acta Ap. Sed. XV, 389 ff.

²⁸² Cf. Leitner, Lehrb. des kirchl. Eherechtes, 592.

²⁸³ Cf. Analecta ecclesiastica IV (1896), 264.

²⁸⁴ See the two cases related in Analecta ecclesiastica III (1895), 159-160.

670. Proposition 2. The matrimony of unbelievers, even when consummated, can be dissolved with regard to the bond according to the Pauline privilege in favor of the faith.²⁸⁵

Proof from Sacred Scripture. After St. Paul the Apostle inculcated the indissolubility of matrimony, he says these things: "For to the rest I speak, not the Lord: If any brother hath a wife that believeth not, and she consent to dwell with him, let him not put her away. And if any woman hath a husband that believeth not, and he consent to dwell with her, let her not put away her husband.... But if the unbeliever depart, let him depart; for a brother or sister is not under servitude in such cases; but God hath called us in peace."²⁸⁶

Innocent III²⁸⁷ authentically declared this text, teaching: "For if one of the unbelieving spouses is converted to the Catholic faith, while the other wills to cohabit with him either in no way, or not without blasphemy of the divine name, or in order to draw him into mortal sin: the one who is abandoned will pass to second vows, if he wills; and in this case we understand what the Apostle says: If the unbeliever depart, let him depart; for a brother or sister is not under servitude in such cases, and also the canon in which it is said: 'An insult to the Creator dissolves the law of matrimony with respect to him who is abandoned.'"

This authentic declaration of the text of the Apostle has been reduced to practice very frequently by the Roman Pontiffs from the times of Innocent III onward, so that no doubt can exist that the matrimony of unbelievers is dissolved with regard to the bond if the conditions stated by the Apostle Paul are present. More probably this dissolution arises from divine law itself. Therefore the Holy Office, on July 11, 1866, calls this privilege one granted by Christ in favor of the faith and promulgated through the Apostle Paul.²⁸⁸

²⁸⁵ Code of Canon Law, c. 1120.

²⁸⁶ 1 Cor. 7:12-15. In the Greek text there is: τοῖς δὲ λοιποῖς, that is, "but to the rest," which words are to be referred to what follows and not to what precedes.

²⁸⁷ C. 7, X 4, 19. Before the times of Innocent III the interpretation of this text was by no means concordant. Cf. Fahrner, Gesch. der Ehescheidung, 146 ff.

²⁸⁸ Collect. de Prop. Fide, I, n. 1297; cf. Wernz-Vidal, Ius can., V, n. 631, note 56.

671. Conditions required for the Pauline privilege: A legitimate and consummated matrimony contracted by two unbelieving spouses is dissolved with regard to the bond:

1. if either party is validly baptized (whether in the Catholic Church or in any sect), and

2. if the party persisting in unbelief either a) departs or refuses to cohabit peaceably with the baptized party, or b) does not will to cohabit without insult to the Creator, for example, if that party attempts to draw the baptized party into mortal sin. In these cases the matrimony contracted in unbelief is not indeed dissolved by baptism itself, but when the baptized party validly contracts a new matrimony.²⁸⁹ The individual conditions of the Pauline privilege are to be explained more fully.

It is said first: if either party is baptized.

It is therefore supposed that a valid matrimony was contracted before baptism. Hence, if a case occurs, it must first be seen whether some diriment impediment from natural, divine, or civil law perhaps stood in the way of the matrimony entered in paganism. It is evident of itself that the Pauline privilege has no place and is not necessary if the matrimony contracted was null. Since a positive doubt concerning the validity of a matrimony contracted by pagans occurs very frequently, a diligent examination and inquiry must first be made by the Ordinary.²⁹⁰ But if the validity remains doubtful, one must stand for the favor of the faith, so that the converted party may be able to enter new nuptials.²⁹¹

²⁸⁹ Code of Canon Law, c. 1126.

²⁹⁰ Holy Office, December 9, 1874.

²⁹¹ Holy Office, May 19, 1892, and April 19, 1899; Code of Canon Law, c. 1127.

672. The Pauline privilege cannot be employed:

a) if both unbelieving spouses receive baptism together, as the Holy Office expressly declared on July 11, 1866.²⁹² For through their baptism the matrimony becomes a sacrament.

b) for catechumens not yet baptized, as the Holy Office expressly declared on March 13, 1901.

c) if, by a pontifical dispensation over disparity of cult, the Catholic party contracted matrimony with a non-baptized party who now has departed or no longer wills to cohabit without insult to the Creator. Thus the Code of Canon Law, c. 1120, § 2, decrees. It is evident of itself that in this case separation with regard to bed and habitation is lawful.²⁹³ But if a person born and baptized in a non-Catholic sect contracted matrimony with a non-baptized person, such a matrimony can be dissolved with regard to the bond (at least through a dispensation of the Holy See),²⁹⁴ after the baptized person has embraced the true faith.

d) If one of the faithful spouses passes over to heresy or to the error of paganism. This is now certain from repeated declarations of the Holy See. Celestine III seems to have thought the contrary, as was said above; but Innocent III already sanctioned the present doctrine.²⁹⁵

It is said second: is baptized in the Catholic Church or in any sect.

Certainly Innocent III, in his authentic interpretation of the Pauline privilege, speaks of Catholic baptism, and the privilege was not granted in favor of heresy, but of the true faith; nevertheless, since every valid baptism renders the baptized man a member of the true Church, almost all authors, for example, Feije, Scherer, Palmieri, Braun, Tarquini, Christian Pesch, Billot, Lehmkuhl, Gasparri, Wernz, De Smet, and others, teach that the privilege was granted in favor of any valid baptism. To this day, however, the Church has defined nothing expressly concerning this question.

It is said third: if the party persisting in unbelief either departs or refuses to cohabit peaceably with the baptized party, or does not will to cohabit without insult to the Creator.

The departure of the unbelieving party is therefore required; this departure can be either physical or moral. The unbelieving party physically departs if that party leaves the conjugal home and does not return. Moral departure is present in two cases: 1. if the unbelieving party causes quarrels and disputes or other harms; 2. when the unbelieving party attempts to draw the converted party into something gravely unlawful, for example, into apostasy, adultery, or the education of the offspring in unbelief. This moral departure renders conjugal life impossible, so that separation of the spouses is morally necessary because of the malice of the unbelieving party.

The physical departure of the unbelieving party need not necessarily be culpable, but simple absence suffices, provided, however, that the baptized party did not maliciously cause this absence, and indeed after baptism. The following case is worthy of note: A certain pagan sold his own wife into slavery, or his wife was taken away from him by force. Afterward he is baptized and desires to enter new nuptials. The wife who was sold indeed would will to cohabit with him, but he is unable to redeem her. It was asked whether in this case the baptized man could enter new nuptials. The Holy Office, on July 8, 1891, responded: "Insofar as he sold his wife before baptism, affirmatively."²⁹⁶ From this response it plainly appears that a malicious physical departure of the unbelieving party is not required. It suffices that the baptized party cannot cohabit peaceably with the unbelieving party. But that there may truly be certainty concerning this departure, there is altogether required:

²⁹² Collect. de Prop. Fide, n. 1295.

²⁹³ Cf. Holy Office, August 5, 1759 (Collect. de Prop. Fide, n. 421).

²⁹⁴ Decree of the Holy Office, November 5, 1924.

²⁹⁵ C. 7, X 4, 19.

²⁹⁶ Collect. de Prop. Fide, n. 1760.

673. An interpellation, which is accustomed to contain two questions, namely:

1. whether the unbelieving party is also willing to be converted and to receive baptism;

2. if the response is negative, whether that party at least wills to cohabit peaceably without insult to the Creator.²⁹⁷

The first question is the principal one; hence, "if it should ever happen that a polygamist converted to the faith, after an interpellation has been made according to apostolic sanctions, has lived conjugally under hope of conversion with his first wife (since she alone was and is his legitimate wife), who meanwhile delays conversion and the reception of baptism for a longer time, it will be lawful for the bishop, after the truth of the matter has been well weighed, to declare that the faithful and baptized spouse is free to pass to other vows, yet with a faithful person."²⁹⁸

Concerning this interpellation, the following things are to be noted:

a) Regularly it is to be made in at least a summary and extrajudicial form by the authority of the Ordinary of the baptized party; nevertheless, it suffices if it was made otherwise, even privately, provided that it is established by a written document or by the attestation of two witnesses that it was actually made.²⁹⁹

b) It is altogether necessary; indeed several authors, for example, Feije,³⁰⁰ Leitner,³⁰¹ and Wernz-Vidal,³⁰² teach that it is necessary by divine law; the response of the Holy Office of June 12, 1859, favors this opinion, decreeing: "The fellow slave in question, if he has not been legitimately dispensed by the Apostolic See, is bound by divine precept to make the present interpellation to the other spouse."³⁰³

Nevertheless, saving a better opinion, it is not yet permissible to conclude from this: therefore, if this interpellation was omitted without a previous pontifical dispensation, the matrimony afterward contracted by the baptized party is null; for neither by St. Paul nor by the Supreme Pontiffs is this interpellation certainly prescribed under penalty of the nullity of the subsequent matrimony. For what is necessarily required from the words of St. Paul is the "departure of the unbelieving party"; but it is not determined how this departure must be established. Therefore, given the true departure of the unbelieving party, the matrimony of the baptized party afterward following does not seem to be invalid, as not being contrary to the Pauline privilege.

If perhaps in a particular case the matrimony was celebrated with the prescribed interpellation omitted, it seems that the rule established by the Sacred Congregation for the Propagation of the Faith on June 20, 1883, § 45, is to be observed (even after the Code, c. 1121, § 1): "But insofar as neither the interpellation nor a dispensation from it preceded, the first matrimony will indeed stand in the way of the second, but the Ordinary must suspend judgment and remit the case with all its circumstances to the Holy See, which will indicate to the Ordinary himself what is to be done."

c) No one can dispense from making this interpellation by his own authority except the Supreme Pontiff,³⁰⁴ who has already done this several times, for example, St. Pius V by the Decree Romani Pontificis of August 2, 1571; Gregory XIII by the Letters Quoniam saepe contigit of January 25, 1583; Benedict XIV by the Letters In suprema of January 16, 1745.

Among the faculties which are customarily granted to apostolic vicars, it is read: "Of dispensing from the interpellation of spouses left in unbelief, provided that, after all diligences have first been employed, even through public newspapers, to discover the place where the unbelieving spouse dwells, and these have come to nothing, it is established at least summarily and extrajudicially that the said absent spouse cannot lawfully be admonished, or, having been admonished, did not signify his will within the time fixed in the admonition."³⁰⁵

²⁹⁷ Code of Canon Law, c. 1121, § 1.

²⁹⁸ Holy Office, July 4, 1855 (Collect. de Prop. Fide, n. 1113).

²⁹⁹ Instruction of the Holy Office, September 16, 1824, to the Archbishop of Quebec; Code of Canon Law, c. 1122.

³⁰⁰ De imped. et dispens. matrim., n. 487.

³⁰¹ Lehrb. des kirchl. Eherechtes, 604.

