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 DISPARITY

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DISPARITY

them away from it or its practices. The Catholic pe- titioner for the dispensation must also give promise (usually also written, in order that the dispenser may have a moral certainty of the absence of danger to the substantial ends of the sacrament) that he (or she) will strictly attend to his (or her) personal religious duties and have all the children baptized and properly reared and trained in the Catholic doctrme and prac- tice, and that by prayer and good example and other legitimate and prudent means he (or she) will con- stantly labour to bring about the conversion to the Catholic Faith of his (or her) unbaptized partner. The promise to strive to effect the conversion of the unbeliever is of special importance, although too fre- quently lost sight of. The conversion most assuredly eliminates the last vestige of possible perversion of the Catholic party, ensures the primary end of marriage, j. e. the bearing and rearing of children for the Chiu-ch and heaven, and rounds out, by the perfect unity of the married couple in faith and Christian love, their marriage according to its great tj-pe, the imion of Christ with the Church. Even with all these prom- ises, written and sworn to as safeguards to Christian marriage, a dispensation cannot be licitly given \inless a grave necessity, proportionate to the great risks to be encountered, justifies the marriage.

This dispensation, in former days very rarely granted in Catholic countries, is now of more frequent occurrence, owing to the existence of "civil mar- riage'' and the growing indifference on the part of parents in the matter of their children's baptism. The rule of the Church was, and is, not to grant a dis- pensation from this impediment unless in provinces or countries where the i'atholics are largely outnum- bered by the non-baptized inhabitants. Rather than dispense from the disparity of worship, the Church wUl more willingly and readily grant dispensation from the diriment impediments of affinity and consan- guinity, precisely for the reason that in the latter cases there is no danger to the faith of either Catholic or offspring, while in the case of the former, even though the necessary promises are made and kept, there is always danger of religious indifference on the part of the Catholic parent, and especially of the children on account of the example of the non-baptized parent. The pope alone suo jure can dispense with this impedi- ment ; bishops cannot. They, however, are dele- gated to do so, but in the pope's name and by virtue of the delegated authority. Thus the bishops in pagan countries— Chhia, Japan, ,\frica, etc. — and in coun- tries where the unbaptized largely outnumber the Catholics, as England, I'nited States, etc., have ample faculties in respect of this impediment. To-day the only case (and should there be danger in delay it is not: see Formula T, 11 June, 1907) reserved to Rome in the faculties granted to bishops of the United States is that of a Catholic with an orthodox Jew, i. e. a cir- cumcised follower of Judaism. The case of a Jew un- cireumcised, or even circumcised if he has abandoned Judaism, is not reserved.

This delegated faculty to bishops is given only for a specified period of five years or for a certain number of cases and requires that the bishop in granting a dis- pensation must state that it was conceded by virtue of Apostolic delegation of specified date. Where the impediment is occult, and there is danger in delay, bishops may dispense without express faculty of Rome, which in such cases is presumed to grant it. All Ijishops can (decrees of Congreg. of Inquis., 20 Feb., 18SS, and 1 March, 1SS9) dispense, and delegate the parish priests to dispense, from the impediment of disparity of worship in the case of one who is in danger of death but is only ci^•illy married or lives in concu- binage. The aforesaid promises cannot be omitted. The sick party must promise ab.solutely to observe the requirements" of the natural and Divine laws, and to carry out the injunctions of the ecclesiastical law as

far as possible (Collectanea S. C. de Prop. Fide, n. 2188). Bishops cannot dispense in instances where the ends, purposes, and substantial blessings of the sacrament are well protected, unless there also exists a grave and proportionately weighty reason. There are sixteen canonical reasons, some grave and others stUl more grave (Instruct. S. C. de Prop. Fide, 9 May, 1877). Should the bishop dispense without cause, the dispensation would be null and void. The pope's dispensation, in a similar case labouring under the same defect, would be valid. The reason of this dif- ference is that a bishop cannot violate the law of his superior (in this instance the universal law), whereas the pope, who is supreme legislator, can dispense from imiversal ecclesiastical laws. He cannot, however, do so validly with the prohibition of the natural and Divine laws; hence he must have, before conceding the dispensation, a moral certainty that the practice of the Faith by the Catholic, and the Catholic bap- tism and rearing of the children, are amply protected. The Holy See dispenses from this impediment only for the gravest reasons and only m express terms (Col- lectanea S. C. de Prop. Fide, n. 948, 2); hence a dis- pensation from mixed religion instead of disparity of worship would not suffice for the validity of the mar- riage.

All the European Governments (except Austria) ignore this impediment. The Austrian impediment is different from the ecclesiastical impediment. Its basis is the profession of faith, and not the baptism of the parties, and so far as Catholicism is concerned, this civil impediment is more injurious than otherwise. .\ccording to the Austrian law, the marriage of a Cath- olic with a Jew, or other unbaptized party, is civilly invalid as long as the Catholic remains in the Catholic Church. Should the Catholic leave the Church, and announce that he (or she) held no belief in any faith, the marriage with an unbaptized partner would be civilly valid. Unbaptized parties can, on the other hantl, enter into ci\illy valid marriage with baptized Protestants. The Church in granting dispensation from disparity of worship, thus permitting the mar- riage of a Catholic and an unbaptized person, by that act dispenses also from all impediments of purely ecclesiastical mstitution, from which the imbaptized is exempt (except clandestinity; cf. "Praxis CuriEe Romance"; "NeTemere", 2 Aug., 1907); the Church does this in order that the exemption of the unbap- tized maj', on account of the indissolubility of the marriage, be communicated to the Catholic party (Congreg. of Inquis., 3 March, 1825). This dispensa- tion ne\er includes dispensation in any degree in the direct line nor in the first degree of the transverse line (Ga.sparri, op. cit., nos. 700, 701). This impediment, which is puhlici ]\iris, can be invoked by any Catholic to annul a marriage contracted without the necessary dispensation. The burden of proof rests upon the challenger, who must clearly demonstrate that there was either no act of baptismal administration or that the act of administration which actually took place was certainly invalid. The usual canonical laws of eviilence are supplementeil by special laws laid down for the demonstration of the ceremony or the validity of the baptism. The customary norm (c. iii, X, De presby. non-bap., Ill, .xliii) in case of practical Catho- lics does not govern the cases of non-Catholics or negligent Catholics. The rules prescribed by the Congreg. of the Inquisition (1 .\ug., 1883, and 5 Feb., 1851) for the verification of the fact or non-fact of the baptism, as also of the validity of the act, must be strictly followed.

ScHMALZGRi-BER, Bk. IV, tit. \T, sect. 4; Ferraris. Bibli- olheca (Rome, 1SS9), V, 301 sq.; Pirhing, Jus. Can. (Dillingen, 1678), Bk. IV, tit. i, sect. 6; Feije, De Imped, el Dispen. Malri- monialibus (Louvain, 1874), xx; Gasparri. De Alalrimonio (Paris, 1S93), I, 401 sqq.; BalLerini, Opu.:, Tliiol. Morale (Prato, 1894), VI, De Mntrimnnio, .'J30 sq.; Haint:, Thtol. Moralis Elemi-nla (Lnuv.iin. 1900), IV, 15S sqq.; W'lKvz, Jii.i Dreret. (Rome, 1901), I\', 7.59-Sl; Uosset, De Sncrmm-nto MiUrimonii