³⁰² Ius can., V, n. 632.

³⁰³ The Holy Office said the same on September 16, 1824, dub. 3 (Collect. de Prop. Fide, n. 784).

³⁰⁴ Code of Canon Law, c. 1121, § 2.

³⁰⁵ Formula III of the Congregation for the Propagation of the Faith. Indeed, this faculty now seems to have been granted by common law, namely, by the Code of Canon Law, c. 1125, to all Ordinaries under the same circumstances and conditions.

674. It is said fourth: the first matrimony is not dissolved through baptism, but when the baptized party validly enters a new matrimony.³⁰⁶

For Innocent III says: "Through baptism marriages are not dissolved, but crimes are forgiven."³⁰⁷ Consequently, baptism is indeed the foundation and beginning of the Pauline privilege, but the completed effect is had through the subsequent matrimony of the baptized party.

Note. 1. The privilege of St. Paul is not lost even if the baptized party, after baptism, renewed marital consent or used matrimony with the unbelieving party.³⁰⁸ The Pauline privilege ceases, however, if the unbelieving party also receives baptism before the new matrimony of the baptized party.

2. "In a doubtful matter the privilege of faith enjoys the favor of law." Thus the Code of Canon Law, c. 1127. Therefore, if a doubt occurs whether in some case a matrimony can be dissolved by the Pauline privilege, for example, the matrimony of a Protestant with a Jew, the presumption stands not for the validity but for the dissolution of the matrimony.

³⁰⁶ Code of Canon Law, c. 1126.

³⁰⁷ C. 8, X 4, 19; cf. Code of Canon Law, c. 1126.

³⁰⁸ Code of Canon Law, c. 1124.

675. The following practical cases are easily resolved from the things said thus far.

1. The baptized party chooses to lead a celibate life; but the unbelieving party contracts a new matrimony. This matrimony is null, because the first matrimony has not yet been dissolved and the privilege was granted for the baptized party, not for the unbelieving party;³⁰⁹ for it is a favor of the faith.

2. After conversion, the baptized party lives maritally with the unbelieving party. After several years have elapsed, the unbelieving party takes other women as wives and does not will to dismiss them. The baptized party can depart and enter new nuptials, although perhaps unable to take along and educate the offspring begotten in the matrimony. The reason is that the Pauline privilege has not been extinguished.³¹⁰

3. An unbelieving husband casts his baptized wife out of the home, contracts a new matrimony, and generates offspring. After some time he also is converted to the faith and is baptized. He is bound to dismiss the second wife unless the first wife who was cast out has in the meantime contracted another valid matrimony. The reason is that not the unbelieving but the faithful party became free, and the second matrimony of the unbelieving party is invalid. Certainly in practice it must be seen whether the first matrimony was certainly valid.

4. Two unbelievers, after contracting a legitimate matrimony and then dissolving it, pass to other nuptials. Each is afterward converted to the faith. Neither can remain in the second matrimony, at least if they received baptism together at nearly the same time. The reason is that the first matrimony was valid and legitimate and could not be dissolved by their own will and authority, nor was it in reality dissolved by the second nuptials, since these were not legitimate.

5. The baptized party, after the prescribed interpellations have been made, enters a new matrimony. Now the unbelieving party also can enter a new matrimony. The reason is that, although the privilege was given in favor of the baptized party, nevertheless it indirectly also redounds to the favor of the unbelieving party; and because the first matrimony has been duly dissolved by the baptized party, the unbelieving party also becomes free. Thus holds the common opinion.

6. One unbelieving spouse commits adultery, and for this reason is cast out by the other party; after some years that spouse is baptized, and asks the other party whether he or she now wills to cohabit peaceably, but suffers a refusal. That spouse can enter new nuptials.³¹¹ The reason is that the adultery committed is washed away by baptism, and the unbelieving party unreasonably repudiates the baptized party.

7. One unbelieving spouse is baptized, cohabits peaceably for some time with the unbelieving party, but afterward commits adultery and for this reason is cast out by the unbelieving party. Nevertheless, the baptized party cannot enter new nuptials, at least by force of the Pauline privilege. The reason is that the unbelieving party justly cast out the baptized party as an adulterer, nor is this crime of adultery destroyed through a subsequent baptism, since it was perpetrated after conversion.³¹²

8. The unbelieving party indeed consents to cohabit without insult to the Creator, but does not permit the offspring born or to be born to be instructed in the Christian religion. The baptized party can pass to other nuptials with a Catholic person; for the refusal of the education of the offspring in the Catholic religion is equivalent to an insult to the Creator.³¹³

9. An unbelieving woman who successively has several husbands is baptized. Her first legitimate husband no longer wills to cohabit with her; but the last husband indeed consents to cohabit peaceably, yet does not will to be converted. The woman must separate herself from the last man; or, if this is very hard, she must seek a dispensation over the impediment of disparity of cult in order to contract a true matrimony.³¹⁴

³⁰⁹ Cf. Sacred Congregation of the Council, March 29, 1727 (Gasparri, loc. cit., n. 1086).

³¹⁰ Cf. Holy Office, August 5, 1759, and July 11, 1886, ad 4; Code of Canon Law, c. 1124.

³¹¹ Thus the Sacred Congregation for the Propagation of the Faith, January 30, 1807 (Collect. de Prop. Fide, n. 690).

³¹² Thus the Sacred Congregation for the Propagation of the Faith, January 30, 1807 (ibid.). Cf. Holy Office, July 11, 1866 (ibid., n. 1295); Code of Canon Law, c. 1123.

³¹³ Thus the Holy Office, December 14, 1848 (ibid., n. 1036).

³¹⁴ Collect. de Prop. Fide, n. 1048.

676. Scholion. On dispensation over the bond of a matrimony which was consummated in unbelief. Authors ask here whether the Pope can dispense in the bond of a consummated matrimony of unbelievers if either one or both spouses have been baptized. In this matter certain things are certain, and certain things are not placed beyond every doubt:

1. It is certain that the Supreme Pontiff possesses no authority over marriages of this kind if neither spouse has received baptism. For the Church does not have jurisdiction over the non-baptized.

2. It is certain that the Supreme Pontiff is unable to dissolve the bond of a legitimate matrimony which, through the baptism of both spouses, was made ratified and, through intercourse following after the baptism of both, was also made consummated. The reason is that such a matrimony has become a consummated matrimony of Christians. Now the Pope cannot dissolve the bond of a consummated matrimony of Christians, as was proved above.

3. It is certain that the Supreme Pontiff can dissolve the bond of such a legitimate matrimony if either spouse has been baptized and the matrimony was never consummated, that is, neither before nor after baptism. For the Pope can dissolve the bond of a ratified and non-consummated matrimony of Christians, as was proved above. Therefore it is more certain that he can dissolve the bond of some non-consummated matrimony in which only one party is Christian and which more probably is not a sacrament.

4. It is more probable that the Supreme Pontiff can dissolve the bond of a legitimate matrimony which was consummated after the baptism of either spouse. Thus holds the more common opinion among modern authors.³¹⁵ The reason for this opinion is twofold: one intrinsic, the other extrinsic. The intrinsic reason is that only the bond of a ratified and consummated Christian matrimony is indissoluble. But such a matrimony is not ratified and consummated (unless carnal intercourse took place after the baptism of both spouses). The extrinsic reason, however, is that the Supreme Pontiffs several times dissolved the bond of such marriages in which the conditions of the Pauline privilege were altogether lacking.

Thus, for example, St. Pius V³¹⁶ permitted, "by his own motion and from certain knowledge and the fullness of apostolic power," that unbelieving Indians having several wives, after receiving baptism, could live in matrimony with whichever of those wives was baptized with them. Now here no mention is made of the departure of the unbelieving party, which nevertheless is a condition without which the Pauline privilege cannot be applied.

Gregory XIII,³¹⁷ attending to the fact that "marriages contracted between unbelievers are indeed judged true, yet not so ratified that, when necessity urges, they cannot be dissolved," granted missionaries the faculty of dispensing so that any unbelieving spouse, after receiving baptism, "while the unbelieving spouse survives and without that spouse's consent being required or a response being awaited, may contract marriages with any faithful person, even of another rite, and solemnize them in the face of the Church, and, after they have subsequently been consummated by carnal intercourse, may lawfully remain in them as long as he lives, provided that it is established, even summarily and extrajudicially, that the absent spouse, as stated above, cannot lawfully be admonished, or, having been admonished, did not signify his will within the time fixed in the same admonition. And we decree that these marriages, even if it should afterward become known that the prior unbelieving spouses, being justly impeded, could not declare their will and had even been converted to the faith at the time the second matrimony was contracted, nevertheless ought never to be rescinded, but will be valid and firm, and the offspring to be received therefrom legitimate."

It seems clearer than light that Gregory XIII here proceeded beyond the limits of the Pauline privilege, since he dissolves marriages contracted in unbelief even if perhaps both spouses had already been baptized at the time of the new matrimony.

According to the current practice of the Roman Curia, missionaries are granted the faculty "of dispensing with pagans and unbelievers having several wives, so that after conversion and baptism they can retain whichever [wife] among them they prefer, if she also becomes faithful, unless the first should will to be converted."³¹⁸ This faculty cannot be explained from the Pauline privilege, because the departure of the unbelieving party, which St. Paul requires as prior before he permits a new matrimony to be contracted, is altogether lacking. The same seems to follow from several particular decisions of the Holy Office,³¹⁹ and now it has been established generally by the Code of Canon Law, c. 1125, for all regions, if the same circumstances are present.

³¹⁵ This opinion is held by Gasparri, De matrimonio, II, n. 1108; Billot, De eccl. sacr., II, thesis 44; Scherer, Kirchenr., II, n. 590; Fahrner, Gesch. der Ehescheidung im kan. Recht, 281; Vlaming, Prael. de iure matrim., 3rd ed., II, n. 604; Wernz-Vidal, Ius can., V, n. 636; and among the ancients, St. Antoninus, S. theol., P. 3, tit. 1, c. 6; Navarrus, Cons. et Resp., III, tit. 33, cons. 2; Thomas Sanchez, De matrim. sacr., l. 2, disp. 17; Laymann, Theol. mor., l. 5, tr. 10, part 2, c. 3; the Salamancans, Cursus Theol. mor., tr. 9, c. 4, p. 2, n. 34; Pirhing, in tit. 1, sect. 5; and others. Indeed Lehmkuhl, Theol. mor., II, n. 929, confidently says: "Every reasonable doubt concerning that power seems to be removed, so that it can be said with certainty: The Roman Pontiff, by reason of his supreme power, can for a grave reason dissolve the bond of a matrimony which was indeed consummated in unbelief, but was not consummated after one or both spouses were baptized." Nevertheless, there are some who reject this opinion, for example, Benedict XIV, De syn. dioec., l. 6, c. 4, n. 3, and l. 13, c. 21, n. 4; De Angelis, Prael., l. 4, tit. 19; Feije, De imped. et dispens. matrim., n. 486; Leitner, Lehrb. des kirchl. Eherechtes, 610. The reason which Benedict XIV (Prosper Lambertini) brings forward for his opinion is this: a consummated matrimony signifies the union of Christ with the Church, while a ratified matrimony indicates the union of Christ with a sanctified soul. But just as the union of Christ with the Church is indissoluble, while the union with the soul is dissoluble, so every consummated matrimony is indissoluble, while a ratified matrimony is dissoluble. It is easily understood that this argument is weak.

³¹⁶ Constitution Romani Pontifices, August 2, 1571.

³¹⁷ Constitution Populis ac nationibus, January 25, 1585.

³¹⁸ Thus in Formula I, n. 11.

³¹⁹ Cf. Gasparri, loc. cit., II, n. 1084 ff., and the case narrated by Benedict XIV (Quaest. can., Florentine cause, 1726), which was afterward decided by the Sacred Congregation against the opinion of Prosper Lambertini, then secretary of that Congregation. Cf. Lehmkuhl, Theol. mor., II, n. 931.

819. Thesis IV. By divine law the legitimate matrimony of unbelievers, even consummated, can be dissolved, if, one having been converted to the faith, the other is unwilling to cohabit peacefully, or without injury to the Creator or spiritual harm to the faithful party (can. 1120). - It is certain from the declaration of Innocent III, who thus interprets the sentence of the Apostle Paul; whence this was called the Pauline privilege. But this privilege is a privilege of dissolution of matrimony conceded in favor of the faith and announced by the Apostle in I Cor. VII: in reality it is conceded in favor of the faith, insofar as otherwise a man would be deterred from embracing or retaining the true faith on account of the necessity of observing perfect continence, if the unbelieving party denied peaceful cohabitation.

It is proved: 1° From the Scriptures, at least understood according to the interpretation of tradition, I Cor. VII, 12-15: If any brother has an unbelieving wife, and she consents to dwell with him, let him not dismiss her. And if any faithful woman has an unbelieving husband, and he consents to dwell with her, let her not dismiss the husband. For the unbelieving husband is sanctified through the faithful woman, and the unbelieving woman is sanctified through the faithful husband; otherwise your children would be unclean, but now they are holy. But if the unbeliever departs, let him depart: for the brother or sister is not subject to servitude in such cases: but God has called you in peace. By these last words there is conceded to the converted faithful party the faculty of dissolving matrimony as to the bond, in the case in which the unbelieving party is unwilling to cohabit peacefully.

For: a) the Apostle grants to the converted faithful party a special privilege; but if only separation as to bed and board were declared legitimate, and not dissolution as to the bond, there would be no special privilege in this but a common remedy; indeed, nothing would have been conceded, since cohabitation in the case is altogether impossible for the faithful party. b) It is clear from the context: in the preceding words the Apostle commands faithful spouses, separated for whatever cause, to remain unmarried; on the contrary, speaking of unbelievers, he simply says: if the unbeliever departs, let him depart, without enjoining on the faithful party to remain unmarried. But this difference is not explained unless because in the first case they remain bound by the bond, while in the other the bond can be dissolved, as the newly converted pagans naturally ought to have understood, nor otherwise would there be a difference from the prior case. c) It is also clear from the reason added: for the brother or sister is not subject to servitude in such cases, i.e., in this matter the Christian is not subject to the unbeliever in servitude; this servitude can be nothing except the conjugal bond. For he would be especially liable to servitude toward the unbeliever, if the faithful party were obliged to remain unmarried and could not enjoy marriage because of the malice of the unbeliever. This is altogether certain from the traditional interpretation of the Church.

2° From the tradition and practice of the Church, which is first indicated among the Fathers, as Chrysostom, in I Cor., hom. XIX, 31; Ambrose, in Lc. VIII, 2; Augustine, De fide et operibus, 28; Theophylact and Ambrosiaster on this place; afterward it was explicitly and authentically proposed by the Pontiffs, and consecrated through the acts of the centuries.

The privilege is of divine law, since it dispenses in divine and natural law; it could be conceded on account of the end of a good far superior, namely, divine faith, in the case in which, on account of the fact of the spouse remaining in unbelief, the ends of matrimony can scarcely be attained: not the secondary end, the peaceful fellowship of domestic life, since in the case it is excluded; nor the primary end, the good education of offspring, since the parents divide their affection concerning the offspring in such a way that they intend to draw it toward diverse and contrary things.

They doubt whether the privilege was conceded immediately by God and promulgated by the Apostle, or through the mediation of the Church, insofar as by ministerial power it was conceded by the Apostle to the Corinthians and extended by the authority of the Supreme Pontiffs to the universal Church, as several more recent authors now teach. Nevertheless this seems hardly able to be admitted, because then the privilege could be abrogated by the Supreme Pontiff. Whence the first sentence is to be preferred, which, besides, is that of the Holy Office, as is clear from the style of the curia and especially from the decree of July 11, 1866.

The conditions required for the validity of the Pauline privilege are:

a) That either unbelieving party be baptized, at least if in the Catholic Church. For it is doubted whether the privilege is valid for those converted from unbelief to a heretical sect and baptized in it, some affirming it if Baptism is valid, because there is present, as to substance, conversion to the faith; others denying it, because the privilege is given in favor of the faith, and the only true faith is Catholic; whence Innocent III says: "if one of the unbelievers is converted to the Catholic faith."

Hence it cannot be applied:

1° if both spouses receive Baptism: then their matrimony is already ratified; and a fortiori if, having been converted to the faith by Baptism, they thereafter have used matrimony: then it is ratified and consummated;

2° if both remain unbelievers, just as neither for catechumens not yet baptized: the Church does not have power over unbelievers;

3° to the matrimony of two heretics, of whom one is converted to the Catholic faith;

4° to a matrimony entered between two baptized persons, of whom one passes by apostasy to unbelief;

5° to a matrimony which a believer, with a previous dispensation, contracted with an unbeliever, even if afterward the unbeliever is unwilling to cohabit peacefully, as can. 1120, § 2 warns. For the privilege was conceded only to the newly converted, lest they be delayed from conversion.

b) That the party persisting in unbelief depart, whether physically, or even only morally, as we know from the interpretation of the Church. Physically, indeed, if he or she is unwilling to cohabit, i.e., if he or she leaves the conjugal home and does not return, even if it happens by chance or inculpably, provided that this was not maliciously caused by the faithful party after Baptism. But morally, if he or she is unwilling to cohabit peacefully, i.e., not without contumely of the Creator or blasphemy against Christ or contempt of the faith, or spiritual harm either of the faithful party or even of the offspring to be educated (Holy Office, Dec. 14, 1848).

Thus, if the unbeliever causes quarrels and disputes or other harms, or if directly or indirectly he tries to draw the faithful party to something gravely illicit, as to apostasy, adultery, the education of offspring in unbelief, so that conjugal life is rendered morally impossible and separation morally necessary on account of the malice of the unbeliever. Hence:

1° If the unbelieving party consents to cohabit peacefully, even if unwilling to convert, there is no place for the Pauline privilege; indeed, not even separation as to bed and cohabitation can of itself be made, according to that word of the Apostle: If... she consents to dwell with him, let him not dismiss her... The reason is that then the conversion of one party is rather a reason for remaining in the same marriage, on account of the hope of bringing the unbelieving party to the faith, which already appears sanctified in preparation of soul, since without blasphemy against Christ the party consents to cohabit. For the Apostle adds: The unbelieving husband is sanctified through the faithful woman, and the unbelieving woman is sanctified through the faithful husband.

2° Nevertheless, "the faithful spouse, although after receiving Baptism he has again lived matrimonially with the unbelieving party, nevertheless does not lose the right of celebrating new nuptials with a Catholic person, and therefore can use this right, if the unbelieving spouse, with will changed, afterward departs without just cause, or also does not cohabit peacefully without contumely of the Creator" (can. 1124).

3° If, before the faithful party has contracted new nuptials, the unbeliever sincerely and efficaciously repents of his departure, or if he himself is baptized, use of the privilege would be invalid.

c) That the departure of the unbelieving party be established; for this, interpellation is regularly necessary as the ordinary means, and by canon law it must always be made in every case, unless the Apostolic See has declared otherwise (can. 1121, § 2). Whence even if interpellation is physically or morally impossible, the faithful party cannot enter another matrimony unless a dispensation concerning the interpellation has first been obtained from the Pontiff.

It should be noted: 1° The object of interpellation of the non-baptized party is twofold; namely, the baptized spouse ought to interpellate that party: "a) whether he or she also wishes to be converted and receive Baptism; b) whether at least he or she wishes to cohabit peacefully with him or her without contumely of the Creator" (can. 1121, § 1).

2° The time of interpellation is "before the converted and baptized spouse validly contracts a new matrimony" (can. 1121, § 1); therefore it is to be made not before but after Baptism has been received (Holy Office, June 3, 1874).

3° The form of interpellation is established by can. 1122:

"§ 1. The interpellations are to be made regularly, in at least summary and extrajudicial form, by the authority of the Ordinary of the converted spouse; by which Ordinary delays for deliberating are also to be granted to the unbelieving spouse, if indeed he or she has asked for them, yet with this warning given, that when the delays have passed uselessly, the response is presumed negative.

"§ 2. Interpellations made even privately by the converted party himself or herself are valid, indeed are also licit, if the form prescribed above cannot be observed; nevertheless in this case, for the external forum, they must be established by at least two witnesses or another legitimate mode of proof."

4° The effect of interpellation is declared by can. 1123: "If the interpellations have been omitted from a declaration of the Apostolic See, or if the unbeliever has responded negatively to them expressly or tacitly, the baptized party has the right of contracting new nuptials with a Catholic person, unless after Baptism that party has given to the non-baptized party a just cause for departing," such as would be the sale of the wife or adultery committed by the baptized party.

These conditions having been posited, the matrimony can be dissolved; but:

a) It is not dissolved except in the very instant in which a new matrimony is contracted by the faithful party, whence can. 1126: "The bond of the prior marriage, contracted in unbelief, is then only dissolved when the faithful party has actually entered new nuptials."

b) Whence, if the unbelieving spouse has contracted matrimony before the new nuptials of the faithful party, this is null; but immediately when the faithful party has entered matrimony, the other party, whether remaining unbelieving or converted, is free and can enter another marriage.

c) The faithful party cannot, without dispensation, enter new nuptials except with another Catholic party; and dispensation for contracting again with an unbeliever will be conceded only rarely.

d) In the case in which the converted party was a polygamist, the matrimony which can be dissolved is the first which he contracted: for the others are invalid; whence the first spouse will have to be interpellated.

820. Applications. - Prummer proposes several cases, Th. M. III, n. 679.

1° If the baptized party chooses the celibate life, but the unbelieving party contracts a new matrimony, this is invalid because the first has not yet been dissolved, and the privilege was conceded for the baptized party, not for the unbeliever.

2° If a baptized wife after conversion lives maritally with an unbelieving husband, but afterward the unbelieving husband takes other women as wives and is unwilling to dismiss them, the baptized wife can depart and enter new nuptials, because the Pauline privilege has not been extinguished.

3° If an unbelieving husband casts the baptized wife out of the house, and enters a new matrimony and begets offspring, but afterward is converted to the faith and is baptized, he is bound to dismiss the second wife, unless the prior wife who was cast out has meanwhile validly contracted another matrimony. The reason is that not the unbelieving party, but the faithful party, became free, and therefore the second matrimony of the unbelieving man is invalid, at least if his first matrimony was valid.

4° If two unbelievers, a legitimate matrimony having been contracted and then dissolved, fly to other nuptials, and afterward are converted to the faith, neither can remain in the second matrimony, at least while they receive Baptism at almost the same time: for the first legitimate matrimony could not be dissolved by their own authority, nor in fact was it dissolved by the second nuptials, which were illegitimate.

5° If an unbelieving spouse commits adultery, and therefore is cast out by the other party, but after some years is baptized and interpellates the other party, but that party refuses to cohabit, he or she can enter new nuptials. For the adultery committed is washed away by Baptism, and the unbelieving party irrationally repudiates the baptized party.

6° If an unbelieving spouse is baptized, peacefully cohabits for some time with the unbelieving party, but afterward commits adultery and therefore is cast out by the other party, he or she cannot, by force of the Pauline privilege, enter new nuptials; because the unbelieving party justly casts out the baptized party.

7° If an unbelieving woman who successively has several husbands is baptized, and her first legitimate husband is unwilling to dwell with her any longer, but the last consents indeed to cohabit peacefully yet is unwilling to convert, the woman ought to separate herself from the last man, who is not legitimate. But if this is very hard for her, let her seek a dispensation over the impediment of disparity of worship for legitimating and convalidating the matrimony.

We teach, moreover, that the marriage of unbelievers, even consummated, can be dissolved extrinsically, both when, one party having been converted to the faith, the other refuses to cohabit, or not without injury to the Creator or spiritual harm to the faithful one, and also that it can be dissolved extrinsically by the authority of the Roman Pontiff.

I. These are the canons of the Church in this matter. "Never, while his wife is living, will one even converted to the faith be able lawfully to have another, unless after his own conversion she refuses to cohabit with him, or, even if she consents, nevertheless not without insult to the Creator or so that she may draw him into mortal sin." c. Gaudemus, De Divort. "If one of the unbelieving spouses is converted to the Catholic faith, while the other in no way, or not without blasphemy of the divine name, or so as to draw the other into mortal sin, is willing to cohabit with him, the one who is left, if he wishes, will pass to second vows." c. Quanto, ibid. Therefore the dissolubility of marriage, even consummated, contracted in infidelity, when one of the spouses is converted to the faith, is to be understood under these conditions. Wherefore we do not say that by the very reception of baptism the marriage is dissolved; for this is false, since by baptism marriages are not dissolved, but crimes are remitted, c. d. Gaudemus, and we shall prove this a little below. But when the above-mentioned conditions exist, by divine law the bond of marriage can be severed; but when and how it is severed, we shall say afterward. Moreover this doctrine is common to theologians and canonists (cf. St. Thomas, q. LIX, a. 5; Sanchez, l. VII, d. 74), handed down by the Fathers, as by Ambrose, on Luke, l. VIII, n. 2: "If every marriage is from God (not indeed in whatever way, but according to the integral form of divine institution), every marriage may not be dissolved. And how did the Apostle say: but if the unbeliever departs, let him depart? In this he both wondrously did not wish the cause of divorce to reside among Christians, and showed that not every marriage is from God." Namely, according to Ambrose, that marriage is said to be from God which is exacted according to the norm of divine institution and which is entered upon for the worship and honor of God; but the marriage of unbelievers is not of this sort. Likewise Chrysostom, hom. XIX on chapter 7 of 1 Corinthians: "But what is this: if the unbeliever departs, let him depart? As if he commands you to sacrifice, or to be an associate of impiety on account of the marriage, or to withdraw, it is better that the marriage be broken, and not piety," διασπασθῆναι τὸν γάμον, καὶ μὴ τὴν εὐσέβειαν. The doctrine has been confirmed by the practice of the Church through very many centuries and solemnly sanctioned by the Roman See; for the decrees from canon law adduced above proceeded from Innocent III and were transferred by Gregory IX into the canon law by which the universal Church is governed. "It is certain," says Benedict XIV (De Synod., l. VI, c. 4), "that the marriage of unbelievers is dissolved from the privilege granted by Christ the Lord in favor of the faith and promulgated by the Apostle, 1 Cor. VII, when one of the spouses embraces the Christian faith, the other, hardened in his infidelity, refusing to cohabit with the convert, or etc."

II. Accordingly the origin of this doctrine is Apostolic Tradition, which Paul committed to writing in 1 Cor. VII, and Innocent III testifies to this in the said c. Quanto; for after the words recited he adds: "And in this case we understand what the Apostle says: if the unbeliever departs, let him depart; for a brother or sister is not subject to servitude in such a case." But there is no small difficulty in gathering this doctrine artificially from the words of the Apostle. They are v. 12 and following: For to the rest I speak, not the Lord. If any brother has an unbelieving wife and she consents to dwell with him, let him not put her away. And if any faithful woman has an unbelieving husband and he consents to dwell with her, let her not put him away. For the unbelieving husband is sanctified through the faithful woman, and the unbelieving woman is sanctified through the faithful husband ... But if the unbeliever departs, let him depart; for a brother or sister is not subject to servitude in such a case: but God has called us in peace. Observe first that brother and sister here are those who have been aggregated to the Church through baptism; for Paul addresses Christians of this sort, and the Church has not deemed those who were only catechumens, although faithful, worthy of the name brothers. Therefore the discourse is about the baptized.

Moreover, from the words of the Apostle this is certain: that marriage is not dissolved by baptism. For even after the baptism of one, the brother is said to have an unbelieving wife, and the woman to have an unbelieving husband. Besides, if by baptism the marriage were dissolved by the law itself, Paul would by no means exhort the faithful one not to put away the unbelieving one, whether by the name of putting away is understood the severing of the bond or separation as to habitation. For if the former is understood, that dismissal would already be impossible; if the latter, since they are no longer husband and wife, there is no reason why they should remain together; indeed there would be an excellent reason for separation on account of the most probable danger of fornication, which reason must prevail over the hope of sanctifying the unbelieving one.

III. The question therefore concerns the genuine sense of the words of the Apostle. Moreover, it is asked first whether the words, for to the rest τοῖς δὲ λοιποῖς I speak, not the Lord, are referred to what follows or to what precedes. Not a few indeed refer them to what follows, and thus the rest are those who are joined in marriage with unbelievers: "he speaks to unequal marriages, that is, where both had not been Christians" (Augustine, De Adult. coniug., l. I, c. 13); and the things which immediately follow are taken as a counsel of Paul, not as a precept of the Lord. And thus, among others, the Fathers of the Synod of Lima, approved by Sixtus V, received them in the decree reported by Father Ballerini in Op. Th. Mor., v. VI, n. 688. From this, indeed, with several authors cited by him, Sanchez gathers (De Matrim., l. VII, d. 73) that the faithful spouse was never obliged to cohabit with the unbelieving one, even if the latter wished to dwell without injury to the Creator and without danger to the faithful one; for Paul suggests only a counsel, not a precept. With this posited, it is easily understood why a prohibition could at times be brought by the Church, that a converted faithful one should not dwell with an unbeliever unwilling to be converted, and why that faithful one by this very fact has the right of passing to other nuptials. Cf. Sanchez, ibid., and the following disputation. Yet it is then with difficulty understood why in canon law certain conditions are required in order that the faithful one may be able to enter other nuptials. But concerning this matter later.

Therefore, to return to the words of Paul, the very learned interpreter Estius, and after him Cornelius a Lapide, in this place, judge on the contrary that these words, to the rest I speak, not the Lord, are to be referred to what precedes. And indeed those words, as Cornelius observes, are separated from what follows by a period in the Roman edition, namely the Clementine of the year 1593, and in the Plantin and other very correct editions; therefore it is lawful to read in this way. Then the things which follow can simply present the doctrine and precept of the Lord, and there the discourse can be about a dismissal which is a severing of the bond. If the context is considered, the opinion of these interpreters seems to us very probable. For the words, to the rest I speak, not the Lord, are opposed to the preceding words in v. 10: But to those who are joined in marriage I command, not I, but the Lord; moreover, the rest besides the married are the unmarried. But addressing these above he had said in v. 8: But I say to the unmarried and widows: it is good for them if they remain as I also am. Therefore what he had said, he now warns in v. 12 (and the admonition is sufficiently opportune) is his counsel, not a precept of the Lord; just as afterward he says: concerning virgins I have no precept of the Lord, but I give counsel. Moreover, with this interpretation applied, the doctrine of the Church concerning the dissolubility of the marriage of unbelievers is established in this way.

IV. Namely, when Paul begins, if any brother, etc., he makes a transition to another question proposed to him by the Corinthians, and teaches that if the unbelieving one wishes to dwell with the faithful one, he should not be put away; but if he departs, let him depart, because the faithful one is not in this matter subject to servitude. It is asked what faculty is given to the faithful by God. It is certain that the words, but if the unbeliever departs, let him depart, etc., are sufficiently apt for signifying that the faithful one left behind can enter other nuptials. For the sense is: if the unbelieving one separates himself and puts away the faithful one, or, as he says above, if he does not consent to dwell with the faithful one, let him be left, let him be permitted to go away. But of what sort this leaving is, is explained by the reason added: because in such a case, that is, in this matter (cf. Estius, ibid.), as regards the conjugal bond, the faithful one is not subject to servitude, namely toward the unbelieving one. Moreover this reason shows that the unbelieving one can be left in such a way that the bond also is dissolved; otherwise the faithful one would be especially liable to servitude toward the unbelieving one, for he would remain bound by the bond and would not be able to use marriage because of the malice of the unbelieving one himself. And indeed either the denial of servitude consists only in this, that the one left is not bound to follow and be reconciled to one departing without a just cause, of which sort this unbeliever is, or it consists in this, that the one left is no longer bound by the bond by which he had been bound. But the first holds equally in the departure of both unbelieving and believing spouses without just cause, so that one unjustly left is not bound to be reconciled, and it is also common to unbelievers among themselves. But the Apostle speaks specifically about the departure of an unbeliever and about some prerogative of the faithful. Therefore the second remains.

Now observe that, if with the opinion of others you hold that in the prior words of the Apostle (if any brother ... let him not put her away, etc.) there is contained a counsel of the Apostle, not a precept of God, by this very fact it is signified that this dismissal is not prohibited by God himself but permitted, although the Apostle dissuades it on account of certain causes, that is, the good of the unbelieving one and of the children. With this posited it follows that much more the things which follow (if he departs, let him depart, etc.) signify permission made by God of dissolving the nuptials, since that would not be forbidden by God even in the prior hypothesis, that the unbelieving one wishes to cohabit.

Accordingly, if the unbelieving one departs, if he does not consent to dwell with the faithful one, let him depart, let him go where he wishes. And thus it must certainly be understood that that is conceded which, with this condition not existing, the Apostle perhaps would not have approved, that is, that the faithful one may put away the departing unbeliever. Namely, the faithful one can exempt himself from the bond of the marriage contracted with him; he can contract another marriage. And this is the doctrine of the Church set forth in the canons cited above.

Observe that Paul only says, if the unbelieving one departs, or does not consent to dwell with the faithful one. But he also who is unwilling to dwell without injury to God, or without drawing the faithful one to sin, is rightly judged to depart; because, even if he does not withdraw in body, nevertheless he compels the faithful one to withdraw, because then the faithful one ought, or certainly has the right, to withdraw from the society of the unbelieving one. And thus this one, supplying to the other a cause of flight, puts him to flight (Sanchez, l. VII, d. 74).

V. But what must be said when the unbelieving one indeed refuses to be converted, yet wishes to dwell without insult to the Creator and without drawing the faithful one to sin? Is it then lawful for the convert to dissolve the marriage, other nuptials having been entered upon? Sanchez, l. VII, d. 74, proposes two opinions: the one denying, which he himself judges very probable, and which rests especially on the texts of canon law, which demand those conditions; the other affirming, which Sanchez considers the truer. But its demonstration supposes what he proved in the preceding disputation, namely, that "today it is illicit for the faithful one to dwell with an unbelieving spouse in obstinate infidelity, even if the latter wishes to dwell without insult to God and without drawing the other to sin." Cf. the cited disputation. "Practice bears," says the distinguished Ballerini in the notes to Gury, de Matrim., at n. 759; cf. also Opusc. Th. Mor., l. c., "that in places of unbelievers, for example among the Chinese, Indians, etc., it is permitted to converts both to cohabit with an unbeliever and again to be able to pass to other nuptials according to the doctrine of Paul, if the unbeliever either is unwilling to cohabit or does not consent to cohabit except with injury to the Creator; and to this pertains chapter Gaudemus of Innocent III and the declaration alleged by Benedict XIV (de Syn., l. XIII, c. 21, n. 1). But among Christian nations the practice has prevailed that cohabitation is not permitted with the party who obstinately adheres to an unbelieving sect, for example the Jewish, although this party protests that he wishes to cohabit peacefully." With this posited, Sanchez proves his opinion thus: because it is lawful for the convert to enter another marriage as often as the unbelieving one departs and leaves the faithful one. Now at that time the faithful one is said to be left and deserted by the unbelieving one withdrawing, as often as either the unbelieving one withdraws altogether, or chooses that cohabitation which is illicit for the faithful one. Since therefore today cohabitation with an unbelieving one is illicit for the faithful one, this one, unwilling to be converted, will be said truly to withdraw, and it will be lawful for the faithful one to contract another marriage. Indeed Paul "only explained the case in which the unbelieving one refuses to cohabit, and from this follow two other cases, namely when he does not wish to cohabit without insult to God or drawing the other to sin, because then the unbelieving one is truly said to withdraw, choosing that cohabitation alone which is forbidden to the faithful one. But in the present case today precisely the same reason holds, since the unbelieving one, unwilling to be converted, chooses cohabitation forbidden to the faithful one. Therefore this case will today be comprehended in that privilege of Christ explained by Paul." This is confirmed from the end of the privilege, for, with that law posited, the faithful one would be compelled to remain unmarried and would be especially subject to servitude.

Moreover you see that if the words of the Apostle, if any brother has an unbelieving wife and she consents to dwell with him, let him not put her away; and if any faithful woman has an unbelieving husband and he consents to dwell with her, let her not put him away; if these words, I say, contain only a counsel of Paul, nothing is had from the same Paul which stands in the way of this law or practice now in force, by which cohabitation with an unbelieving spouse is forbidden to the faithful one; for counsels can be changed according to diverse circumstances of persons, times, and places. But if those words contain a law of the Lord, how could this new law or practice have been introduced, which simply forbids converts habitation with an unbelieving spouse? It can be answered that that law of the Lord does not exclude this new law of the Church. For the law of the Lord is not universally that the unbelieving one willing to cohabit should not be put away, but (as the Church has always understood it, and as is also gathered from the following words of the Apostle: for he is not subject to servitude, etc.) that the unbelieving one willing to cohabit without spiritual harm to the faithful one should not be put away. But when a harm of this sort exists and must be met by separation, God left this to be determined by the Church, with which, therefore, diverse practice could be in use. Since, accordingly, in the apostolic age and thereafter it was not judged expedient that every convert should be separated from an unbelieving spouse, nor had a law been passed concerning this matter or a practice introduced forbidding cohabitation, the law of the Lord promulgated by Paul could still be observed in certain cases, which Paul certainly supposes (cf. the commentary of Cyril of Alexandria on this place, v. 8). Nevertheless, nothing prevented that afterward, because of the very condition established by the Lord, if the unbelieving one wishes to cohabit, but nevertheless to be understood with this limitation, without spiritual harm to the faithful one, cohabitation itself with an unbeliever unwilling to be converted should be prohibited, when it had been established that greater harm to the faithful one was to be feared from this cohabitation than the good to be hoped for from the same, namely the conversion of the unbelieving one. Since therefore the end of the law is the sanctification of the unbelieving one, and the condition of the law is that cohabitation should not harm the faithful one, and these things can be determined in diverse ways according to diverse circumstances of affairs, it comes about that the law of the Lord could be fulfilled now in this way, now in that, and that once Christianity was already grown, it has sometimes been fulfilled, and is fulfilled, otherwise among unbelieving nations, otherwise among Christian ones.

VI. It is asked finally, when and how is the marriage which the convert to the faith contracted in infidelity dissolved? The power to dissolve it is had when one of the enumerated conditions exists; but it is dissolved when another marriage is contracted. This is manifest from c. Gaudemus; for Innocent says: "But if she should follow the one converted to the faith, and herself converted (who had before refused to cohabit, etc.), before he, on account of the aforesaid causes, takes a legitimate wife, he will be compelled to receive her." Therefore until another marriage is contracted, the prior bond remains; this therefore is dissolved as soon as the second marriage is made, just as the corruption of one and the generation of the other are simultaneous. Therefore the prior marriage is dissolved not intrinsically from the will of one spouse, but extrinsically from the law of God, with the second marriage intervening, which is ratified.

VII. This is the privilege granted by God in favor of the faith received by baptism, which Paul promulgated, teaching that when the unbelieving one departs, the brother, that is, the Christian, is not subject to servitude in this matter, namely in the bond of marriage contracted with an unbelieving one. The reason for this privilege sufficiently appears, namely, both on account of the dignity of the sacrament of faith, and at the same time on account of the necessity by which the faithful one is bound to avoid cohabitation with the unbelieving one in these cases. In peace, says the Apostle, God has called us: namely, God wills that agreement in the faith and peace obtain in the family and in Christian society. But since Christ did not wish anyone to be obliged to the celibate life without his own will, and the obligation of continence would be a most grave burden imposed on neophytes and could deter unbelievers themselves from conversion, it was granted to the baptized under these conditions to enter other nuptials (Sanchez, ibid.). Moreover both from the words of Paul and from the interpretation of the Church it is clear that any marriage whatever of unbelievers, and the same even consummated, can be dissolved in favor of the faith.

Yet note what Innocent teaches in c. Quanto: "But if one of the faithful spouses either lapses into heresy or passes into the error of gentility, we do not believe that in this case the one who is left can, while the other is living, fly to second nuptials, although in this case a greater insult to the Creator appears. For although true marriage exists between unbelievers, nevertheless it is not ratified; but between believers true and ratified marriage exists, because the sacrament of Faith, which once has been admitted, is never lost; but it makes the sacrament of marriage ratified, so that it endures in the spouses themselves while that sacrament lasts." And the Council of Trent defined this, de Matrim., can. 5. Namely, the dignity of the sacrament prevails over the liberty of the innocent one and prevents that privilege from being granted to the innocent spouse; and Paul accurately warned that the faithful one is not subject to servitude in such a case, that is, in this obligation with an unbelieving one, of which he speaks. Therefore it is not lawful to extend the privilege of Christ to others; its supreme reason, finally, is the will of God manifested by the Apostle.

VIII. Since by the privilege of Christ promulgated by the Apostle the marriage which a convert to the faith contracted in infidelity can be severed, provided, nevertheless, that certain conditions exist, it is necessary for this, that the convert (at least existing in an unbelieving nation, where the cohabitation of unbelievers is not prohibited) may be able lawfully to use that privilege, that he know that these conditions, or some one sufficient from these, are present. Wherefore it is necessary that the faithful one be made more certain that the unbelieving spouse is unwilling to cohabit, or, if he wishes to cohabit, that he is not going to cohabit without injury to the Creator, or without attempting to draw the faithful one to sin. But if for some cause knowledge of this sort cannot be obtained, either because the spouse is absent and it is unknown where in the world he or she may be, or because, since someone has had several wives, he does not know which is legitimate, there is no place for the use of this privilege. But this inconvenience can be met by another way. Namely, the Roman Pontiff has power in these circumstances of dissolving a marriage contracted in infidelity, even consummated, and thus of making the faculty for the convert to marry whomever he wishes in the Lord. For if the Roman Pontiff can dissolve a ratified marriage, which is a sacrament, he can also dissolve a consummated marriage of unbelievers, which has less firmness. Indeed, 1. that marriage is dissolved by the ratified marriage of one converted to the faith; therefore it is less firm than it. 2. Indissolubility belongs to marriage chiefly by reason of signification; but that signification is had by a stronger right in sacramental marriage, and especially in consummated sacramental marriage. Therefore marriage, even consummated marriage of unbelievers, since it is not properly a sacrament, is less firm than ratified marriage (q. LIX, a. 5, ad 1); therefore. The Roman Pontiffs have asserted this power for themselves and have used it, Pius V in the Apostolic letters Romani Pontificis and Gregory XIII in the Apostolic letters Quoniam saepe contingit, and others. Moreover Pius V has these things: Since, as we have received, several wives are permitted to Indians remaining in their infidelity, whom they themselves also repudiate for very slight causes, it has therefore happened that those receiving baptism have been permitted to remain with that wife who exists together with the baptized husband (you would certainly wrongly demonstrate that this was rightly done from the Pauline privilege). And because it often happens that she is not the first, whence both ministers and bishops are tormented by very grave scruples, thinking that that is not a true marriage; but because it would be very hard to separate them from the wives with whom those Indians themselves received baptism, especially because it would be very difficult to find the first spouse: therefore, wishing kindly to provide with paternal affection for the state of the said Indians, and to free the bishops and ministers themselves from scruples of this sort, by our own motion and from our certain knowledge and from the fullness of Apostolic power, we declare by Apostolic authority, by the tenor of these presents, that Indians baptized in this way, as is premised, and those to be baptized in the future, should have to remain with the wife who was baptized and will be baptized with them, as with a legitimate wife, the others having been dismissed, and that the marriage between them stands as legitimate (therefore he also approves for the future the practice commemorated from the beginning). Likewise Gregory XIII speaks thus: "We, attending to the fact that marriages of this sort contracted among unbelievers are indeed true, yet are not judged so ratified that, necessity urging, they cannot be dissolved, grant to each of the ordinaries and pastors of the said places ... the faculty of dispensing with any Christian faithful of either sex inhabiting the said regions ... that any one of them, even with the unbelieving spouse surviving and his or her consent by no means required, and without awaiting a response (therefore also in the hypothesis that the spouse does not depart), may be able lawfully to contract marriages with any faithful person, otherwise however duly, and afterward to remain in them, once consummated by carnal copula, as long as they live." From these things you have two points: 1. the reason indicated beneath why marriage of this sort can be dissolved, namely because it is not ratified as Christian marriage is, or it is less firm than ratified marriage, that is, it does not enjoy perfect firmness; 2. that these marriages are dissolved by the authority of the Roman Pontiff delegated to him by God. For he who dispenses and grants the faculty of dispensing produces the effect by authority inherent in himself, either proper or delegated; but the Roman Pontiff conducted himself in this way.

IX. You will object two things. 1. It is the opinion of Benedict XIV (De Syn., l. XIII, c. 21) that in these things the Roman Pontiffs acted only as interpreters of divine law, tempering the rigor of canonical laws in that which pertains to the judicial interpellation which would have to be made to the unbelieving spouse.

I answer, 1. that an authentic interpretation of divine law is itself also a certain act of authority; 2. that this private opinion of Benedict XIV cannot be received. For an interpretation of law does not change the law nor establish a new law; but the divine law promulgated by Paul is one thing, and this law which is contained in the letters of the Roman Pontiffs is another. For even if it is not established that the unbelieving one is unwilling to dwell without harm to the faithful one, even then, when the cohabitation of both is licit, there is made by the Roman Pontiff a power of dissolving the bond; but this would not yet be lawful if account were taken only of the Pauline privilege. And certainly it is strange that it is denied that the Pontiff dispenses by his own authority, when Gregory expressly affirms that he dispenses and grants the faculty of dispensing, and indeed because the consummated marriage of unbelievers is less firm than ratified marriage. To what purpose is this reason, if there were question of tempering the rigor of canonical laws as regards the use of the Pauline privilege? Cf. Ballerini, Op. Th. Mor., v. VI, n. 706 ff.

You object, 2. that consummated marriage of unbelievers is stronger than ratified marriage of Christians, because ratified marriage signifies that union of Christ the Lord by which he joins himself to just souls; but consummated marriage signifies the union of Christ with the Church through the assumption of flesh, as Innocent III teaches, c. Debitum, de Bigamis; and therefore consummated marriage is firmer. But consummated marriage of unbelievers also represents the union of Christ with the Church through the incarnation; for "the sacrament of marriage exists among believers and unbelievers, as the Apostle shows," says the same Innocent, c. Gaudemus, de divortiis.

I answer, 1. that these things do not cohere with the judgment of Gregory XIII reported above; 2. if the reason of the indissolubility of consummated marriage is only the representation of the union of Christ with the Church through the incarnation, and this is said to be had equally in consummated marriage of unbelievers and of believers, it must be said that consummated marriage of unbelievers is altogether, even extrinsically, indissoluble in every case. But this is false, for it is dissolved in favor of the one converted to the faith. 3. When ratified marriage is said to represent the union of God with the soul of the just man, this must not be taken exclusively, as we already warned in Thesis XXIV; for it too signifies the union of Christ with the Church through will and love, which will and love are perpetual (Master of the Sentences, in IV, d. 26, n. 6), and then it also signifies, although less perfectly, the perpetual union of Christ with the Church through the assumption of flesh. For the mutual obligation, by which each hands over his body to the other, so that it may be the other's, sufficiently signifies the union of Christ with the Church through flesh. But because in ratified marriage the bond of souls is eminent, while in consummated marriage the commingling of flesh is eminent, hence the representation of the union of Christ with the Church through will, which union is a certain bond of souls and has place in the very union of Christ with the Church, is appropriated to ratified marriage; but the representation of the union through the assumption of flesh is appropriated to consummated marriage. And because finally the union of God with the Church through grace contains the union of God through grace with individual just persons, which is soluble, hence, since it was established from elsewhere that ratified marriage can sometimes be dissolved, in order to explain this it was said that ratified marriage represents the union of God with just souls (q. LXI, a. 2, ad 1), not excluding the representation of the other union of Christ with the Church, but excluding only the perfect representation of the union through the assumption of flesh. That this explanation of the signification of ratified marriage is to be taken in this way is evident from this, that when the solubility of ratified marriage had to be demonstrated, appeal was made to the proper argument, that is, to tradition (cf. the things adduced above); it is evident again from this, that although the union of Christ God through grace with a just man is dissolved by the will of man, nevertheless it was not thence inferred that ratified marriage could be dissolved by the will of the spouses, and they wished that this marriage, except in the case of a privilege granted by God, be firm, even if a spouse should receive sacred orders or pass over to infidelity; the reason for this last point is brought forward by Innocent III, because ratified marriage is a Sacrament.

Accordingly, 4. we answer that the efficient reason why consummated marriage of Christians is extrinsically also indissoluble is indeed the will of God, but that the reason of fittingness, by which, as it were, God is conceived as determined to willing this, is the representation of the union of Christ with the Church through the assumption of flesh, but that representation which is made by sacramental marriage. If this condition is lacking, marriage is less firm, not indeed intrinsically but extrinsically. And because this intrinsic condition precedes consummation, from which extrinsic insolubility arises, and when the former is removed the consequent is removed, hence it is not strange that marriages which are not ratified have less firmness than those simply ratified. Namely, the dignity of the Sacrament is that on which extrinsic indissolubility depends. "Indissolubility belongs to the bond of marriage especially insofar as it is a Sacrament," says Pius VII in the letters given to the Archbishop of Mainz, October 3, 1803.

Wherefore, 5. although we do not deny that even marriages of unbelievers which are made according to the primitive institution, and therefore endowed with unity and indissolubility, and the same marriages consummated, represent in some measure the union of Christ with the Church, which signification was established for marriage in the very institution, nevertheless there is not yet a firm reason of perfect indissolubility; because the character of the sacrament is lacking, through which the union of Christ with the Church is signified in a perfect mode, that is, according to the character of holiness.

X. Here again someone may seize the occasion of arguing against the indissolubility of marriage established above, or against the suasive argument drawn from reason, since now so many marriages, even consummated, are most easily dissolved, without reason complaining.

I answer that deservedly reason ceases from complaints. For the arguments which reason can bring forward in favor of marriage duly entered upon, than which none more excellent can be had, certainly lose their force if they are brought forward in favor of an imperfect marriage not exacted to that norm which the Savior of the human race restored by recalling the first institution and perfected by completing it, so that it could be said by Ambrose that the marriages of unbelievers are not from God. Indeed, the danger to the faith which would arise of itself is a greater evil than any other inconvenience of one remaining in infidelity.

The Pauline privilege does not pertain only to those who follow the Catholic faith, but to all who have professed the Christian faith by the reception of baptism.

I. The question can be raised whether the Pauline privilege has force also when some unbeliever is indeed converted, yet not to the Catholic Church but to a heretical or schismatic sect; for example, if some Turk should embrace the schism of the Greeks or the Anglican sect. There will perhaps be some to whom the privilege seems not to have force for men of this sort. For the privilege is said to have been granted in favor of the faith; but in heretical sects there is not faith, or heresy is not faith, but a vice opposed to faith. What of the fact that Innocent III, c. Gaudemus cited above, in explaining this privilege, expressly makes mention of the Catholic faith? "If one," he says, "of the unbelievers is converted to the Catholic faith, etc." And indeed what reason is there why Christ should be believed to have wished to grant a privilege to his enemies, who are worse than pagan unbelievers (2a 2ae, q. X, a. 6), when punishment, not benefit, is owed to them?

II. Nevertheless I answer that unless sects of this sort have so fallen away that they have retained only the name of Christianity, and are therefore such that in them the religion of the true God and Christian profession, although vitiated, still flourish, and therefore baptism still obtains, the Pauline privilege seems to us to have force for them also. We know that Cardinal Camillus Tarquini composed a dissertation affirming this opinion, which nevertheless was not published, nor have we been able to find a manuscript copy. The reason by which we are moved is indeed one, yet proceeding, as it were, through certain steps. Namely, that privilege rests, as on an intrinsic condition, on disparity of worship; but Christian worship, although in sects separated from the Catholic Church, is in reality disparate from the worship of unbelievers, whether they are Jews or pagans. A certain indication of this matter is that there is no marriage of a heretic with a pagan or Jew because of the impediment of disparity of worship. But the right of using this privilege is acquired by the very fact that baptism has been received, which is the sacrament of faith; for certainly this right does not belong to catechumens, although perfectly believing. Therefore it is not faith alone, but the profession of Christian faith through baptism, or in other words the sacrament of faith, which confers such a right. But in heretical or schismatic sects also there is profession of the Christian faith through reception of baptism, or there is the sacrament of faith. Therefore. As regards schismatics indeed there is no difficulty in this matter; but as regards heretics, observe with St. Thomas, 2a 2ae, q. XI, a. 1, that "heresy is a species of unbelief pertaining to those who profess the faith of Christ, but corrupt its dogmas." Therefore, although in heretics there is not the interior habit of infused faith, nevertheless there is the exterior profession of Christian faith, although vitiated, and there is a true sacrament of faith, which is the solemn profession of the Christian faith. Now, according to the mind of theologians, the right of using this privilege is traced back to the power of baptism itself. "He who approaches baptism is regenerated in Christ and dies to the former life, since the generation of one thing is the corruption of another. And therefore he is freed from the obligation by which he was held to render the debt to his wife, and he is not held to cohabit with her when she is unwilling to be converted" (in Suppl., q. LIX, a. 4); and "if she is unwilling to cohabit without injury to the Creator ... the faithful husband departing can be joined to another through marriage" (ibid., a. 5). Therefore all baptized persons enjoy this right. Finally, at that time the marriage contracted in infidelity is dissolved when the convert enters another marriage. But the efficacy of this marriage is customarily explained in this way: that "the stronger bond always dissolves the less strong, if it is contrary to it ... and marriage in infidelity is not altogether firm and ratified" (ibid., a. 5, ad 1), that is, it is not altogether firm because it is not ratified. Therefore the matter is conceived thus, that the second marriage dissolves that which preceded because that which the convert enters is ratified. But the marriage of any baptized person whatever is ratified. "The sacrament of faith, which once admitted is never lost, makes the sacrament of marriage ratified" (c. Quanto cited). Therefore, if account is taken of the reason of this common explanation, it is evident that theologians recognize the right of the Pauline privilege where the sacrament of faith has existed, and therefore also in schismatics and heretics having true baptism.

This indeed is the common persuasion of theologians, as is clear even from the fact that, when they discuss the Pauline privilege accurately and one by one, they do not even touch on this distinction between a Catholic Christian and a heretical Christian, or they do not ask whether Catholics alone, or other baptized persons also, enjoy that privilege.

There can be no reason for this omission except this: namely, because it was evident to all that the faithful brother and sister of whom Paul speaks are the same as the baptized.

III. What, then, must be said to those things which were proposed for the contrary opinion? To the first we answer that the profession of Christian faith and the sacrament of faith are found also in heretical and schismatic sects; but the faith in favor of which the privilege is said to have been granted is the profession of Christian faith, is the sacrament of faith. Nevertheless, because God of himself does not will there to be anything except the profession of the Catholic Christian faith, it is permissible to concede that first and of itself (by priority of nature, not of time) this privilege was granted to the profession of Christian faith and to baptism received in the Catholic Church, but secondarily, on account of the identity of baptism and generic communion in the profession of Christian faith, it was extended also to heretical sects. Indeed, if (per impossibile) only heretical sects existed, not the Catholic Church, we do not think that God would have granted any privilege to them. To the second we answer that Innocent there names the Catholic faith because previously in the same place mention of the same had occurred, and the question proposed to the Pontiff was in reality concerned with this fact, that some unbeliever had been converted to the Catholic faith. Wherefore only historically is that appositive Catholic added to faith by Innocent, not however dogmatically, so that it would determine the necessary conditions for the force of the privilege; therefore those words are not to be taken exclusively. To the third we say that the privilege was granted not on account of heresy or schism, but on account of the profession of Christian faith and baptism. But although the persons may be evil, this does not prevent them from having those things which follow upon baptism from the will of God and do not require the state of justice, just as they can also be had by evil Catholics. But what is affirmed concerning the greater malice of heretics than pagans is true if you consider the crimes subjectively; but if objectively you compare pagan or Jewish worship after Christ with the profession of the Christian religion, although corrupted in certain dogmas, that assertion is certainly false. Cf. St. Thomas, 2a 2ae, q. cited, and Ballerini, Opus Th. Mor., v. 6, n. 683 ff.

I say 1°. Marriage is indissoluble, that is, once Marriage has been contracted, divorce as regards the bond cannot take place. It is established 1°. from the words of Christ, Matt. xix, 6: "And so now they are not two, but one flesh. What therefore God has joined together, let man not separate." It is established 2°. from the Council of Trent, sess. 24, can. 5. - It is established 3°. from prop. 67 of the Syllabus, which has itself thus: "By the law of nature the bond of Marriage is not indissoluble, and in various cases divorce properly so called can be sanctioned by civil authority." - Wherefore the Third Plenary Council of Baltimore established: "that the penalty of excommunication ... reserved to the Ordinary is incurred by the very fact by those who, after they have obtained civil divorce, shall have dared to attempt Marriage." - Cf. Third Plenary Council of Baltimore, n. 124.

I say 2°. A valid marriage, ratified and consummated, can be dissolved by no human power and by no cause except death (Can. 1118).

Nevertheless a threefold case is to be excepted, as follows:

1°. A ratified and non-consummated Marriage of Christians can be dissolved, for a grave cause, through dispensation of the Pope, by power divinely granted to him. This is clear from the fact that the Supreme Pontiffs have already used this power many times, as St. Gregory VII, Paul III, etc. Indeed, this faculty is to be extended also to Marriages consummated in infidelity, if the spouses after Baptism, by which properly the Marriage becomes ratified, have not consummated it again. - Cf. Perrone, de Matrimonio Christiano, vol. 3, sect. 2, cap. 6, art. 4; S. Alphonsus, nn. 956 and 959; Baller. note (b), p. 728.

2°. A ratified and non-consummated Marriage can be dissolved through the solemn religious profession of one of the spouses, and this by a special privilege granted by Christ and declared by the Church. For thus the Council of Trent has it, sess. 24, can. 6: "If anyone shall say that a ratified non-consummated Marriage is not dissolved through the solemn profession of Religion of one of the spouses, let him be anathema." The things which are said here under nn. 1° and 2° are clear also from Canon 1119:

A non-consummated marriage between baptized persons, or between a baptized party and a non-baptized party, is dissolved both by the law itself through solemn religious profession, and through dispensation granted by the Apostolic See for a just cause, with each party requesting or either party, even if the other is unwilling (Can. 1119).¹

3°. § 1. A legitimate marriage between non-baptized persons, although consummated, is dissolved in favor of the faith by the Pauline privilege (Can. 1120), when either of the spouses is converted through Baptism to the Christian faith, and the other refuses to cohabit peacefully with him or does not cohabit except with injury to the Creator and contempt of the Christian religion, or applies an effort to draw the faithful party into mortal sin. This divine concession is drawn from the words of the Apostle, I Cor. vii, 12, where it is said: "If any brother has an unbelieving wife and she consents to dwell with him, let him not put her away ...; but if the unbeliever departs, let him depart; for a brother or sister is not subject to servitude in such cases: but God has called us in peace." Innocent III explains the same more fully in cap. Quanto 7, de divortiis. - Cf. Third Plenary Council of Baltimore, n. 128; S. Alphonsus, n. 956; Lehmkuhl, nn. 721 and following; Acta S. Sedis, vol. 22, p. 745 and following; Amer. Eccl. Rev., vol. 4, p. 1 and following, and vol. 16, p. 328 and following.

¹ Cf. Addenda, p. 1130, n. 90.

Question 1. Once a marriage has validly been contracted by dispensation between an unbeliever and a Catholic, can this latter use the Pauline privilege if the unbelieving party afterward departs or is unwilling to cohabit without injury to the Creator?

Resp. § 2. This privilege does not obtain in a marriage between a baptized party and a non-baptized party entered with dispensation from the impediment of disparity of cult (Can. 1120).

Question 2. To whom, and under what conditions, is it licit to use the privilege?

Resp. It is clear 1°. that this privilege belongs only to the true and legitimate husband with respect to a true and legitimate wife, and vice versa; it is clear 2°. that the converted spouse cannot enjoy this privilege except after Baptism has been received and after an interpellation has been duly made to the other spouse concerning embracing the evangelical truth and promising peaceful cohabitation; it is clear 3°. that there can be no place for this privilege if both spouses are converted to the faith at the same time.

§ 1. Before the converted and baptized spouse validly contracts a new marriage, with the prescription of Can. 1125 preserved, he must interpellate the non-baptized party:

1°. Whether that party also wishes to be converted and receive Baptism;

2°. Whether at least that party wishes to cohabit peacefully with him without contumely of the Creator.

§ 2. These interpellations must always be made, unless the Apostolic See has declared otherwise (Can. 1121).

Question 3. How must these interpellations be made?

Resp. § 1. Interpellations are to be made regularly, at least in summary and extrajudicial form, by the authority of the Ordinary of the converted spouse; by this Ordinary, delays for deliberating are also to be granted to the unbelieving spouse, if indeed that spouse has sought them, with this one nevertheless admonished that, once the delays have passed uselessly, the response will be presumed negative.

§ 2. Interpellations even made privately by the converted party himself are valid; indeed they are also licit if the form prescribed above cannot be observed. Nevertheless, in this case, for the external forum, the fact of them must be established by at least two witnesses or by another legitimate mode of proof (Can. 1122).

Question 4. When at last does the baptized party have the right of contracting new nuptials?

Resp. If the interpellations were omitted by declaration of the Apostolic See, or if the unbeliever has responded negatively to the same expressly or tacitly, the baptized party has the right of contracting new nuptials with a Catholic person, unless that party after Baptism has given to the non-baptized party a just cause for departing (Can. 1123).¹

¹ Cf. Addenda, p. 1131, n. 91.

Question 5. Is the Pauline privilege valid also in the case in which, after the conversion of one, the unbelieving party consents to cohabit peacefully, and then, with counsel changed, tempts the faithful one or departs?

Resp. The faithful spouse, although after receiving Baptism he again has lived matrimonially with the unbelieving party, nevertheless does not lose the right of celebrating new nuptials with a Catholic person; and therefore he can use this right if the unbelieving spouse, with will changed, later departs without just cause, or now no longer cohabits peacefully without contumely of the Creator (Can. 1124).

Question 6. What must be said of a marriage entered after dispensation from interpellation when it becomes known that the unbelieving spouse could not declare his will and had been converted to the faith?

Resp. It is valid. This has been declared very many times. S. Off., 4 Feb. 1891; Gregory XIII, 25 Jan. 1585.

Those things which regard marriage in the constitutions of Paul III, Altitudo, 1 June 1537; of S. Pius V, Romani Pontificis, 2 Aug. 1571; of Gregory XIII, Populis, 25 Jan. 1585, and which were written for particular places, are extended also to other regions in the same circumstances (Can. 1125).¹

¹ Cf. Addenda, p. 1131, n. 92.

Question 7. What is the force of that dispensation in that case, if the second marriage is valid?

Resp. Its force is to dissolve the bond of a ratified and non-consummated marriage of the faithful. For the co-parties of the first wedlock, at the time of the contract of the second marriage, were both baptized. Therefore, at the moment of Baptism received by each, that first wedlock became a ratified marriage; and since after the Baptism of each it had not been consummated, it was had as ratified and non-consummated. But the Supreme Pontiff can dissolve a marriage ratified and non-consummated. Therefore.

Question 8. Immediately after the Baptism of one and the departure of the other party, is the Marriage dissolved?

Resp. Negatively. According to the same divine privilege, the spouse converted to the faith, at the very point of conversion, is not understood to be loosed from the bond of the marriage contracted with an unbeliever still surviving; but then, if the unbelieving spouse refuses, he acquires the right of passing to other nuptials, nevertheless with a faithful spouse. S. Off., 11 July 1866. - Cp. Si quis, 28, q. 2; and Cp. Gaudemus, 8, De Divortiis: Crimes are loosed in Baptism, not marriages.

Question 9. Is the prior marriage dissolved by the very fact that the converted person has betaken himself to second nuptials?

Resp. The bond of the prior wedlock, contracted in infidelity, is dissolved only then when the faithful party has in fact validly entered new nuptials (Can. 1126).

Question 10. Can an unbelieving spouse validly enter a new Marriage, if after his departure the party converted to the faith has emitted religious profession, or received sacred Orders, or made a simple vow of chastity?

Resp. He can indeed in the case of religious profession, if the Marriage was not consummated after the reception of Baptism, because then it is dissolved by force of the other privilege declared by the Council of Trent, sess. 24, can. 6. - Not likewise in the case of reception of sacred Orders, or emission of a simple vow of chastity, because then the first matrimonial bond remains entire. But if the unbelieving spouse is converted, cohabitation is certainly not permitted to him if the co-party has received sacred Orders, and according to some also in the case of a simple vow of chastity, because the state assumed is incompossible with conjugal life. - Cf. Baller. note (c), p. 734.

Question 11. Is the Pauline privilege valid also in the case in which conversion is made through reception of Baptism in some non-Catholic sect?

Resp. Many think that then also it is valid, if nevertheless the other conditions are not lacking, because then too the substance of conversion is verified, namely reception of valid Baptism, as is supposed. - Cf. Baller. note (a), p. 736, at the end.

Question 12. How manyfold is the object concerning which interpellation is to be made?

Resp. As is established from what has been said, that object is twofold, unless an apostolic dispensation is given. Cf. S. Off., 20 June 1886; S. C. de Prop. F., 17 Jan. 1836; S. Off., 8 June 1836.

Question 13. What kind of departure suffices for the Pauline Privilege to enter?

Resp. The physical or moral departure of the unbelieving party itself suffices; nor is it required that the physical departure have been malicious.

"Since the favor of the faith fights on the side of the converted spouse, he can use it from whatever cause, provided it is just, namely if he has not given to the other spouse a just and reasonable motive for departing, yet in such a way that only then is the yoke of the matrimonial bond with the unbeliever understood to be loosed, when the converted spouse (the other refusing after interpellation to be converted) passes to other vows with a faithful person."

And therefore it has place when the unbeliever departs from hatred of the faith or on account of discords or on account of another cause diverse from the faith (S. Off., 5 Aug. 1759), even when the unbeliever refuses to live with the faithful one without contumely of the Creator, or attempts to draw the faithful one to sin or to infidelity, or refuses to desist from concubinage. It enters also if the unbelieving party wishes to be converted, but in no way consents to live with the faithful one, provided the unbelieving party remains in infidelity; it enters if the unbelieving party cannot cohabit with the faithful one, because, for example, by force she has been taken away from the man so that there is no hope of recovering her, or if she wishes to be converted and indeed would wish to cohabit with him, but can neither practice the religion nor cohabit. It enters, I say, provided this party remains in infidelity. S. Off., 8 July 1891. Besides, dispensation from interpellation has not once only been given on account of the insanity of the unbelieving party herself, who could not be interpellated. Therefore physical departure, malicious or not malicious, and moral departure suffice for the privilege to enter.

Question 14. Was this interpellation also before the New Code necessary for the validity of the marriage of the faithful one who wished to use the privilege?

Resp. Affirmatively; there are so many cases in which marriages have been declared null which had been entered without interpellation, that the negative opinion must be held simply as not safe.

Such responses are: A neophyte had contracted wedlock with a Christian woman, saying nothing about the wedlock contracted in infidelity. What must be thought of the marriage of the said man with the Christian girl, contracted without interpellation and dispensation? Resp. From the things brought forward, the first marriage subsists. S. Off., 20 June 1858; S. Off., 17 Jan. 1900; 5 Aug. 1795. In a similar manner, in the Korean persecution it sometimes happened "that in the use of the privilege of faith the unbelieving spouse, converted and baptized, omitted interpellation toward the spouse remaining in infidelity, although in many cases this interpellation was perhaps necessary or at least of doubtful obligation." (Thus in the supplicatory petition.) It was answered: "But as regards marriages contracted without the interpellation of the unbelieving spouse having preceded in the accustomed manner, or a dispensation from it having been obtained, let the Apostolic Vicar, from the faculty which is granted to him, dispense from the interpellation to be made, and altogether procure that consent be renewed; but in those cases in which he judges that this renewal cannot be made for now, let him be silent, if the putative spouses are in good faith."

S. C. de Prop. F., 5 March 1816. Whether, for the effect of dissolving marriage according to the privilege in favor of the faith granted by Christ the Lord and promulgated by the Apostle, the interpellation of the party persevering in infidelity is of divine law, and therefore so necessary that, if it is neglected, no place at all is had for dissolving the marriage; or whether it pertains only to judicial form, and is not required except so that the dissolution be made licitly, especially when otherwise it is established by morally certain indications that the other spouse wishes neither to embrace the faith nor to cohabit without contumely of the Creator? R. to 1. "There is no place for the dissolution of a marriage contracted in infidelity, unless interpellation has first been made, or unless, from legitimate causes, an Apostolic dispensation concerning the interpellation has been obtained."

Question 15. What are the causes on account of which the Holy See dispenses from interpellation?

Resp. A twofold case, ordinary and extraordinary, must be considered in the faculty of dispensing from interpellation. The ordinary case occurs then, namely, when all diligences have first been employed, even through public newspapers, for finding the place where the unbelieving spouse dwells, and these have fallen into vain result, and it is established at least summarily and extrajudicially that the absent spouse cannot legitimately be admonished or, having been admonished, has not signified his will within the time fixed beforehand. The other occurs when the unbelieving spouse can indeed be approached, but he cannot be interpellated concerning the co-party having become Christian without evident danger of grave damage to be brought upon that co-party or upon Christians; S. Off., 29 Nov. 1882; or if it is seriously doubted whether the neophyte truly took any of his women as wife. 8 June 1836.

Question 16. What must be said if the faithful party gave the cause of departure?

Resp. If the faithful party after conversion should furnish to the unbelieving party a just and reasonable cause of departing, say, through adultery, the privilege of faith would not remain entire. It is otherwise if the cause occurred before baptism, because this sacrament blots out the crime. Instr. S. C. de Prop. F., 30 Jan. 1807; S. O., 19 April 1899. - Cf. D'Annibale, vol. 3, n. 475.

Question 17. When is the interpellation to be made?

Resp. This interpellation is to be made after baptism, unless the Supreme Pontiff himself has otherwise granted the power of interpellating the unbelieving party before baptism. Indeed, the S. Off., 15 June 1850, affirms that it is of divine law, resolving a case in which an unbelieving woman responded that she wished to be converted and cohabit but was detained by a second husband or by a creditor who did not permit her to leave. Question: whether in this case the converted man can pass to other nuptials? "Affirmatively, namely, that the converted man concerning whom it is a question, if he has not legitimately been dispensed by the Apostolic See, is bound by divine precept to make in the present case an interpellation once to the other spouse; but he can do so several times from mere charity. But once this divinely enjoined condition has been fulfilled by the converted man, if the pagan wife has not returned to him within some just and reasonable space of time, the aforesaid converted man can licitly and validly enter other nuptials with a Christian woman, however, provided the man is not the cause of the impediment by which the woman is detained." Thus the S. Off.

1°. Practically in every case either interpellation is to be made, or pontifical dispensation from interpellation is to be obtained.

2°. But it is to be noted that second nuptials to be entered after interpellation or dispensation must be entered only with a faithful person, without permission of the Apostolic See.

3°. Neither divorce nor a second civil marriage exempts anyone from the obligation of making interpellation.

4°. But insofar as neither interpellation nor dispensation from the same has preceded, the first marriage will obstruct the second; but the Ordinary ought to suspend judgment and remit the case with all its circumstances to the Holy See, which will indicate to the Ordinary himself what must be done. S. C. de Prop. F., Instruction on ecclesiastical judgments concerning matrimonial causes, given in the year 1883.

In a doubtful matter the privilege of faith enjoys the favor of law (Can. 1127).¹

¹ Cf. Addenda, p. 1134, n. 93.

I say. Spouses must preserve the communion of conjugal life, unless a just cause excuses them (Can. 1128), on account of which divorce from bed or habitation can take place, while nevertheless the conjugal bond remains, so that neither party can enter another Marriage before the death of the other. The first is drawn from the definition itself of Marriage. The other is established by the Council of Trent, sess. 24, can. 8: "If anyone shall say that the Church errs when, on account of many causes, she decrees that separation between spouses, as regards bed or as regards habitation, can take place for a determinate or indeterminate time, let him be anathema." But the causes rendering a divorce of this kind honorable are: mutual consent, grave danger of soul or body, and adultery of either party; which causes you will understand thus for practice.

1°. Mutual consent: namely, each spouse together can renounce his proper right as regards the bed, whether for a time or in perpetuity, provided danger of incontinence is absent. Likewise they can be separated also as regards habitation, whether for a time on account of affairs, or in perpetuity on account of desire for a more perfect life, for example, for entering Religion or receiving sacred Orders. - Cf. Baller. note (b), p. 741.

2°. § 1. On account of the adultery of a spouse, the other spouse, with the bond remaining, has the right of dissolving, even in perpetuity, the communion of life, unless he has consented to the crime, or has given cause for it, or has expressly or tacitly condoned it, or has also himself committed the same crime.

§ 2. Tacit condonation is had if the innocent spouse, after he has been made more certain concerning the crime of adultery, has freely lived with the other spouse with marital affection; but it is presumed unless within six months he has expelled or deserted the adulterous spouse, or has made a legitimate accusation (Can. 1129).

The innocent spouse, whether he has legitimately departed by sentence of the judge or by his own authority, is never bound by any obligation to admit again the adulterous spouse to the companionship of life; but he can admit or recall the same, unless from his consent that one has assumed a state contrary to marriage (Can. 1130).

It is clear from the words of Christ, Matt. v, 32: "He who puts away his wife, except for the cause of fornication, makes her commit adultery, etc." But if this is licit for the man, by the same reason it must also be licit for the wife.

It is helpful to notice that, according to the common opinion of doctors, here under the name of adultery there is understood any division of flesh, even that which is had through sodomy and bestiality. - Cf. S. Alphonsus, n. 962.

3°. § 1. If the other spouse has given his name to a non-Catholic sect; if he has educated the offspring non-Catholically; if he leads a criminal and ignominious life; if he brings about grave danger, whether of soul or of body, for the other; if by cruelties he renders common life too difficult, these and other things of this kind are so many legitimate causes of departing for the other spouse, by authority of the Ordinary of the place, and even by his own authority, if they are certainly established and there is danger in delay.

§ 2. In all these cases, when the cause of separation ceases, the custom of life is to be restored; but if the separation has been pronounced by the Ordinary for a determinate or indeterminate time, the innocent spouse is not bound to this unless by decree of the Ordinary or when the time has passed (Can. 1131).

Question. Is the man, once the adultery of his wife is known, bound to put her away?

Resp. It is certain that he is not bound by reason of the adultery, because divorce was conceded in favor of the innocent one, not for his punishment. Nevertheless the man can sometimes be bound to put away the adulterous wife by reason of fraternal correction or of avoiding scandal; but that case is rare, both because other means can be employed for correcting the wife or avoiding scandal, and because grave scandal to be feared from separation can excuse. From another side, the wife cast out would be exposed to greater danger, at least for the most part. - Cf. S. Alphonsus, n. 963.

Here it must be carefully noted that the confessor in this matter needs great prudence. Wherefore he should rarely permit divorce from bed made by private authority, and still more rarely if the crime is occult, even if it is certain. Let him beware besides lest he believe too easily the complaints of wives against husbands; and let him take pains to restrain them and turn them away from divorce insofar as it can be done. Cf. S. Alphonsus, n. 969.

It must also be noted that it is by no means licit for spouses to seek civil separation from bed and board without having consulted ecclesiastical authority. For thus speak the Fathers of the Third Plenary Council of Baltimore, n. 126: "We command all those who are joined in marriage not to approach civil tribunals to obtain separation from bed and board, without ecclesiastical authority having been consulted. But if anyone should attempt it, let him know that he incurs grave guilt and is to be punished according to the judgment of the Bishop."

Once separation has been instituted, the children are to be educated with the innocent spouse, and if one of the spouses is non-Catholic, with the Catholic spouse, unless in each case the Ordinary, for the good of the children themselves, with their Catholic education always preserved, has decreed otherwise (Can. 1132).